Copyright © 2021 Albuquerque Journal
SANTA FE – The association representing New Mexico counties says it’s been unable to obtain extra insurance coverage to handle claims under the newly established state Civil Rights Act, exposing taxpayers to more legal risk.
Steve Kopelman, executive director of New Mexico Counties, said the limited insurance coverage increases the chances that a county government will have to add a civil rights judgment to its tax rolls and make property owners pick up the tab.
“All it’s going to take is one catastrophic loss when there’s no insurance,” Kopelman told state lawmakers Tuesday. “I think we’re going to see some really, really scary situations.”
His assessment came in a legislative hearing at the Capitol as county representatives outlined their legislative priorities – much of which center on the cost of operating jails, including legal liability.
Democratic legislators, in turn, pushed back on the idea that legal costs should be an overriding consideration in the protection of civil rights. The new law, they said, bolsters accountability when government wrongdoing results in, say, the abuse of a child or killing of an innocent person.
“It’s about protecting the rights of individuals who for far too long have gone unprotected,” House Majority Leader Javier Martinez, D-Albuquerque, said of the new law.
Tuesday’s back-and-forth comes as New Mexico legislators hold hearings ahead of a 30-day legislative session set to start Jan. 18. A special session dedicated to redistricting is also expected in December.
The county representatives told lawmakers Tuesday that they expect to ask for state funding to help offset the cost of housing state inmates in county jails.
Jails are usually filled by people serving short sentences or just arrested by law enforcement officers. But they also handle state inmates accused of probation or parole violations and state inmates awaiting transfer to state prison.
The counties contend they are reimbursed for only $2 million of the $50 million it costs to house state inmates.
Rep. Larry Scott, R-Hobbs, asked about the financial impact of House Bill 4 – civil rights legislation that grew out of protests against racism and police brutality.
The measure established a state Civil Rights Act that allows the filing of lawsuits in state court to recover financial damages if a public agency or officer violates a person’s rights under the state Bill of Rights.
The law also bars qualified immunity as a defense to the claims, in contrast to litigation handled in federal court.
Kopelman said the counties’ insurance pool – which covers 29 of the 33 counties in the state – generally offers insurance of up to $2 million for each event that triggers an allegation of a civil rights violation.
The association has an insurance carrier for more expensive claims, he said, but the carrier won’t cover claims filed under the state civil rights law.
The counties are still looking for the extra insurance, which is known as “reinsurance” because it complements the first level of coverage.
Without the extra level of insurance, Kopelman said, counties might have to add a civil rights judgment to the tax rolls, resulting in a property tax increase.
“That’s more than a little scary,” Scott said.
House Bill 4 limits civil rights claims to $2 million per person. But if more than one person makes a claim involving the same event, Kopelman said, the liability could climb into the tens of millions of dollars.
He said Lea County – which isn’t covered by the association’s insurance pool – saw its premiums for law enforcement and detention jump from about $300,000 a year to $675,000.
It could be years before the full impact is clear. Kopelman said the association had seen five claims under the law since it went into effect July 1.
Democratic legislators suggested counties focus on preventing civil rights violations before they happen.
“What have you done to make sure we are changing the way in which our officers are trained to prevent those claims from even occurring in the first place?” Democratic Rep. Pamelya Herndon of Albuquerque asked.
Martinez, the House majority leader, urged the counties to keep in mind the harm endured by real people involved in civil rights litigation. New Mexico courts, he added, should help weed out needless claims.
Kopelman told lawmakers that the counties have an accreditation program for jails and other strategies intended to improve training and limit legal exposure.