SENATE MEMORIAL 44

49th legislature - STATE OF NEW MEXICO - second session, 2010

INTRODUCED BY

Timothy Z. Jennings

A MEMORIAL

REQUESTING ALL STATE AGENCIES AND BRANCHES OF GOVERNMENT TO ASSIST AND EXPEDITE THE RECOVERY OF STATE FUNDS PURSUANT TO THE FRAUD AGAINST TAXPAYERS ACT.

     WHEREAS, in 2007, the legislature enacted the Fraud Against Taxpayers Act to provide swift and effective civil remedies whereby the state of New Mexico can recover damages if the state and state agencies have been the victim of fraud and false or fraudulent claims; and

     WHEREAS, the purpose of the Fraud Against Taxpayers Act is to recover money for taxpayers and to put money back into the state treasury and other state agencies if the state has been damaged by fraudulent conduct; and

     WHEREAS, the legislature enacted the Fraud Against Taxpayers Act to encourage and reward qui tam plaintiffs and counsel who are willing to undertake the risks and burdens of attempting to recover money for the state of New Mexico; and

     WHEREAS, sovereign immunity is not an obstacle to actions under the Fraud Against Taxpayers Act because lawsuits under the act are actions by and on behalf of the state, not against the state, wherein the state as a sovereign entity is seeking to recover damages; and

     WHEREAS, the attorney general does not currently have the resources to prosecute all qui tam cases, having only one staff attorney to handle approximately one hundred twenty-five cases pending under the federal and state qui tam statutes; and

     WHEREAS, the state of New Mexico is facing a severe fiscal crisis due to the current recession, which was caused in part by abuses in the financial industry; and

     WHEREAS, it is in the best interests of the state of New Mexico to maximize its civil recoveries if the state and state agencies have been victimized by violations of the Fraud Against Taxpayers Act; and

     WHEREAS, the state's ability to recover funds is jeopardized if these cases are delayed; and

     WHEREAS, it is in the interest of justice and of all parties concerned that cases under the Fraud Against Taxpayers Act be pursued and adjudicated as quickly as possible so that the state can recover damages in appropriate cases and defendants can be cleared of liability as quickly as possible if they have done nothing wrong; and

     WHEREAS, legislation may be introduced during the 2011 session to expedite cases under the Fraud Against Taxpayers Act on the civil docket, but such legislation is not germane in the current session; and

     WHEREAS, recoveries under the Fraud Against Taxpayers Act are hampered if state agencies do not cooperate fully in providing documents and evidence and testimony that might support the state's efforts to recover money from persons outside or inside state government who may have violated the act; and

     WHEREAS, public trust and confidence are undermined when an agency fails to cooperate fully with efforts to recover public money that an agency has lost;

     NOW, THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF NEW MEXICO that all state agencies and branches of government be requested to assist and expedite the recovery of state funds pursuant to the Fraud Against Taxpayers Act and to cooperate fully in providing documents and evidence and testimony that might support the state's efforts to recover money from persons who may have violated the Fraud Against Taxpayers Act, whether such persons are outside or inside of state government, and to expedite the adjudication of cases under the Fraud Against Taxpayers Act so that defendants are cleared of civil liability as soon as possible if they have not violated the act and defendants are held liable if they violated the act; and

     BE IT FURTHER RESOLVED that copies of this memorial be transmitted to the governor, the attorney general, the chief justice of the New Mexico supreme court, the state investment council, the educational retirement board, the administrative office of the courts, the risk management division of the general services department and any other agency or person that might support the state's effort to recover money under the Fraud Against Taxpayers Act.

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