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SPONSOR: |
Robinson |
DATE TYPED: |
02/27/03 |
HB |
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SHORT TITLE: |
Authority for Child & Spousal Support
Orders |
SB |
817 |
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ANALYST: |
Weber |
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APPROPRIATION
Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Attorney
General
Human
Services Department
SUMMARY
Synopsis
of Bill
Senate Bill 817 (SB
817) would authorize administrative establishment of child and medical support
orders through child support hearing officers.
SB 817 would grant Hearing Officers the power to
“issue and modify support orders and orders of withholding, impose and remove
liens, determine parentage, impose civil penalties and take all other actions
necessary to ensure compliance with support obligations.”
SB 817 would grant these Hearing Officers “concurrent jurisdiction with the district courts in all actions brought: (a) to enforce or modify support orders resulting from a dissolution of marriage; (b) pursuant to the Support Enforcement Act; (c) pursuant to the Mandatory Medical Support Act; (d) pursuant to the Uniform Interstate Family Support Act; or (e) pursuant to the Uniform parentage Act.”
SB 817 grants
Hearing Officers adjudicatory powers possessed by the district courts for cases
within their jurisdiction, and permits parties to appeal from a decision of the
hearing Officer to the Court of Appeals.
It
corrects language to comport with the Temporary Assistance for Needy Families
program instead of the former Aid For Dependent Children program.
SB
817 would establish the procedure for appeal from a Child Support Hearing
Officer’s decisions directly to the Court of Appeals.
The Hearing Officer positions would be exempt positions appointed by the Human Services Department (HSD) Secretary.
Significant
Issues
The Human Services
Department reports that the grant of concurrent jurisdiction with the District
Courts for cases within the Hearing Officers’ jurisdiction, with a right to
appeal Hearing Officer decisions to the Court of Appeals, creates a
mini-district court judgeship for these hearing officers, which appears to run
afoul of:
a) N.M.
Const. Art. III, Section 1 regarding the distribution of powers between the
three branches of government
b) N.M.
Const. Art. VI, Section 1 regarding the judicial power vested in the courts; see
e.g. Mowrer v. Rusk, 95 N.M. 48 (1980).
c) N.M.
Const. Art. VI, Section 13 establishing District Court Jurisdiction
d) N.M.
Const. Section 14 establishing District Court Judges’ qualification
e) the
purpose and mission of the Judicial
Standards Commission, which could not review the qualifications or conduct of
these Hearing Officers as it could for other judges
The
designation of the positions as “exempt” may hinder a hearing officer’s
independent judgment and discretion.
Exempt positions may also result in high turnover, which may have
negative impact on scheduling and consistency in the decisions rendered through
this process.
The
Attorney General adds this bill would significantly limit the scope of judicial
review of a hearing officer’s order by restricting appellate review to that
limited to the record made before the hearing officer, in contrast to the
existing law, which allows a district to conduct a de novo (new evidentiary)
hearing if it chooses.
Conduct
occurring before a hearing officer who is the employee of an executive agency
rather than the judicial branch may not be found to constitute contempt
committed before a court, and thus may not be subject to punishment in the same
manner or to the same extent as that committed before a court.
TECHNICAL ISSUES
The Attorney General points out the following
technical matters.
a)
In
Section 20(D), line 18 on page 38 refers to “court” at the end of the
sentence. It appears that that
reference is actually to a hearing conducted by a hearing officer, and that
reference should be corrected to so reflect.
b)
In
Section 22(B), lines 10-12 on page 40, the bill directs that the procedure for
perfecting an appeal to the court of
appeals “shall be as provided in the Rules of Appellate Procedure”. As they exist currently, there is no rule of
appellate procedure that applies when an appeal is taken directly from a
hearing officer’s order to the court of appeals, without going through district
court. Either this provision should be
restructured, or a new rule will be necessary.
c)
A
provision setting out the proper venue for a hearing under the Child Support
Hearing Officer Act should be added.
MW/yr