HOUSE BILL 875

47th legislature - STATE OF NEW MEXICO - first session, 2005

INTRODUCED BY

Terry T. Marquardt

AN ACT

RELATING TO JURY SERVICE; CREATING THE LENGTHY TRIAL FUND; PROVIDING FOR EXEMPTION, POSTPONEMENT AND EXCUSE FROM JURY SERVICE; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

     Section 1. A new section of Chapter 34, Article 9 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] LENGTHY TRIAL FUND CREATED-- ADMINISTRATION--DISTRIBUTION.--

          A. The "lengthy trial fund" is created in the state treasury and shall be administered by the administrative office of the courts.

          B. All balances in the lengthy trial fund may be expended only upon appropriation by the legislature to the administrative office of the courts for the purpose of making payments to jurors as provided in this section.

          C. Each trial court in the state shall collect from each attorney who files a civil case, unless otherwise exempted under the provisions of this section, a fee per case, established by the supreme court, to be paid into the lengthy trial fund. An attorney will be deemed to have "filed a case" at the time the first pleading or other filing on which an individual attorney's name appears is submitted to the court for filing.

          D. For jurors whose service on a petit jury commenced on or after January 1, 2006, the administrative office of the courts:

                (1) shall use the fees deposited in the lengthy trial fund to pay wage replacement or supplementation to a juror otherwise eligible to be excused from service due to financial hardship as determined pursuant to Section 6 of this 2005 act beginning on the fourth day of service. The amount paid from the fund shall be no more than is needed to relieve such financial hardship and shall not exceed one hundred dollars ($100) per day per juror;

                (2) shall use the fees deposited in the lengthy trial fund to pay wage replacement or supplementation, not to exceed five hundred dollars ($500) per day, to any petit juror beginning on the tenth day of service; and

                (3) may limit the amount of payments to a juror from the lengthy trial fund based on the availability of money in the fund.

          E. A juror who is serving or has served on a jury who qualifies for payment from the lengthy trial fund, provided the service commenced on or after the effective date of this act, may submit a request for payment from the lengthy trial fund on a form that the administrative office of the courts provides. The form shall disclose the juror's regular wages, the amount the employer will pay during the term of jury service, the amount of replacement or supplemental wages requested and any other information the administrative office of the courts deems necessary for proper payment. The juror also shall be required to submit to the administrative office of the courts the juror's most recent earnings statement or similar document prior to initiation of payment from the lengthy trial fund. If a juror is self-employed or receives compensation other than wages, the juror shall provide a sworn affidavit attesting to the juror's approximate gross weekly income, together with such other information as the administrative office of the courts may require, in order to verify weekly income. Payment shall be limited to the difference between the state-paid jury fee and the actual amount of wages a juror earns, up to the maximum level payable, minus any amount the juror actually receives from an employer during the same period.

          F. The following are exempt from payment of the lengthy trial fund fee:

                (1) government attorneys appearing in the course of their official duties;

                (2) pro se litigants;

                (3) cases in small claims court; or

                (4) claims seeking social security disability determinations; individual veteran's compensation or disability determinations; recoupment actions for government-backed educational loans or mortgages; child custody and support cases; actions brought in forma pauperis; and any other filings designated by rule that involve minimal use of court resources and that customarily are not afforded the opportunity for a trial by jury.

          G. All lengthy trial fees that the courts collect and interest earned on money in the lengthy trial fund shall be credited to the fund. Payments shall be made upon certification by judicial agencies of eligible amounts. No part of the fund shall revert at the end of a fiscal year.

          H. Payments from the lengthy trial fund shall be made upon vouchers issued and signed by the director of the administrative office of the courts or the director's designee upon warrants drawn by the secretary of finance and administration."

     Section 2. Section 38-5-2 NMSA 1978 (being Laws 1973, Chapter 150, Section 1, as amended) is amended to read:

     "38-5-2. [EXEMPTION] EXEMPTIONS FROM JURY SERVICE.--Persons who have served as members of a petit jury panel or a grand jury in either state or federal courts within the preceding thirty-six months shall be exempt from sitting or serving as jurors in any of the courts of this state when they, at their option, request to be [excused] exempt from service by reason of the exemption granted by this section. [Any other person may be excused from jury service at the discretion of the judge upon satisfactory evidence presented to the judge with or without the person's personal attendance upon the court. The judge, in his discretion, upon granting any excuse, may disallow the fees and mileage of the person excused.] The service upon any jury of any person disqualified shall, of itself, not vitiate any indictment found or any verdict rendered by that jury, unless actual injury to the person complaining of the injury is shown."

     Section 3. Section 38-5-11 NMSA 1978 (being Laws 1969, Chapter 222, Section 11, as amended) is amended to read:

     "38-5-11. QUALIFYING JURY PANELS.--

           A. The court shall empanel jurors in a random manner. The district judge or [his] the judge's designee or the magistrate or [his] the magistrate's designee shall preside over the empaneling of a petit jury panel. The district judge or [his] the judge's designee shall preside over the empaneling of the grand jury panel. Jurors who appear for service shall be questioned under oath as to their eligibility for jury service by the district judge or [his] the judge's designee or the magistrate or [his] the magistrate's designee. Claims of exemption, requests for excuse from service or postponement of [services] service shall be ruled upon by the district judge or [his] the judge's designee or the magistrate or [his] the magistrate's designee.

          [B. A district judge or his designee or magistrate or his designee may excuse, exclude or postpone the services of any person called as a juror on the basis of:

                (1) physical or mental illness of the person or within his immediate family;

                (2) a written request from the person's employer for excuse on the ground that his services are essential; or

                (3) the person's prior business, professional or educational commitments which conflict with jury service, proven to the satisfaction of the district judge or his designee or magistrate or his designee.

          C.] B. The district judge or [his] the judge's designee or the magistrate or [his] the magistrate's designee shall submit questionnaires to prospective jurors to obtain any information that will aid the court in ruling on requests for exemption or excuse from service or postponement of service or that will aid the court or parties in voir dire examination of jurors or in determining a juror's qualifications to serve on a particular petit jury panel, trial jury or grand jury. The district judge or [his] the judge's designee or the magistrate or [his] the magistrate's designee shall certify a numbered list of the jury panel members' names when qualified. The certified list of jurors and the questionnaires obtained from jurors shall be made available for inspection and copying by any party to any pending proceeding or [their] any party's attorney or to any person having good cause for access to the list and the questionnaires."

     Section 4. Section 38-5-12 NMSA 1978 (being Laws 1969, Chapter 222, Section 12, as amended) is amended to read:

     "38-5-12. PETIT JURY PANELS--NUMBER TO BE QUALIFIED--PERIOD OF SERVICE--[EXEMPTION] TIME FOR SUMMONING.--The district judge shall determine the number of jurors to be summoned for service, the date and time for the appearance of jurors for qualification, the number of jurors to be qualified to provide panels of jurors for trial service, the size of trial jury panels and the length of time jurors are retained for service. Procedures such as the use of alternate jury panels should be established where appropriate to lessen the burden of jury service on persons retained on petit jury panels. [No] A person [may] shall not be required to remain as a member of a petit jury panel for longer than [six] three months following qualification as a juror in any year [and]. In any judicial district having a population of more than three hundred thousand persons in the last federal decennial census, [no person may be required to remain as a member of an actual jury panel for longer than six weeks in any calendar year unless the panel is engaged in a trial, nor shall he be required to remain as a member of a petit jury panel for longer than three months following qualification as a juror in any year. Persons who have served as members of a petit jury panel or a grand jury in either state or federal courts within the preceding thirty-six months shall be exempt from sitting or serving as jurors in any of the courts of this state when they, at their option, request to be excused from service.] service of a prospective juror shall be for no more than one court day in actual attendance, unless a prospective juror is selected to serve in a trial or is under consideration to serve at a trial and that consideration covers a period of two or more days. Once selected, a juror shall serve on the jury for the duration of the trial unless excused by the court. Jurors may be drawn, summoned and qualified by the district judge at any time to supplement jury panels requiring replacement or augmentation. Petit jury panels may be qualified and may serve as the trial needs of the district court require without regard to court terms."

     Section 5. A new section of Chapter 38, Article 5 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] POSTPONEMENT OF JURY SERVICE.--

          A. A person scheduled to appear for jury service has the right to postpone the date of initial appearance one time only. When requested, postponement shall be granted; provided that: 

                (1) the person has not previously been granted a postponement;

                (2) the person requests the postponement; and

                (3) prior to the court granting the postponement, the person sets with the court a date certain on which the person shall appear for jury service that is not more than six months after the date the person was originally called to serve.

          B. The court may approve a second request for postponement of jury service only in the event of an extreme emergency, such as a death in the family, sudden grave illness, a natural disaster or a national emergency in which the person scheduled for jury service is personally involved, that could not be anticipated at the time an initial postponement was granted. Prior to the court granting a second postponement, the person shall set with the court a date certain on which the person shall appear for jury service that is not more than six months after the second postponement.

          C. A court shall automatically postpone and reschedule the service of a person who works for an employer with five or fewer full-time employees, or their equivalent, if another employee of that employer is summoned to appear for jury service during the same period. This automatic postponement shall not affect a person's right to a postponement pursuant to Subsection A of this section.

          D. A person who fails to appear for jury service on the date scheduled or set by the court without obtaining a postponement or second postponement, as provided for in this section, is guilty of a petty misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978."

     Section 6. A new section of Chapter 38, Article 5 NMSA 1978 is enacted to read:

     "[NEW MATERIAL] EXCUSE FROM JURY SERVICE.--

          A. A person scheduled to appear for jury service may apply to the court to be excused from service for a period of time determined by the court; provided that:

                (1) the person has a mental or physical condition that causes the person to be incapable of performing jury service. The person, or the person's personal representative, shall provide to the court documentation from a licensed medical professional verifying that a mental or physical condition renders the person incapable of performing jury service for a period of time not less than the period for which the excuse is requested; or

                (2) the person, or another person under that person's care or supervision, would suffer an undue or extreme physical or financial hardship due to the jury service. The person shall provide the court with documentation that the court finds to clearly support the request to be excused and no excuse may be granted without this documentation. As used in this paragraph "undue or extreme physical or financial hardship" means circumstances in which the person requesting the excuse would:

                     (a) be required to abandon another person under that person's care or supervision due to the inability to obtain an appropriate substitute caregiver during potential jury service;

                     (b) incur costs that would have a substantial adverse impact on the payment of the person's necessary daily living expenses or on another person for whom the person requesting the excuse provides the principal means of support; or

                     (c) suffer physical hardship that would result in illness or disease.

          B. After the period of time determined by the court, a person excused from jury service shall become eligible for qualification as a juror, unless the person was excused permanently.

          C. Upon request to the court, a person seventy years of age or older shall be permanently excused from jury service."

     Section 7. Section 38-5-18 NMSA 1978 (being Laws 1979, Chapter 47, Section 1) is amended to read:

     "38-5-18. EMPLOYER PROHIBITED FROM PENALIZING EMPLOYEE FOR JURY SERVICE.--

          A. An employer shall not deprive an employee of [his] employment or threaten or otherwise coerce [him] the employee with respect [thereto] to employment because the employee receives a summons, responds [thereto] to the summons, serves as a juror or attends court for prospective jury service.

          B. If an employer provides annual, vacation or sick leave, the employer shall not require or request an employee to use that leave for time spent responding to a summons for jury service, participating in the jury selection process or serving on a jury."

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