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F I S C A L I M P A C T R E P O R T

SPONSOR Komadina

DATE TYPED 2/3/05

HB

SHORT TITLE Limit Common Law Causes of Action

SB 105

ANALYST McSherry

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

NFI

NFI Indeterminate Recurring General Fund

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Attorney General’s Office (AGO)

Public Defender Office (PDO)

Administrative Office of the Courts (AOC)

SUMMARY

Synopsis of Bill

Senate Bill 105 proposes to amend NMSA Section 38-1-3 1978 relating to the adoption of the

“common law” as the rule of law within the State of New Mexico. The bill proposes to prohibit

changes in common law by disallowing the courts in New Mexico from creating new causes of

action or modifying or evolving a common law cause of action. The proposed amendment

would exempt writs of the Supreme Court “necessary or proper for the complete exercise of its

jurisdiction.”

Significant Issues

According to the Administrative Office of the Courts (AOC), the proposed changes included in

Senate Bill 105 would significantly restrict the power of the courts to change the common law.

The AOC cites that courts have had this power in the Anglo-American tradition for almost 1000

years. Whether the legislature has the power to enact this measure will be subject to judicial re-

view.

The Attorney General’s Office (AGO) asserts that should the proposed Senate Bill 105 be en-

acted, it would likely be struck down as an unconstitutional violation of the doctrine of separa-

tion of powers contained in Article III Section 1 of the New Mexico Constitution, and as a viola-

tion of Article VI Section 1 of the New Mexico Constitution which vests the judicial power of

Senate Bill 105 -- Page 2

the state in the courts.

By enacting Section 38-1-3 and its predecessors, AGO cites, “New Mexico adopted the common

law or lex non scripta and such British statutes of a general nature not local to that kingdom nor

in conflict with our Constitution or specific contrary statutes, which are applicable to our condi-

tions and circumstances and which were in force at the time of American separation from Eng-

land, and made it binding as the rule of practice and decision in the courts of this State.” Boddy v.

Boddy, 77 N.M. 149, 420 P.2d 301 (1966). However, continues AGO, the New Mexico Su-

preme Court has the power to do away with common-law principles since the common law is not

the rule of practice and decision if inapplicable to conditions in New Mexico, and if it is not ap-

plicable to the condition and circumstances it is not to be given effect. Hicks v. State, 88 N.M.

588, 544 P.2d 1153 (1975). AGO states that Senate Bill 105 does not recognize that common-

law doctrine is judicially created, and that it is within the court's province to change a common-

law doctrine if it is unwise. Lopez v. Maez, 98 N.M. 625, 651 P.2d 1269 (1982).

With regard to the bill’s attempted prohibition against courts creating new causes of action, AGO

asserts that this has been dealt with by the Judicial Branch. For example cites AGO, the Su-

preme Court in Schmitz v. Smentowski, 109 N.M. 386, 785 P.2d 726 (1990) recognized a cause

of action known as “prima facie tort”. The Court recognized that tort law was not static, and that

“it must expand to recognize changing circumstances that our evolving society brings to our at-

tention.” The Supreme Court referred to its recognition of a tort inducing a breach of contract,

and infliction of emotional distress.

Article VI Section 1 of the New Mexico Constitution vests the judicial power of the state in the

courts (and the senate when it sits as a court of impeachment). AGO cites that the right to deter-

mine controversies between individual litigants stems from the state constitution and this power

rests alone with the courts. State ex rel. Hovey Concrete Prods. Co. v. Mechem, 63 N.M. 250,

316 P.2d 1069. AGO continues that any statutory proposal under which the executive and legis-

lative branches of a municipal government can control or exercise the inherent powers of the ju-

diciary would violate the state constitution. Mowrer v. Rusk, 95 N.M. 48, 618 P.2d 886 (1980).

The Public Defender (PD) states that “Common law” means “judge made law” and that only the

judiciary has the power to change common law rules. PD continues, asserting that, prohibiting

judges from creating new common law would in effect freeze common law, which would violate

the spirit of separation of powers and would limit access to courts by preventing citizens of New

Mexico from redressing grievances for causes of action not yet perceived by society.

PERFORMANCE IMPLICATIONS

According to PD, the legal defenses and bases upon which tort claims may be defended by and

on behalf of the Risk Management Division (RMD) of the General Services Department (GSD)

would be limited with the amendments proposed in Senate Bill 105.

FISCAL IMPLICATIONS

AOC reports that the enactment of Senate Bill 105 would result in a minimal administrative cost

for statewide update, distribution, and documentation of statutory changes, and that additional

fiscal impact on the judiciary would be proportional to the administrative burden on court dock-

ets, if any.

Senate Bill 105 -- Page 3

TECHNICAL ISSUES

The Public Defender’s Office believes the exception to the prohibition for certain Supreme Court

writs included in Senate Bill 105 would be unclear and subject to interpretation.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The current common law practices and defenses available to the State of New Mexico under the

protections of the Tort Claims Act would remain available, as would the application of future

common law created torts and defenses.

EM/yr