Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

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

SPONSOR Martinez

DATE TYPED 2/9/05

HB

SHORT TITLE Waive Court Fees For Parties In Poverty

SB 618

ANALYST Hanika-Ortiz

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

$0.1

See Narrative Recurring

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Administrative Office of the Courts (AOC)

Office of the Attorney General (AGO)

SUMMARY

Synopsis of Bill

Senate Bill 618 mandates free process for filing civil and criminal actions for persons at or below

150% of the Federal Poverty Guideline (FPG) in the Supreme Court, Probate Court, District

Courts, Magistrate and Metropolitan Courts and indigent appeals. The court may also waive any

fees or order free process in special circumstances upon a showing of inability to pay. The provi-

sion for free process does not apply if the trial court certifies in writing that the appeal is not

taken in good faith (frivolous).

Significant Issues

Section 2, subsection B, paragraph 1, on page 3, amends the District Court fee policy, but a dis-

tinction is made between civil and criminal action. In a civil action the court shall order free

process following the poverty guideline cited above. In a criminal action, the court shall apply

the standard for indigence pursuant to the Public Defender Act, which is lower.

Senate Bill 618 -- Page 2

The AGO has the following comment:

SB 618 would impact existing local rules for eligibility determination for indigent defense ser-

vices.

“Construction of the Public Defender Act (PDA) or other statutes addressing legal repre-

sentation of indigent criminal defendants must recognize and support fact that courts are

vested with statutory authority to evaluate indigence of criminal defendants in protecting

constitutional right to counsel.” See

State ex rel. Quintana v. Schnedar.

The PDA states that "a needy person who is being detained by a law enforcement officer"

is "entitled to be represented by an attorney" who "shall be provided at public expense."

Section 31-16-3. Section 31-16-5, "Determination of indigence," states: A. The determi-

nation of whether a person …is a needy person shall be deferred until his first appear-

ance...thereafter, the court concerned shall determine, with respect to each proceeding,

whether he is a needy person.

B. In determining whether a person is a needy person and

the extent of his inability to pay, the court may consider such factors as income, property

owned, outstanding obligations and the number and ages of his dependents. The PDA re-

peatedly refers to the courts as the proper authority for assessing a defendant's indigence.

Construction of the PDA or other statutes addressing legal representation of indigent

criminal defendants must therefore recognize and support the fact that courts are vested

with the statutory authority to evaluate the indigence of criminal defendants in protecting

the constitutional right to counsel.

PERFORMANCE IMPLICATIONS

The AGO states SB 618 may create a potential conflict between the courts and the legislature

and a separation of powers issue.

SB 618 would not change the In Forma Pauperis standard used by the Court of Appeals. The

PDD believes access to the courts (particularly the highest court of the state) is a right of all citi-

zens and should not be denied because of inability to pay fees.

FISCAL IMPLICATIONS

The AGO reports SB 618 could reduce court income while increasing administrative expenses.

ADMINISTRATIVE IMPLICATIONS

AOC reports a minimal increase in staff time and resources necessary to process applications,

monitor changes in federal guidelines and to evaluate the income of a person. The AGO dis-

agrees and believes there could be a considerable increase in staff time and resources, but ac-

knowledges AOC, DFA, and other agencies have more practical expertise in this area.

TECHNICAL ISSUES

The AGO reports a conflict between the In Forma Pauperis standard used at the Court of Ap-

peals and the 150% of FPG used in other courts. The AGO also reports the additional conflict

between civil and criminal cases at the District Court level, requiring the 150% standard for civil

Senate Bill 618 -- Page 3

cases and the PDD standard for criminal cases (lower).

The AGO states SB 618 may create a two step process that would first require a judge to grant

free process upon a showing of indigence, and then make a determination if appeal is frivolous.

ALTERNATIVES

The AGO suggests creating a uniform system based upon In Forma Pauperis.

The Legislature could agree to recognize and support the statutory authority of the courts to de-

termine indigence.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

The law would remain as it is.

AHO/yr