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

SPONSOR SJC

DATE TYPED 2/23/05

HB

SHORT TITLE Domestic Violence Hearing Officer Project

SB 447/SJCS

ANALYST Medina

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to domestic violence and the Family Violence Protection Act

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General

Children, Youth, and Families Department

SUMMARY

Synopsis of Senate Judiciary Committee Substitute

Senate Judiciary Committee Substitute for Senate Bill 447 amends the Family Violence Protec-

tion Act to create and define the qualifications and duties of a domestic violence special commis-

sioner (a “domestic violence hearing officer” in the original bill) who is to serve at the pleasure

of the chief judge of the judicial district to which the officer is assigned. These duties include the

preservation and enforcement of adjudicatory powers under the Family Violence Protection Act.

The committee substitute for the bill makes changes to the qualifications and duties of the special

commissioner. First, the committee substitute removes the requirement that the special commis-

sioner’s experience in the practice of law include at least 20 percent in the area of family law or

domestic relations matters. Next, the committee substitute eliminates the requirement that the

special commissioner make a full time commitment as a special commissioner, eliminating the

restriction from engaging in private practice while a special commissioner. The committee sub-

Senate Bill 447/SJCS -- Page 2

stitute for the bill eliminates the provision in the original bill that the hearing officer/special

commissioner has the adjudicatory powers possessed by district courts under the Family Vio-

lence Protection Act and instead defines and qualifies all duties of the special commissioner as

carrying out the provisions of the Family Violence Protection Act. With respect to the specific

duties of the special commissioner, the committee substitute replaces the duties and powers in

the original bill with the following:

•

Review of petitions for orders of protection and motions to enforce and modification or

termination of orders of protection;

•

interview of petitioners, if deemed necessary;

•

conduct of hearings on the merits of petitions for orders of protection and motions to en-

force, modify or terminate these orders; and

•

preparation of recommendations to the district court regarding petitions for orders of pro-

tection and motions to enforce, modify or terminate these orders.

•

Finally, the committee substitute, having limited the powers and duties of the special commis-

sioner in the original bill, requires that all orders must be signed by a district court judge before

the recommendations of a domestic violence special commissioner become effective. The com-

mittee substitute for the bill still repeals Section 40-13-8 NMSA 1978, which addresses the do-

mestic violence pilot program in the Eleventh Judicial District. There are currently part- and full-

time domestic violence hearing officers in each judicial district. This bill simply justifies their

existence.

Significant Issues

According to the Attorney General staff analysis:

“This Amendment to the FVPA stems in part, from the recent New Mexico case of State

v Lujan wherein the Court raised serious concerns about the perceived lack of judicial re-

view of orders of protection (in other words, were orders being rubber stamped by Dis-

trict Judges without independent review). This amendment would address the concerns

raised by Lujan and clarify existing procedures followed in the order of protection proc-

ess. SB 447 defines, in subsection B. the minimum requirements for qualification as a

special hearing officer, adding more specified language as to the type of legal practice

experience and requires that a special hearing officer position be an FTE, no longer on a

part time basis or on a contract level. This may impose a fiscal burden on smaller juris-

dictions which presently contract out or employ a special hearing officer on a part time

basis only.

The powers and duties section uses the phrase in section A shall have the “adjudicatory

powers” appears as though they will be given judge-like powers rather then the intended

meaning which is explained in subsection B outlining their specific powers. Concerns

that the phrase “adjudicatory powers” will cloak the special hearing officer with the robe

of a judge is addressed by subsection C. (5) which tasks the hearing officer with prepar-

ing recommendations to the district court regarding disposition of request for orders of

protection. In other words, and maybe what should have been stated- all orders must be

signed by a district judge before the recommendations of a special hearing officer be-

come effective. Special hearing officers do not have the authority to sign the order. They

do have the authority and duty to conduct hearings, examine witnesses, take testimony,

Senate Bill 447/SJCS -- Page 3

introduce exhibits, and issue subpoenas in addition to other powers outlined in subsection

A.

However, the tasks proscribed in section C subsection 1 and 2 are incorrect. Orders of

protection in New Mexico are free, so these two subsections do not apply and should be

deleted.

This act addresses the legitimacy of the position of special hearing officer by defining

their roles.”

CONFLICT, DUPLICATION, COMPANIONSHIP OR RELATIONSHIP

According to the Attorney General staff analysis, there is currently a draft amendment for the

New Mexico Rules of Civil Procedure pending before the Supreme Court, which also addresses

these concerns.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL.

According to the Attorney General staff analysis, the Family Violence Protection Act does not

address concerns raised by State v Lujan. Without clarification of duties and powers of the spe-

cial hearing officer, concerns will continue to be raised, and the integrity of the position and

process itself questioned.

DXM/njw:yr:lg