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

SPONSOR Park

ORIGINAL DATE

LAST UPDATED

1/30/06

HB 255

SHORT TITLE Judicial Standards Commission Subpoenas

SB

ANALYST McSherry

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY06

FY07

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Administrative Office of the Courts (AOC)

Attorney General’s Office (AGO)

SUMMARY

Synopsis of Bill

House Bill 255, “

Judicial Standards Commission Subpoenas

” proposes to amend section 34-10-2,

NMSA 1978 “Judicial Standards Commission—Duties—Subpoena Power” to clarify the power

of the Judicial Standards Commission to issue subpoenas to compel the attendance of witnesses

and the production of any books, records, documents or other evidence relevant to an investiga-

tion or hearing.

FISCAL IMPLICATIONS

None known.

SIGNIFICANT ISSUES

According to AGO, the bill could create greater efficiency in the administrative function of the

Commission as well as continue and support the autonomy of the body. AOC cites the Commis-

sion’s subpoena authority as the subject of litigation in the state Supreme Court in a case entitled,

“New Mexico, ex rel. New Mexico Judicial Standards Commission v. Judge Geraldine Rivera

House Bill 255 – Page

2

and Randy M. Chavez, Real Party in Interest, (Case No. 29,239). OAG asserts that the Supreme

Court issued an opinion upholding the Commission’s authority.

AOC reports that this bill is consistent with the above listed Supreme Court decision which en-

couraged the Commission to promulgate rules to eliminate district courts from its subpoena proc-

ess, similar to how the Disciplinary Bard subpoenas witnesses.

AGO reports that the power to issue subpoenas is consistent with the Commission’s ena-

bling law found in the state constitution Article VI, Section 32 of the New Mexico Con-

stitution. The state constitution creates the “Judicial standards commission” and assigns

it the task of investigating judicial misconduct and delineates the scope of its authority

and requires confidentiality in its proceedings:

“The commission may, after investigation it deems necessary, order a hearing to

be held before it concerning the discipline, removal or retirement of a justice,

judge or magistrate, or the commission may appoint three masters who are jus-

tices or judges of courts of record to hear and take evidence in the matter and to

report their findings to the commission. After hearing or after considering the re-

cord and the findings and report of the masters, if the commission finds good

cause, it shall recommend to the Supreme Court the discipline, removal or retire-

ment of the justice, judge or magistrate… All papers filed with the commission or

its masters, and proceedings before the commission or its masters, are confiden-

tial. The filing of papers and giving of testimony before the commission or its

masters is privileged in any action for defamation, except that the record filed by

the commission in the supreme court continues privileged but, upon its filing,

loses its confidential character, and a writing which was privileged prior to its fil-

ing with the commission or its masters does not lose its privilege by the filing.

. . . The commission shall promulgate regulations establishing procedures for

hearings under this section. . . .

AGO points out that, as a constitutionally created agency, the Judicial Standards Commission

was expressly empowered by the legislature with the role of acting as the investigative body in

matters of judicial misconduct. See State v. Espinosa, 2003-NMSC-017, 134 N.M. 59, 73 P.3D

197 (2003).

This bill removes the requirement that the Commission petition a district court to subpoena wit-

nesses and the production of documents

The bill proposes to remove the requirement that a concurrence of a majority of the members of

the Commission to file a subpoena petition in district court. OAG asserts that the language of

HB 255, as proposed, would not provide for whether the Commission itself would need a con-

currence of a majority of the Commission to issue a subpoena.

The bill proposes to remove language requiring the showing of probable cause by the Commis-

sion for the issuance of a subpoena. It is unclear what standard the Commission will use to re-

view subpoenas. AGO offers that, because attorneys are members of the Commission, as well as

laypersons, the attorneys should determine and ensure the propriety of each subpoena issued by

the Commission.

House Bill 255 – Page

3

PERFORMANCE IMPLICATIONS

It is possible that the commission would be able to have hearings in a more efficient manner with

the proposed changes, particularly the removal of the requirement for the commission to petition

the district court and the requirement for a majority of the commission members

ADMINISTRATIVE IMPLICATIONS

According to AOC, a minimal reduction is court time and effort would result from the proposed

statute changes.

OTHER SUBSTANTIVE ISSUES

AGO proposes that HB 255 would clarify the constitutionally established power of the Commis-

sion in a manner that will make the administrative function of the Commission more efficient,

while assuring the Commission’s independence.

AGO points out that the Commission was created to be an independent overseer of the state judi-

ciary. According to AGO, the subpoena power provided by HB 255 will insure the proper ad-

ministrative function of the Commission.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

If House Bill 255 is not enacted, probable cause will still need to be shown in order for the

Commission to petition a district court to issue subpoenas. The commission will continue to be

required to gain concurrence of a majority of the members of the commission to petition a court

to subpoenas.

POSSIBLE QUESTIONS

1.

What will the commission’s standard for reviewing subpoenas.

2.

Would the commission have to have a majority concurrence in order to issue a subpoena

if the requirement were removed to petition a district court.

EM/yr