HOUSE BILL 348
48th legislature - STATE OF NEW MEXICO - first session, 2007
INTRODUCED BY
Al Park
FOR THE COURTS, CORRECTIONS AND JUSTICE COMMITTEE
AN ACT
RELATING TO THE PUBLIC DEFENDER; CREATING THE PUBLIC DEFENDER COMMISSION TO OVERSEE THE OPERATION OF THE PUBLIC DEFENDER DEPARTMENT AS AN ADJUNCT AGENCY AND TO DEVELOP STANDARDS; MODIFYING THE APPOINTMENT, QUALIFICATIONS AND REMOVAL OF THE CHIEF PUBLIC DEFENDER; DETACHING THE PUBLIC DEFENDER DEPARTMENT FROM THE CORRECTIONS DEPARTMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. Section 31-15-1 NMSA 1978 (being Laws 1973, Chapter 156, Section 1) is amended to read:
"31-15-1. SHORT TITLE.--[This act] Chapter 31, Article 15 NMSA 1978 may be cited as the "Public Defender Act"."
Section 2. Section 31-15-2 NMSA 1978 (being Laws 1973, Chapter 156, Section 2, as amended) is amended to read:
"31-15-2. DEFINITIONS.--As used in the Public Defender Act:
A. "chief" means the chief public defender;
B. "commission" means the public defender commission;
[A.] C. "court" means the district, [courts] metropolitan and magistrate courts of this state;
[B.] D. "department" means the public defender department;
[C.] E. "district" means [the] a public defender district; and
[D.] F. "judge" means a judge of the district or metropolitan court or a magistrate [and
E. "chief" means the chief public defender]."
Section 3. A new section of the Public Defender Act is enacted to read:
"[NEW MATERIAL] PUBLIC DEFENDER COMMISSION--CREATED--MEMBERSHIP--TERMS--REMOVAL.--
A. The "public defender commission" is created and consists of eleven members. Each of the following shall appoint one member:
(1) the governor;
(2) the chief justice of the New Mexico
supreme court;
(3) the speaker of the house;
(4) the president pro tempore of the senate;
(5) the dean of the university of New Mexico school of law;
(6) the New Mexico women's bar association;
(7) the New Mexico criminal defense lawyers association;
(8) the juvenile justice advisory committee;
(9) the New Mexico Hispanic bar association;
(10) the New Mexico Indian bar association; and
(11) the New Mexico black lawyers association.
B. Initial appointments to the commission shall be made by September 1, 2007. Initial terms of members appointed by the dean of the university of New Mexico school of law, the New Mexico women's bar association, the New Mexico criminal defense lawyers association and the juvenile justice advisory committee shall be for four years; initial terms of members appointed by the New Mexico Hispanic bar association, the New Mexico Indian bar association and the New Mexico black lawyers association shall be for three years; and initial terms of members appointed by the governor, chief justice of the New Mexico supreme court, speaker of the house and president pro tempore of the senate shall be for two years.
C. Subsequent terms shall be for four years. A commission member shall not serve more than two consecutive terms. A commission member shall serve until the member's successor has been appointed and qualified. A vacancy on the commission shall be filled by the appointing authority for the remainder of the unexpired term.
D. A member may be removed by the commission for malfeasance, misfeasance or neglect of duty. If a member's professional status changes to render the member ineligible pursuant to Section 4 of this 2007 act, the member shall resign immediately.
E. Members of the commission are entitled to compensation pursuant to the provisions of the Per Diem and Mileage Act and shall receive no other perquisite, compensation or allowance.
F. The commission is administratively attached to the department, and staff for the commission shall be provided by the department."
Section 4. A new section of the Public Defender Act is enacted to read:
"[NEW MATERIAL] PUBLIC DEFENDER COMMISSION--MEMBER QUALIFICATIONS.--
A. A person appointed to the commission shall:
(1) have significant experience in the defense of criminal or juvenile justice cases; or
(2) demonstrate a commitment to quality indigent defense representation or to working with and advocating for the population served by the department.
B. The following persons shall not be appointed to and shall not serve on the commission:
(1) prosecutors, law enforcement officials or employees of prosecutors or law enforcement officials;
(2) public defenders or other employees of the department;
(3) judges, judicial officials or employees of judges or judicial officials;
(4) elected officials or employees of elected officials; or
(5) persons who contract with or receive funding from the department or employees of such persons."
Section 5. A new section of the Public Defender Act is enacted to read:
"[NEW MATERIAL] PUBLIC DEFENDER COMMISSION--ORGANIZATION--MEETINGS.--
A. The commission shall hold its first meeting by October 1, 2007 and shall organize and elect a chair at that meeting. Thereafter, three or more meetings shall be held annually as determined by a majority of commission members. Meetings shall be held at the call of the chair or the chief or at the request of four commission members.
B. A majority of commission members constitutes a quorum for the transaction of business, and an action by the commission is not valid unless six or more members concur.
C. The commission may adopt rules and shall keep a record of its proceedings.
D. A commission member may select a designee to serve in the member's stead only once per year."
Section 6. A new section of the Public Defender Act is enacted to read:
"[NEW MATERIAL] PUBLIC DEFENDER COMMISSION--POWERS AND DUTIES.--
A. The commission shall exercise independent oversight of the department and provide guidance to the chief in the administration of the department and the representation of indigent persons pursuant to the Public Defender Act.
B. The commission shall develop fair and consistent standards for the operation of the department and the provision of services pursuant to the Public Defender Act, including standards relating to:
(1) the minimum experience, training and qualifications for appointed, contract and staff attorneys in both adult and juvenile cases;
(2) monitoring and evaluating appointed, contract and staff attorneys;
(3) ethically responsible caseload and workload levels and workload monitoring protocols for staff attorneys, contract attorneys and district defender offices;
(4) the competent and efficient representation of clients whose cases present conflicts of interest; and
(5) qualifications and performance in capital cases at the trial, appellate and post-conviction levels."
Section 7. Section 31-15-4 NMSA 1978 (being Laws 1973, Chapter 156, Section 4, as amended) is amended to read:
"31-15-4. CHIEF PUBLIC DEFENDER--APPOINTMENT--QUALIFICATIONS--REMOVAL.--
A. The [governor shall appoint the] chief [who] shall be the administrative head of the department. [Any] The commission shall appoint a chief for a term of four years by approval of two-thirds of its members. The commission may reappoint a chief for subsequent terms. A vacancy in the office of the chief shall be filled by appointment [of] by the [governor] commission.
B. The [governor] commission shall appoint as chief only a person with the following qualifications:
(1) an attorney licensed to practice law in the highest court of this state or who will be so licensed within one year of appointment;
(2) an attorney whose practice of law has been continuously active for at least [five] ten years immediately preceding the date of this appointment; and
(3) an attorney whose practice of law has clearly demonstrated experience in defense [or prosecution] of persons accused of crime [in this state].
C. The chief [shall serve at the pleasure of the governor] may be removed by the commission only for incompetence, neglect of duty or malfeasance in office; provided, however, that no removal shall be made without notice of hearing and an opportunity to be heard having been first given to the chief."
Section 8. Section 31-15-5 NMSA 1978 (being Laws 1978, Chapter 14, Section 1) is amended to read:
"31-15-5. PUBLIC DEFENDER DEPARTMENT--CREATION--ADMINISTRATION--FINANCE.--
A. [There is created] The "public defender department" is created as an adjunct agency of the executive branch. The headquarters of the department shall be maintained at Santa Fe. The chief shall be the administrative head of the department. [The department is administratively attached to the criminal justice department.] The commission shall oversee the department and provide guidance to the chief.
B. All salaries and other expenses of the department shall be paid by warrants of the secretary of finance and administration, supported by vouchers signed by the chief or [his] the chief's authorized representative and in accordance with budgets approved by the state budget division of the department of finance and administration."
Section 9. Section 31-15-7 NMSA 1978 (being Laws 1973, Chapter 156, Section 7, as amended) is amended to read:
"31-15-7. CHIEF PUBLIC DEFENDER--GENERAL DUTIES AND POWERS.--
A. The chief is responsible to the [governor] commission for the operation of the department. It is [his] the chief's duty to manage all operations of the department and to:
(1) administer and carry out the provisions of the Public Defender Act with which [he] the chief is charged; and
(2) exercise authority over and provide general supervision of employees of the department.
B. To perform [his] the chief's duties, the chief has every power implied as necessary for that purpose, those powers expressly enumerated in the Public Defender Act or other laws and full power and authority to:
(1) exercise general supervisory authority over all employees of the department subject to the Personnel Act;
(2) delegate authority to subordinates as [he] the chief deems necessary and appropriate;
(3) within the limitations of applicable appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge [his] the chief's duties;
(4) organize the department into those units [he] the chief deems necessary and appropriate to carry out [his] the chief's duties;
(5) conduct research and studies that will improve the operation of the department and the administration of the Public Defender Act;
(6) provide courses of instruction and practical training for employees of the department that will improve the operation of the department and the administration of the Public Defender Act;
(7) purchase or lease personal property and lease real property for the use of the department;
(8) maintain records and statistical data that reflect the operation and administration of the department;
(9) submit an annual report covering the operation of the department together with appropriate recommendations to the [governor, secretary of corrections] commission and, upon approval by the commission, to the legislature and the governor;
(10) serve as defense counsel under the Public Defender Act as necessary and appropriate;
(11) formulate a fee schedule for attorneys who are not employees of the department who serve as counsel for indigent persons under the Public Defender Act;
(12) adopt a standard to determine indigency;
(13) provide for the collection of reimbursement from each person who has received legal representation or another benefit under the Public Defender Act after a determination is made that [he] the person was not indigent according to the standard for indigency adopted by the department. Any amounts recovered shall be paid to the state treasurer for credit to the general fund;
(14) require each person who desires legal representation or another benefit under the Public Defender Act to enter into a contract with the department agreeing to reimburse the department if a determination is made that [he] the person was not indigent according to the standard for indigency adopted by the department; and
(15) certify contracts and expenditures for litigation expenses, including contracts and expenditures for professional and nonprofessional experts, investigators and witness fees, but not including attorney contracts, pursuant to the provisions of the Procurement Code [Section 13-1-98 NMSA 1978]."
Section 10. Section 9-3-1 NMSA 1978 (being Laws 1977, Chapter 257, Section 1, as amended) is amended to read:
"9-3-1. SHORT TITLE.--[Sections 9-3-1 through 9-3-12] Chapter 9, Article 3 NMSA 1978 may be cited as the "Corrections Department Act"."
Section 11. Section 9-3-11 NMSA 1978 (being Laws 1977, Chapter 257, Section 12) is amended to read:
"9-3-11. ADMINISTRATIVE ATTACHMENT.--
A. The following entities are administratively attached to the corrections department:
(1) the adult parole board; and
(2) the governor's organized crime prevention commission [and
(3) the public defender department].
B. All powers and duties vested in the entities enumerated in this section shall remain unamended by the provisions of the [Criminal Justice] Corrections Department Act."
Section 12. TEMPORARY PROVISION.--The chief public defender serving on June 30, 2007 shall continue serving until a chief public defender is appointed by the public defender commission, but shall not serve after January 1, 2008.
Section 13. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.
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