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

SPONSOR HJC

ORIGINAL DATE

LAST UPDATED

1/30/07

3/2/07 HB 348/HJCS

SHORT TITLE

Create Public Defender Commission

SB

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB226

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Administrative Office of the Courts (AOC)

New Mexico Coalition for Justice

Administrative Office of the District Attorneys (AODA)

SUMMARY

Synopsis of Bill

House Judiciary Committee substitute for House Bill 348 amends the Public Defender Act,

Section 31-15-1 et. seq. NMSA 1978, to detach the Public Defender Department from the

Corrections Department and make it an adjunct agency of the executive branch, and creates the

Public Defender Commission to oversee the operation of the department.

Department as Adjunct Agency

HJC substitute for House Bill 348, while detaching the Public Defender Department from the

Corrections Department and making it an adjunct agency of the executive branch, provides that

the newly-created Public Defender Commission shall oversee the department and provide

guidance to the Chief Public Defender (Chief). The bill provides that the Commission appoints

the Chief Public Defender, and requires that the Chief’s annual report with recommendations be

House Bill 348/HJCS – Page

2

submitted to the Commission and, upon approval by the Commission, to the legislature and the

governor.

•

The commission shall not interfere with the discretion, judgment or advocacy of a public

defender office, a public defender contractor or an assigned counsel in the representation

of individual cases.

•

The commission shall not interfere with the duties of the chief public defender, such as

the administration of the department, the allocation and distribution of resources,

management of personnel and contracts and other duties set forth in Section 31-15-7

NMSA 1978.

It adds that the chief public defender shall submit a budget to the commission, governor and

legislature. States that the chief public defender shall continue serving until June 30, 2009 and

continue to serve until

a chief public defender is appointed by the public defender commission, but shall

not serve after January 1, 2010.

Creation of Public Defender Commission

HJC substitute House Bill 348 creates the Public Defender Commission and sets out

qualifications for members as well as meeting requirements and organizational details. The

difference in this substitute bill is that the New Mexico Hispanic bar association; the New

Mexico Indian bar association; the New Mexico black lawyers association, and the New Mexico

women's bar association will no longer be among those appointing members to the commission.

Instead the governor and the chief justice of the supreme court will each appoint two members

while the dean of the UNM law school, president of the state bar of New Mexico, the speaker of

the house, president pro tempore of the senate, NM criminal defense lawyers association and the

juvenile justice advisory committee will each appoint one member to the commission. The date

of the appointments changes September from to August 1, 2007. The duration of terms for those

appointed by dean of the UNM school of law, the New Mexico criminal defense lawyers

association and the juvenile justice advisory committee shall be for four years; the duration of

the term for commissioner appointed by the president of the state bar of New Mexico, the

speaker of the house, president pro tempore of the senate shall be three years; and the governor

and chief justice appointees shall serve for two years. The date of the commission’s first

meeting is changed from October to September 1, 2009.

The bill provides that 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." The Commission is also charged with

developing standards for the operation of the department and the provision of services pursuant

to the Public Defender Act.

FISCAL IMPLICATIONS

The members of the commission are entitled to reimbursement pursuant to the Per Diem and

Mileage Act, but otherwise receive no other compensation.

House Bill 348/HJCS – Page

3

SIGNIFICANT ISSUES

The Public Defender Department states that this bill:

1.

Would not accomplish its proponents’ goals of increased funding for the Department and

is therefore unnecessary as an addition to the existing system;

2.

Would make management of an already difficult-to-manage Department even more so;

3.

Is vague and would create confusion between the Department and the commission and

within the Department;

4.

Gives the commission duties under Section 6 related to standards and operations that the

Department already has in place and would therefore be redundant and superfluous;

5.

Would create an unnecessary additional bureaucratic layer in a system already replete

with procedural mandates; and

6.

Would create attorney-client relationship ethical problems by its existence and operation.

Proponents of this bill state the following points:

1.

The Governor, who ultimately sets law enforcement policy – administratively and

through his legislative priorities – for the state should not also be in charge of an agency

whose sole function is to protect the rights of those accused of a crime

2.

The budget increases claimed by PDD are meaningless in a vacuum: when compared to

the budgets and FTE levels of the District Attorneys, it is clear that PDD is still under-

funded and under-resourced.

The following table shows the PDD budget as compared to the district attorneys’ budget.

Fiscal Year

Public Defender

Department General

Fund

Appropriations ($ in

thousands)

Total DA Budget

(including GF and

auxiliary funding) ($

in thousands)

Disparity ($ in

thousands)

PDD Budget as a

Percentage of Total

DA Budget

2003

$29,091.9

$43,029.7

$13,937.8

67.6%

2004

$29,560.0

$50,332.0

$20,772.0

58.73%

2005

$30,638.5

$50,445.3

$19,806.8

60.74%

2006

$34,475.5

$53,146.6

$18,671.1

64.87%

2007

$36,789.8

$55,473.1

$18,683.3

66.32%

Average Over 5

Years

n/a

n/a

n/a

63.65%

The Public Defender Department adds that its recurring general fund growth from FY2003to

FY2007 increased 26.5%; contractual services growth FY2003 to FY2007 increased 14.5%

and FTE growth for the same period increased by 15.3 percent. It also reports that it gave a

5% salary increases for attorneys, which was higher than the general state employee increase

and gave salary differentials for attorneys in outlying department offices. Additionally, there

were also increases made to contract attorney fees.

The PDD points the following non-recurring special appropriations during fiscal year 2003 to

2007

•

$964,600 for Santa Rosa Cases

•

$870,000 for Santa Rosa Cases

•

$300,000 for Santa Rosa Cases

•

$250,000 for Drug Cartel Cases

House Bill 348/HJCS – Page

4

Proponents of the bill argue for increased funding and parity with the district attorney offices and

note that although the PDD has seen a 26.5% growth in its General Fund appropriation between

FY03 and FY07, during that same period, the DAs have seen a 30.8% increase, and the Courts

have seen a 32.25% increase.

In regard to FTE count the PDD does have contract attorneys working for the agency, which the

DA’s do not but the DA’s receive the support from the Administrative Office of the District

Attorneys (AODA), the Attorney General’s office, the state crime lab, and state and local police

agencies. PDD is responsible for all costs related to its administration, investigators and experts.

ADMINISTRATIVE IMPLICATIONS

The Public Defender Department argues that an independent commission, comprised of eleven

members, would make administration of the department more difficult because many decisions

must be made almost instantly by the Chief Public Defender and consultation with a commission

would make this process almost impossible.

Proponents state that though this bill does create a new governmental entity, it is not a

cumbersome new layer of bureaucracy. This commission would function much the same way a

Board of Directors of a non-profit organization functions. It is necessary, in that there must be

an oversight entity of any administrative agency, and in order to be politically independent, such

a function may not be served by an individual or too small a group of individuals answerable to

one or a very few appointing entities. A publicly elected oversight entity independent of the

Executive is not an acceptable alternative, in that the purpose of independence, as identified by

the American Bar Association, is to free the generally unpopular public defense function from

any political influences.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Duplicates Senate Bill 226 with the exception of those noted above regarding commission

appointees.

OTHER SUBSTANTIVE ISSUES

The PDD suggests that the Chief Public Defender cannot be directed or “guided" or provided

with “oversight," (provisions of the bill) by those who are not attorneys or attorneys not

connected with the attorney-client relationship. A defendant’s right to counsel, guaranteed by

the Sixth Amendment to the United States Constitution and by Article II, Section 14 of the New

Mexico Constitution, may be adversely impacted if the operations of the Public Defender

Department are “overseen" by non-lawyers or lawyers who have no connection with the

attorney-client relationship. Because of the vagueness of the terms “oversight" and “guidance"

in the bill, there is a strong likelihood that the commission may intrude into areas in which its

presence would be inappropriate.

An indigent criminal defendant is entitled to effective assistance of counsel, which must not be

directed or influenced by those not licensed to practice law or those unconnected with the

attorney-client relationship formed between Department lawyers and their clients. A defendant

whose attorney must answer to others has had no real lawyer secured to him by the Sixth

Amendment. Under the Rules of Professional Conduct, an attorney must maintain professional

House Bill 348/HJCS – Page

5

independence and must not form partnerships with non-lawyers or lawyers unconnected with the

attorney-client relationship when the business they are engaged in consists of the practice of law.

The New Mexico Supreme Court Rules will not permit attorneys to work in an agency where a

non-lawyer or lawyer unconnected with the attorney-client relationship has the right to direct or

control his professional judgment.

Proponent point out that as currently constituted the PDD is under the oversight of the Governor,

who also sets criminal justice policy for the state, and regularly introduces or signs into law

legislation that creates new challenges for the defense of the criminally accused. Such activities

render the Governor’s oversight of the primary criminal defense law firm in the state a clear

conflict of interest.

ALTERNATIVES

Proponents agree that The PDD does point out a valid flaw in the bill, and recommend the

following amendment:

“The Commission shall not interfere with the discretion, judgment or advocacy of a defender

office, a contract defender office, or assigned counsel in the representation of individual

cases."

EO/mt:nt