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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

1/25/07

HB

SHORT TITLE

Create Public Defender Commission

SB 226

ANALYST Ortiz

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB 348

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Administrative Office of the Courts (AOC)

New Mexico Coalition for Justice

No Responses Received From

Administrative Office of the District Attorneys (AODA)

SUMMARY

Synopsis of Bill

Senate Bill 226 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

SB226, 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,

Senate Bill 226 – Page

2

and requires that the Chief’s annual report with recommendations be submitted to the

Commission and, upon approval by the Commission, to the legislature and the governor.

Creation of Public Defender Commission

SB226 creates the 11-member Public Defender Commission and sets out qualifications for

members as well as meeting requirements and organizational details. 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.

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%

Senate Bill 226 – Page

3

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

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 HB348

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

Senate Bill 226 – Page

4

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

Mexico Constitution, and 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

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/nt