0001| HOUSE BILL 267
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| WILLIAM E. PORTER
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0006|
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0008|
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0009|
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0010| AN ACT
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0011| RELATING TO WRONGFUL IMPRISONMENT; AMENDING SECTIONS OF THE
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0012| TORT CLAIMS ACT; ENACTING THE WRONGFUL IMPRISONMENT ACT;
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0013| PROVIDING COMPENSATION FOR CERTAIN WRONGFUL IMPRISONMENT.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1
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0017| through 8 of this act may be cited as the "Wrongful
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0018| Imprisonment Act".
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0019| Section 2. [NEW MATERIAL] WAIVER OF IMMUNITY--
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0020| INITIATING SUIT--VENUE--RISK MANAGEMENT DIVISION
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0021| RESPONSIBILITY.--
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0022| A. The state's immunity from liability is waived
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0023| with respect to certain wrongful imprisonment claims to the
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0024| extent of and in accordance with the terms and conditions of
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0025| the Wrongful Imprisonment Act.
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0001| B. A suit shall be initiated by filing a verified
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0002| petition in the district court for Santa Fe county that alleges
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0003| facts sufficient to show that the petitioner is entitled to
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0004| compensation under the Wrongful Imprisonment Act.
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0005| C. Service shall be made upon the attorney general
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0006| and the director of the risk management division of the general
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0007| services department. The risk management division shall
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0008| provide a defense and pay any compensation due through judgment
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0009| or settlement.
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0010| Section 3. [NEW MATERIAL] PERSONS ELIGIBLE FOR
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0011| COMPENSATION.--A person is eligible for compensation under the
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0012| Wrongful Imprisonment Act if the person:
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0013| A. has served in whole or in part a sentence in
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0014| prison under the laws of this state;
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0015| B. pleaded not guilty to the charge for which he
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0016| was convicted and that led to the imprisonment;
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0017| C. is not guilty of the crime for which he was
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0018| sentenced; and
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0019| D. has received a full pardon for the crime and
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0020| punishment for which he was sentenced, based on his wrongful
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0021| conviction.
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0022| Section 4. [NEW MATERIAL] INSUFFICIENT DEFENSES.--It
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0023| is not a defense to an action brought under the Wrongful
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0024| Imprisonment Act that:
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0025| A. a judgment of conviction was entered, which
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0001| resulted in the claimant's imprisonment; or
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0002| B. an indictment, information, complaint or other
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0003| formal accusation was made.
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0004| Section 5. [NEW MATERIAL] ADMISSIBLE EVIDENCE.--
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0005| A. In the suit, the court may admit as evidence the
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0006| record of the trial at which the petitioner was convicted and
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0007| the pardon or proclamation issued to him by the governor.
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0008| B. The court may also admit all court papers,
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0009| orders, docket notations or other writings of record in any
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0010| court in this state as proof of the facts set forth in the
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0011| writings and any other relevant evidence.
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0012| Section 6. [NEW MATERIAL] DAMAGES--LIMITATION.--
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0013| A. If the trier of fact finds that the claimant is
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0014| entitled to compensation, the trier of fact shall assess
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0015| damages to compensate the claimant fairly and reasonably for:
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0016| (1) physical and mental pain and suffering
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0017| sustained by him as a proximate result of the erroneous
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0018| conviction or imprisonment from the time of the conviction by
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0019| the trial court; and
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0020| (2) all reasonable and necessary medical
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0021| expenses incurred by him as a proximate result of the erroneous
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0022| conviction or imprisonment from the time of the conviction by
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0023| the trial court.
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0024| B. Damages assessed for physical and mental pain
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0025| and suffering may not exceed fifty thousand dollars ($50,000).
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0001| Total damages assessed under this section may not exceed one
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0002| hundred thousand dollars ($100,000).
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0003| Section 7. [NEW MATERIAL] LIMITATION OF ACTIONS.--A
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0004| person who claims compensation under the Wrongful Imprisonment
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0005| Act must bring the action within two years after the date the
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0006| person is pardoned by the governor based on his wrongful
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0007| conviction. Action is barred thereafter.
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0008| Section 8. [NEW MATERIAL] REMEDY NOT EXCLUSIVE.--The
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0009| remedies provided under the Wrongful Imprisonment Act are not
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0010| exclusive and do not preclude recovery under any other statute
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0011| or common-law cause of action.
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0012| Section 9. Section 41-4-4 NMSA 1978 (being Laws 1976,
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0013| Chapter 58, Section 4, as amended) is amended to read:
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0014| "41-4-4. GRANTING IMMUNITY FROM TORT LIABILITY--
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0015| AUTHORIZING EXCEPTIONS.--
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0016| A. A governmental entity and any public employee
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0017| while acting within the scope of duty are granted immunity from
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0018| liability for any tort except as waived by Sections 41-4-5
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0019| through 41-4-12 NMSA 1978 and the Wrongful Imprisonment Act.
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0020| Waiver of [this] immunity under Sections 41-4-5 through 41-
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0021| 4-12 NMSA 1978 shall be limited to and governed by the provi-
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0022|
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0023| sions of Sections 41-4-13 through 41-4-25 NMSA 1978. Waiver
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0024| of immunity under the Wrongful Imprisonment Act shall be
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0025| limited to and governed by that act.
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0001| B. Unless an insurance carrier provides a defense,
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0002| a governmental entity shall provide a defense, including costs
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0003| and attorneys' fees, for any public employee when liability is
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0004| sought for:
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0005| (1) any tort alleged to have been committed by
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0006| the public employee while acting within the scope of his duty;
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0007| or
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0008| (2) any violation of property rights or any
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0009| rights, privileges or immunities secured by the constitution
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0010| and laws of the United States or the constitution and laws of
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0011| New Mexico when alleged to have been committed by the public
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0012| employee while acting within the scope of his duty.
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0013| C. A governmental entity shall pay any award for
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0014| punitive or exemplary damages awarded against a public employee
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0015| under the substantive law of a jurisdiction other than New
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0016| Mexico, including but not limited to other states, territories
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0017| and possessions and the United States of America, if the public
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0018| employee was acting within the scope of his duty.
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0019| D. A governmental entity shall pay any settlement
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0020| or any final judgment entered against a public employee for:
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0021| (1) any tort that was committed by the public
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0022| employee while acting within the scope of his duty; or
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0023| (2) a violation of property rights or any
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0024| rights, privileges or immunities secured by the constitution
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0025| and laws of the United States or the constitution and laws of
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0001| New Mexico that occurred while the public employee was acting
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0002| within the scope of his duty.
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0003| E. A governmental entity shall have the right to
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0004| recover from a public employee the amount expended by the
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0005| public entity to provide a defense and pay a settlement agreed
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0006| to by the public employee or to pay a final judgment if it is
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0007| shown that, while acting within the scope of his duty, the
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0008| public employee acted fraudulently or with actual intentional
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0009| malice causing the bodily injury, wrongful death or property
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0010| damage resulting in the settlement or final judgment.
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0011| F. Nothing in Subsections B, C and D of this
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0012| section shall be construed as a waiver of the immunity from
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0013| liability granted by Subsection A of this section or as a
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0014| waiver of the state's immunity from suit in federal court under
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0015| the eleventh amendment to the United States constitution.
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0016| G. The duty to defend as provided in Subsection B
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0017| of this section shall continue after employment with the
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0018| governmental entity has been terminated if the occurrence for
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0019| which damages are sought happened while the public employee was
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0020| acting within the scope of duty while [the public employee
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was] in the employ of the governmental entity.
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0022| H. The duty to pay any settlement or any final
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0023| judgment entered against a public employee as provided in this
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0024| section shall continue after employment with the governmental
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0025| entity has terminated if the occurrence for which liability has
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0001| been imposed happened while the public employee was acting
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0002| within the scope of his duty while in the employ of the
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0003| governmental entity.
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0004| I. A jointly operated public school, community
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0005| center or athletic facility that is used or maintained pursuant
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0006| to a joint powers agreement shall be deemed to be used or
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0007| maintained by a single governmental entity for the purposes of
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0008| and subject to the maximum liability provisions of Section
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0009| 41-4-19 NMSA 1978.
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0010| J. For purposes of this section, a "jointly
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0011| operated public school, community center or athletic facility"
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0012| includes a school, school yard, school ground, school building,
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0013| gymnasium, athletic field, building, community center or sports
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0014| complex that is owned or leased by a governmental entity and
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0015| operated or used jointly or in conjunction with another
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0016| governmental entity for operations, events or programs that
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0017| include sports or athletic events or activities, child-care or
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0018| youth programs, after-school or before-school activities or
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0019| summer or vacation programs at the facility."
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0020| "Section 10. Section 41-4-17 NMSA 1978 (being Laws 1976,
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0021| Chapter 58, Section 15, as amended) is amended to read:
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0022| "41-4-17. EXCLUSIVENESS OF REMEDY.--
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0023| A. The Tort Claims Act shall be the exclusive
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0024| remedy against a governmental entity or public employee for any
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0025| tort for which immunity has been waived under the Tort Claims
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0001| Act, except for claims filed under the Wrongful Imprisonment
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0002| Act, and no other claim, civil action or proceeding for
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0003| damages, by reason of the same occurrence, may be brought
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0004| against a governmental entity or against the public employee or
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0005| his estate whose act or omission gave rise to the suit or
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0006| claim. No rights of a governmental entity to contribution,
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0007| indemnity or subrogation shall be impaired by this section,
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0008| except a governmental entity or any insurer of a governmental
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0009| entity shall have no right to contribution, indemnity or
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0010| subrogation against a public employee unless the public
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0011| employee has been found to have acted fraudulently or with
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0012| actual intentional malice causing the bodily injury, wrongful
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0013| death, property damage or violation of rights, privileges or
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0014| immunities secured by the constitution and laws of the United
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0015| States or the constitution and laws of New Mexico resulting
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0016| in the settlement or final judgment. Nothing in this section
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0017| shall be construed to prohibit any proceedings for mandamus,
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0018| prohibition, habeas corpus, certiorari, injunction or quo
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0019| warranto.
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0020| B. The settlement or judgment in an action under
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0021| the Tort Claims Act shall constitute a complete bar to any
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0022| action by the claimant by reason of the same occurrence against
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0023| a governmental entity or the public employee whose negligence
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0024| gave rise to the claim.
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0025| C. No action brought pursuant to the provisions of
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0001| the Tort Claims Act or the Wrongful Imprisonment Act shall
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0002| name as a party any insurance company insuring any risk for
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0003| which immunity has been waived by that act."
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0004| Section 11. Section 41-4-20 NMSA 1978 (being Laws 1978,
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0005| Chapter 166, Section 3, as amended) is amended to read:
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0006| "41-4-20. COVERAGE OF RISKS--INSURANCE.--
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0007| A. It [shall be] is the duty of governmental
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0008| entities to cover every risk for which immunity has been waived
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0009| under the provisions of the Tort Claims Act, the Wrongful
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0010| Imprisonment Act or any liability imposed under Section 41-4-4
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0011| NMSA 1978 as follows:
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0012| (1) local public bodies shall cover every such
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0013| risk or liability as follows:
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0014| (a) for a risk for which immunity has
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0015| been waived pursuant to Sections 41-4-9, 41-4-10 and 41-4-12
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0016| NMSA 1978, the local public body shall cover the risk, and for
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0017| any commercially uninsurable risk for which public liability
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0018| fund coverage is made available, the local public body may
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0019| insure the risk in accordance with the provisions of Section
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0020| 41-4-25 NMSA 1978;
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0021| (b) for excess liability for damages
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0022| arising under and subject to the substantive law of a
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0023| jurisdiction other than New Mexico, including but not limited
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0024| to other states, territories and possessions and the United
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0025| States [of America], the local public body shall provide
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0001| coverage in accordance with the provisions of Subsection B of
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0002| Section [41-4-27] 41-4-28 NMSA 1978, if coverage is
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0003| available; and
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0004| (c) for a risk or liability not covered
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0005| pursuant to Subparagraphs (a) and (b) of this paragraph, the
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0006| local public body shall purchase insurance, establish reserves
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0007| or provide a combination of insurance and reserves or provide
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0008| insurance in any other manner authorized by law; and
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0009| (2) for state agencies, the risk management
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0010| division shall insure or otherwise cover every such risk or
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0011| liability in accordance with the provisions of Section 41-4-23
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0012| NMSA 1978. Coverage shall include but is not limited to
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0013| coverage for all such liability arising under and subject to
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0014| the substantive law of a jurisdiction other than New Mexico,
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0015| including but not limited to other states, territories and
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0016| possessions and the United States [of America].
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0017| B. The department of finance and administration
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0018| shall not approve the budget of any governmental entity that
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0019| has not budgeted an adequate amount of money to insure or
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0020| otherwise cover pursuant to this section or Section 3-62-2 NMSA
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0021| 1978 every risk of the governmental entity for which immunity
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0022| has been waived under the provisions of the Tort Claims Act or
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0023| liability imposed under Section 41-4-4 NMSA 1978. The [public
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school finance division of the department of finance and
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administration] state department of public education shall
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0001| not approve the budget of any school district [which] that
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0002| has failed to budget sufficient revenues to insure or otherwise
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0003| cover pursuant to this section every risk for which immunity
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0004| has been waived pursuant to the provisions of the Tort Claims
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0005| Act or liability imposed under Section 41-4-4 NMSA 1978.
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0006| C. No liability insurance may be purchased by any
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0007| governmental entity other than as authorized by the Tort Claims
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0008| Act."
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