“You’re not a lawyer and you’ve never been in the legislature,” said the line in the TV commercial.
This line helped get Garrey Carruthers elected governor in 1986. Toney Anaya, former state attorney general, was the unpopular incumbent governor that year, so New Mexicans favored a candidate who made his lack of legal background into a virtue.
This year, the lawyers in the legislature have done well for themselves and their colleagues.
A few highly publicized and controversial bills, now signed, created new business opportunities for lawyers, which the rest of us will pay for.
The New Mexico Civil Rights Act creates the right of litigation for alleged civil rights complaints against state and local public bodies.
As reported by the Legislative Finance Committee staff in the Fiscal Impact Report, the state General Services Department projects the bill will result in a cost increase to state government of approximately $4.5 million annually, including half a million in attorney fees.
The Public Schools Insurance Authority says, “Claim values and settlements could reasonably triple based on the attorney fee provision.” The PSIA covers most school districts.
New Mexico Counties noted that though the attorney fees permitted by the act are included in the $2 million cap on claims awards, “for most cases brought under the act the attorney fees will exceed the damages awarded to claimants.”
In support of the law, the state Civil Rights Commmission said, “Adding a remedy for misconduct that violates the New Mexico Constitution makes meaningful the fundamental rights that document protects without fundamentally changing the litigation landscape.” Let’s hope so.
The CRC Final Report noted that increased costs associated with the act “would act as an incentive for government entities to impose the training, oversight, and accountability policies that are necessary to prevent government misconduct. By implementing aggressive loss prevention programs, the state and local governments can avoid constitutional violations in the first place.”
While I am all for training of government employees, I have been advocating for years that training should focus on the subject matter of their jobs. When I was a state employee, I sat through lots of training sessions about avoiding discrimination. But my job was to implement the New Mexico workers’ compensation system, and I had to teach most of that to myself.
The Civil Rights Act is one of several bills that broaden the opportunity for lawsuits. The new sick leave law also creates grounds for lawsuits by workers against employers but not the reverse. Most of these bills are sponsored by legislators who are lawyers.
As with any legal issues, there are two sides to the story. On the one hand, the right to litigate allows individuals who have been harmed to recover money damages. On the other hand, when the defendant is a public agency, the cost is borne by the taxpayers. People who advocate this kind of litigation claim that the losing defendant is taught a lesson that leads to reform, but in the case of public agencies that is a like a trickle-down theory of justice. The wrongdoers, after all, are losing other people’s money.
There are good reasons why lawyers run for legislative office and why people in other professions don’t. For example, we could benefit from some accountants in the legislature but we usually don’t have any. That’s simple: our legislative session conflicts with their busy season.
If we shift to a paid legislature, we will still have to allow lawmakers to practice their professions, unless we make the legislature year-round and pay lawmakers accordingly, which is neither feasible nor desirable.
The increased burden of litigation established by this year’s new laws will make it a little harder for New Mexico to meet its other goals, such as diversifying our economy. That’s what we’ve chosen.
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