Report from Santa Fe; Charles Daniels

music Report from Santa Fe is made possible in part by grants from the members of the National Education Association of New Mexico, an organization of professionals who believe that investing in public education is an investment in our state's economic future. And by a grant from the Healey Foundation, Taos, New Mexico. Hello, I'm Lorraine Mills and welcome to report from Santa Fe. We're doing a very important show today and our guest is the Chief Justice of the New Mexico Supreme Court, Charles Daniels. Thank you for joining us. It's my pleasure to be with you again, Lorraine. Well, give this your background briefly. I know that your law degrees from UNM, that you were the first in your class and editor in Chief of the Law Review, you came into this job with a stellar record and you have continued that stellar record. And although it is a little above what you're capable of delivering to us today, I'm asking for a civics lesson.

I'm really concerned about the constitutional crisis that our courts are in and I think that people kind of forget about the three equal branches of the government. If you could give us, I know it's, you know, you're capable of grand treatises, but give us a basic civics lessons about government in New Mexico and the role of the judicial system in that. I'm glad to do that, Lorraine. I think it is not too simple to constantly remind ourselves of. I remind myself of it virtually every day in my job. In our decisions of cases, we have to keep reminding ourselves that we're not the law making part of government. We're supposed to interpret and apply the laws. The government is comprised of three branches, this government that was created by the people when they gave up power to this new government that were creating, which happened in 1912 with regard to the state and happened long before that with the United States government that was created. Both created with three branches of government, each with separate functions, each independent of each other in the exercise of their own responsibilities, but all of them that had to work together in service of the people that we all represent.

We are the non-political branch of government. There is no such thing as democratic justice or republican justice. When you go into a courtroom, you have a child custody case or a criminal case or a civil case or any of the other vast numbers of kinds of disputes that we resolve peaceably in our judicial system, you shouldn't make any difference whether you're a Democrat or a Republican. The truth should make the difference. The law should make the difference and the courts should be even handed. And as I told the legislature this week in my state of the judiciary address, something they don't need to be told, but as I said, it's good to remind ourselves of this. Funding justice should be as non-political as doing justice. And that's something that I think we constantly need to remind ourselves.

We're dependent on the other branches of government for our funding. We're the only branch of government that doesn't have a vote in what our funding will be. Governor sends budget requests for all of the branches of government. They even talk about how much they think we need in the judicial branch. The legislature submits his request in the feed bill. They get to vote on our budget. The governor gets a decision to veto or not various provisions, line items of our budget. We don't get to vote on their budgets and we don't get to vote on our own. And that's the way it should be. That's the separation of functions of government. But it's important for the other branches to recognize the importance of the judiciary and the fact that a judicial system is essential to any democratic self-government. You cannot have a democratic self-government without a functioning justice system and you can't have a functioning justice system without an adequately funded justice system. It's as simple as that.

So they're the three branches of government, executive, legislative, and judicial. And under the judicial, let's just talk a little bit about the structure here because you are the Chief Justice and the courts, the Supreme Court. But there are two other, other kind of three legs of the stool that make up the judiciary, the public defenders and the DAs, am I right? The district attorneys are really separate and the public defender, although they've been placed for conceptual purposes in the judicial branch when they created the Public Defender Commission several years ago, they're absolutely independent of us. We have no say in their budget. We have no say in their budget requests. We have no say in their management. The Public Defender Commission oversees the Public Defender Department. Our branch consists of all of the courts of the state and all of the programs the courts administer. And at the top of that judicial pyramid is the Supreme Court.

There are five justices, five of us on the Supreme Court and we elect one of the five to be Chief Justice every two years. This is my second term as Chief Justice. The first term was 2010, 2012. I thought when I handed that baton over with exhaustion after those two years of fiscal crisis that I was through with it, but my colleagues have put me back in the position again. And once again, I'm dealing with inadequate funding to do our job. Well, let's look at that inadequate funding. This is a graph of the judiciary general fund appropriations and we'll do a close-up of it. You start this graph in 2010, right? Where do you go? This graph demonstrates what share of the state's budget the entire judicial branch has gotten since 2010 when I became Chief Justice the first time.

And I'll be glad to explain it. Yes, just in brief. Yes. Sure. In 2010, we were in difficult financial times and our courts were coping and hoping to the best we could and doing all kinds of things to save money. But at that time, we had 2.76% of the state appropriations. Still too small. Anything less than somewhere in a 3% area is just inadequate to provide a decent justice system, but we were coping. We needed 30 new judges to do our work, but we were doing without them. We're still in that shape and in some ways worse. But we had 2.76% of the state's budget. As you can see from the graph, in the six or seven years since then, we have ended up with less than that, the current fiscal year 17 budget, which will end June 30th of this year, we have 2.58% of the state's budget.

It is a below water level, trading water level for the state government. Our justice system is on life support and some of the organs are starting to fail right now. I can give specifics on it, but we'll get to that. Yeah, because I want to talk about what happens, what the results of the underfunding are. One of which, and a lot of these have made the news, people are starting to wake up a little bit, reduced payments for jurors. And no money for public defenders. You have a whole list of them. But what are the most important, and then the failure to fund the treatment courts, which are very short-sighted. We've got drug courts, mental health courts. Once we stop funding those, they're funneled into the regular judicial system and fall between the cracks. Another thing is that sometimes criminal cases are not pursued because there's no money to do it. Talk to me about the results of this underfunding. What are you facing?

The results impact the citizens of the state in a number of ways. One is by denial of the constitutional rights that they created when they created this government to serve them. The other is in our inability to do things that any rational person would want to be done. The desirable programs that neither the legislators nor the citizens want to give up. But we're at the point now of having to choose which things we don't do, which laws we don't follow. And of course, in a constitutional scheme of government, you have to comply with the Constitution above all else. If you have a choice between not complying with a statute or not complying with the Constitution, which is a terrible choice for the judicial branch to have to make, you have to make sure you comply with the Constitution. The jury trials are guaranteed in the Constitution are people created. They're guaranteed in criminal cases. The government hauls you into court and charges of the crime.

You're entitled to a jury of your peers to decide the case and not some government official, whether it's in the judicial branch or any other branch. It's another fundamental civics lesson. The people reserve two forms of direct power when they created their government. One of them is the power of the jury box where the citizens resolved disputes in civil and criminal cases themselves. Ultimately, they make the decision under procedures and laws to make sure it's handled properly by law, but the ultimate decisions are made by the juries. The other place is the ballot box where the citizens say, we're going to decide who our public officials are and which ones we're going to throw out of office, which ones we're going to reelect, which ones we're going to ask to serve to us. In those two areas, the Constitution guarantees the rights of the citizen to do that, but we don't have enough funding to provide juries for the rest of this fiscal year.

And we're going to run out of jury fund money as we candidly advised the other two branches of government last year when the appropriations were provided on this. And it was we advised again in the special session when we said we can't take any further cuts because we can't conduct jury trials as it is. We're going to run out of March. We're running out of March. And we're then going to have to be faced with a choice of what to do about that. We can't have trials without jury. So we'll have to basically hang a sign on the door. No jury trials until further notice. We can't afford to provide justice because the funding cuts. So you wrote a very enlightening letter to the governor and the legislature based on the first part of it was undeniable truth. And you quoted those institutions for those guarantees are given. And yet, you're still so grievously underfunded. And I'm hoping that in this very legislature in the time of terrible fiscal crisis that you can get the resources, you know, your responsibilities are this high, but your resources are this high.

It's a serious problem. And I want to acknowledge the good faith that most of our colleagues in the other branches are addressing this with. They feel that they're put in an impossible situation because today, this moment. For whatever reason, the decisions made over the years have been in the effects of the economy and decisions by OPEC and the Russian cartels on oil prices and things like that. We have put the state in a situation where we don't have enough money to do the things that we've enacted laws to require. And they have people pulling it their shirts leaves from every direction saying don't cut, don't cut education, don't cut health care, don't cut all these things that are really important. And so we have to look at this from a short term and a long term point of view. In the short term, if we don't have enough money to do all the things that the law requires us to do, or that when I say we, I mean government as a whole, or that we think are desirable that we want to continue doing, we're going to have to cut some things that are desirable.

But if you do that, you have to first preserve your compliance with the Constitution. Every one of us, in all three branches, before we can start work, has to take an oath to uphold the Constitution and laws of the state of New Mexico to remind ourselves that whatever other choices we make, those two things have to stay paramount and the Constitution has to be the most paramount of all. Ultimately, this is a long range problem that's going to have to be dealt with in the long run. The chairman of this legislative finance committee has written some very quotient things in the LFC newsletter saying that we have to look long range for a more stable, predictable form of funding in order to avoid being constantly in this kind of crisis where the legislature has to say, well, we agree you need this money, courts, to keep your jury trials operating, but we just don't have the money.

So I sympathize for their problem, but I have to say, as someone who took that oath to uphold the Constitution, we have to comply with the Constitution first, and there are a number of provisions besides jury trials, speedy trials. The Constitution guarantees you a right to a speedy trial in a criminal case. It's right there in the Constitution. It's not optional on our part. We can't say, just stay in jail a few more years until maybe the oil prices come back up, because the Constitution guarantees a right to a speedy trial and the United States Supreme Court, which is the only court in the nation that can override my court's decisions, has said that if the state doesn't provide a speedy trial, the courts must dismiss the criminal prosecution. And think about that impact on public safety. Think about not only the impact on the defendant, because the defendant has a right to a speedy trial, but the US Supreme Court has recognized that the public has a right to a resolution of these criminal cases by a speedy trial. It's not in the public interest to prolong these. And so that's another constitutional provision, and we're seeing now more and more speedy trial dismissal motions being filed.

The Constitution also requires that everyone has a right to a lawyer in a case where they can end up going to jail. And the public defender system was created to respond to that. The US Supreme Court says the state has to provide at state expense. If it's going to prosecute a case, has to provide defense counsel for people who can't afford to pay for their own counsel. Right now, we're seeing reports of situations around the state where the public defender is saying that its load has been increased to so much they don't have time to repair their cases. They can't take on anymore. Those cases are going to have to come up to my court for resolution. And without forecasting what the result will be, it's going to be a serious problem if we have to decide whether or not we're complying with the Constitution. And whether we can force public defenders to provide inadequate representation or whether we can uphold convictions or even allow trials where someone doesn't have constitutionally adequate representation.

We're speaking today with Chief Justice Charles Daniels about the constitutional crisis that underfunding the justice system is having and what is happening to the constitutionally mandated services that should be there for our New Mexico citizens. So alarming. So you've outlined the jury trials are denied no speedy trials and court closures. A lot of courts have got to close because they can't staff. Right. Exactly. And it's been an increasing problem. We've been communicating to our colleagues in the legislature and in the executive about this. We're seeing increasing numbers of court closures. All of our courts are understaffed. This is no secret. It's been a chronic problem going on for years and it keeps getting worse and worse. And we're at the point now where the magistrate courts to the state in virtually every county, the front line of our justice system is having to close its clerk's offices for periods of time, half a day, a week or more because they don't have enough staff to both service the public and go back and process the papers that end up being brought to them.

We're going to do both at once. This very week, I received requests from two different judicial districts in New Mexico from the judicial district in Albuquerque and the one headquartered in Alamogordo. Some of them said we can no longer function with the shortage of staff that we have and the inability to hire any other staff. And we're going to have to close our clerk's offices for half of the hours every day, five days a week. They're going to have to be open only four hours instead of eight hours, not because we aren't trying to work, but because we just don't have enough people to staff it. It really is a failure of our government to provide the judicial system, the one branch of government that our people created in the Constitution.

So many people in so many ways, if we don't have enough judges, if we don't have enough staff to process these cases, and justice is really a labor, personnel, intensive sort of process, then those child custody cases, those domestic violence cases, those business disputes, the criminal cases, all of the kinds of things that we need to process in an efficient and timely way, what I'm going to be able to do. And there's an old saying that justice delayed is justice denied. And it's so true. And people are experiencing it around the state now. If I sound passionate about this, it's because I care. My job title is justice. And my job duty is justice. And I care about the justice system. Like most of our other judges in this state, I took a substantial pay cut in order to serve the justice system because I feel such a commitment to providing an adequate justice system for the people of New Mexico. And we've done so many things with the resources we have. We found all kinds of ways to be more efficient. And we found ways to cut that we shouldn't have to. For example, the three branches of government, their employees, their contractors, and so on, have a right to get mileage reimbursement if they use their personal vehicles on government business.

We reduced the mileage reimbursement rate for the judicial branch, all of us as judges and staff and jurors and others from the 47 cents a mile that other government employees get down to 29 cents a mile because we figured you could pay for the gas and tires and so on. The government wouldn't pay its fair share of the insurance and depreciation that the higher mileage rate takes into account, but we can do it without taking food off our employees table. So we did that at my level of court. We don't get reimbursed at all. We long ago gave up turning in mileage reimbursement vouchers because we thought it more important to keep our doors open in this year. Right now, unless we get emergency funding from the legislature, we're going to have to send employees home without pay and lock our doors at the Supreme Court because even with not turning in mileage vouchers, not doing any travel. We're still going to have a short fall at that court. Other courts are looking at the possibility of those kinds of furloughs, which is a euphemistic term for sending people home and cutting their pay and closing your doors for business.

Well, chief, don't apologize for your passion. That's why I invited you here. I'm worried about this constitutional crisis. I want to congratulate you on the constitutional amendment that was passed in the last election. And when you told me about that, you said, we need fresh eyes. We need intellectual honesty to reexamine judicial practices that make no sense, and the moral courage to correct what is wrong. Well, you had the moral courage to correct that in in in an inequitable bail system so that now it's more well, anyway, you want to give me one sentence about what that did. But now there's another you, you're working with the legislature, you're working with Senator Worth about another as share one that will again will tell me about the one that just passed in the election about bail reform in one sentence. It was intended to take out determining someone's release or detention pretrial based on how much money they could pay a bail bondsman and make it based on what kind of risk they posed, a flight risk or danger to the public.

And it was adopted by 87% to 13% of the Mexico voters. Everybody recognized it was a good thing. But it's a first step. It's words on paper. We have to make it real. And we're now rewriting our rules, retraining our judges. And it's going to be a years long process. The country is watching and they're they're impressed with what New Mexico is doing in that regard. And this in this upcoming session, there's S.J. R. One, again, in example of the courts being proactive that will clear up some procedural issues from the different courts to make things work more smoothly. Sure. As we're identifying ways to save money, we're done at the point of looking for couch change basically. I've talked before about how I haven't bought a taxpayer finance pen in years. This one is from some kind of law group. I have them from my dentist and my bank and so on. But we're about out of out of ideas on that.

And so we've gone back to look at some of the basic structure that we're dealing with that's costing money. The constitutional amendment that's being introduced this time will address how our appeals are taken from the lowest courts when our state was started in 1912. The justice of peace courts were the lowest courts and they didn't have records of their proceedings. And so when there was an appeal from that court, they had to go to another trial court, try the whole case over again, bring in all the witnesses again. And so it says in the Constitution that appeals from those lowest courts will go to the district courts. Well, since that time, we've created the magistrate system. We've created the metropolitan court in Bernalio County, our largest court, which tries a lot of cases on the record. But because of that old constitutional provision, the appeals still have to go to a district court set up for trying cases. And instead they have to act as an appeal court reviewing the record. And then it goes to the court of appeals for another appeal. And then it goes to the Supreme Court wasting a lot of taxpayer dollars.

We're almost out of time. One other thing you've done to streamline thing, you've recently approved online access to court records for specific group attorneys, justice partners, law enforcement, the press. But that will also streamline things so that your people are not, you know, photographing freedom of information act. Staff said that any with streamlines, the information getting out, I want you to know how, tell us how are people who feel what's happening in terms of this constitutional crisis. How can people get involved? How can they help? Ultimately, the responsibility for the government has to rest in the people. People have to communicate with their legislatures. And we have to stop telling our elected representatives we want you to provide all these services, but we don't want to have to pay for it. Something has to give either the services have to be reduced or the resources have to be increased. And it's not my job to say which switch, but you can't have that imbalance. And they need to communicate to their legislatures what their priorities are in achieving a balance. And they have to communicate to them what they see in the courts and their communities.

How they're personally impacted and how their neighbors and communities are impacted by the lack of funding for the courts because you can go into the courts and you watch the operation. If you experience it, you can recognize that this is an intolerable situation. And it needs to be communicated to their local representatives because that's the way a representative democracy works. And another way that we're succeeding is by having someone like you and our guest today is Chief Justice of the New Mexico Supreme Court, Charles Daniels. Thank you for bringing the fight to the people. You know, people once they realize with the treatment courts being cut and all these things being cut, that it is a constitutional crisis and we all need to step up. It's also a long range fiscal crisis because they're wasting money by cutting out things that save money, the long run, like the treatment courts. Well, we'll continue this discussion. Good luck during this session. And thank you so much for taking the time to come and inform the public about what's going on a judicial system.

And thank you for all you do, Lorraine. You've been. And I'm Lorraine Mills. I'd like to thank your audience for being with us today on report from Santa Fe. We'll see you next week. Past archival programs of report from Santa Fe are available at the website report from Santa Fe dot com. If you have questions or comments, please email info at report from Santa Fe dot com. Report from Santa Fe is made possible in part by grants from the members of the National Education Association of New Mexico, an organization of professionals who believe that investing in public education is an investment in our state's economic future. And by a grant from the Healey Foundation, tell us New Mexico. You

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