Voters face amendment proposals

Among the many choices facing voters in the Nov. 6 general election are five proposed amendments to the New Mexico Constituion.

Voters are asked to cast a ballot for or against each of the five measures drafted by the Legislature for placement on the ballot.

The constitutional amendments range from expanding membership of the Judicial Standards Commission to making the Public Defender Department an independent agency no longer under the control of the governor.

The following are summaries of the amendment questions and sample arguments for or against the measures. These were prepared by the Mexico League of Women Voters of New Mexico and serve as a voter guide on the state Secretary fo State's website:

Constitutional Amendment No. 1

Would amend Article 6, Section 32 of the New Mexico Constitution and increase the membership of the Commission from 11 to 13 by adding two commissioner positions. One new commissioner would be a municipal judge, selected in a manner set by the Legislature to serve a four-year term. The second would be a citizen who is neither a judge nor an attorney, appointed by the Governor to serve a five-year term.

Arguments For:

• Municipal judges represent the largest category of judges in the state, and yet there is no dedicated slot for a municipal judge on the commission. Adding a municipal judge to the commission provides equal representation on the oversight body that monitors their job performance.
• It is unfair for complaints regarding a municipal judge's job performance to be resolved solely by people who lack the current, firsthand experiences and views of a municipal judge. Thus, adding a municipal judge as a member of the Commission increases fairness.
• Adding a municipal judge and a citizen member would retain the current balance of power on the Commission. This change would ensure that views of municipal judges would be heard along with those of the other judges, attorneys, and citizen members. This is especially important when a municipal judge is the subject of a complaint alleging misconduct.

Arguments Against:

• Adding two more members to the Commission, for a total of 13, would make its work unnecessarily difficult. It is always challenging to reach consensus when more people are involved in a process. All disciplinary recommendations of the Commission require a majority consensus. It is not in the best interests of the citizenry to slow down the judicial oversight process.
• A Constitutional Amendment is unnecessary because such changes could be accomplished by amending current law through the Legislature instead of permanently changing the Constitution. A bill requiring that a municipal judge be a member of the Commission could be passed by the Legislature.
• Adding more members to the Judicial Standards Commission would increase the costs to the taxpayer for funding the Commission's work. Members of the Commission are entitled to per diem and mileage reimbursement.

Constitutional Amendment No. 2

Would amend Article 11, Section 1 of the New Mexico Constitution to require the Legislature to enact a statute increasing the qualifications of Public Regulation Commission ("PRC") commissioners. Currently, PRC commissioners are only required to be at least 18 years of age, not convicted felons, and registered to vote in New Mexico. The increased qualifications would apply starting with commissioners elected at the 2014 general election, as well as any commissioner appointed to fill a vacancy after July 1, 2013.

Arguments For:

• The New Mexico PRC has a broader jurisdiction than any other regulatory agency in the country and makes decisions that impact the daily lives of all of New Mexico's citizens, ranging from setting utility rates to regulating motor carrier safety and prices. Increasing the qualifications for commissioners would help make sure that they have a basic understanding of the complex industries they regulate.
• Because PRC commissioners are expected to act much like judges, making their decisions by applying the relevant law to the evidence on the record, it is critical that commissioners understand the law and the specifics of the subject areas they regulate. Too often, and at too high a cost, the New Mexico Supreme Court has overruled PRC decisions because commissioners have not understood the law.
• Many other states already require their utility commissioners to have educational or professional experience in a field relevant to utility regulation, such as accounting, finance, engineering, public or business administration, administrative law, or economics.

Arguments Against:

• The amendment leaves it up to the Legislature to establish the specific qualifications for PRC commissioners, meaning that voters would not know exactly what those qualifications would be before they vote on the amendment.
• Depending on what qualifications are enacted into law, some citizens may not be qualified to run for the office of PRC commissioner, even though they would be qualified to run for other elected positions in state and local government.
• It is unclear whether the Legislature is actually committed to enacting serious, substantive qualifications that are rigorous enough to ensure that PRC commissioners are truly qualified to do the job.

Constitutional Amendment No. 3

Proposes to amend Article 11, Section 2 of the Constitution of New Mexico to remove the responsibility for chartering and regulating corporations from the Public Regulation Commission (PRC) and transfer the responsibility for chartering corporations to the Secretary of State's office.

Arguments For:

• According to the National Conference of State Legislatures, 41 of the 50 states assign responsibility for chartering corporations to their Secretaries of State. Aligning New Mexico with the overwhelming majority of states would make it easier for businesses, particularly those that are new to New Mexico, to know where to file their documents.
• Transferring the responsibility for corporate filings to the Secretary of State would create a "one-stop shop" for all businesses filings. Currently, the Secretary of State registers some businesses, like Limited Liability Partnerships, while the PRC registers others, like Limited Liability Companies. The Secretary of State also registers state trademarks and service marks and files documents required by the Uniform Commercial Code.
• Removing responsibility for chartering businesses would allow the PRC to focus on its core duties of regulating utilities, which are very different from the secretarial duty of filing business documents.

Arguments Against:

• There would be a one-time cost associated with transferring the PRC's corporate registration responsibilities to the Secretary of State.
• The Legislature has not studied whether the Secretary of State's office is the ideal state agency in which to place the responsibility for corporate registration, so that duty should remain with the PRC until the Legislature undertakes such a study.
• The corporate registration division has not been the source of most of the scandals or corruption that have plagued the PRC, so moving it would not address those problems.

Constitutional Amendment No. 4

Proposes to amend Article 11 of the Constitution of New Mexico to remove the responsibility for regulating insurance from the Public Regulation Commission (PRC) and create an Office of the Superintendent of Insurance to regulate insurance companies and others engaged in risk-assumption in the state. The amendment would establish an Insurance Nominating Committee to appoint the Superintendent of Insurance based upon qualifications for the position established by the Legislature. The Legislature would also establish how the members of the Insurance Nominating Committee are appointed.

Arguments For:

• The insurance industry is so complex and so important to the lives of New Mexicans that it should be overseen by an independent agency that is solely focused on that task. PRC commissioners lack the specialized expertise to successfully oversee the insurance industry.
• Removing insurance regulation from the PRC and placing it within an independent agency would help to insulate it from politics. The political pressure placed on the Insurance Division by the PRC (for example, to hire unqualified staff) is a major reason why the National Association of Insurance Commissioners placed the division on probation for several years and a 2012 review by the Center for Integrity gave the Division an "F."
• This amendment would align New Mexico with the 35 other states that have stand-alone departments of insurance.

Arguments Against:

• The amendment leaves it up to the Legislature to establish the membership of the nominating committee and the qualifications of the Insurance Superintendent, meaning that voters would not know exactly what those will be before they vote on the amendment.
• Although the PRC's Insurance Division has suffered from numerous problems, the PRC has been working to improve it and should be allowed to continue the process.
• Having the Superintendent of Insurance appointed by a nominating committee rather than by the PRC means that voters would no longer vote directly for the people who appoint the Superintendent.

Constitutional Amendment No. 5

Would amend Article 6 of the New Mexico Constitution to establish the Public Defender Department as an independent state agency not under the Governor's authority. It would create a Public Defender Commission empowered to appoint and provide guidance to the Chief Public Defender and oversee administrative aspects of the Department. The amendment would also allow the Legislature to establish the term, manner of appointment, and qualifications for the Chief Public Defender and members of the Commission.

Arguments For:

• Funding for the Department is currently inadequate. An independent Public Defender Department may be better able to secure the resources to properly perform its constitutional mandate of protecting the rights of people accused of crimes who cannot afford attorneys. Funding the defense of alleged criminals is often politically unpopular, particularly with officials seeking re-election. Many other states have independent public defender departments that can lobby more effectively for necessary funding removed from the political process.
• Having an independent Department would ensure compliance with the "Rules of Professional Conduct for Attorneys." Because the Chief Public Defender is appointed by and serves at the pleasure of the Governor, there is potential for interference with the attorney's independent judgment, especially when defending a notorious or unpopular alleged criminal. As an independent state agency, the Department would be less susceptible to political influence.
• The Governor already sets many policies of the criminal justice system by appointments to various departments and through the executive's legislative initiatives and priorities. The Governor currently appoints the Chief Public Defender and oversees the Public Defender Department, giving the executive branch too much power in determining the policies and practices of the criminal justice system. Having an independent department would offer a clear way to balance this power.

Arguments Against:

• Making the Public Defender Department an independent state agency and requiring the creation of a Public Defender Commission to oversee it could be costly to taxpayers. The current per diem rate is $95, and voters have no way of knowing how many members would be on the Commission nor how many days of work-related travel and expenses the state would incur for those members.
• This amendment creates yet another level of unnecessary bureaucracy. The proposed Commission would not actually assist in representing indigent defendants or performing core functions. It would add a superfluous layer of management, requiring consultation on and oversight of decisions better left to a qualified Chief Public Defender. A Commission would cause unnecessary delays in the Department's operations.
• Concerns about undue political influence in representing indigent defendants are effectively addressed by the rules of professional conduct that prohibit attorneys from permitting a non client, including the Governor, to influence their judgment in rendering legal services to a client. Changing the Department's executive agency status to avoid political pressure is unnecessary.

Here's how the constitutional amendment questions will appear on the ballot:

Constitutional Amendment 1:

A Joint Resolution Proposing An Amendment To Article 6, Section 32 Of The Constitution Of New Mexico To Provide For Two Additional Members To Sit On The Judicial Standards Commission, A Municipal Judge And A Public Member.

Constitutional Amendment 2:

A Joint Resolution Proposing An Amendment To Article 11, Section 1 Of The Constitution Of New Mexico To Increase The Qualifications For Public Regulation Commissioners.

Constituional Amendment 3:

A Joint Resolution Proposing To Amend Article 11, Section 2 Of The Constitution Of New Mexico And To Enact A New Section Of Article 11 To Remove Authority To Charter And Regulate Corporations From The Public Regulation Commission And Provide Authority To Charter Corporations To The Secretary Of State.

Constituional Amendment 4:

A Joint Resolution Proposing To Amend Article 11 Of The Constitution Of New Mexico To Remove The Regulation Of Insurance Companies And Others Engaged In Risk Assumption From The Public Regulation Commission And Place It Under A Superintendent Of Insurance Appointed [From Nominees Submitted To The Governor] By The Insurance Nominating Committee As Provided By Law.

Constituional Amendment 5:

A Joint Resolution Proposing An Amendment To Article 6 Of The Constitution Of New Mexico To Add A New Section That Provides For The Organization -LESS-THAN-0012558-Appointment Procedures And Standards For-GREATER-THAN-0012558- Of An Independent Public Defender Department.