46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO JURIES; CREATING THE LENGTHY TRIAL FUND; INCREASING JUROR COMPENSATION; EXPANDING EXEMPTIONS, ELIMINATING EXCUSES AND CHANGING POSTPONEMENTS; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new section of Chapter 38, Article 5 NMSA 1978 is enacted to read:

"[NEW MATERIAL] LEGISLATIVE DECLARATION.--It is the policy of this state that all qualified citizens have an obligation to serve on juries and to give truthful information concerning attitudes, opinions and feelings about topics relevant to the proceeding for which they are called to serve when summoned by the courts of this state."

Section 2. A new section of Chapter 38, Article 5 NMSA 1978 is enacted to read:

"[NEW MATERIAL] POSTPONEMENT OF PETIT JURY SERVICE.--

A. A person scheduled to appear for service on a petit jury may request a postponement of the date of initial appearance for jury service. The request for postponement shall be granted if the juror:

(1) has not previously been granted a postponement; and

(2) agrees to a future date, approved by the court, when the juror will appear for jury service that is not more than six months after the date on which the prospective juror originally was called to serve.

B. A subsequent request to postpone jury service may be approved by the court only in the event of an extreme emergency that could not have been anticipated at the time the initial postponement was granted. Prior to the grant of a subsequent postponement, the prospective juror must agree to a future date on which the juror will appear for jury service within six months of the postponement.

C. A court shall postpone and reschedule the service of a summoned juror, without affecting the summoned juror's right to request a postponement under Subsections A and B of this section, if the summoned juror is:

(1) employed by an employer with five or fewer full-time employees, or their equivalent, and another employee of the same employer is summoned to appear during the same period;

(2) the only person performing particular services for a business, commercial or agricultural enterprise and whose services are so essential to the operations of the business, commercial or agricultural enterprise that the enterprise must close or cease to function if the person is required to perform jury duty; or

(3) required to attend to an emergency as determined by the judge."

Section 3. A new section of Chapter 38, Article 5 NMSA 1978 is enacted to read:

"[NEW MATERIAL] LENGTHY TRIAL FUND CREATED--PURPOSE--ADMINISTRATION.--

A. The "lengthy trial fund" is created in the state treasury to be administered by the administrative office of the courts. Interest earned on money in the fund shall be credited to the fund. Balances in the fund shall not revert at the end of any fiscal year.

B. All balances in the lengthy trial fund are appropriated to the administrative office of the courts for the purpose of providing full wage replacement or wage supplementation to jurors who serve as petit jurors for more than ten days.

C. Except as provided in Subsection D of this section, a "lengthy trial fund fee" of twenty dollars ($20.00) shall be collected from each party who files a jury demand in a civil case in district court for deposit in the lengthy trial fund.

D. The following parties or civil matters are exempt from payment of the lengthy trial fund fee:

(1) actions by governmental agencies;

(2) pro se litigants;

(3) actions brought in forma pauperis;

(4) recoupment actions for government-backed educational loans or mortgages;

(5) cases seeking child custody or support;

(6) any other filings designated by supreme court rule that involve minimal use of court resources and that customarily are not afforded the opportunity for a trial by jury; and

(7) any other party or civil case exempted by law from payment of jury fees.

E. Payments from the lengthy trial fund shall be made upon vouchers issued and signed by the director of the administrative office of the courts or the director's designee upon warrants drawn by the secretary of finance and administration."

Section 4. Section 38-5-1 NMSA 1978 (being Laws 1969, Chapter 222, Section 1, as amended) is amended to read:

"38-5-1. QUALIFICATION OF JURORS.--[Any] A person who is at least eighteen years of age, a United States citizen, a resident of New Mexico residing in the county for which a jury may be convened and is not a convicted felon is eligible and may be summoned for service as a juror by the district courts and magistrate courts, unless the person is incapable of rendering jury service because of:

A. physical or mental illness or infirmity [to render jury service];

B. undue or extreme physical or financial hardship; or

C. potential delay in the delivery of health care to a patient by a physician or a dentist."

Section 5. Section 38-5-2 NMSA 1978 (being Laws 1973, Chapter 150, Section 1, as amended) is amended to read:

"38-5-2. EXEMPTION FROM JURY SERVICE.--

[Persons] A. A person who [have] has served as [members] a member of a petit jury panel or a grand jury in either state or federal courts within the preceding thirty-six months shall be exempt from sitting or serving as [jurors] a juror in [any of the courts] a court of this state when [they, at their option request] the person requests to be [excused] exempted from service by reason of the exemption granted by this [section] subsection.

[Any other] B. A person may be [excused] exempted from jury service at the discretion of the judge [upon satisfactory evidence presented to the judge with or without the person's personal attendance upon the court. The judge, in his discretion, upon granting any excuse, may disallow the fees and mileage of the person excused] of the court for which the jury has been called for a period of up to twenty-four months if:

(1) the person has a mental or physical condition that causes the person to be incapable of performing jury service and the person has provided the court with a certification from a licensed physician verifying that a mental or physical condition renders the person unfit for jury service;

(2) jury service would cause undue or extreme physical or financial hardship to the prospective juror or to a person under the prospective juror's care or supervision; or

(3) the person is a physician or dentist and jury service may potentially delay the delivery of health care to the person's patients.

C. As used in this section, "undue or extreme physical or financial hardship":

(1) means circumstances in which a person would:

(a) be required to abandon another person under the person's care or supervision due to the extreme difficulty of obtaining an appropriate substitute caregiver during the period of jury service;

(b) incur costs that would have a substantial adverse impact on the payment of necessary daily living expenses of the person or the person's dependent; or

(c) suffer physical hardship that would result in illness or disease; and

(2) does not exist solely because a prospective juror will be absent from employment.

D. A person requesting an exemption from jury service shall take all necessary action to obtain a ruling on the request no later than the date on which the person is scheduled to appear for jury duty.

E. The service upon [any] a jury of [any] a person disqualified shall, of itself, not vitiate any indictment found or any verdict rendered by that jury, unless actual injury to the person complaining of the injury is shown."

Section 6. Section 38-5-11 NMSA 1978 (being Laws 1969, Chapter 222, Section 11, as amended) is amended to read:

"38-5-11. QUALIFYING JURY PANELS.--

A. The court shall empanel jurors in a random manner. The district judge or [his designee or magistrate or his] the magistrate judge or the judge's designee shall preside over the empaneling of a petit jury panel. The district judge or [his] the judge's designee shall preside over the empaneling of the grand jury panel. Jurors who appear for service shall be questioned under oath as to their eligibility for jury service by the district judge or [his designee or magistrate or his] the magistrate judge or the judge's designee. Claims of exemption and requests for [excuse from service or] postponement of [services] service shall be ruled upon by the district judge or [his designee or magistrate or his] the magistrate judge or the judge's designee.

[B. A district judge or his designee or magistrate or his designee may excuse, exclude or postpone the services of any person called as a juror on the basis of:

(1) physical or mental illness of the person or within his immediate family;

(2) a written request from the person's employer for excuse on the ground that his services are essential; or

(3) the person's prior business, professional or educational commitments which conflict with jury service, proven to the satisfaction of the district judge or his designee or magistrate or his designee.

C.] B. The district judge or [his designee or magistrate or his] the magistrate judge or the judge's designee shall submit questionnaires to prospective jurors to obtain any information that will aid the court in ruling on requests for exemption [or excuse] from service or postponement of service or that will aid the court [or] and parties in voir dire examination of jurors or in determining a juror's qualifications to serve on a particular petit jury panel, trial jury or grand jury. The district judge or [his designee or magistrate or his] the magistrate judge or the judge's designee shall certify a numbered list of the jury panel members' names when qualified. The certified list of jurors and the questionnaires obtained from jurors shall be made available for inspection and copying by [any] a party to [any] a pending proceeding [or their attorney] no later than forty-eight hours before trial or [to any] by a person having good cause for access to the list and the questionnaires. The court may require additional questionnaires that relate to the specific case for which jurors are called."

Section 7. Section 38-5-12 NMSA 1978 (being Laws 1969, Chapter 222, Section 12, as amended) is amended to read:

"38-5-12. PETIT JURY PANELS--NUMBER TO BE QUALIFIED--PERIOD OF SERVICE--[EXEMPTION] TIME FOR SUMMONING.--The district judge shall determine the number of jurors to be summoned for service, the date and time for the appearance of jurors for qualification, the number of jurors to be qualified to provide panels of jurors for trial service and the size of trial jury panels [and the length of time jurors are retained for service]. A person shall not be required to remain available for service on a jury panel for more than three months after being qualified as a panel member. Procedures such as the use of alternate jury panels should be established where appropriate to lessen the burden of jury service on persons retained on petit jury panels. [No person may be required to remain as a member of a petit jury panel for longer than six months following qualification as a juror in any year and in any judicial district having a population of more than three hundred thousand persons in the last federal decennial census, no person may be required to remain as a member of an actual jury panel for longer than six weeks in any calendar year unless the panel is engaged in a trial, nor shall he be required to remain as a member of a petit jury panel for longer than three months following qualification as a juror in any year. Persons who have served as members of a petit jury panel or a grand jury in either state or federal courts within the preceding thirty-six months shall be exempt from sitting or serving as jurors in any of the courts of this state when they, at their option, request to be excused from service.] Jurors may be drawn, summoned and qualified by the district judge at any time to supplement jury panels requiring replacement or augmentation. Petit jury panels may be qualified and may serve as the trial needs of the district court require without regard to court terms."

Section 8. Section 38-5-13 NMSA 1978 (being Laws 1969, Chapter 222, Section 13, as amended) is amended to read:

"38-5-13. JURY LOT SLIP CONTAINER--DRAWING AND QUALIFYING TRIAL JURY.--

A. The district court of each county shall provide one jury lot slip container to hold the juror lot slips for the selection of trial juries. The container shall be constructed in a manner that allows the juror lot slips to be securely locked within and shall have a transparent window of sufficient size to permit the juror lot slips to be clearly visible. The clerk of the district court of each county is responsible for the safekeeping of the jury lot slip container.

B. The lot slips bearing an identification number and the names of the jurors duly empaneled and present for the trial of a case, folded to conceal the name and number, shall be placed in a trial jury wheel. The judge shall cause the lot slips to be drawn singly from the container until sufficient names have been drawn to provide the number of jurors required for the trial. The container shall be shaken or rotated to cause the lot slips to be mixed. The name and number of each juror shall be announced as it is called and recorded. Twelve or six jurors shall compose a petit jury in the district courts for the trial of civil causes. Twelve jurors shall compose a petit jury in criminal and children's court cases. A programmed computer may be used in lieu of a jury lot slip container to randomly select trial juries. Whatever method of random selection of jurors is used, the court shall make available to the parties the names of jurors and the order of jurors drawn for trial no later than forty-eight hours before the trial. Magistrate jury court selection shall be conducted in accordance with supreme court rules."

Section 9. Section 38-5-15 NMSA 1978 (being Laws 1969, Chapter 222, Section 15, as amended) is amended to read:

"38-5-15. MILEAGE AND COMPENSATION FOR JURORS--LENGTHY TRIAL COMPENSATION.--

A. Persons summoned for jury service and jurors shall be reimbursed for travel from their place of actual residence to the courthouse when their attendance is ordered, at the rate allowed public officers and employees per mile of necessary travel. Persons summoned for jury service and jurors shall be compensated for their time in travel, attendance and service at the highest prevailing state minimum wage rate.

B. Only a juror who serves on a petit jury for more than ten days qualifies for payment from the lengthy trial fund as set forth in this section, if the jury service commenced on or after September 30, 2003. Payment shall be limited to the difference between the jury fee set forth in Subsection A of this section and the actual amount of wages a juror earns up to the maximum level payable and minus any amount the juror receives from an employer during the same time period.

C. The court may pay replacement or supplemental wages, from the lengthy trial fund, of up to three hundred dollars ($300) per day per juror beginning on the eleventh day of jury service. In addition, if the court finds that lengthy jury service poses significant financial hardship for a juror, even in light of payments made after the tenth day of service, the court may award replacement or supplemental wages of up to one hundred dollars ($100) per day from the fourth to the tenth day of jury service.

D. A juror may submit a request for payment from the lengthy trial fund on a form provided by the court. The request shall disclose the juror's regular wages, the amount the employer pays during the term of jury service starting on the eleventh day and thereafter, the amount of replacement or supplemental wages requested and any other information the court deems necessary.

E. Prior to payment from the lengthy trial fund, a juror shall submit documentation verifying the wage information provided to the court, including most recent earnings statements.

F. If a juror is self-employed or receives compensation other than wages, the juror may provide a sworn affidavit attesting to the juror's approximate income, together with other information or documentation as the court may require, to verify income."

Section 10. Section 38-5-18 NMSA 1978 (being Laws 1979, Chapter 47, Section 1) is amended to read:

"38-5-18. EMPLOYER PROHIBITED FROM PENALIZING EMPLOYEE FOR JURY SERVICE.--

A. An employer shall not deprive an employee of [his] employment or threaten or otherwise coerce [him with respect thereto] an employee because the employee receives a summons for jury service, responds, [thereto] serves as a juror or attends court for prospective jury service.

B. An employer shall not require or request an employee to use annual, vacation or sick leave for time spent responding to a summons for jury service, participating in the jury selection process or serving on a jury. Nothing in this subsection requires an employer to provide annual, vacation or sick leave to employees who are not otherwise entitled to those benefits under company policies."

Section 11. EFFECTIVE DATE.--The effective date of the provisions of this act is September 1, 2003.