SANCHEZ V. ATTORNEY GEN., 1979-NMCA-081,
93 N.M. 210, 598 P.2d 1170 (Ct. App. 1979)
Tom SANCHEZ, Jr., Plaintiff-Appellant
vs.
ATTORNEY GENERAL (for Judge Caldwell), Defendant-Appellee.
COURT OF APPEALS OF NEW MEXICO
1979-NMCA-081, 93 N.M. 210, 598 P.2d 1170
James L. Brandenburg, Albuquerque, for
plaintiff-appellant.
Jeff Bingaman, Atty. Gen., Suzanne
Tanner, Asst. Atty. Gen., Santa Fe, for defendant-appellee.
WOOD, C.J., wrote the opinion. HERNANDEZ
and LOPEZ, JJ., concur.
{*211} WOOD, Chief
Judge.
{1} Does a district court
have authority to compel handwriting exemplars from a person who has not been
charged with a crime, has not been arrested and has not been directed to appear
before an investigative agency pursuant to statutory authority? In answering
this question in the negative, we (1) outline concepts on which our answer is
not based, and (2) discuss the authority of a district court.
{2} An investigator for the
Attorney General filed a document in district court entitled affidavit and
motion for order for handwriting exemplars. This document recited that: 1.
Nineteen false Medicaid claims have been located. 2. These claims involve
medications which were neither prescribed by the attending physician nor
received by the patient. 3. All of the claims were submitted from Ruppe Drug
Store. 4. A pharmacist intern at the drug store, Polito Martinez, admits
signing 18 of the 19 false claims. 5. Martinez states that he "had no control
over inventory, business records or money" at the drug store. 6. Martinez
states he "often processed and signed a number of Medicaid claims although
he did not himself prepare the claim and dispense the medication." 7. The
State paid the false claims. 8. The claims were paid to the drug store. 9. Any
benefit from submitting the false claims inured to the owner of the pharmacy.
10. Tom Sanchez, Jr. was either the sole or part owner of the drug store. 11.
Sanchez was responsible for the pharmacy operation in the drug store. 12.
Sanchez has refused the request of the Attorney General to voluntarily provide
handwriting exemplars.
{3} Judge Maloney issued an
ex parte order directing Sanchez to provide exemplars. Sanchez refused to
comply with the order within the specified time. After a hearing before Judge
Caldwell on the Attorney General's motion that Sanchez be held in contempt,
Judge Caldwell ruled that Sanchez had not been properly served with Judge
Maloney's order. Judge Caldwell also ruled that 1) the investigator's affidavit
{*212} set forth "sufficient
probable cause" to support an order for compelled exemplars, 2) such an
order was proper under the Rules of Criminal Procedure and "applicable
case law," and 3) Sanchez was to provide the exemplars within ten days.
{4} Judge Caldwell orally
stated that if Sanchez failed to provide exemplars within the specified time
and a motion was made to hold Sanchez in contempt "you had best bring your
toothbrush." The order of Judge Caldwell provides that a failure to provide
the exemplars "shall subject Respondent to contempt of this Court, and
incarceration and/or fine as may be imposed by this Court for such
contempt."
{5} Sanchez appealed Judge
Caldwell's order.
Concepts on Which Our Decision is Not Based
{6} (a) Sanchez' handwriting
exemplars could be compelled on pain of contempt once Sanchez was before the
court.
State v. Archuleta, 82 N.M. 378,
482 P.2d 242 (Ct. App.1970). The
Attorney General argues that Sanchez was before the court because he appeared
and contested the contempt motion which resulted in the ruling that he had not
been properly served with Judge Maloney's ex parte order. This argument goes to
physical presence; that is, jurisdiction over the person of Sanchez.
{7} What is involved here is
jurisdiction in the sense of the court's authority to issue the order
concerning handwriting exemplars.
Heckathorn v. Heckathorn, 77 N.M. 369,
423 P.2d 410 (1967);
State v. Patten, 41 N.M. 395,
69 P.2d 931 (1937).
Absent such authority, Sanchez' physical presence could not validate the
court's order and could not bring the matter within
State v. Archuleta,
supra.
State v. Chacon, 62 N.M. 291,
309 P.2d 230 (1957). See
State
v. Halsell, 81 N.M. 239,
465 P.2d 518 (Ct. App.1970) which uses the phrase
"before the court" in the sense of presence pursuant to a criminal
charge. See also
Hammond, et al. v. 8th Jud. Dist. Ct., N.M.,
30 N.M.
130,
228 P. 758, 39 A.L.R. 1490 (1924). The court's authority to issue the
order for handwriting exemplars may not be resolved on the basis that Sanchez
was physically before the court.
{8} (b) The appeal concerns
the court's authority to issue the order for handwriting exemplars. No issue
concerning self-in crimination or search and seizure is presented. See
United
States v. Mara, 410 U.S. 19, 93 S. Ct. 774, 35 L. Ed. 2d 99 (1973);
United
States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 (1973);
State
v. Archulets supra.
{9} (c) Handwriting exemplars
could be compelled if the requirements for a search warrant were met.
Maryland
Penitentiary v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782
(1967). The authority for a search warrant is stated in Rule of Crim. Proc. 17.
Setting aside the question of probable cause, which we do not discuss, we
consider the purposes for which a search warrant may be issued.
{10} Rule of Crim. Proc.
17(a) states three purposes for which a search warrant may be issued. The
investigator's affidavit concluded that the exemplars were for the third
purpose -- to obtain evidence which "would be material evidence in a
criminal prosecution." The affidavit, however, refutes its own conclusion.
The affidavit seeks handwriting exemplars in order to compare the handwriting
of Sanchez with handwriting on the false claims. This comparison is desired
because the investigator does not know whether Sanchez is involved in the false
claims. The affidavit contains nothing indicating Sanchez' handwriting
exemplars "would be" evidence. The requirements for issuance of a
search warrant were not met. The court's authority to issue the order
compelling handwriting exemplars may not be resolved on the basis that the
order was, in effect, a search warrant.
{11} We have excluded search
warrants as a decisional ground in order to emphasize that the issue is the
court's authority to compel the handwriting exemplars. The Attorney General
does not claim that the court's authority to issue search warrants was, in this
case, authority to order the handwriting exemplars.
{*213} The Court's
Authority to Compel Handwriting Exemplars
{12} No complaint,
information or indictment has been filed which names Sanchez; no criminal
prosecution has been commenced. Rule of Crim. Proc. 5. Sanchez is not an
"accused" or a "defendant." Section
31-1-2, N.M.S.A. 1978.
Sanchez has not been arrested and no warrant for his arrest has been issued.
Specifically, no action is pending against Sanchez. These circumstances present
a case of first impression in New Mexico. See
State v. Hudman, 78 N.M.
370,
431 P.2d 748 (1967) where the handwriting specimen was obtained by false
pretense, but after arraignment;
State v. Sneed, 78 N.M. 615,
435 P.2d
768 (1967) and
State v. Renner, 34 N.M. 154,
279 P. 66 (1929) where the
handwriting exemplar was obtained voluntarily, but after arrest;
State v.
Barela, et al., 23 N.M. 395,
168 P. 545, L.R.A. 1918B 844 (1917) where
there was compulsory comparison of footprints, but after arrest. In each of
these cases the appellate issue concerned self-incrimination. Compare
State
v. Jamerson, 85 N.M. 799,
518 P.2d 779 (Ct. App.1974).
{13} In support of his claim
that the court had no authority to issue the order for handwriting exemplars,
Sanchez cites
United States v. Holland, 552 F.2d 667 (5th Cir. 1977),
opinion withdrawn, 565 F.2d 383 (5th Cir. 1978).
Holland, supra, is quite
similar to this case; there, the United States attorney filed a motion to
compel handwriting exemplars. Pointing out that federal district courts were
courts of limited jurisdiction and that Congress had not conferred jurisdiction
on federal district courts to compel handwriting exemplars prior to arrest or
charge, the circuit court held the district court lacked authority to compel
the handwriting exemplars. Holland was not in contempt of court for violating
an order entered without authority.
{14} In holding that federal
district courts were of limited jurisdiction,
United States v. Holland,
supra, comments that most state trial courts are courts of general
jurisdiction. The Attorney General points out that New Mexico district courts
are courts of general jurisdiction and, on the basis of this general
jurisdiction, concludes the district court had authority to compel the
exemplars. This poses the question in this case; however, it does not provide
the answer.
{15} N.M. Const., art. VI, §
13 states: "The district court shall have original jurisdiction in all
matters and causes not excepted in this constitution, and such jurisdiction of
special cases and proceedings as may be conferred by law...."
{16} Matters and causes
excepted from the Constitution are not involved. In this case, the above-quoted
constitutional provision confers authority upon the district court in two ways
-- by "original jurisdiction in all matters and causes" and by
jurisdiction conferred by law.
{17} No statute confers jurisdiction
upon the district court to order the furnishing of handwriting exemplars in
this case. A grand jury could issue a subpoena for the exemplars and the
district court could enforce the subpoena. Section
31-6-12, N.M.S.A. 1978. This
procedure was not followed. A former statute, compiled as § 41-3-8 (Second),
N.M.S.A. 1953 (1st Repl. Vol. 6) authorized the prosecuting attorney to
subpoena witnesses in limited situations "on approval of the district
judge...." Assuming that the Attorney General, in this case, was
proceeding as a prosecuting attorney (however, see
State v. Reese, 78
N.M. 241,
430 P.2d 399 (1967)), the repeal of this statute by Laws 1972, ch.
71, § 18, removed any authority conferred by § 41-3-8 (Second), supra. See
State
v. Chavez, 93 N.M. 270,
599 P.2d 1067 (1979).
{18} If the order compelling
exemplars is likened to an order compelling compliance in an administrative
matter, the absence of authorizing legislation concerning the compelling of
handwriting exemplars is to be compared with specific authorizing legislation
in certain administrative matters. Concerning the Organized Crime Commission,
see § 29-9-5(D), N.M.S.A.1978; see
In re Investigation No. 2, Etc., 91
N.M. 516,
577 P.2d 414 (1978). Compare
State ex rel. Environmental v. Albuquerque
Pub., 91 N.M. 125,
571 P.2d 117 (1977);
State v. Galio, {*214} 92 N.M. 266,
587 P.2d 44 (Ct.
App.1978). Concerning unemployment compensation, see §
51-1-29, N.M.S.A. 1978.
Concerning witnesses to gambling, see §
30-19-14, N.M.S.A. 1978 and the restrictive
interpretation of that statute in 1961-62 Attorney General Opinions, No. 61-88.
{19} The Rules of Criminal
Procedure do not authorize the order for handwriting exemplars. Rule of Crim.
Proc. 14, pertaining to arrest warrant and summons, requires a criminal action.
Rule of Crim. Proc. 28, pertaining to disclosure of evidence by a defendant,
and Rule of Crim. Proc. 29, pertaining to depositions, apply after the filing
of an information or indictment. Rule of Crim. Proc. 33, pertaining to pretrial
motions, contemplates a pending criminal proceeding as does Rule of Crim. Proc.
36, pertaining to pretrial hearings. Rule of Crim. Proc. 48 pertains to
securing the attendance of witnesses in criminal cases. No criminal proceeding
exists at this point.
{20} There being neither
statute nor rule authorizing the order to compel exemplars, does such authority
exist under the constitutional grant of "original jurisdiction" in
N.M. Const. art. VI, § 13?
{21} The constitutional grant
of "original jurisdiction" means the district courts are courts of
general jurisdiction.
Trujillo v. State, 79 N.M. 618,
447 P.2d 279
(1968);
State v. Patten, supra. Compare
Board of County Com'rs of
Torrance County v. Chavez, 41 N.M. 300,
67 P.2d 1007 (1937) which refers to
"general powers."
{22} What, however, is
included within the meaning of general jurisdiction? Criminal cases are
included,
State v. Vaughn, 74 N.M. 365,
393 P.2d 711 (1964), but we have
no criminal case because there has been neither charge nor arrest.
{24} To the extent that an
order compelling handwriting exemplars in aid of a criminal investigation may
be likened to depositions in a criminal case,
State v. Armijo, 72 N.M.
50,
380 P.2d 196 (1963) states: "[T]here is no question but that under the
common law, the defendant had no right to perpetuate the testimony or to take
depositions of witnesses, either for or against him." No authority is
cited in
Armijo, supra, in support of the quoted statement. The
annotation, Ann. Cas. 1916 A, 1066, suggests the quoted statement is too broad,
that in certain limited situations (not applicable in this case) depositions
could be used in criminal proceedings. Nevertheless, the annotation, generally,
supports
State v. Armijo, supra.
{25} To the extent that an
order compelling handwriting exemplars in aid of a criminal investigation may
be likened to an order compelling the production of documents for inspection,
the sparse authority found indicates that production was extremely limited.
{26} Discussing an 1851
English statute authorizing the inspection of documents, Pollock,
Power of
the Courts of Common Law to Compel the Production of Documents for Inspection,
(T. & J. W. Johnson, Philadelphia, 1853), states that prior to enactment of
the 1851 statute, discovery in equity was not permissible in any proceeding
"not purely of a civil character...." In addition, "[b]efore
this act [the 1851 statute] came into operation, the Courts always required
that an application for inspection should be made after action brought."
See II Chitty,
Archbold's Practice of The Court of Queen's Bench, Sixth
Edition, Chap. XIV (Sweet, Chancery Lane, London, 1838). In civil cases,
inspection prior to "action pending" seems to have been limited to a
mandamus proceeding upon a claim of right.
Hodges v. Atkis, 96 English
Reports (Full Reprint) 516;
The King v. Tower, 105 English Reports (Full
Reprint) 795.
{27} The order compelling
handwriting exemplars was not entered in a proceeding
{*215}
"purely of a civil character"; it was entered before "action
brought" or "action pending" in aid of a criminal investigation.
We have not been cited to any authority suggesting such an order was authorized
either at common law or equity prior to 1776, and we have found no such
authority.
{28} We hold that, absent
legislative authorization, Judge Caldwell had no authority to order Sanchez
either to produce handwriting exemplars or be held in contempt, prior to arrest
or charge. This holding is consistent with our Rules of Criminal Procedure
which limit discovery to situations where a criminal proceeding has been
commenced. This holding is also consistent with
Application of Mackell,
59 Misc.2d 760, 300 N.Y.S.2d 459 (1969). In
Mackell, the district
attorney applied for an order directing that a suspect's beard be shaved before
putting the suspect in a lineup. The suspect was in jail, on an unrelated
matter, but was not a defendant in the case for which a lineup was sought. The
application was denied "for want of power."
{29} The order directing
Sanchez to furnish handwriting exemplars, or be held in contempt, is reversed.
HERNANDEZ and LOPEZ, JJ., concur.