STATE V. BLOCK, 2011-NMCA-101,
150 N.M. 598, 263 P.3d 940
STATE OF NEW MEXICO,
Plaintiff-Appellant,
v.
JEROME D. BLOCK, a/k/a JEROME D. BLOCK II and JEROME D.
BLOCK, JR., and JEROME D. BLOCK, a/k/a JEROME D. BLOCK, SR.,
Defendants-Appellees.
COURT OF APPEALS OF NEW MEXICO
2011-NMCA-101, 150 N.M. 598, 263 P.3d 940
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY,
Michael E. Vigil, District Judge.
Released for Publication October 25,
2011.
Gary K. King, Attorney General, Andrew S.
Montgomery, Assistant Attorney General, Santa Fe, NM, for Appellant.
Rothstein, Donatelli, Hughes, Dahlstrom,
Schoenburg & Bienvenu, LLP, Daniel Philip Estes, Carolyn M. “Cammie”
Nichols, Albuquerque, NM, Freedman, Boyd, Hollander, Goldberg, Ives &
Duncan, PA, Zachary A. Ives, Theresa M. Duncan, Albuquerque, NM, for Appellees.
James Harrington, Santa Fe, NM, for
Amicus Curiae Common Cause.
CYNTHIA A. FRY, Judge. WE CONCUR: JONATHAN
B. SUTIN, Judge, RODERICK T. KENNEDY, Judge.
{1} The secretary of
state assessed fines against Jerome Block, Jr., (Block Jr.) for violations of
the New Mexico Voter Action Act (the Act), NMSA 1978, Sections
1-19A-1 to -17
(2003, as amended through 2007), which provides public financing for certain
candidates running for political office. The attorney general then filed
criminal charges against Block Jr. and his father, Jerome Block, Sr. (Block
Sr.), for violations of the Act. The district court dismissed the charges,
holding that the attorney general may not initiate prosecution under the Act
unless the secretary of state refers the violations to the attorney general for
that purpose. We reverse the dismissal because the Act does not limit the
attorney general’s authority to prosecute. We also reject Block Jr.’s argument
that prosecution following fine assessment violates principles of double
jeopardy.
{2} Enacted in
2003 as part of our comprehensive Election Code, the Act has not been analyzed
in any prior case, and our review is thus a matter of first impression. To
frame our discussion, we begin by providing a brief overview of the Act’s
relevant statutory provisions. The Act established a public campaign finance
scheme for the purpose of financing the election campaigns of candidates
running for various public offices in New Mexico. Sections 1-19A-2 to -17.
Toward that end, the Act created a “public election fund” for the purpose of
“financing the election campaigns of certified candidates for covered offices.”
Section 1-19A-10(A)(1).
{3} Under the Act,
candidates who are interested in obtaining public financing must undergo a
certification process that is administered by the office of the secretary of
state. Sections 1-19A-3 to -6, -16. Upon certification, candidates become
eligible to receive distributions from the public election fund during the
election cycle and, in return, they are required to comply with all
requirements of the Act. Section 1-19A-6(C). These requirements include, among
others, using disbursed funds only for campaign-related purposes, limiting
total campaign expenditures to the amounts distributed from the public election
fund, refraining from seeking contributions from any other source, and
returning any unspent or unencumbered money to the public election fund at the
time a person ceases to be a candidate. Section 1-19A-7. The candidate must
also report campaign-related expenditures to the secretary of state in
accordance with the campaign reporting requirements specified in the Act as
well as in other portions of the Election Code. Section 1-19A-9. The Act
charges the secretary of state with administering the Act’s statutory
provisions and directs the secretary of state to adopt rules to “ensure
effective administration of the [Act].” Section 1-19A-15(A).
{4} This appeal
concerns Section 1-19A-17, the sole penalties provision of the Act. This
section prescribes penalties for violations of the Act, including a civil
penalty of up to $10,000 per violation in Subsection (A) and a criminal penalty
in Subsection (B) for a willful or knowing violation that is punishable as a
fourth degree felony. Sections 1-19A-17(A), (B). In addition, candidates who
violate the Act “may” be required to return money disbursed to their campaigns
from the public election fund under Subsection (A) and “shall” be required to
return such money under Subsection (B).
Id. We address this provision in
detail in our discussion.
II. Factual
and Procedural History
{5} The underlying
facts of this case stem from Defendant Block Jr.’s campaign for the office of
commissioner of the New Mexico Public Regulation Commission during the 2008
election cycle. During the primary and general elections that year, Block Jr.
ran as a certified candidate for office pursuant to the Act and, as a result,
he was authorized to receive public campaign financing from the public election
fund. Approximately $101,508 was disbursed to Block Jr.’s campaign from the
public election fund throughout the 2008 election cycle.
A. The
Secretary of State’s Investigation and Assessment of Civil Fines Against Block
Jr.
{6} On October 4, 2008,
amid news reports that Block Jr. had allegedly misappropriated funds disbursed
to him from the public election fund, the secretary of state initiated a
preliminary inquiry into possible violations by Block Jr.’s campaign of the Act
and the Campaign Reporting Act, NMSA 1978, Sections
1-19-25 to -36 (1979, as
amended through 2009), both of which are closely situated statutory chapters
within the Election Code. After a series of communications between the
secretary of state and Block Jr. regarding the investigation into the purported
violations, the secretary of state issued a notice of final action on November
1, 2008, in which she levied three fines totaling $11,000 against Block Jr. for
three separate violations of the Act and the Campaign Reporting Act. In
addition to the fines, the secretary of state required Block Jr. to return
$10,000 of the $101,508 previously disbursed to his campaign from the public
election fund and also to return a $700 donation made by Block Jr. from the
disbursed funds. In sum, Block Jr. was required to pay a total of $21,700 to
the secretary of state as a result of the three violations.
{7} Although the
secretary of state determined that the three fines totaling $11,000 resulted
from violations of both the Act and the Campaign Reporting Act, we describe the
three violations only in the context of the Act for purposes of our discussion.
The first fine levied by the secretary of state, in the amount of $5,000, was
based on a violation of Section 1-19A-9(D) of the Act for the “failure to
accurately and truthfully report” a campaign expenditure.
See §
1-19A-9(D) (requiring certified candidates under the Act to “report
expenditures according to the campaign reporting requirements specified in the
Election Code”). This fine corresponded to Block Jr.’s failure to correctly
report a $2,500 payment to a musical group for rally entertainment that the
group never actually provided.
{8} The second
fine, also in the amount of $5,000, was based on a violation of Section
1-19A-7(D) of the Act for “improper use in the general election cycle of public
funds earmarked for the primary election.”
See § 1-19A-7(D) (stating
that “[a] certified candidate shall return to the secretary, within thirty days
after the primary election, any amount that is unspent or unencumbered by the
date of the primary election for direct deposit into the [public election]
fund”). The secretary of state found that Block Jr. had failed to return the
$2,500 paid to the musical group, although that amount should have been
previously returned to the secretary of state’s office within thirty days of
the primary election. The third fine, in the amount of $1,000, was based on a
violation of Section 1-19A-7(A) of the Act for the use of disbursed public
election funds for non-campaign related purposes.
See § 1-19A-7(A)
(stating that “[a]ll money distributed to a certified candidate shall be used
for that candidate’s campaign-related purposes in the election cycle in which
the money was distributed”). This fine corresponded to a $700 contribution by
Block Jr. from the funds disbursed to his campaign in order to help retire a
former presidential candidate’s campaign debt.
{9} The secretary of
state’s notice of final action indicated that a copy of the notice was
transmitted to the office of the New Mexico Attorney General. On appeal, the
parties agree that aside from sending a copy of the notice to the attorney
general’s office, the secretary of state made no express decision to refer the
matter to the attorney general for criminal prosecution. During the proceedings
below, the secretary of state stated that any decision as to whether a criminal
prosecution should be initiated for violations of the Act was beyond her
statutory purview and area of expertise and that her office did not make any
kind of referral to the attorney general’s office for criminal prosecution.
B. Criminal
Proceedings Against Block Jr. and Block Sr.
{10} On April 8,
2009, approximately five months after the secretary of state’s final action
against Block Jr., a grand jury indicted Block Jr. for: (1) two counts of
willfully or knowingly violating the Act and other provisions of the Election
Code (Counts 1 and 3), (2) two counts of conspiracy to commit violations of the
Act and other provisions of the Election Code (Counts 2 and 4), (3) one count
of tampering with evidence, (4) one count of conspiracy to commit tampering with
evidence, and (5) two counts of embezzlement over $500 but not more than
$2,500. On the same date, a grand jury indicted Block Jr.’s father, Defendant
Block Sr. for: (1) one count of willfully or knowingly violating the Act and
other provisions of the Election Code (Count 1), (2) one count of conspiracy to
commit a violation of the Act and other provisions of the Election Code (Count
2), (3) one count of tampering with evidence, and (4) one count of conspiracy
to commit tampering with evidence. Pursuant to Rule
5-203(B) NMRA, the charges
against Block Jr. and Block Sr. (collectively, Defendants) were joined.
{11} Subsequently,
Defendants moved to dismiss specific counts in the indictments. Defendants
initially filed a joint motion in district court to dismiss all charges brought
under the Act, arguing that the attorney general lacked statutory authority to
initiate criminal proceedings for violations of the Act. Defendants asserted
that the attorney general’s broad authority to prosecute criminal cases under
NMSA 1978, Section
8-5-2 (1975), was limited by the Act. Specifically,
Defendants contended that the plain language of the Act’s penalties provision
requires the attorney general’s office to receive a referral from the secretary
of state prior to initiating criminal prosecutions for violations of the Act.
Because no such referral allegedly occurred in this case, Defendants argued
that the attorney general lacked the authority to prosecute the charges brought
under the Act. In addition to this joint motion, Block Jr. separately moved to
dismiss three specific counts of the indictment—1 and 2 (both for violations of
the Act), and 7 (for embezzlement)—on double jeopardy grounds. Specifically,
Block Jr. argued that the fines levied by the secretary of state constituted
criminal punishment for purposes of the double jeopardy clause of the New
Mexico Constitution and therefore precluded a successive criminal prosecution
for the same conduct.
{12} After a hearing on
both motions, the district court issued an order granting the joint motion
filed by Defendants as well as the separate motion filed by Block Jr. The court
determined that the plain language of the Act’s penalties provision permitted
“the secretary of state to
either impose a fine if she or he finds a violation
of the [Act]
or transmit a finding of a violation to the attorney
general for prosecution,
but not both.” (Emphasis added.) The court
reasoned that the attorney general lacked the statutory authority to prosecute
violations of the Act without a prior referral from the secretary of state and,
further, that “had the Legislature intended to allow the attorney general to
exercise his or her usual broad authority to initiate criminal charges without
the secretary of state having [first] transmitted findings of a violation, it
would have said so.” Because the secretary of state had levied fines and also
testified at the hearing that she did not make a referral to the attorney
general’s office, the court held that the attorney general lacked prosecutorial
authority to initiate criminal proceedings against Defendants for violations of
the Act. On this basis, the court dismissed all charges brought for violations
of the Act against both Defendants.
{13} The district court
further determined, as a separate and alternate ground supporting dismissal,
that all charges brought under the Act violated Block Jr.’s state
constitutional protections against double jeopardy. The court found that
legislative intent behind the Act authorized imposition of either a civil penalty
or criminal prosecution, but not both and, therefore, the prior issuance of
civil penalties in this case precluded any subsequent criminal prosecution for
the same underlying conduct. The court further reasoned that the civil
penalties levied by the secretary of state constituted criminal punishment
because they were more punitive than remedial in nature and that any subsequent
criminal charges brought under the Act for conduct previously punished through
the civil penalties resulted in a violation of double jeopardy. Accordingly,
the district court dismissed all charges brought under the Act against Block
Jr., with the order specifically referencing Counts 1-4. This appeal followed.
The district court granted a stay of all further proceedings pending resolution
of this appeal.
{14} On appeal, the State
contends that the district court erroneously determined that: (1) the attorney
general has no authority to prosecute criminal violations of the Act without a
prior referral from the secretary of state, and (2) double jeopardy precludes
criminal prosecution for violations of the Act based on the same conduct for
which the secretary of state has previously assessed a civil penalty. These
issues hinge on our interpretation of Section 1-19A-17, the penalties provision
of the Act. We address each issue in turn.
I. Attorney
General’s Authority to Prosecute Criminal Violations of the Act
{15} We begin by
examining the basic statutory grant of authority to the attorney general. In
New Mexico, the attorney general has no common law powers; instead, his/her
duties are determined entirely by statute.
State v. Davidson,
33 N.M.
664, 669,
275 P. 373, 375 (1929). The basic statutory grant of authority to the
attorney general is set forth in NMSA 1978, Section
8-5-2(B) (1975), which
provides in relevant part that: “Except as otherwise provided by law, the
attorney general shall . . . prosecute and defend in any other court or
tribunal all actions and proceedings, civil or criminal, in which the state may
be a party or interested when, in his [or her] judgment, the interest of the
state requires such action.” Section 8-5-2(B). Thus, “Section 8-5-2 provides
authority for the [attorney general] to prosecute criminal cases in any court
when the [s]tate’s interest requires such action,” but that authority may be
limited or conditioned where the Legislature has “otherwise provided by law.”
State
v. Koehler,
96 N.M. 293, 295,
629 P.2d 1222, 1224 (1981) (internal
quotation marks omitted).
{16} The first issue is
whether the Legislature has “otherwise provided” in Section 1-19A-17 for a
limitation on the attorney general’s authority to initiate criminal
prosecutions for violations of the Act. The district court construed Section
1-19A-17 to limit the attorney general’s authority to initiate criminal
proceedings under the Act to only the circumstance where a prior referral has
been received from the secretary of state. In addition, the district court
construed the word “or” in Section 1-19A-17(A) to be disjunctive and to denote
mutually exclusive alternatives—i.e., meaning that the secretary of state shall
either impose a fine for a violation or transmit the finding to the attorney
general for criminal prosecution, but not both.
See § 1-19A-17(A) (“If
the secretary makes a determination that a violation of [the A]ct has occurred,
the secretary shall impose a fine
or transmit the finding to the
attorney general for prosecution.” (emphasis added)). On these grounds, the
district court concluded that the attorney general exceeded the scope of his
prosecutorial authority under the Act by initiating criminal proceedings
against Defendants without first receiving a referral from the secretary of
state.
1 Our review of the district court’s
holding presents issues of statutory construction concerning Section 1-19A-17
of the Act.
{17} We apply de novo
review to questions of statutory interpretation.
State v. Rivera,
2004-NMSC-001, ¶ 9,
134 N.M. 768,
82 P.3d 939. “The primary aim of statutory
construction is to give effect to the intent of the Legislature.”
State v.
Lewis, 2008-NMCA- 070, ¶ 6,
144 N.M. 156,
184 P.3d 1050 (internal quotation
marks omitted). In discerning legislative intent, we are aided by canons of
statutory construction, and we look first to the plain language of the statute
to determine if the statute can be enforced as written.
See State v. Davis,
2003-NMSC-022, ¶ 6,
134 N.M. 172,
74 P.3d 1064. “Under the plain meaning rule,
when a statute’s language is clear and unambiguous, we will give effect to the
language and refrain from further statutory interpretation.”
State v. Hubble,
2009-NMSC-014, ¶ 10,
146 N.M. 70,
206 P.3d 579 (internal quotation marks
omitted). If, however, the language of the statute is “doubtful, ambiguous, or
an adherence to the literal use of the words would lead to injustice, absurdity
or contradiction,” we reject the plain meaning rule in favor of construing the
statute “according to its obvious spirit or reason.”
Davis,
2003-NMSC-022, ¶ 6.
{18} We begin with the
language of Section 1-19A-17, which reads:
A. In
addition to other penalties that may be applicable, a person who violates a
provision of the Voter Action Act is subject to a civil penalty of up to ten
thousand dollars ($10,000) per violation. In addition to a fine, a certified
candidate found in violation of that act may be required to return to the fund
all amounts distributed to the candidate from the fund. If the secretary
makes a determination that a violation of that act has occurred, the secretary
shall impose a fine or transmit the finding to the attorney general for
prosecution. In determining whether a certified candidate is in violation
of the expenditure limits of that act, the secretary may consider as a
mitigating factor any circumstances out of the candidate’s control.
B. A
person who willfully or knowingly violates the provisions of the Voter Action
Act or rules of the secretary or knowingly makes a false statement in a report
required by that act is guilty of a fourth degree felony and, if he is a
certified candidate, shall return to the fund all money distributed to that
candidate.
Section 1-19A-17 (emphasis added) (citations omitted).
Looking at the language, we observe that the attorney general is mentioned only
once in the section, as the official recipient of referrals from the secretary
of state. Section 1-19A-17(A). There is no language in either subsection that
expressly states what the attorney general shall or may do regarding violations
of the Act. Subsection (A) specifies only what the secretary of state “shall”
or “may” do in administering the Act, without explicitly addressing the
attorney general’s authority to prosecute criminal violations of the Act.
Similarly, Subsection (B) specifies the nature of the criminal penalties
available for violations of the Act, again without specifically addressing the
attorney general’s authority or the procedures by which a criminal prosecution
may arise. Defendants have not argued that the Act includes any explicit
language limiting the authority of the attorney general; rather, their
arguments are focused on construing the word “or,” as mentioned above, as a
limitation on the attorney general’s prosecutorial authority.
{19} Although “[l]egislative
silence is at best a tenuous guide to determining legislative intent,”
Swink
v. Fingado,
115 N.M. 275, 283,
850 P.2d 978, 986 (1993), the fact remains
that there is no express language in Section 1-19A-17 or elsewhere in the Act
specifying the nature of or any limit on the attorney general’s authority to
initiate criminal prosecutions for violations of the Act. We also assume that
the Legislature was aware of Section 8-5-2 when it drafted the Act and that,
had the Legislature intended for the Act to “otherwise provide” a limitation on
the attorney general’s authority under Section 8-5-2, it could have included
such limiting language in the Act.
See El Vadito de los Cerrillos Water
Ass’n v. N.M. Pub. Serv. Comm’n,
115 N.M. 784, 789,
858 P.2d 1263, 1268 (1993)
(assuming that the Legislature is aware of existing laws at the time of
subsequent legislation). As a result, the attorney general’s basic statutory
grant of authority in Section 8-5-2 plays an important role in our analysis and
cannot be ignored.
{20} The district court
held that the following language in Section 1-19A-17 acts as a limitation on
the attorney general’s authority to initiate criminal proceedings against
Defendants: “If the secretary makes a determination that a violation of [the
Act] has occurred, the secretary shall impose a fine
or transmit the
finding to the attorney general for prosecution.” Section 1-19A-17(A) (emphasis
added). The district court concluded that the “or” denotes mutually exclusive
alternatives and, thus, if the secretary of state elects to issue a fine, as in
this case, the attorney general has no authority to commence a prosecution. We
are not persuaded that this is a reasonable interpretation of the meaning of
Section 1-19A-17(A).
{21} The word ‘or’ in
legislative acts is not given its normal disjunctive meaning if it will
frustrate evident legislative intent, if adherence to the literal use of the
word leads to absurdity or contradiction, and if the context of the section and
other statutes read in conjunction with the section call for a different
interpretation.
See Swink v. Fingado,
115 N.M. 275, 279 n.10,
850
P.2d 978, 983 n.10 (1993) (indicating that “or” is a conjunction and that “the
alternatives are not necessarily mutually exclusive”);
Hale v. Basin Motor
Co.,
110 N.M. 314, 318,
795 P.2d 1006, 1010 (1990) (“The word ‘or’ should
be given its normal disjunctive meaning unless the context of a statute demands
otherwise.”);
First Nat’l Bank v. Bernalillo Cnty. Valuation Protest Bd.,
90 N.M. 110, 112,
560 P.2d 174, 176 (Ct. App. 1997) (stating that the “ordinary
meaning [of ‘or’] should be followed unless it renders the statute doubtful or
uncertain”). Courts do not inexorably apply the rule that the use of the
disjunctive “or” means only that one of the listed choices can be employed, if
a “strict grammatical construction will frustrate evident legislative intent .
. . [or] statutory context can render the distinction [between “and” and “or”]
secondary.” Yule Kim, Legislative Attorney, American Law Division, Congressional
Research Service,
CRS Report for Congress, Statutory Interpretation: General
Principles and Recent Trends (Updated August 31, 2008), page 8 (internal
quotation marks omitted) (citing cases indicating that “the word ‘or’ is often
used as a careless substitute for the word ‘and’”; and that “[b]oth ‘and’ and
‘or’ are context-dependent, and each word ‘is itself semantically ambiguous,
and can be used in two quite different senses”);
see also 1A Norman J.
Singer,
Statutes & Statutory Construction § 21:14, at 185-89 (7th
ed. 2009) (observing that there has been “such laxity in the use of [the terms
‘and’ and ‘or’]” and then describing cases where courts have found the terms to
be interchangeable if this is more consistent with legislative intent). Here,
all of these considerations bear on the issue.
{22} Section 1-19A-17(A)
sends mixed signals and raises questions as to its intent in regard to
administrative civil penalties and criminal prosecutions. The section opens
with the phrase, “[i]n addition to other penalties that may be applicable.”
Construed broadly, this phrase includes civil penalties in other statutes and
criminal penalties for violation of criminal laws. Such penalties would include
that for a Section 1-19A-17(B) felony. Nothing in Section 1-19A-17(A) indicates
a legislative intention to make the secretary of state a gatekeeper with
prosecutorial discretion to determine whether probable cause exists to
prosecute a Section 1-19A-17(B) felony or whether a felony charge instead of a
civil penalty ought to be pursued. Nothing in that section indicates an intent
to preclude the attorney general from prosecuting that felony. The more
reasonable view of the section is that the administrative penalty was intended
as a remedial remedy to cover violations that were neither willful nor knowing,
with a prosecution still open for violations that were willful or knowing. We
doubt that the Legislature meant the wording in that section to place the
secretary of state in an “either/or” straitjacket or by implication to
hamstring the attorney general when a felony has been committed. We are
unpersuaded that the Legislature would enact a criminal felony proscription
intending a violation of it to be rendered unenforceable at the whim of the
secretary of state.
{23} The Act contains no
express language addressing the authority of the attorney general to act, and
Section 1-19A-17 speaks only to the duties of the secretary of state without
addressing the authority of the attorney general. Therefore, the language of
the Act does not “otherwise provide” for a limitation on the attorney general’s
authority under Section 8-5-2 to prosecute criminal violations of the Act. The
word “or” in Subsection (A) of Section 1-19A-17 denotes choices that are not
mutually exclusive and, as a result, the issuance of a civil penalty does not
preclude the possibility of subsequent prosecution.
II. Double
Jeopardy Analysis
{24} We next address
whether double jeopardy barred the prosecution of Block Jr. due to the previous
assessment of civil penalties against him by the secretary of state. On appeal,
the State and amicus curiae Common Cause contend that the district court
erroneously dismissed Counts 1 - 4 of the indictment against Block Jr. on the
alternate ground that double jeopardy barred the imposition of successive civil
and criminal penalties under the Act for the same conduct by Block Jr.
{25} Block Jr. concedes
that it was error for the district court to dismiss Counts 3 and 4 on double
jeopardy grounds because the conduct alleged in these counts was not the same
conduct for which Block Jr. was fined. As a result, because there is no dispute
that the conduct underlying Counts 3 and 4 and the conduct that resulted in the
secretary of state’s action concerned separate offenses and therefore was not
unitary, we reverse the district court’s order as to these two charges.
{26} As for the remaining
counts, we must determine whether New Mexico’s constitutional and statutory
double jeopardy provisions bar criminal prosecution under the Act for conduct
for which the secretary of state has previously assessed a “civil penalty.”
2 We apply de novo review to this
legal question.
See State v. Kirby,
2003-NMCA-074, ¶ 12,
133 N.M. 782,
70 P.3d 772.
{27} Because Block Jr.
does not assert a violation of the federal double jeopardy clause, our analysis
is limited to our state’s double jeopardy jurisprudence. The New Mexico
Constitution’s double jeopardy clause states that “[n]o person shall . . . be
twice put in jeopardy for the same offense.”
N.M. Const. art II, § 15.
Similarly, our state double jeopardy statute provides that “[n]o person shall
be twice put in jeopardy for the same crime.” NMSA 1978, §
30-1-10 (1963). It
is well established that these provisions protect “against the imposition of
multiple criminal punishments for the same offense and then only when such
occurs in successive proceedings.”
City of Albuquerque v. One (1) 1984 White
Chevy Util.,
2002-NMSC-014, ¶ 7,
132 N.M. 187,
46 P.3d 94 (internal
quotation marks omitted). In this context, our Supreme Court has recognized
that a “legislature may impose both a criminal and a civil sanction in respect
to the same act or omission without violating the Double Jeopardy Clause.”
Id.
(internal quotation marks omitted).
{28} In
State ex rel.
Schwartz v. Kennedy, our Supreme Court delineated the following three-part
framework for determining whether double jeopardy bars successive criminal and
civil sanctions for the same conduct: “(1) whether the [s]tate subjected the
defendant to separate proceedings[,] (2) whether the conduct precipitating the
separate proceedings consisted of one offense or two offenses[,] and (3)
whether the penalties in each of the proceedings may be considered ‘punishment’
for the purposes of the Double Jeopardy Clause.”
120 N.M. 619, 626,
904 P.2d
1044, 1051 (1995). In applying the third
Schwartz factor, a reviewing
court determines whether the penalty constitutes “punishment” by considering
(1) the Legislature’s “purpose in enacting the legislation, rather than
evaluating the effect of the sanction on the defendant”; and (2) “whether the
sanction established by the legislation was sufficiently punitive in its effect
that, on balance, the punitive effects outweigh the remedial effect.”
White
Chevy,
2002-NMSC-014, ¶ 11 (internal quotation marks omitted). We apply the
Schwartz framework to this case.
A. First and
Second Schwartz factors: Separate Proceedings and Unitary Conduct
{29} The parties are in
agreement regarding the first and second
Schwartz factors. With regard
to the first
Schwartz factor, it is uncontroverted that the action by
the secretary of state that resulted in the levying of civil penalties against
Block Jr. and the subsequent criminal prosecution in district court were two
separate proceedings. As for the second
Schwartz factor, the State
conceded below, and again on appeal, that the conduct underlying Counts 1 and 2
of the indictment against Block Jr. was the same conduct that precipitated the
secretary of state’s investigation and assessment of monetary penalties.
B. Third Schwartz
factor: Whether the Civil Penalty Constitutes “Punishment”
{30} With regard to
Counts 1 and 2, the dispositive issue before us is the third
Schwartz factor—whether
the civil penalties levied by the secretary of state against Block Jr. are
considered “punishment” for purposes of the double jeopardy clause so as to
preclude subsequent criminal prosecution. As stated above, our Supreme Court
has stated that courts should determine whether a sanction is “punishment” for
double jeopardy purposes by first considering the Legislature’s purpose in
enacting the penalty and, second, whether the penalty is so punitive in its
effect that, on balance, the punitive effects outweigh its remedial effect.
White
Chevy,
2002-NMSC-014, ¶¶ 8, 11.
{31} The district court
answered the third
Schwartz factor in the affirmative, determining that
the civil penalties imposed by the secretary of state were more punitive than
remedial in nature and that this was sufficient to bar Block Jr.’s subsequent
criminal prosecution on double jeopardy grounds. On appeal, we conclude that
the district court’s determination was incorrect and, accordingly, we reverse
the district court’s dismissal of Counts 1 and 2 on this basis. As we explain
more fully below, our review of legislative intent and the effects of the civil
penalty indicates that the civil penalty is not considered “punishment” under
the third
Schwartz factor and, therefore, it does not preclude
subsequent criminal prosecution for the same conduct.
{32} In applying the
third
Schwartz factor, we must first ascertain the Legislature’s purpose
in enacting the Act and, specifically, Section 1-19A-17.
See Hudson v.
United States, 522 U.S. 93, 99 (1997) (explaining that “[w]hether a
particular punishment is criminal or civil is, at least initially, a matter of
statutory construction” and that “[a] court must first ask whether the
legislature, in establishing the penalizing mechanism, indicated either expressly
or impliedly a preference for one label or the other” (internal quotation marks
and citation omitted)).
{33} Although the Act
does not specifically enumerate its purposes, it is clear that the Act’s
provisions are directed at establishing a public campaign financing system that
is subject to considerable oversight by the office of the secretary of state.
Sections 1-19A-2 to -17. There is no question that the Act’s provisions
establish a regulatory and administrative scheme for the management of public
campaign funds.
Id. This is evidenced by the provisions covering the
certification process, Sections 1-19A-3 to -6, -16, management of and
disbursements from the public election fund, Sections 1-19A-10 to -14, and
candidate expenditures and reporting requirements, Sections 1-19A-7 to -9.
{34} It is therefore
apparent that the Act, as a whole, is directed to a remedial purpose. Its
provisions are aimed at protecting against misappropriation of public campaign
funds, promoting transparency in campaign expenditures, and protecting the
public from deceptive practices by candidates. Also, the Act is part of our
state Election Code, a statutory chapter that was enacted with the purpose of
“secur[ing] ... the purity of elections and guard[ing] against the abuse of the
elective franchise” and “to provide for efficient administration and conduct of
elections.” NMSA 1978, §
1-1-1.1 (1979). The inclusion of the Act within the
Election Code further reflects the intent of the Legislature to create a
remedial regulatory and administrative scheme for the management of public
campaign funds.
Cf. State v. Nunez,
2000-NMSC-013, ¶ 52,
129 N.M. 63,
2
P.3d 264 (determining that the penalty provisions of the Controlled Substances
Act, which is part of the Criminal Code, were punitive in nature because that
act “d[id] not concern a regulated lawful activity, but rather an illegal
criminal activity”).
{35} We also conclude
that the civil penalty in Section 1-19A-17 evinces a remedial and regulatory
purpose. Under Subsection (A) of Section 1-19A-17, the secretary of state has
the authority to impose a civil penalty for violations of the Act, and the
secretary of the state may also require a violator to return any funds he/she
was disbursed from the public election fund. Subsection (A) also includes
language that the imposition of a civil penalty and the return of disbursed funds
is “[i]n addition to other penalties that may be applicable.”
Id. As a
result, the civil penalty is one of multiple tools of regulatory and
administrative enforcement available to the secretary of state to ensure
compliance with the Act.
See Kirby,
2003-NMCA-074, ¶ 26. This further
supports our view that the Legislature intended that the civil penalty
“constitute an integral part of an overall remedial regulatory and
administrative scheme to protect the public.”
Id.
2. Balancing
of Remedial and Punitive Effects of the Civil Penalty
{36} Having determined
that the Act has a remedial purpose, we next address whether the civil penalty
“was sufficiently punitive in its effect that, on balance, the punitive effects
outweigh the remedial effect.”
Id. ¶¶ 22, 27 (internal quotation marks
omitted). We do so because “[e]ven in those cases where the [L]egislature has
indicated an intention to establish a civil penalty,” it is still possible that
the Act’s statutory scheme is “so punitive either in purpose or effect, as to
transform what was clearly intended as a civil remedy into a criminal penalty.”
Hudson, 522 U.S. at 99 (alteration omitted) (internal quotation marks
and citation omitted).
{37} Our inquiry here
centers on a seven-factor, non-exhaustive framework established by the United
States Supreme Court in
Kennedy v. Mendoza-Martinez, 372 U.S. 144
(1963), and previously adopted by this Court in
Kirby:
(1) [w]hether the sanction involves
an affirmative disability or restraint; (2) whether it has historically been
regarded as a punishment; (3) whether it comes into play only on a finding of scienter;
(4) whether its operation will promote the traditional aims of
punishment-retribution and deterrence; (5) whether the behavior to which it
applies is already a crime; (6) whether an alternative purpose to which it may
rationally be connected is assignable for it; and (7) whether it appears
excessive in relation to the alternative purpose assigned.
Kirby, 2003-NMCA-074, ¶ 28 (alteration in original)
(internal quotation marks omitted). As we explain more fully below, upon
applying the seven Mendoza-Martinez factors, we conclude that the civil
penalty in the Act is more remedial than punitive in its effect.
{38} First, the
administrative sanctions that the secretary of state can impose under the
Act—i.e., a civil penalty of up to $10,000 per violation and the return of
disbursed funds—do not constitute an affirmative disability or restraint. These
sanctions unequivocally do not approach “the infamous punishment of imprisonment,”
Kirby,
2003-NMCA-074, ¶ 30 (internal quotation marks omitted), “which is
the paradigmatic affirmative disability or restraint.”
Smith v. Doe, 538
U.S. 84, 100 (2003). Contrary to Block Jr.’s assertion that the civil penalty
imposes an affirmative restraint on a candidate’s ability to run for public
office, any civil penalty imposed by the secretary of state under the Act does
not bar a fined candidate from continuing his or her current campaign or from
running for public office in the future.
See § 1-19A-17(A). As a result,
the civil penalty carries neither the stigma nor the harsh consequences of a
criminal conviction on a candidate’s election-related activities.
Kirby,
2003-NMCA-074, ¶ 30;
see NMSA 1978, §
31-13-1(A), (E) (2005) (stating
that, unless certain conditions are met, a person convicted of a felony cannot
vote or hold an office of public trust).
{39} Second, the civil
penalty that may be imposed under the Act has not historically been regarded as
punishment and is instead traditionally viewed as a form of civil remedy.
Kirby,
2003-NMCA-074, ¶ 31 (Blackmun, J., concurring) (“[M]onetary assessments are
traditionally a form of civil remedy[.]” (quoting
United States v. Ward,
448 U.S. 242, 256 (1980));
see Hudson, 522 U.S. at 104 (“[N]either money
penalties nor debarment has historically been viewed as punishment.”).
{40} Third, we conclude
that the civil penalty does “not come into play
only on a finding of
scienter.”
Kirby,
2003-NMCA-074, ¶ 32 (emphasis added) (internal
quotation marks omitted). Section 1-19A-17(A) allows the secretary of state to
assess a civil penalty against any “person who violates a provision of the
[Act]” without regard to the violator’s state of mind or culpable intent. By
contrast, Section 1-19A-17(B) provides for criminal penalties only where the
person has “willfully or knowingly violate[d] the provisions of the [Act].” As
a result, we view the penalties provision of the Act to require a finding of
scienter only in connection with the imposition of a criminal penalty. To the
extent that Block Jr. argues that a finding of scienter comes into play for the
civil penalty because “the secretary [of state] may consider as a mitigating
factor any circumstances out of the candidate’s control” in determining whether
a violation of Section 1-19A-17(A) has occurred, we are unpersuaded. Because
consideration of mitigating factors is a discretionary act—as evidenced by the
use of the word “may” in the statutory provision—we agree with the State’s
position that a civil penalty can be imposed under the Act even without
consideration of mitigating factors.
See NMSA 1978, §
1-1-3 (1969)
(stating that “[a]s used in the Election Code, ‘shall’ is mandatory and ‘may’
is permissive” (citation omitted)). Consequently, the civil penalty does not
come into play
only on a finding of scienter, as required under the
third
Mendoza-Martinez factor.
Cf. Hudson, 522 U.S. at 104
(reasoning that consideration of the violator’s “good faith” in determining the
amount of the penalty to be imposed did not signify that the penalty comes into
play
only on a finding of scienter because the “penalty can be imposed
even in the absence of bad faith”).
{41} Fourth, we consider
whether the imposition of a civil penalty under the Act promotes the
traditional aims of punishment—retribution and deterrence. This Court has
previously recognized that it would be against common sense to conclude that a
“civil penalty [such as the one imposed by the Act] does not have some punitive
and deterrent aspects in its nature.”
Kirby,
2003-NMCA-074, ¶ 33. But
our Supreme Court has emphasized that “[a]lthough a civil penalty may cause a
degree of punishment for the defendant, such a subjective effect cannot
override the legislation’s primarily remedial purpose.”
White Chevy,
2002-NMSC-014, ¶ 11. Similarly, we have stated that “the mere presence of [a
deterrent] purpose is insufficient to render a sanction criminal [for double
jeopardy purposes], as deterrence may serve civil as well as criminal goals.”
Kirby,
2003-NMCA-074, ¶ 34 (internal quotation marks omitted). We therefore reject
Block Jr.’s assertion that the civil penalty at issue here promotes only
punitive purposes.
{42} We do not
consider the negative effect of the penalty on Block Jr. to conclusively
establish that the penalty constitutes “punishment” because, as previously
noted, “whether a sanction constitutes punishment is not determined from the
defendant’s perspective, as even remedial sanctions carry the sting of
punishment.”
Schwartz, 120 N.M. at 631, 904 P.2d at 1056 (internal
quotation marks omitted). In addition, although the imposition of the civil
penalty will likely deter future wrongdoing by other certified candidates, the
civil penalty serves important non-punitive goals, such as promoting
transparency in our state’s public campaign financing scheme, regulating the
use of disbursed public funds by campaigns, and increasing public confidence in
our state electoral system.
See Kirby,
2003-NMCA-074, ¶ 34
(holding that although sanctions in the Securities Act had deterrent effects,
the sanctions served important non-punitive goals, were remedial in nature, and
were “plainly part of the director’s arsenal for regulation of persons dealing
in the sale of securities . . . and [spoke] as much, if not more, to that
regulatory challenge than to a sole need to punish”);
see also Hudson,
522 U.S. at 105 (concluding that although the monetary sanctions at issue were
“intended to deter future wrongdoing, [they] also serve[d] to promote the
stability of the banking industry” and thus, “[t]o hold that the mere presence
of a deterrent purpose renders such sanctions ‘criminal’ . . . would severely
undermine the [g]overnment’s ability to engage in effective regulation”).
Because the civil penalty reasonably serves the regulatory goals of the Act and
protects the public, we conclude that any deterrent or punitive effects of the
civil penalty “are incidental to and do not override the Act’s and the civil
penalty’s primarily remedial purpose.”
Kirby,
2003-NMCA-074, ¶ 34.
{43} Fifth, it is
undisputed that the conduct upon which the civil penalties were based also
formed the basis of Counts 1 and 2 of Block Jr.’s indictment. However,
“although we answer this
Mendoza-Martinez issue affirmatively, this fact
is insufficient to render the money penalties . . . criminally punitive . . .
particularly in the double jeopardy context.”
Kirby,
2003-NMCA-074, ¶ 35
(alteration omitted) (internal quotation marks omitted).
{44} Finally, we consider
the sixth and seventh factors together: whether “there exists an alternative,
remedial, purpose to which the civil penalty may rationally be connected” and
whether “imposition of the civil penalty . . . appear[s] excessive in relation
to the [Act’s alternative] purpose” assigned.
Id. ¶¶ 36-37. The district
court determined that the civil penalty was not earmarked for specific remedial
purposes and, further, that any remedial goals of the Act were accomplished by
the reimbursement aspect of Section 1-19A-17(A), which requires violators to
return disbursed funds to the secretary of state. On appeal, the State argues
that the civil penalty is connected to the alternative remedial purpose of
“promoting openness and honesty and keeping corruption out of New Mexico’s
publicly financed election campaigns.” It argues that the civil penalty is
“integral to enforcing regulatory compliance” with conditions imposed by the
Act to protect these remedial interests. The State further asserts that the
civil penalty is earmarked for return to the public election fund “for the
purpose of . . . recouping administrative and enforcement costs. Section
1-19A-15(B)(5) (directing the secretary of state to establish procedures for
the return of fund disbursements and “other money” to the public election
fund); Section 1-19A-10(A)(2) (stating that one purpose of the public election
fund is “paying administrative and enforcement costs” of the Act).
{45} We agree with the
State’s position as to the sixth factor. It is clear that the civil penalty is
connected to the remedial purpose of protecting our state’s publicly financed
election campaign system from misappropriation and to insuring that public
funds are not subject to unlawful and deceptive practices. The use of the civil
penalty toward the administrative and enforcement costs of the Act serves that
purpose. As for the seventh
Mendoza-Martinez factor, we conclude that
the civil penalty is integral to the remedial goals of the Act and that it does
not appear excessive in relation to these goals. The district court incorrectly
determined that reimbursement of disbursed funds would remedy any harm arising
from violations of the Act because reimbursement would not include the costs of
an investigation and enforcement of the Act. Moreover, “the Legislature chose
to label the penalty a
civil penalty.”
Kirby,
2003-NMCA-074, ¶
38. Although the label is not dispositive on the double jeopardy analysis,
see
id. ¶ 29, the use of the term “civil” supports our interpretation of the
Legislature’s purpose in enacting the penalty.
{46} In summary, the
Mendoza-Martinez
factors indicate that the civil penalty is not sufficiently punitive in its
effect or purpose so as to outweigh its remedial effect. This, in conjunction
with the Legislature’s purpose in enacting the Act, leads us to conclude that
the civil penalty is not “punishment” for double jeopardy purposes under the
third
Schwartz factor. It was therefore error for the district court to
dismiss Counts 1 and 2 against Block Jr. on double jeopardy grounds. As
previously stated, we also reverse the dismissal of Counts 3 and 4 against
Block Jr. on double jeopardy grounds because the conduct underlying those
criminal charges and the secretary of state’s previous action was not unitary.
{47} We hold that
the Act does not limit the attorney general’s authority to initiate criminal
proceedings for violations of the Act. The attorney general is not required to
first receive a referral from the secretary of state before he or she can initiate
criminal proceedings. We also conclude that the civil penalty authorized under
Section 1-19A-17(A) of the Act is not considered punishment for double jeopardy
purposes and, thus, it does not preclude subsequent criminal prosecution for
the same conduct against which the civil penalty was assessed. Accordingly, we
reverse the district court’s order of dismissal and remand with instructions to
reinstate all charges brought under the Act against Defendants.
RODERICK T. KENNEDY, Judge
Topic Index for State v. Block, No. 30,285
ST-RC Rules of
Construction