State v. Block

• Decision Date: 02 August 2011
• Docket Number: No. 30,285.,30,285.
• Parties: 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: Court of Appeals of New Mexico

150 N.M. 598
263 P.3d 940
2011 -NMCA- 101

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.

No. 30,285.

Court of Appeals of New Mexico.

Aug. 2, 2011.

[263 P.3d 941]

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.OPINION FRY, 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

[263 P.3d 942]

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.BACKGROUNDI. The Voter Action Act

{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

[263 P.3d 943]

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,...