State v. Kirby

• Decision Date: 21 March 2003
• Docket Number: No. 967, No. 22, No. 020., No. 23
• Citation: 2003 NMCA 74,70 P.3d 772,133 N.M. 782
• Parties: STATE of New Mexico, Plaintiff-Appellant, v. Richard Grey KIRBY, Defendant-Appellee. State of New Mexico, Plaintiff-Appellant, v. Joseph Clyde Collins and Joy E. Collins, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

70 P.3d 772

133 N.M. 782

2003 NMCA 74

STATE of New Mexico, Plaintiff-Appellant, v. Richard Grey KIRBY, Defendant-Appellee.

State of New Mexico, Plaintiff-Appellant, v. Joseph Clyde Collins and Joy E. Collins, Defendants-Appellees.

Nos. 22,967, 23,020.

Court of Appeals of New Mexico.

March 21, 2003.

Certiorari Denied May 20, 2003.

Certiorari Quashed May 28, 2003.

Patricia A. Madrid, Attorney General, Santa Fe, NM, Joel Jacobsen, Assistant Attorney General, Albuquerque, NM, for Appellant.

John D. Cline, Freedman Boyd Daniels Hollander, Goldberg & Cline P.A., Albuquerque, NM, for Appellee Richard Grey Kirby.

John B. Bigelow, Chief Public Defender, Susan Roth, Santa Fe, NM, for Appellee Joseph Clyde Collins.

Mathew Connelly, Albuquerque, NM, for Appellee Joy E. Collins.

Certiorari Denied, No. 28,020, May 20, 2003.

Certiorari Quashed, No. 28,021, May 28, 2003.

OPINION

SUTIN, Judge.

{1} Two cases on appeal present for us the issue whether administrative imposition of the civil penalty contained in the New Mexico Securities Act bars, under New Mexico Double Jeopardy jurisprudence, a criminal prosecution under that Act for the same conduct on which the civil penalty was imposed. We have consolidated State v. Kirby, Docket No. 22,967, and State v. Collins, Docket No. 23,020, for purposes of disposition of these cases on appeal.

{2} Each Defendant was indicted on criminal securities violations based on the same conduct for which administrative penalties were imposed. In each case, the district court dismissed criminal charges for securities violations on the ground that each Defendant had been unconstitutionally put in jeopardy by an order issued by the Securities Division of the New Mexico Regulation and Licensing Department (the Division). Based on a Securities Division hearing officer's findings and conclusions, the acting director of the Division entered administrative orders that, among other things, imposed a monetary penalty on each Defendant. The State appeals in both cases.

{3} The appeals require this Court to analyze the extent, if any, to which the double jeopardy analysis and holding in State v. Nunez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, should be applied to preclude imposition of both civil and criminal penalties under the New Mexico Securities Act of 1986, NMSA 1978, §§ 58-13B-1 to -57 (1986, as amended through 1999) [hereinafter Securities Act or the Act], for the same conduct. We analyze Nunez together with two other New Mexico Supreme Court cases bearing on the issue before us: State ex rel. Schwartz v. Kennedy, 120 N.M. 619, 904 P.2d 1044 (1995), decided before Nunez; and City of Albuquerque v. One (1) 1984 White Chevy, 2002-NMSC-014, 132 N.M. 187, 46 P.3d 94 [hereinafter White Chevy], decided after Nunez. We decline to extend Nunez to the circumstances in these cases, and therefore reverse the dismissals in both Kirby and Collins.

KIRBY BACKGROUND AND DISPOSITION

{4} Some of the facts underlying the administrative order are virtually the same as those underlying the counts of the Kirby indictment. No issue exists on that point. In New Mexico, in 1998 Defendant engaged in transactions that became the subject matter of a Securities Division investigation and administrative proceeding. The administrative proceeding involved several transactions in which Defendant attempted, through misrepresentations, to sell securities without being a registered broker and without registering the securities, and supplied placement materials and disclosure statements to potential buyers that contained misrepresentations.

{5} The administrative order imposed a civil penalty of $75,000. How the hearing officer and acting director arrived at this amount is unclear. It may, but does not necessarily, reflect a finding that Defendant engaged in fifteen separate violations of the Securities Act, in that the maximum civil penalty allowed under the Act is $5,000 for each violation. See § 58-13B-37(B)(4) (authorizing an order "imposing a civil penalty up to a maximum of five thousand dollars ($5,000) for each violation"). The administrative order also required Defendant to pay $1,000 "for costs of investigation." See § 58-13B-44(B).

{6} In addition to the penalty imposed, the administrative order, dated July 25, 2000, required Defendant to "cease and desist from offering to sell or selling securities of any kind in New Mexico without first complying with all provisions of the [Securities Act]," and "permanently barred [Defendant] from associat[ing] with any licensed broker-dealer or investment advisor in this State." See § 58-13B-37(B)(1), (3) (authorizing various administrative sanctions for violation of the Securities Act). The order further required Defendant to offer all purchasers of securities the opportunity to rescind their purchases and receive their money back. The Division never sought relief in the district court based on its administrative order. See §§ 58-13B-37(B)(5); -38 (authorizing court enforcement of administrative orders).

{7} Defendant filed a notice of appeal from the administrative order in August 2000 to the district court. In October 2000, a grand jury indicted Defendant for various violations under the Securities Act.

{8} In his statement of appellate issues, served in April 2001 in the district court appeal, Defendant asserted, among other things, that the administrative order should be vacated because Defendant did not knowingly and intelligently waive his right to counsel in the administrative proceeding. Also in April 2001, Defendant filed a "Notice of Dismissal in Part" of his appeal from the administrative order. In this notice of dismissal, Defendant stated that he "dismisses his appeal from the portion of the final order of the New Mexico Securities Division imposing on him a penalty of $75,000.... By dismissing this portion of his appeal, [Defendant] does not concede that the penalty is appropriate or lawful."

{9} In May 2001, the Division moved, with Defendant's consent, to vacate the findings of fact, conclusions of law, and the administrative order because the record did not indicate that the hearing officer informed Defendant of his right to counsel or of potential adverse risks and consequences of proceeding without counsel. The district court vacated the administrative order, stating:

It is hereby ORDERED that the Findings of Fact, Conclusions of Law and Final Order entered by the Acting Director of the Securities Division on July 25, 2000 in the administrative proceeding captioned In the Matter of: Continental Exchange Trust, Richard G. Kirby and Julie Kirby, Order No.XXXX-XX-XXX-XXX(FO), be and hereby is vacated and set aside without prejudice. Appellant Richard G. Kirby had dismissed his appeal as to the portion of such administrative order providing for imposition of a civil penalty on him, and therefore the issue of such civil penalty is no longer before the Court in the current proceeding and the portion of the administrative order imposing a civil penalty on Appellant Richard G. Kirby is not affected by this order.

The court remanded the case to the Division for a new hearing.

{10} Shortly after the administrative order was vacated, Defendant filed a motion in his pending criminal case to bar further prosecution on the grounds that further prosecution would violate the double jeopardy clause of Article II, Section 15 of the New Mexico Constitution and the double jeopardy statute, NMSA 1978, § 30-1-10 (1963). In January 2002, the district court granted the motion and dismissed the criminal charges against Defendant with prejudice. The State appeals to this Court.

{11} The State asserts that the district court erroneously determined that the administrative proceeding was a criminal prosecution barring subsequent enforcement of criminal violations; that, even assuming the administrative proceeding resulted in punishment, the count of the criminal complaint charging ordinary fraud should be permitted because it does not involve a Securities Act offense; that Defendant was not placed in "jeopardy" by the administrative proceeding; and that use of the double jeopardy clause to bar Defendant's prosecution constitutes an improper manipulation of the courts. We reach only the first issue: whether the district court erred in determining that imposition of the administrative civil penalty was sufficient to bar Defendant's subsequent criminal prosecution.

Standard of Review and Defendant's Burden

{12} We interpret Defendant's having ignored Rule 12-213(A)(4), (B) NMRA 2003, requiring the parties to state the standard of review, to mean either that Defendant does not care what standard of review we employ or agrees with the State's recitation of the standard of review. Our review is de novo, in that the facts material to the issues are not disputed and we are met with issues of law. White Chevy, 2002-NMSC-014, ¶ 5, 132 N.M. 187, 46 P.3d 94; State v. Attaway, 117 N.M. 141, 144-46, 870 P.2d 103, 106-08 (1994).

{13} We must examine the legislative intent behind the Securities Act and its provisions. "In interpreting statutes, we seek to give effect to the Legislature's intent, and in determining intent we look to the language used and consider the statute's history and background." Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764, 768-69, 918 P.2d 350, 354-55. "[A]ll parts of a statute must be read together to ascertain legislative intent." Id. at 769, 918 P.2d at 355. In doing so, we seek to produce "a harmonious whole" by construing each part of the statute in connection with every other part to achieve the goals of the Legislature. Id.

{14} The issue in White Chevy was whether a city ordinance requiring civil forfeiture of vehicles violated the United States or New Mexico double jeopardy clauses or a statutory double jeopardy provision. 2002-NMSC-014, ¶¶ 2, 19, 132 N.M. 187, 46 P.3d 94. The Supreme Court set out the following under its recitation of...