August 02, 2011 – State of New Mexico v. Jerome D. Block a/k/a Jerome D. Block II, and Jerome D. Block Jr., and Jerome D. Block a/ka Jerome D Block Sr., No. 30,285

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number:
Filing Date: 	AUGUST 2, 2011
NO. 30,285
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.
APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Michael E. Vigil, District Judge
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 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.
BACKGROUND
I. 	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

2
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

3
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.

4
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

5
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”).

6
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

7
(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

8
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

9
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.
DISCUSSION
{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

10
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).

1Because the State conceded below and again at oral argument that the secretary
of state did not make a referral to the attorney general in this case, we do not reach the
issue of whether the secretary of state’s transmission of the notice of final action to
the attorney general—as evidenced by the fact that the notice, on its face, indicated
that a copy was sent to the attorney general—constitutes a referral (transmission for
prosecution). 	Although we are not bound to accept the State’s concessions, our
holding here does not require us to reach this issue.
11
{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

12
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

13
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

14
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

15
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

16
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

17
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.

18
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

2Our use of the label “civil penalty” throughout the double jeopardy analysis is
based on Section 1-19A-17, which refers to the secretary of state’s assessment of
monetary fines against violators of the Act as a “civil penalty.” Section 1-19A-17A
(stating that “a person who violates a provision of the . . . Act is subject to a civil
penalty of up to ten thousand dollars ($10,000) per violation” (citation omitted)). We
clarify that the secretary of state’s assessment of three fines totaling $11,000 against
Block Jr. are the “civil penalties” we refer to throughout our analysis.
19
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).

20
{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.

21
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

22
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.
1. 	Legislative Intent
{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-

23
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

24
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.

25
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-

26
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

27
remedy. 	Kirby, 2003-NMCA-074, ¶ 31 (Blackmun, J., concurring) (“[M]onetary
assessments are traditionally a form of civil remedy[.]” (quotingUnited 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

28
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

29
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

30
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

31
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

32
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.
CONCLUSION
{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

33
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.
{48} 	IT IS SO ORDERED.
CYNTHIA A. FRY, Judge
WE CONCUR:
JONATHAN B. SUTIN, Judge
RODERICK T. KENNEDY, Judge