May 29, 2020- State of New Mexico v. Connie Lee Johnston, No. A-1-CA-37585

OCR transcription for search; preserved printed pages are authoritative

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Filing Date: May 29, 2020

NOS. A-1-CA-36096, A-1-CA-37270, A-1-CA-37585 and A-1-CA-38283

(consolidated for purpose of opinion)
Court of Appeals of New Mexico

Filed 5/29/2020 10:46 AM
STATE OF NEW MEXICO,

Plaintiff-A ppellant, Mark Reynol is

DAVID GUTIERREZ,

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Defendant-A ppellee.

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APPEAL FROM THE DISTRICT COURT OF DONA ANA COUNTY
Angie K. Schneider, District Judge

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and

STATE OF NEW MEXICO,

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Plaintiff-A ppellant,

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Vv.

FRANCESCA ESTEVEZ,

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ray

Defendant-Appellee.

RnHnwn Papa vae © aisahe eo nee ae re! ae A AT ae

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APPEAL FROM THE DISTRICT COURT OF GRANT COUNTY
Douglas R. Driggers, District Judge

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Plaintiff-A ppellant,

Vv.

CONNIE LEE JOHNSTON,

Defendant-Appellee.

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APPEAL FROM THE DISTRICT COURT OF SAN JUAN COUNTY
Louis E. DePauli, Jr., District Judge

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and

STATE OF NEW MEXICO,

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Plaintiff-A ppellant,

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Vv.

DEMESIA PADILLA,

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Defendant-Appellee.

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APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY
Mary Marlowe Sommer, District Judge

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Hector H. Balderas, Attorney General
Santa Fe, NM
Walter Hart, Assistant Attorney General

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Albuquerque, NM

for Appellant

Bennett J. Baur, Chief Public Defender

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WEES =

Santa Fe, NM
Steven J. Forsberg, Assistant Appellate Defender
Albuquerque, NM

for Appellee Gutierrez

Francesca Estevez
Gila, NM

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Pro Se Appellee

Ray Twohig

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Albuquerque, NM

for Appellee Johnston

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Kennedy, Hernandez & Associates, P.C.
Paul J. Kennedy

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Jessica M. Hernandez
Albuquerque, NM

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for Appellee Padilla

State Ethics Commission

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Jeremy Farris
Walker Boyd
Albuquerque, NM

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for Amicus Curiae

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OPINION

3 Does a government official who fails to abide by the ethical principles

imposed by the Legislature commit a crime under the Governmental Conduct Act

IMSA 1978

§§ 10-16-1 to -18 (1967, as amended throu

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the question we are called upon to answer in each of these four separate cases.

a3 The State appeals four district court orders dismissing charges against

Defendants David Gutierrez, Francesca Estevez, Connie Lee Johnston, and Demesia

Padilla under the GCA in four separate and unrelated cases. The district court

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dismissed the charges against each Defendant under the GCA on different grounds.

The charges against one Defendant were dismissed on the ground that Subsections

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10-16-3(A)-(C) do not provide for criminal offenses. Those against a second

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Defendant were dismissed on the ground that Subsections (A)-(C) are too ambiguous

to apply. Charges against a third were dismissed on the ground that the statute is

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unconstitutionally vague. Finally, charges against a fourth Defendant were

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dismissed on grounds that the statute is both unconstitutionally vague and overbroad.

Because these cases raise several identical issues, we consolidate them for decision.

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See Rule 12-317(B) NMRA. Concluding that the Legislature intended for knowing

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and willful violations of Subsections 10-16-3(A)-(C) to be punishable as

misdemeanors, we reverse the district courts’ decisions dismissing charges brought

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under Subsection 10-16-3(A), but affirm the district courts’ decisions dismissing

charges brought under Subsections 10-16-3(B) and (C) on the ground of vagueness.

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BACKGROUND

433. These four cases came to us with very different facts and a varying procedural

backgrounds, but they share a common thread: each case arises from an allegation

of misconduct by a government official. We therefore begin by setting forth the

relevant factual and procedural background for each case leading up to

consolidation.

Defendant David Gutierrez

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44 The State charged Defendant Gutierrez with violating Subsections 10-16-

3(A)-(C) of the GCA, alleging he pursued an unwanted sexual relationship with one

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of his employees during the course of his work as county treasurer by repeatedly

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commenting on her physical appearance and offering to give her money and use his

authority as treasurer to expunge a prior disciplinary write-up in exchange for sex.

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Defendant Gutierrez filed three motions, which included a motion in limine, a

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motion to dismiss, and a motion pursuant to State v. Foulenfont, 1995-NMCA-028,

46, 119 N.M. 788, 895 P.2d 1329 (authorizing dismissal of a case in lieu of an

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evidentiary hearing or a trial on the merits where a case raises a purely legal issue).

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These motions made largely the same assertion—that the provisions of Subsections

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10-16-3(A)-(C) do not define or create criminal offenses, but instead are ethical

principles intended to guide the behavior of public officials

oe ea ta Y VEEN NS EEE GD

{53} The district court granted Defendant Gutierrez’s motions and dismissed the

indictment, reasoning that violations of Subsections 10-16-3(A)-(C) were not crimes

but “ethical considerations,” and that the grand jury indictment, therefore, “failed to

allege the commission of a criminal offense.” The State appealed the dismissal of

Defendant Gutierrez’s charges.

Defendant Francesca Estevez

{6} The State charged Defendant Estevez, in relevant part, with violating

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Subsections 10-16-3(A) and (B) of the GCA, alleging she attempted to use her

position as district attorney to manipulate or intimidate officers who were

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investigating allegations that she improperly used a state vehicle for personal use.

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Defendant Estevez filed a motion to dismiss these counts, arguing the GCA was

unconstitutionally vague. The district court concluded that although Section 10-16-

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3 establishes “advisory guideposts setting forth standards of ethical conduct[,]”

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insurmountable ambiguities existed regarding its intended scope and _ the

applicability of Section 10-16-17’s provision for criminal penalties. As a result, the

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district court applied the rule of lenity and dismissed the charges. The State appealed

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the dismissal of Defendant Estevez’s charges.

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Defendant Connie Lee Johnston

(The State charged Defendant Johnston

4 TAG EE = EGE e ts = VGA Gits Ya ¥ Gt

Subsections 10-16-3(A) and (B) based on allegations that, while acting in her

capacity as a magistrate judge, Defendant Johnston unlawfully recorded the

communications of her colleagues and coworkers in secure areas within the Aztec

Magistrate Court Building. Defendant Johnston filed a motion to dismiss these

charges, arguing that the subsections at issue set forth “aspirational provisions”

rather than criminal offenses and are unconstitutionally vague. The district court

dismissed the charges, concluding that even if Subsections (A) and (B) provided for

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criminal offenses, they were nevertheless void for vagueness. The State appealed the

dismissal of Defendant Johnston’s charges.

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Defendant Demesia Padilla

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33 The State charged Defendant Padilla, in relevant part, with violating

Subsections 10-16-3(B) and (C), alleging she used her position as the Secretary of

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the New Mexico Taxation and Revenue Department to access the tax records of the

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accounting firm at which she worked prior to her appointment as well as the records

of her former clients. Defendant Padilla filed motions to dismiss these charges,

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arguing the subsections at issue were unconstitutionally vague and overbroad. The

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district court granted Defendant Padilla’s motions and dismissed these charges. The

State appealed.

1] DISCUSSION

2| 49} On appeal, the parties ask us to consider two issues. First, we are called on to

3] decide whether violations of Subsections 10-16-3(A)-(C) are criminal offenses. In

All 41. + ——_- elude atAl
SG WO OCVUIL WO CUOIIVIUUC LITO VIUL

5|| we are next asked to consider whether they are ambiguous or unconstitutionally

6] vague. Defendant Padilla also asks us to consider whether Subsections (B) and (C)

7| are overbroad. We conclude that Subsections (A)-(C) set out criminal offenses, that

9] unconstitutionally vague. As our void-for-vagueness discussion is dispositive for the

10] charges brought under Subsections (B) and (C), we need not reach the issue of

11] overbreadth raised by Defendant Padilla.

’

—______12|]. Ap plicability_of Section 10-16-17 to Subsections 10-16-3(A)-(C)
FON F

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13 || {10} he State contends that the district court erred when it concluded the

14] provisions of Subsections 10-16-3(A)-(C) set out only “ethical considerations”

15} rather than crimes. In support of its argument, the State contends that the plain

16] language of Section 10-16-17 renders any knowing and willful violation of

18] GCA.]” The State also argues that the Legislature’s use of mandatory language in

19] Subsections (A)-(C) makes clear its intent that violations of those subsections are

20] punishable as misdemeanors.

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411; In response to the State, Defendants first contend that the plain language of

are not crimes. Second, pointing to other statutory provisions within the GCA

mandating certain ministerial and reporting duties, Defendants contend that it would

be absurd to conclude that the Legislature intended that all provision of the GCA

containing mandatory language trigger criminal liability if violated. Third,

Defendants contend that violations of Subsection (C) may result in only civil, not

criminal, penalties. Fourth, Defendants argue that Subsections (A)-(C) are so

ambiguous that the rule of lenity requires that we construe them as not providing for

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criminal offenses.

A. — Statutory Interpretation

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4123 The parties’ arguments require that we interpret Subsections 10-16-3(A)-(C),

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in conjunction with Section 10-16-17. Statutory interpretation is an issue of law we

review de novo. See Badilla v. Wal-Mart Stores E. Inc., 2015-NMSC-029, ¥ 12, 357

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P.3d 936 (“Interpretation of a statute is an issue of law which we review de novo.”

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(alteration, omissions, internal quotation marks, and citation omitted)). When

interpreting statutes, we must determine and give effect to the Legislature’s intent,

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which requires that “we look first to the plain language of the statute, giving the

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words their ordinary meaning, unless the Legislature indicates a different one was

intended.” Chatterjee v. King, 2012-NMSC-019, 4 11, 280 P.3d 283 (alteration,

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internal quotation marks, and citation omitted). “[I]f the meaning ofa statute is truly

responsibility of the judiciary to apply the statute as written and not to second-guess

the [L]egislature’s selection from among competing policies or adoption of one of

perhaps several ways of effectuating a particular legislative objective.” State ex rel.

Helman v. Gallegos, 1994-NMSC-023, 9 22, 117 N.M. 346, 871 P.2d 1352. We

therefore first consider whether the language of the statutes at issue is clear, or

whether we must look further before applying the statutes to the facts of these cases.

4133. While the parties focus their analysis on the provisions of Subsections 10-16-

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3(A)-(C), we begin with a review of Section 10-16-17, which establishes the

parameters of criminal conduct under the GCA. Section 10-16-17 provides:

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Unless specified otherwise in the [GCA], any person who
knowingly and willfully violates any of the provisions of [the GCA] is

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guilty of a misdemeanor and shall be punished by a fine of not more
than one thousand dollars ($1,000) or by imprisonment for not more
than one year or both. Nothing in the [GCA] shall preclude criminal

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prosecution for bribery or other provisions of law set forth in the
constitution of New Mexico or by statute.

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(Emphasis added.) Before a defendant is guilty of a misdemeanor under Section 10-

16-17, three requirements must be satisfied. First, a defendant must have violated a

provision of the GCA. Second, the violation must have been knowing and willful.

And, third, the violation must not be subject to treatment otherwise specified in the

GCA.

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414; Without addressing the specific requirements of Section 10-16-17 that trigger

misdemeanor criminal hability

WS EEN GES ON

intend for Section 10-16-17 to apply to violations of Section 10-16-3. Section 10-

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16-3 provides:

5 Ethical principles of public service; certain official acts prohibited;

6 penalty.

7 A. __A legislator or public officer or employee shall treat the

8 legislator’s or public officer’s or employee’s government position as a

9 public trust. The legislator or public officer or employee shall use the
10 powers and resources of public office only to advance the public
11 interest and not to obtain personal benefits or pursue private interests.
12 B. — Legislators and public officers and employees shall
13 conduct themselves in a manner that justifies the confidence placed in
14 them by the people, at all times maintaining the integrity and
15 discharging ethically the high responsibilities of public service.
16 C. — Full disclosure of real or potential conflicts of interest shall
17 be a guiding principle for determining appropriate conduct. At all times,
18 reasonable efforts shall be made to avoid undue influence and abuse of
19 office in public service.
20 D. No legislator or public officer or employee may request or
21 receive, and no person may offer a legislator or public officer or
22 employee, any money, thing of value or promise thereof that is
23 conditioned upon or given in exchange for promised performance of an
24 official act. Any person who knowingly and willfully violates the
25 provisions of this subsection is guilty of a fourth degree felony and shall
26 be sentenced pursuant to the provisions of [NMSA 1978,] Section 31-
27 18-15 [(2019)].
28] In support of their argument, Defendants point to the heading of Section 10-16-3—

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“Ethical principles of public service; certain acts prohibited; penalty’—claiming the

heading evidences_a legislative intent contrary to the plain meaning of Section 10-

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16-17 for two reasons. First, Defendants contend the heading indicates that

violations of those provisions are not crimes. Second, Defendants claim the heading

demonstrates that criminal penalties are limited to the activities set out in

Subsection (D)

15} Initially we note that when discerning the Legislature’s intent, we may look

to a section’s heading, “and ordinarily it may be considered as a part of the act if

necessary to its construction.” 7ri-State Generation & Transmission Ass’n, Inc. v.

D’Antonio, 2012-NMSC-039, 9 18, 289 P.3d 1232 (internal quotation marks and

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citation omitted); see also NMSA 1978, § 12-2A-13 (1997) (“Headings and titles

may not be used in construing a statute or rule unless they are contained in the

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enrolled and engrossed bill or rule as adopted.”). We may not use a section’s

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heading, however, “to produce an ambiguity in a statute which is otherwise clearly

drafted[.|” Serrano v. State, Dep’t of Alcoholic Beverage Control, 1992-NMCA-

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015, 7 12, 113 N.M. 444, 827 P.2d 159. Any such ambiguity must derive from the

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body, not the heading, of the statute. See State v. E/lenberger, 1981-NMSC-056, 6,

96 N.M. 287, 629 P.2d 1216 (concluding that “the ambiguity which justifies a resort

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to the title must arise in the body of the act; an ambiguity arising from the title is not

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sufficient” (internal quotation marks and citation omitted)). The heading of a section

“cannot limit the plain [meaning] of the text.” /d. (internal quotation marks and

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citation omitted); see 73 Am. Jur. 2d Statutes § 100 (2020) (explaining that although

a section’s heading is a tool “for the resolution of dot

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statute[,]” the heading “is only a short-hand reference to the general subject matter

involved in that statutory section and cannot limit the plain meaning of the text”

(footnotes omitted))

416} Here, Defendants rely on the heading of Section 10-16-3 to establish a

limitation that is not contained in the text of the statute—that compliance with

Subsections (A)-(C) is merely aspirational and not subject to the criminal penalty set

out in Section 10-16-17. We understand Defendants’ argument to be that the

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Legislature’s use of the word “principles,” rather than “standards,” in Section 10-

16-3’s heading indicates that the Legislature did not intend to require legislators,

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public officials, and public employees to comply with Subsections (A)-(C)’s

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provisions. Defendants reason that because “standards” is defined at Section 10-16-

2(J) as “conduct required by the [GCA],” and the Legislature chose not to use

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“standards” in the heading to Section 10-16-3, it did not intend to require compliance

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and therefore did not intend for violations of Subsections (A)-(C) to be subject to

criminal penalty. (Emphasis added. )

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417}, While we agree that the word “standards” does not appear in the heading or

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text of Section 10-16-3, Defendants” argument fails to explain how Subsections

(A)-(C) are extracted from the express language of Section 10-16-17 that a knowing

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and willful violation of any provision of the GCA, unless specified otherwise, is a

misdemeanor. We therefore decline to read into Section 10-16-3 an ambiguity based

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entirely upon the section’s heading when the plain meaning of the text, read together

with Section 10-16-17, indicates a legislative intent that a violation, if knowing and

willful, is subject to criminal penalty. See Serrano, 1992-NMCA-015, 4 12; see also

State ex rel. Children, Youth & Families Dep’t v. Djamila B., 2014-NMCA-045,

4] 10, 322 P.3d 444 (“The statute or statutes, whose construction is in question, are

to be read in connection with other statutes concerning the same subject matter.”

(alteration, internal quotation marks, and citation omitted)).

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41833 Second, Defendants argue the section’s heading demonstrates that only

certain official acts described in Section 10-16-3 are prohibited and therefore subject

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to a penalty. Those prohibited acts, Defendants contend, are set out in Subsection

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(D). Subsections (A)-(C), by contrast, are merely general ethical principles and

therefore, do not set out crimes. Insofar as Defendants contend the order and

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structure of the heading is indicative of the Legislature’s intent to limit the

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prohibition and criminalization to those acts described in Subsection 10-16-3(D), we

reiterate that the heading of a section cannot limit the plain meaning of the section’s

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text. See Lilenberger, 1981-NMSC-056, § 6. In light of our conclusion that the plain

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meaning of Sections 10-16-3 and -17 indicates a legislative intent to provide for a

misdemeanor penalty for a knowing and willful violation of Subsections 10-16-

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3(A)-(C), we reject Defendants’ argument that the section’s heading instructs

otherwise.

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4193 To the extent the district court that dismissed Defendant Gutierrez’s charges

concluded that the language of Subsection 10-16-3(D), making it a felony to

knowingly and willfully violate that subsection, removed Section 10-16-3 from the

applicability of Section 10-16-17 in its entirety,! we disagree. The interplay between

Sections 10-16-3 and -17 demonstrates that Subsection 10-16-3(D) does not serve

to exclude Subsections 10-16-3(A)-(C) from the applicability of Section 10-16-17.

Subsection (D) specifically provides for a fourth-degree felony penalty for knowing

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and willful violations and limits the application of its felony penalty to violations of

“the provisions of this subsection[.|” Section 10-16-3(D) (emphasis added). The

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plain meaning of Section 10-16-17’s introductory proviso (“Unless specified

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otherwise in the [GCA]... ”) makes clear that the heightened criminal penalty in

Subsection (D) is an exception to the general misdemeanor penalty established by

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Section 10-16-17 for violations of “any of the provisions of [the GCA],” which

'The district court stated:

Both of those statutes [Sections 10-16-3 and 10-16-4], there is one
paragraph that articulates . . . those acts as a fourth degree felony .. .
those are the only two in the whole Act that are specified differently

than the others. So that pulls those two out from [Section] 10-16-17. So
I’m not reading [Sections] 10-16-3 or 10-16-4 . . . under the Act, to
outline misdemeanor charges.

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necessarily includes those found within Subsections (A)-(C). Cf. State v. Santillanes,

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2001-NMSC-018, §7, 130 N.M. 464, 27 P.3d 456 (characterizing the

“general/specific statute rule” as a tool of statutory construction, in which a “specific

203 This conclusion, however, does not end our inquiry. Indeed, as Justice

Montgomery warmed in Helman, “courts must exercise caution in applying the plain

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meaning rule. Its beguiling simplicity may mask a host of reasons why a statute,

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rise to legitimate (1.e., nonirivolous) differences of opinion concerning the statute’s

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meaning. In such a case, it can rarely be said that the legislation is indeed free from

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all ambiguity and is crystal clear in its meaning.” 1994-NMSC-023, { 23.

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213 Here, Defendant Padilla argues application of the plain language of Section

aaah had

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10-16-17 would lead to an absurd result. “If adherence to the plain meaning of a

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statute would lead to absurdity, we must reject that meaning and construe the statute

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according to the obvious intent of the [L]egislature.” State v. Maestas, 2007-NMSC-

; r, LLC v. Rock House CGM,

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when equity, legislative history, or other sources demonstrate that applying the plain

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meaning would result in a construction contrary to the spirit of the statute.” (internal

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quotation marks and citation omitted)).

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23 Defendant Padilla, however, fails to explain how the strict adherence to the

plain meaning of Section _10-16-17’s general misdemeanor pe Ity results _in_an

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absurdity if applied to Subsections 10-16-3(A)-(C). Instead, she points to sections

not at issue in the cases at bar. See, e.g., §§ 10-16-4.2 (requiring public officers and

employees to disclose all outside employment); -8(D) (‘For a period of one year

after leaving government service or employment, a former public officer or

employee shall not represent for pay a person before the state agency or local

government agency at which the former public officer or employee served or

worked.”); -9(B) (prohibiting—with exceptions for attorneys or other

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professionals—legislators from representing or assisting another person in a matter

before a state agency for pay); -11(B) (requiring officers and employees be provided

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with and review codes of conduct); -11(E) (requiring legislators to attend continuing

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education and training in ethics).

923} While we understand Defendant Padilla’s point to be that it would be absurd

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to criminally punish a legislator, public officer, or public employee for his or her

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failure to comply with certain mandatory ministerial or reporting activities required

by the GCA, we note that the GCA provides a broad spectrum of enforcement

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mechanisms, described below in Section I(B). These enforcement mechanisms take

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into account the culpability of the actor, which may be relevant to Defendant

Padilla’s argument regarding these other provisions. Nevertheless, we need not pass

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judgment on the applicability of the criminal penalty set out in Section 10-16-17 to

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the violations of other sections of the

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today. More importantly, Defendant Padilla fails to explain why it would be absurd

for us to interpret a violation of Subsections 10-16-3(A)-(C), done in a knowing and

willful manner as required by Section 10-16-17, to be a misdemeanor in accordance

with the plain language of that statute. See State v. Fuentes, 2010-NMCA-027, § 29,

147 N.M. 761, 228 P.3d 1181 (observing that “we do not review unclear or

undeveloped arguments which require us to guess at what parties’ arguments might

be’). Even if we were to harbor a personal opinion that the Legislature may have

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desired to include Subsections (A)-(C) as nothing more than aspirational guidelines,

we cannot avoid the clear language of Section 10-16-17.

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4; Indeed, the legislative history of Section 10-16-3 and Section 10-16-17

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bolsters our conclusion that adherence to the plain meaning rule under the facts of

this case does not produce a result contrary to the spirit of the GCA. First, we note

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that the Legislature enacted Sections 10-16-3 and -17 in the same bill in 1993. See

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1993 N.M. Laws, ch. 46, §§ 28, 37. We presume that when it enacted these statutes

together, it intended that a knowing and willful violation of Subsections 10-16-3(A)-

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(C) give rise to the misdemeanor criminal penalty called for in Section 10-16-17.

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Since its enactment in 1993, the Legislature has taken the opportunity to add and

amend other sections in the GCA on six separate occasions, yet it has never amended

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Section 10-16-17, suggesting its continued intent to impose the criminal penalty set

See 1995 N.M. Laws, ch. 153

? “ ?

2007 N.M. Laws, ch. 362, §§ 1-11; 2009 N.M. Laws, ch. 66, § 11; 2011 N.M. Laws,

ch. 138, §§ 1-13; 2019 N.M. Laws, ch. 86, §§ 23-26. Importantly, Defendants have

failed to point us to any evidence, and we have found none, clearly indicating the

Legislature’s intent to exclude Subsections 10-16-3(A)-(C) from Section 10-16-17’s

general misdemeanor provision. * See State v. Davis, 2003-NMSC-022, 96, 134

N.M. 172, 74 P.3d 1064 (“The legislative history of the statute, including historical

*Defendants rely on the Attorney General’s GCA Compliance Guide as
support for their argument that Subsections (A), (B), and (C) are not intended to
provide for criminal offenses. See N.M. Att?y Gen., Governmental Conduct Act

Compliance Guide (Compliance Guide) at 10 (2d ed. 2015) (explaining under
Subsections (A) and (B) that “[t]his part of the GCA summarizes why we have ethics
laws: to help ensure the public’s trust in the honesty of our elected and appointed

public officials”); Compliance Guide, supra, at 17 (explaining that Subsection 10-
16-3(C) and Section 10-16-4 “strongly warn all public officials and
employees ... against using their public authority to benefit their private financial

interests’; and noting the possible criminal penalty for violation of Section 10-16-4,
but making no such commentary for Subsection 10-16-3(C)); Compliance Guide,
supra, at 18 (including Subsection 10-16-3(C)’s “guiding principle” of full

disclosure in the GCA’s “ethical principles”). Notwithstanding the persuasive
weight accompanying an “interpretation of a statute by the administrative body
charged with enforcing it,” Las Cruces Prof’l Fire Fighters v. City of Las Cruces,

1997-NMCA-031, 9.9, 123 N.M. 239, 938 P.2d 1384, the extent to which the
Compliance Guide undercuts our statutory analysis is ultimately inconsequential in
light of the plain language of the statute. See Chatterjee, 2012-NMSC-019, 4 11

(explaining that when determining the legislative intent, our task is to “look first to
the plain language of the statute, giving the words their ordinary meaning, unless the
Legislature indicates a different one was intended” (internal quotation marks and

citation omitted)).

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amendments, and whether it is part of a more comprehensive act, is instructive when

searching for the spirit and reason the Legislature utilized in enacting th

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(citation omitted)); see also Maestas, 2007-NMSC-001, 4 22 (“Although we give

effect to legislative intent by construing statutes to avoid absurd results, we must

assume the [L]egislature chose its words advisedly to express its meaning unless the

contrary intent clearly appears.” (alterations, internal quotation marks, and citations

omitted)). Absent evidence of such legislative intent, we must “apply the statute as

written” and refrain from “second-guess[ing] the [L]egislature’s [chosen

manner]... of effectuating [its] legislative objective.” Helman, 1994-NMSC-023, J

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22; see also, N.M. Petroleum Marketers Ass’n v. N.M. Envtl. Improvement Bd.,

2007-NMCA-060, ¥ 11, 141 N.M. 678, 160 P.3d 587 (applying the plain meaning

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rule when “[a]ppellants have not convinced us that adherence to the literal meaning

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of the broad language employed by... the Legislature would lead to injustice,

absurdity, or internal contradiction’).

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B. Penalties for Violations of Subsection 10-16-3(C)

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17

gs} Without citing any particular statutory provision or other authority, Defendant

Gutierrez argues the penalty for a violation of Subsection 10-16-3(C) is limited to

18

civil sanctions or penalties. See State v. Smith, 2019-NMCA-027, 4 9, 458 P.3d 613

19

20

(explaining that when a party fails to cite supporting authority, we may assume no

such authority exists), cert. denied, 2019-NMCERT-___ (No. S-1-SC-37596, May

17

NO

1, 2019). We note that the GCA does provide for both civil and criminal penalties.

Ini 3CA that were unintentional

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state ethics commission has the authority to seek voluntary compliance with the

provisions of the GCA by correcting the violation within ten days of receiving

notice. Section 10-16-13.1(B). The state ethics commission also has the authority to

either institute a civil action or refer the matter to the attorney general or a district

attorney to institute a civil action “if a violation has occurred or to prevent a violation

of any provision of the [GCA].” Section 10-16-18(B); see also § 10-16-13.1(B)

(providing that referrals for civil enforcement “shall be pursued only after efforts to

10

11

secure voluntary compliance with [the GCA] have failed”). Alternatively, “[i]f the

state ethics commission reasonably believes that a person committed, or is about to

12

commit, a violation of the [GCA],” it “may refer the matter to the attorney general

13

14

or a district attorney for enforcement.” Section 10-16-18(A); see also § 10-16-14(A)

(authorizing the state ethics commission to “investigate suspected violations of the

15

[GCA] and forward its findings and evidence to the attorney general, district attorney

16

17

or appropriate state agency or legislative body for enforcement’). In instances of

knowing and willful violations of the GCA, the attorney general or a district attorney

18

is authorized to bring criminal charges. See §§ 10-16-3(D), -4(A), -17 (designating

19

20

as a felony or misdemeanor the knowing and willful violation of the provisions of

the GCA).

18

NO

26; The only provision limiting the ability of the attorney general or a district

— tk i © =

ttorney from enforcing the GCA is Section 10-16-14(E), w

attorney from enforcing the GCA “as regards legislators, state employees or

statewide elected officials.” Apart from Section 10-16-14(E), nothing in the statutory

framework of the GCA limits the discretion of the attorney general or a district

attorney to prosecute a knowing and willful violation of the GCA. We therefore

reject Defendant Gutierrez’s argument that penalties for violations of Subsections

10-16-3(A)-(C) are limited to civil penalties and sanctions. See Chatterjee, 2012-

NMSC-019, 4 11 (“When attempting to determine the Legislature’s intent, we look

10

11

first to the plain language of the statute, giving the words their ordinary meaning,

unless the Legislature indicates a different one was intended.” (alteration, internal

12

quotation marks, and citation omitted)).

13

14

C. The Rule of Lenity

27 The parties also contest whether the rule of lenity requires that we construe

15

Subsections 10-16-3(A)-(C) as failing to provide for criminal offenses. “The rule of

16

17

lenity counsels that criminal statutes should be interpreted in the defendant’s favor

when insurmountable ambiguity persists regarding the intended scope of a criminal

18

statute[,|” State v. Tafoya, 2010-NMSC-019, 4 23, 148 N.M. 391, 237 P.3d 693

19

20

(internal quotation marks and citation omitted), or “when we are unable to discern

legislative intent.” State v. Yazzie, 2018-NMCA-001, 4 15, 410 P.3d 220 (internal

19

NO

quotation marks and citation omitted). Lenity, however, “is reserved for those

even afier resort to the language and structure, legislative history, and motivating

policies of the statute.” State v. Ogden, 1994-NMSC-029, q 26, 118 N.M. 234, 880

P.2d 845 (internal quotation marks and citation omitted). As we have concluded that

the plain language of Section 10-16-17 evidences the Legislature’s intent that

knowing and willful violations of Subsections 10-16-3(A)-(C) be punished as crimes

and not treated merely as ethical considerations, we decline to apply the rule of lenity

to this effect. We now turn to Defendants’ argument that Subsections (A)-(C) are

10

11

unconstitutionally vague.

II. |Vagueness

12

8} Defendants argue that, in the event we conclude the Legislature intended to

13

14

impose criminal liability for violations of Subsections (A)-(C), then the subsections

are nonetheless void for vagueness. “We review a vagueness challenge de novo.”

15

State v. Duttle, 2017-NMCA-001, 4 13, 387 P.3d 885 (internal quotation marks and

16

17

citation omitted). “A strong presumption of constitutionality underlies each

legislative enactment, and the party challenging constitutionality has the burden of

18

proving a statute is unconstitutional beyond all reasonable doubt.” /d. (internal

19

20

quotation marks and citation omitted). “Appellate courts have a duty to construe a

statute in such a manner that it is not void for vagueness if a reasonable and practical

20

NO

construction can be given to its language.” /d. (internal quotation marks and citation

omitted). To the extent the parties’ arguments involve not onlya

Me So

analysis but also an as-applied vagueness analysis, we must first address the extent

to which an as-applied vagueness analysis is proper given the procedural posture of

the cases at bar

A. As-Applied Vagueness vs. Facial Vagueness

29} Before discussing whether consideration of an as-applied challenge was

appropriate under the circumstances in the present cases, we first note the distinction

between facial and as-applied vagueness challenges. “In a facial challenge to [a

10

11

statute], we consider only the text of the [statute] itself, not its application; whereas,

in an as-applied challenge, we consider the facts of the case to determine whether

12

application of the [statute] even if facially valid deprive[s] the challenger of a

13

14

protected right.” Vill. of Ruidoso v. Warner, 2012-NMCA-035, 4 5, 274 P.3d 791.

Whereas “the facts of [the challenging party’s] particular case do not affect our

15

review’ of facial challenges, the facts of the challenging party’s particular case are

16

17

relevant in an as-applied challenge because “the challenging party contests only how

the statute .. . was applied against him or her within a particular context[. |’ Jackson

18

v. City of Chi., 2012 IL App (1st) 111044, 427); see Bounds v. State ex rel.

oe ae vel a4

19

20

D’Antonio, 2013-NMSC-037, § 14 n.2, 306 P.3d 457 (quoting Jackson for the

proposition relevant to facial challenges). The “particular context” depends on

21

NO

factual determinations which no jury has yet made in any of these cases. The district

court’s consideration of an_as-appled challenge in t

premature. See State v. Muraida, 2014-NMCA-060, ¢ 12, 326 P.3d 1113 (explaining

that dismissal of charges under /oulenfont “can only be granted if such charges can

be_disposed_of solely by deciding a question of law”); State v. LaPietra, 2010-

NMCA-009, § 7, 147 N.M. 569, 226 P.3d 668 (“Questions of fact .. . are the unique

purview of the jury and, as such, should be decided by the jury alone.”’). We therefore

decline to further consider an as-applied challenge on appeal, and we turn now to an

examination of whether the statute is facially vague.

10

11

B. _—_ Defendants’ Facial Vagueness Claims

430} To support a facial vagueness challenge, Defendants must demonstrate “that

12

the statute is void in all its applications; or, stated another way, if [their] own conduct

13

14

is clearly proscribed under the statute, [they] cannot assert that the statute is

unconstitutionally vague as it might be applied to the conduct of others.” State ex

15

rel. Children, Youth & Families Dep’t v. Patricia N., 2000-NMCA-035, § 15, 128

16

17

N.M. 813, 999 P.2d 1045 (internal quotation marks and citation omitted). But see

Johnson v. United States, U.S. ,_~——s, 135. S. Ct. 2551, 2561 (2015) (noting

18

that the United States Supreme Court’s “holdings squarely contradict the theory that

19

20

a vague provision 1s constitutional merely because there 1s some conduct that clearly

falls within the provision’s grasp” (emphasis omitted)). A statute is

22

NO

unconstitutionally vague if it “(1) fails to provide persons of ordinary intelligence

using ordinary common sense.a

5 os os WENO = = =

is prohibited, or (2) fails to create minimum guidelines for enforcement and thus

encourages subjective and ad hoc application of the law.” Duttle, 2017-NMCA-001,

{13 (omissions, internal quotation marks, and citation omitted). Upon examination

of Subsections 10-16-3(A)-(C), we conclude that unlike Subsection (A), Subsections

(B) and (C) are unconstitutionally vague.°

1. Subsection (A)

313, Determining whether Subsection (A) is vague requires that we interpret the

10

11

statute and identify the prohibited conduct, which we review de novo. See Duittle,

2017-NMCA-001, § 14 (“In determining the prohibited conduct, we review

12

questions of statutory interpretation de novo.”). Subsection (A) begins by identifying

13

14

those who are subject to its requirements and describing certain proscribed conduct,

stating, “[a] legislator or public officer or employee shall treat the legislator’s or

15

public officer’s or employee’s government position as a public trust.” Section 10-

16

16-3(A). This sentence appears to be intended as merely a prefatory illustration of

3We note that in A-1-CA-38283 (Defendant Padilla’s case), the state ethics
commission’s amicus brief highlights the potential that voiding Section 10-16-3 for

vagueness will have unforeseen ramifications in other, non-criminal applications of
the statute. Given the facts and circumstances of these cases, we leave for another
day an examination of the extent to which our holding affects the non-criminal

applications of Section 10-16-3.

23

NO

the general principle to which the identified officials should aspire. The Legislature

continued, explaining the conduct required to treat a government position as a public
YY

SES oe e © Gt VOR So

trust: “The legislator or public officer or employee shall use the powers and

resources of public office only to advance the public interest and not to obtain

personal benefits or pursue private interests.” /d. Because the terms “public interest,”

“personal benefits,” and “private interests” are not defined in the subsection and do

not appear elsewhere within the GCA, leaving us unable to rely on other statutory

provisions to help discern their plain meaning, we must construe these terms, giving

them “their ordinary meaning absent clear and express legislative intention to the

10

11

contrary.” State v. Tsosie, 2011-NMCA-115, 4.19, 150 N.M. 754, 266 P.3d 34

(internal quotation marks and citation omitted).

12

{32} Neither this Court, nor our Supreme Court has taken the opportunity to define

13

14

“public interest” in a context similar to that of Subsection 10-16-3(A). However,

“public interest” is generally defined as “[t]he general welfare of a populace

15

considered as warranting recognition and protection”; and “[s]omething in which the

16

17

public as a whole has a stake; [especially], an interest that justifies governmental

regulation,” Public Interest, Black’s Law Dictionary (11th ed. 2019), or “the general

18

welfare and rights of the public that are to be recognized, protected and advanced”;

19

20

and “a specific public benefit or stake in something.” Merriam-Webster Dictionary,

https://www.merriam-webster.com/dictionary/interest#legalDictionary (last visited

24

NO

on April 21, 2020); see also Battishill v. Farmers All. Ins. Co., 2006-NMSC-004,

48,139 N.M. 24, 127 P.3d 1111 (elying on a dictionary definition to determine a

term’s ordinary meaning when it is not defined in the statute).

(333 Aided by the ordinary meaning of “public interest,” as well as its context

within Subsection (A) as something other than obtaining “personal benefits” and

“private interests,” we conclude this subsection (1) mandates the use of the powers

and resources of a legislator’s, public officer’s, or public employee’s public office

only for the benefit of the people of New Mexico, and (2) prohibits legislators, public

officers, and public employees from exploiting their powers and resources for

10

11

private gain. See NMSA 1978, § 12-2A-2 (1997) (“Unless a word or phrase is

defined in the statute or rule being construed, its meaning is determined by its

12

context, the rules of grammar and common usage.”). In arriving at our conclusion,

13

14

we are aided by the legislative history of Subsection 10-16-3(A). In 2011, the

Legislature amended the subsection to replace the qualification that a legislator’s,

15

public officer’s, or public employee’s powers and resources shall not be used “to

16

17

obtain personal benefits or pursue private interests incompatible with the public

interest[,!’ § 10-16-3(A) (2007) (emphasis added), with the more stringent

18

requirement that “the powers and resources of public office” be used “only to

19

20

advance the public interest and not to obtain personal benefits or pursue private

interests.” § 10-16-3(A) (2011) (emphasis added). See 2011 N.M. Laws, ch. 138,

25

NO

§ 3. This amendment makes clear the Legislature’s intent that those subject to the

personal benefits or pursue private interests, even if they are not incompatible with

the public interest, removing the need to consider whether the interests are

incompatible because those powers and resources can only be used to advance the

public interest.

34 To the extent the application of Subsection (A) requires a qualitative

determination of what constitutes a public versus private interest, we note that, as a

general rule, “the application of a qualitative standard... to real-world conduct”

10

11

does not render a statute unconstitutionally vague. Johnson, _ U.S. at__—, 135 S.

Ct. at 2561; see Grayned vy. City of Rockford, 408 U.S. 104, 110 (1972)

12

(“Condemned to the use of words, we can never expect mathematical certainty from

13

14

our language.”’). We also recognize the mitigating effect of the scienter requirement

found in Section 10-16-17 (criminalizing the knowing and willful violation of any

15

provision of the GCA) on any potential vagueness in Subsection 10-16-3(A). See

16

17

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)

(“[T]he [United States Supreme] Court has recognized that a scienter requirement

18

may mitigate a law’s vagueness, especially with respect to the adequacy of notice to

19

20

the complainant that his conduct is proscribed.”). We, therefore, conclude

Subsection 10-16-3(A) provides a fair opportunity for persons of ordinary

26

intelligence to determine whether his or her conduct is prohibited, as well as

encourages subjective or ad hoc application.

435} Defendant Padilla argues that if we find the statute is not vague, the State is

precluded from applying our “novel construction” to support its criminal prosecution

in these instances, citing United States v. Lanier, 520 U.S. 259, 266 (1997). Lanier

held that, “although clarity at the requisite level may be supplied by judicial gloss

on an otherwise uncertain statute, due process bars courts from applying a novel

construction of a criminal statute to conduct that neither the statute nor any prior

10

11

judicial decision has fairly disclosed to be within its scope[.]” /d. (citations omitted).

“The test in determining whether . . . an interpretation and retroactive application of

12

a statute offends due process is whether the construction actually given the statute

13

14

was foreseeable.” State v. Johnson, 2001-NMSC-001, 9 14.4, 130 N.M. 6, 15 P.3d

1233. A court “engages in an impermissible interpretation of a statute when the

15

interpretation 1s so unexpected, and so outlandish, that no reasonable person could

16

17

have expected it.” /d. (alteration, internal quotation marks, and citation omitted).

36 Our holding with respect to Subsection 10-16-3(A) rests on neither an

18

unexpected nor unforeseeable judicial construction, but on the ordinary meaning and

+

19

20

context of the terms used in the statute. See Lanier, 520 U.S. at 267 (“[T]he

touchstone is whether the statute, either standing alone or as construed, made it

27

NO

reasonably clear at the relevant time that the defendant’s conduct was criminal.”).

interpretation

ik = ea Git Scheel el

appellate court in New Mexico nor enlarges the range of conduct covered under the

subsection. See State v. Myers, 2011-NMSC-028, 9 13, 16, 150 N.M. 1, 256 P.3d

13 (recognizing that a judicial construction is unforeseeable when it either

“contradicts binding precedent on the same question, upon which the accused could

have relied[,|” or it expands the scope of otherwise “narrow and precise” statutory

language (internal quotation marks and citation omitted)). Moreover, although this

is the first time an appellate court in New Mexico has construed Subsection 10-16-

10

11

3(A), “the mere absence of judicial authority on a point of law is hardly the test for

a[n]... ‘unexpected and indefensible’ interpretation of a criminal statute.” Myers,

12

2011-NMSC-028, 4 24; see State v. Lovato, 2011-NMCA-065, § 16, 150 N.M. 39,

13

14

256 P.3d 982 (explaining that the fact that an opinion is the first to interpret a statute

“is of little consequence” because when a court “engages in the judicial construction

15

of a statute[,] 1t is explaining its understanding of what the statute has meant

16

17

continuously since the date when it became law” (internal quotation marks and

citation omitted)). Therefore, we conclude there is no facial due process violation

18

with regard to the applicability of Subsection (A) to Defendants charged with

19

violations of that subsection.

28

NO

2. Subsection (B)

137 We cannot reach the same_conclusion with regard to Subsection 10-16-3(B).

Subsection (B) provides, “Legislators and public officers and employees shall

conduct themselves in a manner that justifies the confidence placed in them by the

people, at all times maintaining the integrity and discharging ethically the high

responsibilities of public service.” Section 10-16-3(B). Although this subsection

describes behavior to which the listed officials should aspire, it does not follow—as

Subsection (A) does—with a definition or clarification of the conduct that is required

to comply.’ To the extent the phrases “conduct themselves in a manner that justifies

10

11

99 66

the confidence placed in them by the people,” “maintaining the integrity,” and

“discharging ethically” were intended to require or prohibit certain conduct, we are

12

nevertheless unable to ascertain with any reasonable degree of certainty the conduct

13

14

the Legislature intended to prohibit. See Johnson, = U.S. at___, 135 S. Ct. at 2561

(“Because the elements necessary to determine the imaginary ideal are uncertain

15

both in nature and degree of effect, this abstract inquiry offers significantly less

“But see, e.g., Colo. Rev. Stat. Ann. § 24-18-103 (West 1988) (establishing

that “[t]he holding of public office or employment is a public trust” and that public
officers, members of the general assembly, local government officials, or employees
“shall carry out [their] duties for the benefit of the people of the state,” and shall not

engage in conduct that “departs from [their] fiduciary duty”; Colo. Rev. Stat. Ann.
§§ 24-18-104 (West 2012), -106 (West 2010), -108 (West 1991), -108.5 (West
1991), and -109 (West 2017) (enumerating acts, the commission of which constitute

breaches of the actor’s fiduciary duty and the public trust).

29

NO

predictability than one that deals with the actual, not with an imaginary condition

Tsosie, 2011-NMCA-115, ¥ 32 (“A statute may be void for vagueness if its meaning

is so uncertain that the court is unable, by the application of known and accepted

rules of construction, to determine what the Legislature intended with any reasonable

degree of certainty.” (internal quotation marks and citation omitted)). But cf.

Grayned, 408 U.S. at 110 (recognizing that words do not provide mathematical

certainty and sometimes require the application of a qualitative standard). Even after

resort to a construction of these terms—which are undefined in Subsection 10-16-

10

11

3(B) or the GCA as a whole—we are unable to discern what conduct is prohibited

and made subject to criminal prosecution. See Duttle, 2017-NMCA-001, ¥ 13

12

(explaining that we must “construe a statute in such a manner that it is not void for

13

14

vagueness if a reasonable and practical construction can be given to its language”

(internal quotation marks and citation omitted)).

15

383 We, therefore, conclude Subsection (B) not only fails to provide persons of

16

17

ordinary intelligence a fair opportunity to determine whether their conduct 1s

prohibited, but also fails to provide minimum guidance that would preclude

18

subjective and ad hoc application of the law. See Coates v. City of Cincinnati, 402

aa

19

20

US. 611, 614 (1971) (concluding that when “no standard of conduct is specified at

all” the law is unconstitutionally vague in that “men of common intelligence must

30

NO

necessarily guess at its meaning” (internal quotation marks and citation omitted));

State vSmile,2009-NMCA-064

ENV ot B >

fall within the arbitrary and discriminatory prong of the vagueness test, the statute

must have no standards or guidelines and therefore allow, if not encourage,

subjective and _ad_hoc_application.” (alterations, internal_quotation marks, and

citation omitted)). Accordingly, Subsection (B) is vague and cannot form the basis

for criminal charges under Section 10-16-17.

3. Subsection (C)

39} Finally, Subsection 10-16-3(C) provides: “Full disclosure of real or potential

10

11

conflicts of interest shall be a guiding principle for determining appropriate conduct.

At all times, reasonable efforts shall be made to avoid undue influence and abuse of

12

office in public service.” Although we generally must first determine the prohibited

13

14

conduct in order to determine whether the statute itself is void for vagueness, we

need not discuss the conduct the subsection purports to prohibit or require because

15

the subsection does not provide adequate guidance as to whom its requirements

16

17

apply.

{40} The GCA governs the conduct of various actors: legislators, public officers

18

and employees, former public officers and employees, state agencies, private

19

20

citizens, and businesses that contract with state and local government agencies. See,

e.g., §§ 10-16-3(D) (prohibiting certain activities by legislators, public officers and

31

NO

employees, and any “person”’); -8(B) (prohibiting certain conduct by former public

=o EEE

officers and emplovees):-9(A)— (rohibitin
~ —S ocd * | it iat ©) X vA Arr wee

conduct by state

agencies); -13.3(A) (prohibiting certain conduct by businesses that contract with

state or local government agencies to provide financial services). While this issue

was not specifically raised on appeal, we note that generally, the GCA’s sections

identify the actors subject to their prohibitions and requirements. Indeed,

Subsections (A), (B), and (D) of Section 10-16-3 limit the applicability of their

requirements to specific classes of persons. See §§ 10-16-3(A) (“A legislator or

public officer or employee shall... ”); -3(B) (“Legislators and public officers and

10

11

employees shall .. . ”); -3(D) (“No legislator or public officer or employee may ... ”

and “no person may ...”). Subsection (C) contains no explanation of the actors to

12

whom it applies.°

-The state ethics commission’s amicus brief attempts to resolve any ambiguity
with regard to the class of persons governed by Subsection 10-16-3(C) by arguing

that rather than functioning independently, this subsection “combine[s]” with
Subsection 10-16-3(B) “to impose a duty on legislators, public officers, and public
employees to disclose real or potential conflicts of interest.” In other words, the state

ethics commission argues, Subsection (B) details to whom the duty applies while
Subsection (C) details what conduct is required under that duty. Notwithstanding the
general rule that “[a] statutory subsection may not be considered in a vacuum, but

must be considered in reference to the statute as a whole and in reference to statutes
dealing with the same general subject matter[,]” State v. Smith, 2004-NMSC-032,
4 10, 136 N.M. 372, 98 P.3d 1022, we reject the state ethics commission’s argument

because Section 10-16-3 is devoid of any language that would support such a
conclusion. See Chatterjee, 2012-NMSC-019, 4 11 (providing the plain language
tule); State v. Hubble, 2009-NMSC-014, 7 10, 146 N.M. 70, 206 P.3d 579 (noting

that “[w]Je will not read into a statute language which is not there”).

32

NO

4143, When read together with Section 10-16-3’s heading (“Ethical principles of

icial_acts prohibited; penalty”), th

ET ¥ > = ao GL SOAS EN EEG Y

Subsection (C) suggests that the subsection was not intended to apply to former

public officers and employees, private citizens, or businesses. See Tri-State

Generation & Transmission Ass'n, Inc., 2012-NMSC-039, 4.18 (explaining that we

may look to a section’s heading, “and ordinarily 1t may be considered as a part of

the act if necessary to its construction” (internal quotation marks and citation

omitted)); 73 Am. Jur. 2d Statutes § 100 (explaining that a section’s heading is a tool

“for the resolution of doubt about the meaning of a statute”). Nonetheless, we are

10

11

still unable to glean the Legislature’s intent concerning the class of persons subject

to the requirements or prohibitions of Subsection (C). Moreover, our task in

12

discerning such intent is complicated by the Legislature’s inclusion of specific

13

14

classes of persons in the surrounding subsections, but its omission from Subsection

(C). See State v. Ramos, 2013-NMSC-031, ¢ 15, 305 P.3d 921 (observing that when

15

the Legislature knew how to include something, and did not, we assume the choice

16

17

was deliberate); Hubble, 2009-NMSC-014, ¢ 10 (noting that “[w]e will not read into

a statute language which is not there’). Although our task on appeal is “to construe

18

a Statute in such a manner that it is not void for vagueness if a reasonable and

~T. A 4 aw 4

19

20

practical construction can be given to its language[, |” Dutt/e, 2017-NMCA-OOT, ¢ 13

(internal quotation marks and citation omitted), and “to read related statutes in

33

NO

harmony so as to give effect to all provisions[,]” Benavides v. E. N.M. Med. Ct

é

2014-NMSC-037, 924, 338 P.3d 1265 (nternal ql otation marks and citation

SENAY vs [Po PO OE TEE Ct

omitted), the diversity of classes of persons specified in not only Section 10-16-3

but also among and within the remaining sections of the GCA renders Subsection

(C) devoid of the minimum guidance necessary to ward off a due process violation

423 The lack of any minimum guidance with regard to the class of persons whose

conduct is governed by Subsection (C) renders it vague in two respects: (1) it fails

to give people of ordinary intelligence a reasonable opportunity to know whether

their conduct is prohibited because they have no notice as to whether they are a

10

11

member of the class of persons contemplated under Subsection (C); and (2) it invites

subjective and ad hoc application of the law because law enforcement officials have

12

no guidance as to the class of persons subject to the requirements of the subsection.

13

14

See Duttle, 2017-NMCA-001, 413. In the absence of any such guidance, we

conclude Subsection (C) is vague on its face and cannot form the basis of a criminal

15

charge under Section 10-16-17.

16

17

CONCLUSION

{433 We reverse the district courts’ dismissals of the counts charging Defendants

18

under Subsection 10-16-3(A) and affirm the dismissals of the counts charging

+7

19

Defendants under Subsections 10-16-3(B)-(C). We therefore remand to the district

34

NO

courts for reinstatement of the Subsection 10-16-3(A) charges against Defendants

Gutierrez, Estevez, and Johnston.

Ew

443 IT IS SO ORDERED.

N

Ite Ch Vinge

JULIE J. VARGAS, Judge

WE CONCUR:

i

P ‘ fl
VSO C. —

RICi C. BOSSON, Judge Pro Tempore

MIC HAEL D. BUSTAMANTE, = Judge Pro Tempore

35