State v. Gutierrez

472 P.3d 1260

STATE of New Mexico, Plaintiff-Appellant,

v.David GUTIERREZ, Defendant-Appellee.andState of New Mexico, Plaintiff-Appellant,

v.Francesca Estevez, Defendant-Appellee.andState of New Mexico, Plaintiff-Appellant,

v.Connie Lee Johnston, Defendant-Appellee.andState of New Mexico, Plaintiff-Appellant,

v.Demesia Padilla, Defendant-Appellee.

NOS. A-1-CA-36096

A-1-CA-37270

A-1-CA-37585

A-1-CA-38283 (consolidated for purpose of opinion)

Court of Appeals of New Mexico.

Filing Date: May 29, 2020

Certiorari Granted, September 8, 2020, No. S-1-SC-38367 and S-1-SC-38368

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

Bennett J. Baur, Chief Public Defender Santa Fe, NM, Steven J. Forsberg, Assistant Appellate Defender, Albuquerque, NM, for Appellee Gutierrez

Francesca Estevez, Gila, NM, Pro Se Appellee

Ray Twohig, Albuquerque, NM, for Appellee Johnston

Kennedy, Hernandez & Associates, P.C., Paul J. Kennedy, Jessica M. Hernandez, Albuquerque, NM, for Appellee Padilla

State Ethics Commission, Jeremy Farris, Walker Boyd, Albuquerque, NM, for Amicus Curiae

VARGAS, Judge.

{1} Does a government official who fails to abide by the ethical principles imposed by the Legislature commit a crime under the Governmental Conduct Act (GCA), NMSA 1978, §§ 10-16-1 to -18 (1967, as amended through 2019)? This is the question we are called upon to answer in each of these four separate cases.

{2} 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 dismissed the charges against each Defendant under the GCA on different grounds. The charges against one Defendant were dismissed on the ground that Subsections 10-16-3(A)-(C) do not provide for criminal offenses. Those against a second 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 unconstitutionally vague. Finally, charges against a fourth Defendant were dismissed on grounds that the statute is both unconstitutionally vague and overbroad. Because these cases raise several identical issues, we consolidate them for decision. See Rule 12-317(B) NMRA. Concluding that the Legislature intended for knowing and willful violations of Subsections 10-16-3(A)-(C) to be punishable as misdemeanors, we reverse the district courts’ decisions dismissing charges brought 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.

BACKGROUND

{3} 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

{4} 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 of his employees during the course of his work as county treasurer by repeatedly 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. Defendant Gutierrez filed three motions, which included a motion in limine, a motion to dismiss, and a motion pursuant to State v. Foulenfont , 1995-NMCA-028, ¶ 6, 119 N.M. 788, 895 P.2d 1329 (authorizing dismissal of a case in lieu of an evidentiary hearing or a trial on the merits where a case raises a purely legal issue). These motions made largely the same assertion—that the provisions of Subsections 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.

{5} 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 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 investigating allegations that she improperly used a state vehicle for personal use. Defendant Estevez filed a motion to dismiss these counts, arguing the GCA was unconstitutionally vague. The district court concluded that although Section 10-16-3 establishes "advisory guideposts setting forth standards of ethical conduct[,]" insurmountable ambiguities existed regarding its intended scope and the applicability of Section 10-16-17's provision for criminal penalties. As a result, the district court applied the rule of lenity and dismissed the charges. The State appealed the dismissal of Defendant Estevez's charges.

Defendant Connie Lee Johnston

{7} The State charged Defendant Johnston, in relevant part, with violating 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 criminal offenses, they were nevertheless void for vagueness. The State appealed the dismissal of Defendant Johnston's charges.

Defendant Demesia Padilla

{8} 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 the New Mexico Taxation and Revenue Department to access the tax records of the 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, arguing the subsections at issue were unconstitutionally vague and overbroad. The district court granted Defendant Padilla's motions and dismissed these charges. The State appealed.

DISCUSSION

{9} On appeal, the parties ask us to consider two issues. First, we are called on to decide whether violations of Subsections 10-16-3(A)-(C) are criminal offenses. In the event we conclude the violation of those subsections can be prosecuted as crimes, we are next asked to consider whether they are ambiguous or unconstitutionally vague. Defendant Padilla also asks us to consider whether Subsections (B) and (C) are overbroad. We conclude that Subsections (A)-(C) set out criminal offenses, that Subsection (A) is not unconstitutionally vague, and that Subsections (B) and (C) are unconstitutionally vague. As our void-for-vagueness discussion is dispositive for the charges brought under Subsections (B) and (C), we need not reach the issue of overbreadth raised by Defendant Padilla.

I. Applicability of Section 10-16-17 to Subsections 10-16-3(A)-(C)

{10} The State contends that the district court erred when it concluded the provisions of Subsections 10-16-3(A)-(C) set out only "ethical considerations" rather than crimes. In support of its argument, the State contends that the plain language of Section 10-16-17 renders any knowing and willful violation of Subsections 10-16-3(A)-(C) a misdemeanor, "[u]nless specified otherwise [in the GCA.]" The State also argues that the Legislature's use of mandatory language in Subsections (A)-(C) makes clear its intent that violations of those subsections are punishable as misdemeanors.

{11} In response to the State, Defendants first contend that the plain language of Subsections (A)-(C) supports the conclusion that the violation of those subsections 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 criminal offenses.

A. Statutory Interpretation

{12} The parties’ arguments require that we interpret Subsections 10-16-3(A)-(C), 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 P.3d 936 ("Interpretation of a statute is an issue of law which we review de novo." (alteration, omissions, internal quotation marks, and citation omitted)). When interpreting statutes, we must determine and give effect to the Legislature's intent, which requires that "we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended." Chatterjee v. King , 2012-NMSC-019, ¶ 11, 280 P.3d 283 (alteration, internal quotation marks, and citation omitted). "[I]f the meaning of a statute is truly clear—not vague, uncertain, ambiguous, or otherwise doubtful—it is of course the 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...