State v. Gutierrez

                                     Office of the Director New Mexico
                                      16:07:04 2020.09.28   Compilation
                                                    '00'06- Commission

         IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 

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)

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

DAVID GUTIERREZ,

      Defendant-Appellee.

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

and

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

FRANCESCA ESTEVEZ,

      Defendant-Appellee.

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

and

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

CONNIE LEE JOHNSTON,
Defendant-Appellee.

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

and

STATE OF NEW MEXICO,

      Plaintiff-Appellant,

v.

DEMESIA PADILLA,

      Defendant-Appellee.

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

Certiorari Granted, September 8, 2020, Nos. S-1-SC-38367 and S-1-SC-38368; CrossPetition Granted, September 8, 2020, Nos. S-1-SC-38367 and S-1-SC-38368.
Released for Publication October 6, 2020.

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

                                       OPINION

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, 

, ¶ 6, 

, 

 (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., 

, ¶ 12, 

(“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, 

 (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 one of perhaps several ways of effectuating a
particular legislative objective.” State ex rel. Helman v. Gallegos, 

, ¶
22, 

, 

. 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.

{13} While the parties focus their analysis on the provisions of Subsections 10-16-
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:

             Unless specified otherwise in the [GCA], any person who knowingly
      and willfully violates any of the provisions of [the GCA] is 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 prosecution for
      bribery or other provisions of law set forth in the constitution of New
      Mexico or by statute.

(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.

{14} Without addressing the specific requirements of Section 10-16-17 that trigger
misdemeanor criminal liability, Defendants maintain that the Legislature did not intend
for Section 10-16-17 to apply to violations of Section 10-16-3. Section 10-16-3 provides:

      Ethical principles of public service; certain official acts prohibited;
      penalty.

              A.     A legislator or public officer or employee shall treat the
      legislator’s or public officer’s or employee’s government position as a
       public 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.

              B.      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.

               C.     Full disclosure of real or potential 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
       office in public service.

               D.     No legislator or public officer or employee may request or
       receive, and no person may offer a legislator or public officer or employee,
       any money, thing of value or promise thereof that is conditioned upon or
       given in exchange for promised performance of an official act. Any person
       who knowingly and willfully violates the provisions of this subsection is
       guilty of a fourth degree felony and shall be sentenced pursuant to the
       provisions of [NMSA 1978,] Section 31-18-15 [(2019)].

In support of their argument, Defendants point to the heading of Section 10-16-3—
“Ethical principles of public service; certain acts prohibited; penalty”—claiming the
heading evidences a legislative intent contrary to the plain meaning of Section 10-16-17
for two reasons. First, Defendants contend the heading indicates that compliance with
Subsections (A)-(C) is merely aspirational and, therefore, any 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.” Tri-State Generation & Transmission Ass’n, Inc. v. D’Antonio, 2012-
NMSC-039, ¶ 18, 

 (internal quotation marks and 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 enrolled and engrossed bill
or rule as adopted.”). We may not use a section’s heading, however, “to produce an
ambiguity in a statute which is otherwise clearly drafted[.]” Serrano v. State, Dep’t of
Alcoholic Beverage Control, 

, ¶ 12, 

, 

. Any
such ambiguity must derive from the body, not the heading, of the statute. See State v.
Ellenberger, 

, ¶ 6, 

, 

 (concluding that “the
ambiguity which justifies a resort to the title must arise in the body of the act; an
ambiguity arising from the title is not sufficient” (internal quotation marks and citation
omitted)). The heading of a section “cannot limit the plain [meaning] of the text.” 

(internal quotation marks and citation omitted); see 73 Am. Jur. 2d Statutes § 100
(2020) (explaining that although a section’s heading is a tool “for the resolution of doubt
about the meaning of a 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)).

{16} 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 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, public officials, and public employees to
comply with Subsections (A)-(C)’s 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 “standards” in the heading to Section 10-16-3, it did not
intend to require compliance and therefore did not intend for violations of Subsections
(A)-(C) to be subject to criminal penalty. (Emphasis added.)

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

, ¶ 12; see also State ex rel. Children,
Youth & Families Dep’t v. Djamila B., 

, 

 (“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)).

{18} Second, Defendants argue the section’s heading demonstrates that only certain
official acts described in Section 10-16-3 are prohibited and therefore subject to a
penalty. Those prohibited acts, Defendants contend, are set out in Subsection (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 structure of the
heading is indicative of the Legislature’s intent to limit the 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 text. See Ellenberger, 1981-
NMSC-056, ¶ 6. In light of our conclusion that the plain 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 10-16-3(A)-(C), we reject Defendants’ argument that
the section’s heading instructs otherwise.

{19} 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, 1 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 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 plain meaning of Section 10-
16-17’s introductory proviso (“Unless specified otherwise in the [GCA] . . . ”) makes
clear that the heightened criminal penalty in Subsection (D) is an exception to the
general misdemeanor penalty established by Section 10-16-17 for violations of “any of
the provisions of [the GCA],” which necessarily includes those found within Subsections
(A)-(C). Cf. State v. Santillanes, 

, 

, 

(characterizing the “general/specific statute rule” as a tool of statutory construction, in
which a “specific statute operates as an exception to the general statute”).

{20} This conclusion, however, does not end our inquiry. Indeed, as Justice
Montgomery warned in Helman, “courts must exercise caution in applying the plain
meaning rule. Its beguiling simplicity may mask a host of reasons why a statute,
apparently clear and unambiguous on its face, may for one reason or another give rise
to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute’s meaning.
In such a case, it can rarely be said that the legislation is indeed free from all ambiguity
and is crystal clear in its meaning.” 

, ¶ 23.

{21} Here, Defendant Padilla argues application of the plain language of Section 10-
16-17 would lead to an absurd result. “If adherence to the plain meaning of a statute
would lead to absurdity, we must reject that meaning and construe the statute according
to the obvious intent of the [L]egislature.” State v. Maestas, 

, 

, 

; see Gandydancer, LLC v. Rock House CGM, LLC, 2019-
NMSC-021, ¶ 14, 

 (“The plain meaning rule must yield when equity,
legislative history, or other sources demonstrate that applying the plain meaning would
result in a construction contrary to the spirit of the statute.” (internal quotation marks and
citation omitted)).

{22} Defendant Padilla, however, fails to explain how the strict adherence to the plain
meaning of Section 10-16-17’s general misdemeanor penalty results in an 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

1The 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.
exceptions for attorneys or other 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 with and review codes of conduct); -11(E) (requiring
legislators to attend continuing education and training in ethics).

{23} While we understand Defendant Padilla’s point to be that it would be absurd to
criminally punish a legislator, public officer, or public employee for his or her 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 mechanisms,
described below in Section I(B). These enforcement mechanisms take 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 judgment on the
applicability of the criminal penalty set out in Section 10-16-17 to the violations of other
sections of the GCA, as those violations are not before us 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, 

, 

, 

(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 desired to include Subsections (A)-(C) as nothing
more than aspirational guidelines, we cannot avoid the clear language of Section 10-16-
17.

{24} Indeed, the legislative history of Section 10-16-3 and Section 10-16-17 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 that the
Legislature enacted Sections 10-16-3 and -17 in the same bill in 1993. See 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)-(C) give rise to
the misdemeanor criminal penalty called for in Section 10-16-17. 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 Section 10-16-17,
suggesting its continued intent to impose the criminal penalty set out in that section.
See 1995 N.M. Laws, ch. 153, § 23; 2003 N.M. Laws, ch. 33, § 1; 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. 2


2Defendants 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
See State v. Davis, 

, 

, 

 (“The legislative
history of the statute, including historical 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 the statute[.]” (citation omitted)); see also Maestas, 2007-
NMSC-001, ¶ 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,

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

, 

, 

 (applying the
plain meaning rule when “[a]ppellants have not convinced us that adherence to the
literal meaning of the broad language employed by . . . the Legislature would lead to
injustice, absurdity, or internal contradiction”).

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

{25} 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 civil
sanctions or penalties. See State v. Smith, 

, ¶ 9, 

(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 1, 2019).
We note that the GCA does provide for both civil and criminal penalties. In instances of
violations of the GCA that were unintentional or for good cause, the 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 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 commit, a violation of the [GCA],” it
“may refer the matter to the attorney general 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 [GCA] and forward its findings and evidence to
the attorney general, district attorney or appropriate state agency or legislative body for


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, 

, 

, 

, 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, 

 (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)).
enforcement”). In instances of knowing and willful violations of the GCA, the attorney
general or a district attorney is authorized to bring criminal charges. See §§ 10-16-3(D),
-4(A), -17 (designating as a felony or misdemeanor the knowing and willful violation of
the provisions of the GCA).

{26} The only provision limiting the ability of the attorney general or a district attorney
from enforcing the GCA is Section 10-16-14(E), which prohibits a district 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, 

 (“When attempting to determine
the Legislature’s intent, 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.” (alteration, internal quotation marks, and citation omitted)).

C.     The Rule of Lenity

{27} The parties also contest whether the rule of lenity requires that we construe
Subsections 10-16-3(A)-(C) as failing to provide for criminal offenses. “The rule of lenity
counsels that criminal statutes should be interpreted in the defendant’s favor when
insurmountable ambiguity persists regarding the intended scope of a criminal statute[,]”
State v. Tafoya, 

, 

, 

 (internal quotation
marks and citation omitted), or “when we are unable to discern legislative intent.” State
v. Yazzie, 

, 

 (internal quotation marks and citation
omitted). Lenity, however, “is reserved for those situations in which a reasonable doubt
persists about a statute’s intended scope even after resort to the language and
structure, legislative history, and motivating policies of the statute.” State v. Ogden,

, ¶ 26, 

, 

 (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 unconstitutionally vague.

II.    Vagueness

{28} Defendants argue that, in the event we conclude the Legislature intended to
impose criminal liability for violations of Subsections (A)-(C), then the subsections are
nonetheless void for vagueness. “We review a vagueness challenge de novo.” State v.
Duttle, 

, 

 (internal quotation marks and citation
omitted). “A strong presumption of constitutionality underlies each legislative enactment,
and the party challenging constitutionality has the burden of proving a statute is
unconstitutional beyond all reasonable doubt.” 

 (internal 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 construction can be given to its
language.” 

 (internal quotation marks and citation omitted). To the extent the parties’
arguments involve not only a facial vagueness 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
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
application of the [statute] even if facially valid deprive[s] the challenger of a protected
right.” Vill. of Ruidoso v. Warner, 

, 

. Whereas “the
facts of [the challenging party’s] particular case do not affect our review” of facial
challenges, the facts of the challenging party’s particular case are 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 v. City of Chi., 

); see Bounds v. State ex rel. D’Antonio, 

, ¶ 14
n.2, 

 (quoting Jackson for the proposition relevant to facial challenges).
The “particular context” depends on factual determinations which no jury has yet made
in any of these cases. The district court’s consideration of an as-applied challenge in the
absence of a trial was premature. See State v. Muraida, 

, 

 (explaining that dismissal of charges under Foulenfont “can only be granted if
such charges can be disposed of solely by deciding a question of law”); State v.
LaPietra, 

, 

, 

 (“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.

B.     Defendants’ Facial Vagueness Claims

{30} To support a facial vagueness challenge, Defendants must demonstrate “that the
statute is void in all its applications; or, stated another way, if [their] own conduct 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 rel.
Children, Youth & Families Dep’t v. Patricia N., 

, 

,

 (internal quotation marks and citation omitted). But see Johnson v.
United States, ___ U.S. ___, ___, 

 (2015) (noting that the United
States Supreme Court’s “holdings squarely contradict the theory that a vague provision
is constitutional merely because there is some conduct that clearly falls within the
provision’s grasp” (emphasis omitted)). A statute is unconstitutionally vague if it “(1) fails
to provide persons of ordinary intelligence using ordinary common sense a fair
opportunity to determine whether their conduct is prohibited, or (2) fails to create
minimum guidelines for enforcement and thus encourages subjective and ad hoc
application of the law.” Duttle, 

 (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. 3

1.      Subsection (A)

{31} Determining whether Subsection (A) is vague requires that we interpret the
statute and identify the prohibited conduct, which we review de novo. See Duttle, 2017-
NMCA-001, ¶ 14 (“In determining the prohibited conduct, we review questions of
statutory interpretation de novo.”). Subsection (A) begins by identifying 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 public officer’s or
employee’s government position as a public trust.” Section 10-16-3(A). This sentence
appears to be intended as merely a prefatory illustration of 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 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.” 

 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 contrary.” State v. Tsosie, 2011-NMCA-
115, ¶ 19, 

, 

 (internal quotation marks and citation omitted).

{32} Neither this Court, nor our Supreme Court has taken the opportunity to define
“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 considered as
warranting recognition and protection”; and “[s]omething in which the 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 welfare and rights of the
public that are to be recognized, protected and advanced”; and “a specific public benefit
or stake in something.” Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/interest#legalDictionary (last visited on April 21, 2020); see also
Battishill v. Farmers All. Ins. Co., 

, 

, 

(relying on a dictionary definition to determine a term’s ordinary meaning when it is not
defined in the statute).

{33} 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

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.
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 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 context, the rules of grammar and
common usage.”). In arriving at our conclusion, 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, public officer’s, or public employee’s powers and
resources shall not be used “to obtain personal benefits or pursue private interests
incompatible with the public interest[,]” § 10-16-3(A) (2007) (emphasis added), with the
more stringent requirement that “the powers and resources of public office” be used
“only to 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, § 3.
This amendment makes clear the Legislature’s intent that those subject to the
provisions of Subsection 10-16-3(A) cannot use their powers and resources to obtain
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” does
not render a statute unconstitutionally vague. Johnson, ___ U.S. at ___, 

; see Grayned v. City of Rockford, 

 (1972) (“Condemned to the
use of words, we can never expect mathematical certainty from 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 provision of the GCA) on any
potential vagueness in Subsection 10-16-3(A). See Vill. of Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 

 (1982) (“[T]he [United States Supreme] Court
has recognized that a scienter requirement may mitigate a law’s vagueness, especially
with respect to the adequacy of notice to the complainant that his conduct is
proscribed.”). We, therefore, conclude Subsection 10-16-3(A) provides a fair opportunity
for persons of ordinary intelligence to determine whether his or her conduct is
prohibited, as well as sufficient guidance for enforcement of the law such that it neither
permits nor encourages subjective or ad hoc application.

{35} 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, 

 (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 judicial decision has
fairly disclosed to be within its scope[.]” 

 (citations omitted). “The test in determining
whether . . . an interpretation and retroactive application of a statute offends due
process is whether the construction actually given the statute was foreseeable.” State v.
Johnson, 

, ¶ 14 n.4, 

, 

. A court “engages in an
impermissible interpretation of a statute when the interpretation is so unexpected, and
so outlandish, that no reasonable person could have expected it.” 

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

{36} Our holding with respect to Subsection 10-16-3(A) rests on neither an
unexpected nor unforeseeable judicial construction, but on the ordinary meaning and
context of the terms used in the statute. See Lanier, 

 (“[T]he touchstone
is whether the statute, either standing alone or as construed, made it reasonably clear
at the relevant time that the defendant’s conduct was criminal.”). This construction of
Subsection (A) neither alters a preexisting interpretation by an appellate court in New
Mexico nor enlarges the range of conduct covered under the subsection. See State v.
Myers, 

, 

, 

 (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 10-16-3(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, 

; see State v. Lovato, 

, 

, 

 (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 of a statute[,] it is explaining its understanding of what the statute
has meant continuously since the date when it became law” (internal quotation marks
and citation omitted)). Therefore, we conclude there is no facial due process violation
with regard to the applicability of Subsection (A) to Defendants charged with violations
of that subsection.

2.      Subsection (B)

{37} 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. 4 To the extent the
phrases “conduct themselves in a manner that justifies the confidence placed in them
by the people,” “maintaining the integrity,” and “discharging ethically” were intended to
require or prohibit certain conduct, we are nevertheless unable to ascertain with any
reasonable degree of certainty the conduct the Legislature intended to prohibit. See

4But see, e.g., 

 (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”; 

 (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).
Johnson, ___ U.S. at ___, 

 (“Because the elements necessary to
determine the imaginary ideal are uncertain both in nature and degree of effect, this
abstract inquiry offers significantly less predictability than one that deals with the actual,
not with an imaginary condition other than the facts.” (alteration, internal quotation
marks, and citation omitted)); Tsosie, 

 (“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, 

 (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
10-16-3(B) or the GCA as a whole—we are unable to discern what conduct is prohibited
and made subject to criminal prosecution. See Duttle, 

(explaining that we must “construe a statute in such a manner that it is not void for
vagueness if a reasonable and practical construction can be given to its language”
(internal quotation marks and citation omitted)).

{38} We, therefore, conclude Subsection (B) not only fails to provide persons of
ordinary intelligence a fair opportunity to determine whether their conduct is prohibited,
but also fails to provide minimum guidance that would preclude subjective and ad hoc
application of the law. See Coates v. City of Cincinnati, 

 (1971)
(concluding that when “no standard of conduct is specified at all” the law is
unconstitutionally vague in that “men of common intelligence must necessarily guess at
its meaning” (internal quotation marks and citation omitted)); State v. Smile, 2009-
NMCA-064, ¶ 20, 

, 

 (“In order to 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
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 office
in public service.” Although we generally must first determine the prohibited 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 the subsection does
not provide adequate guidance as to whom its requirements apply.

{40} The GCA governs the conduct of various actors: legislators, public officers and
employees, former public officers and employees, state agencies, private 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 employees, and any
“person”); -8(B) (prohibiting certain conduct by former public officers and employees); -
9(A) (prohibiting certain 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 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
whom it applies. 5

{41} When read together with Section 10-16-3’s heading (“Ethical principles of public
services; certain official acts prohibited; penalty”), the plain language of 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., 

 (explaining that 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”
(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 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 discerning such intent is complicated by the
Legislature’s inclusion of specific classes of persons in the surrounding subsections, but
its omission from Subsection (C). See State v. Ramos, 

, 

 (observing that when the Legislature knew how to include something, and did not,
we assume the choice was deliberate); Hubble, 

 (noting that “[w]e
will not read into a statute language which is not there”). Although our task on appeal is
“to construe a statute in such a manner that it is not void for vagueness if a reasonable
and practical construction can be given to its language[,]” Duttle, 

(internal quotation marks and citation omitted), and “to read related statutes in harmony
so as to give effect to all provisions[,]” Benavides v. E. N.M. Med. Ctr., 2014-NMSC-
037, ¶ 24, 

 (internal quotation marks and citation 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.



5The 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, 

, 

, 

, 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, 

 (providing the plain language rule); State v. Hubble, 

,

, 

 (noting that “[w]e will not read into a statute language which is not there”).
{42} 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 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 no guidance
as to the class of persons subject to the requirements of the subsection. See Duttle,

. In the absence of any such guidance, we conclude Subsection
(C) is vague on its face and cannot form the basis of a criminal charge under Section
10-16-17.

CONCLUSION

{43} We reverse the district courts’ dismissals of the counts charging Defendants
under Subsection 10-16-3(A) and affirm the dismissals of the counts charging
Defendants under Subsections 10-16-3(B)-(C). We therefore remand to the district
courts for reinstatement of the Subsection 10-16-3(A) charges against Defendants
Gutierrez, Estevez, and Johnston.

{44}   IT IS SO ORDERED.

JULIE J. VARGAS, Judge

WE CONCUR:

RICHARD C. BOSSON, Judge Pro Tempore

MICHAEL D. BUSTAMANTE, Judge Pro Tempore