Case Description
Under New Mexico’s Voter Action Act, “If the secretary [of state] makes a determination that a violation of that act has occurred, the secretary shall impose a fine or transmit the finding to the attorney general for prosecution.” There are both civil and criminal penalties for violations of the Act. The secretary of state investigated and fined a candidate for Public Regulation Commission for three violations of the Voter Action Act. Five months later, the candidate and his father were indicted on multiple counts of conspiring to violate and violating the Act. The defendants moved to dismiss because the Secretary of State had not referred the matter to the Attorney General for prosecution. The district court dismissed all charges. The court of appeals first addressed the question of the Attorney General’s authority to bring criminal charges without a referral from the Secretary of State. Although the Attorney General of New Mexico does not have common law powers, the grant of prosecutorial authority in the New Mexico statutes is still very broad. “[The statute] provides authority for the [attorney general] to prosecute criminal cases in any court when the [s]tate’s interest requires such action,” but that authority may be limited or conditioned where the Legislature has “otherwise provided by law.” The Voter Action Act prescribes actions to be taken by the Secretary of State, but is silent as to actions by the Attorney General, thus the legislature has not “otherwise provided by law” any limitations on the Attorney General’s power.
