OPINION
{1} Two cases on appeal present for us the issue whether administrative imposition of the civil penalty contained in the New Mexico Securities Act bars, under New Mexico Double Jeopardy jurisprudence, a criminal prosecution under that Act for the same conduct on which the civil penalty was imposed. We have consolidated State v. Kirby, Docket No. 22,967, and State v. Collins, Docket No. 23,-020, for purposes of disposition of these cases on appeal.
{2} Each Defendant was indicted on criminal securities violations based on the same conduct for which administrative penalties were imposed. In each case, the district court dismissed criminal charges for securities violations on the ground that each Defendant had been unconstitutionally put in jeopardy by an order issued by the Securities Division of the New Mexico Regulation and Licensing Department (the Division). Based on a Securities Division hearing officer’s findings and conclusions, the acting director of the Division entered administrative orders that, among other things, imposed a monetary penalty on each Defendant. The State appeals in both cases.
{3} The appeals require this Court to analyze the extent, if any, to which the double jeopardy analysis and holding in State v. Nunez,
KIRBY BACKGROUND AND DISPOSITION
{4} Some of the facts underlying the administrative order are virtually the same as those underlying the counts of the Kirby indictment. No issue exists on that point. In New Mexico, in 1998 Defendant engaged in transactions that became the subject matter of a Securities Division investigation and administrative proceeding. The administrative proceeding involved several transactions in which Defendant attempted, through misrepresentations, to sell securities without being a registered broker and without registering the securities, and supplied placement materials and disclosure statements to potential buyers that contained misrepresentations.
{5} The administrative order imposed a civil penalty of $75,000. How the hearing officer and acting director arrived at this amount is unclear. It may, but does not necessarily, reflect a finding that Defendant engaged in fifteen separate violations of the Securities Act, in that the maximum civil penalty allowed under the Act is $5,000 for each violation. See § 58-13B-37(B)(4) (authorizing an order “imposing a civil penalty up to a maximum of five thousand dollars ($5,000) for each violation”). The administrative order also required Defendant to pay $1,000 “for costs of investigation.” See § 58-13B-44(B).
{6} In addition to the penalty imposed, the administrative order, dated July 25, 2000, required Defendant to “cease and desist from offering to sell or selling securities of any kind in New Mexico without first complying with all provisions of the [Securities Act],” and “permanently barred [Defendant] from associating] with any licensed broker-dealer or investment advisor in this State.” See § 58-13B-37(B)(l), (3) (authorizing various administrative sanctions for violation of the Securities Act). The order further required Defendant to offer all purchasers of securities the opportunity to rescind their purchases and receive their money back. The Division never sought relief in the district court based on its administrative order. See §§ 58-13B-37(B)(5); -38 (authorizing court enforcement of administrative orders).
{7} Defendant filed a notice of appeal from the administrative order in August 2000 to the district court. In October 2000, a grand jury indicted Defendant for various violations under the Securities Act.
{8} In his statement of appellate issues, served in April 2001 in the district court appeal, Defendant asserted, among other things, that the administrative order should be vacated because Defendant did not knowingly and intelligently waive his right to counsel in the administrative proceeding. Also in April 2001, Defendant filed a “Notice of Dismissal in Part” of his appeal from the administrative order. In this notice of dismissal, Defendant stated that he “dismisses his appeal from the portion of the final order of the New Mexico Securities Division imposing on him a penalty of $75,000____By dismissing this portion of his appeal, [Defendant] does not concede that the penalty is appropriate or lawful.”
{9} In May 2001, the Division moved, with Defendant’s consent, to vacate the findings of fact, conclusions of law, and the administrative order because the record did not indicate that the hearing officer informed Defendant of his right to counsel or of potential adverse risks and consequences of proceeding without counsel. The district court vacated the administrative order, stating:
It is hereby ORDERED that the Findings of Fact, Conclusions of Law and Final Order entered by the Acting Director of the Securities Division on July 25, 2000 in the administrative proceeding captioned In the Matter of: Continental Exchange Trust, Richard G. Kirby and Julie Kirby, Order No.2000-99-001-059(FO), be and hereby is vacated and set aside without prejudice. Appellant Richard G. Kirby had dismissed his appeal as to the portion of such administrative order providing for imposition of a civil penalty on him, and therefore the issue of such civil penalty is no longer before the Court in the current proceeding and the portion of the administrative order imposing a civil penalty on Appellant Richard G. Kirby is not affected by this order.
The court remanded the case to the Division for a new hearing.
{10} Shortly after the administrative order was vacated, Defendant filed a motion in his pending criminal case to bar further prosecution on the grounds that further prosecution would violate the double jeopardy clause of Article II, Section 15 of the New Mexico Constitution and the double jeopardy statute, NMSA 1978, § 30-1-10 (1963). In January 2002, the district court granted the motion and dismissed the criminal charges against Defendant with prejudice. The State appeals to this Court.
{11} The State asserts that the district court erroneously determined that the administrative proceeding was a criminal prosecution barring subsequent enforcement of criminal violations; that, even assuming the administrative proceeding resulted in punishment, the count of the criminal complaint charging ordinary fraud should be permitted because it does not involve a Securities Act offense; that Defendant was not placed in “jeopardy” by the administrative proceeding; and that use of the double jeopardy clause to bar Defendant’s prosecution constitutes an improper manipulation of the courts. We reach only the first issue: whether the district court erred in determining that imposition of the administrative civil penalty was sufficient to bar Defendant’s subsequent criminal prosecution.
Standard of Review and Defendant’s Burden
{12} We interpret Defendant’s having ignored Rule 12-213(A)(4), (B) NMRA 2003, requiring the parties to state the standard of review, to mean either that Defendant does not care what standard of review we employ or agrees with the State’s recitation of the standard of review. Our review is de novo, in that the facts material to the issues are not disputed and we are met with issues of law. White Chevy,
{13} We must examine the legislative intent behind the Securities Act and its provisions. “In interpreting statutes, we seek to give effect to the Legislature’s intent, and in determining intent we look to the language used and consider the statute’s history and background.” Key v. Chrysler Motors Corp.,
{14} The issue in White Chevy was whether a city ordinance requiring civil forfeiture of vehicles violated the United States or New Mexico double jeopardy clauses or a statutory double jeopardy provision.
A strong presumption of constitutionality surrounds a statute. A party challenging the constitutionality of a statute has the burden of proving it is unconstitutional beyond a reasonable doubt. In construing a particular statute, a reviewing court’s central concern is to determine and give effect to the intent of the [Legislature.
Id. ¶ 5 (internal quotation marks and citations omitted) (alteration in original).
The Double Jeopardy Clause and Statute
{15} Defendant does not assert a violation of the federal double jeopardy clause. See U.S. Const, amend. V. Instead, Defendant asserts violations of both our double jeopardy clause in Article II, Section 15 of the New Mexico Constitution and our double jeopardy statute, Section 30-1-10. Defendant urges us to afford him the same protection as that afforded the defendants in Nunez under our double jeopardy jurisprudence.
{16} In Nunez, our Supreme Court departed “from federal constitutional doctrine because of the distinctive characteristics of New Mexico’s double-jeopardy and forfeiture jurisprudence.”
{17} The New Mexico Constitution’s double jeopardy clause reads:
No person shall be compelled to testify against himself in a criminal proceeding, nor shall any person be twice put in jeopardy for the same offense; and when the indictment, information or affidavit upon which any person is convicted charges different offenses or different degrees of the same offense and a new trial is granted the accused, he may not again be tried for an offense or degree of the offense greater than the one of which he was convicted.
N.M. Const, art. II, § 15. Our double jeopardy statute reads:
No person shall be twice put in jeopardy for the same crime. The defense of double jeopardy may not be waived and may be raised by the accused at any stage of a criminal prosecution, either before or after judgment. When the indictment, information or complaint charges different crimes or different degrees of the same crime and a new trial is granted the accused, he may not again be tried for a crime or degree of the crime greater than the one of which he was originally convicted.
§ 30-1-10.
The Test for Double Jeopardy
{18} Our discussion centers on Schwartz, Nunez, and White Chevy. Schwartz involved an administrative revocation of a driver’s license and the subsequent prosecution for driving while intoxicated. Schwartz,
{19} Schwartz provided a basic framework for a civil/criminal double jeopardy analysis:
(1) whether the State subjected the defendant to separate proceedings; (2) whether the conduct precipitating the separate proceedings consisted of one offense or two offenses; and (3) whether the penalties in each of the proceedings may be considered “punishment” for the purposes of the Double Jeopardy Clause.
{20} In its letter decision, the district court in the present case looked to the Schwartz factors. The court determined “[t]here is no issue that this matter involves two separate proceedings.” The court also determined that the conduct alleged in the administrative proceeding was the same as that alleged in the indictment and required the same evidence for proof. In regard to the civil penalty, the court determined that “[tjhere is no question the $75,000.00 penalty constitutes punishment.” The court did not state how it reached this conclusion.
{21} In regard to the first Schwartz factor, it is clear that the administrative proceeding resulting in the $75,000 civil penalty and the criminal prosecution in district court were two separate proceedings. As for the second Schwartz factor, it is equally clear that the same conduct precipitated the separate proceedings and forms the basis for both the administrative violations and the criminal charges against Defendant. The conduct consisted of one offense. See Nunez,
{22} Thus, the critical issue involves the third Schwartz factor. That issue is whether the $75,000 civil penalty is remedial or punitive. See White Chevy,
To determine whether a sanction is remedial or punitive, a reviewing court begins by evaluating the government’s purpose in enacting the legislation, rather than evaluating the effect of the sanction on the defendant. Then the court must determine whether the sanction established by the legislation was sufficiently punitive in its effect that, on balance, the punitive effects outweigh the remedial effect. Although a civil penalty may cause a degree of punishment for the defendant, such a subjective effect cannot override the legislation’s primarily remedial purpose.
Id. ¶ 11 (internal quotation marks and citations omitted). We employ this test.
Purpose and Effect of the Civil Penalty
{23} The Securities Act, as a whole, has remedial purpose. It is comprehensive. Its extensive regulatory and administrative provisions are aimed at protecting investors against unfair, deceptive, and fraudulent practices in the sale of securities. Lengthy regulations have been adopted to implement the Act. See 12.11.1 to 12.11.16 NMAC 2003.
{24} The Act was written “with all encompassing strokes to protect the public,” and to further “the legitimate governmental purpose of protecting the public from the many means promoters may use to separate the unwary from their money.” State v. Ramos,
{25} Of the fifty-seven sections in the Act, only one section specifies criminal conduct. That one section, Section 58-13B-39, which is the section under which Defendant was indicted, states:
A.A person who willfully violates a provision of the [Securities Act] or a rule or order under that act is guilty of a third degree felony and may, upon conviction, be fined not more than five thousand dollars ($5,000) or imprisoned not more than three years or both for each violation.
B. The director may refer such evidence as is available concerning violations of the [Securities Act] or any rule or order under that act to the attorney general or the proper district attorney, who may, with or without such a reference from the director, institute the appropriate criminal proceedings.
C. The attorney general or district attorney may request assistance from the director or employees of the division.
D. No indictment or information may be brought under this section more than five years after the alleged violation.
E. Nothing in the [Securities Act] limits the power of the state to punish a person for conduct which constitutes a crime under other law.
{26} Under the Act’s administrative provisions, the director has authority to issue cease and desist orders, without a prior hearing, against persons engaged in prohibited activities. § 58-13B-37(A). After a violation has occurred, the director has authority to conduct an administrative proceeding and to impose sanctions, including a cease and desist order, a censure, suspension or bar from practice, and a civil penalty. § 58-13B-37(B). Further, the director can proceed in court to obtain civil legal and equitable remedies, such as, temporary restraining orders, injunctions, writs, declaratory judgments, restitution orders, and receivers or conservators. § 58-13B-38(A). The civil penalty is one of several tools of regulatory and administrative enforcement. We determine that, as opposed to Section 58-13B-39 that provides for criminal penalties, the legislative purpose in enacting the civil penalty was that the penalty constitute an integral part of an overall remedial regulatory and administrative scheme to protect the public.
{27} We must, however, still address “whether the sanction established by the legislation was sufficiently punitive in its effect that, on balance, the punitive effects outweigh the remedial effect.” White Chevy,
{28} In Hudson, the bank officers were indicted for misapplication of bank funds, for which the Office of the Comptroller of the Currency had previously assessed a civil penalty and had also issued an occupational debarment order under federal banking provisions. Id. at 95-96,
(1) “[w]hether the sanction involves an affirmative disability or restraint”; (2) “whether it has historically been regarded as a punishment”; (3) “whether it comes into play only on a finding of scienter ”; (4) “whether its operation will promote the traditional aims of punishment-retribution and deterrence”; (5) “whether the behavior to which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation to the alternative purpose assigned.”
Hudson,
{29} We find the framework applied in Hudson,
{30} Application of the seven Mendoza-Martinez factors leads us to conclude that the civil penalty in the Securities Act is more remedial than punitive in its effect. First, the civil penalty does not impose an “affirmative disability or restraint.” See Hudson,
{31} Second, “monetary assessments are traditionally a form of civil remedy.” United States v. Ward,
{32} Third, the civil penalty does not come into play “only on a finding of scienter.” Mendoza-Martinez,
{33} Fourth, we evaluate the extent to which the civil penalty “will promote the traditional aims of punishment — retribution and deterrence.” Mendoza-Martinez,
A court must first ask whether the legislature, “in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other.” Even in those eases where the legislature “has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect, as to “transfor[m] what was clearly intended as a civil remedy into a criminal penalty.”
Hudson,
{34} While the civil penalty in the Securities Act may deter others from engaging in similar securities violations in the future, “the mere presence of this purpose is insufficient to render a sanction criminal, as deterrence ‘may serve civil as well as criminal goals.’ ” Hudson,
{35} Fifth, it is clear that the conduct upon which the civil penalty was based also formed the basis of Defendant’s indictment. However, although we answer this Mendoza-Martinez issue affirmatively, “[t]his fact is insufficient to render the money penalties ... criminally punitive ... particularly in the double jeopardy context.” Hudson,
{36} Sixth, there exists an alternative, remedial, purpose to which the civil penalty may rationally be connected. The Legislature has added substance to the remedial purposes of the Act by earmarking the civil penalty funds for public education and training on securities matters. § 58-13B-57. The purpose of the Securities Act is to regulate a lawful and important financial industry so that investors are not deceived or swindled through acts and practices our Legislature believes to be wrongful and harmful to society. The civil penalty, together with the use of penalty funds for education and training, serve that purpose.
{37} Seventh, and finally, our analyses of and conclusions drawn under the first six Mendoza-Martinez factors lead us to conclude that imposition of the civil penalty does not appear excessive in relation to the Securities Act’s remedial purpose. The Securities Act regulates lawful and often complex transactions in which New Mexico citizens engage for their financial security. Fraudulent practices in securities transactions required the United States Congress as well as states to pass comprehensive regulatory and administrative remedial legislation. The Securities Act’s primary purpose is remedial, heavily oriented toward assuring that members of the public are not swindled through deceptive practices. The civil penalty is attached to an important part of the remedial aspect of the Securities Act. In any measurement, it is not a sanction that is out of proportion or excessive when considering the obvious legislative view that an essential, if not the most effective, way to prevent and remedy deceptive practices is through a comprehensive regulatory and administrative legislative scheme.
{38} In sum, our analysis of the Mendoza-Martinez analytical framework reveals that: (1) the civil penalty did not impose an affirmative disability or restraint; (2) it has not been historically viewed as punitive; (3) it does not come into play only on a finding of scienter; (4) the civil penalty speaks more to regulating persons dealing in the sale of securities to the public; (5) simply because the conduct to which the civil penalty applies is already a crime is insufficient, by itself, to render the sanction criminally punitive; (6) there is a specific statutory remedial purpose, in addition to the Act’s general remedial purpose, to which the civil penalty is connected; and, finally, (7) the civil penalty was not excessive in relation to its remedial purpose. Further, it should not go unnoticed that the Legislature chose to label the penalty a civil penalty. § 58-13B-37(B)(4); see Hudson,
{39} Thus, we conclude that the civil penalty imposed upon Defendant in this matter was not sufficiently punitive in its effect that, on balance, the punitive effect outweighed its remedial effect. See White Chevy,
Application of Nunez
{40} Defendant nonetheless contends the double jeopardy analysis and holding in Nunez precludes the imposition of both civil and criminal penalties under the Securities Act and that the New Mexico Constitution’s double jeopardy clause and the New Mexico double jeopardy statute “afford greater protections than the federal double jeopardy clause.” We conclude, as did the Supreme Court in White Chevy, that Nunez does not control the result in the present case because Nunez “dealt particularly with the provisions of the Controlled Substances Act.” White Chevy,
{41} Finally, White Chevy, through its dependence on Hudson, not only signaled an intent to return to some of the pre-Halper case law, White Chevy also (1) indicated that the remedial/punitive analysis as to the effect of a civil penalty should include the Mendoza-Martinez considerations, and (2) identified Hudson as the flagship case by which to analyze whether imposition of both civil monetary penalty and criminal penalty for the same conduct violates double jeopardy, provided that the analysis does not run afoul of the doctrines specifically rejected in Nunez. For these reasons, we decline to afford Defendant greater constitutional protection through the analysis and holding in Nunez. We are not persuaded that Nunez or our State constitutional and statutory double jeopardy provisions require a result different than that we reach in this opinion.
COLLINS BACKGROUND AND DISPOSITION
{42} Defendants Joseph Clyde Collins and Joy E. Collins, husband and wife, operated an osteopathic clinic in Otero County, New Mexico. They gave promissory notes to many patients in exchange for money. In September 1998, Defendants were relieved by a bankruptcy court of their legal obligation to repay the notes. That court also determined that Defendants did not commit fraud in the issuance of the notes.
{43} In May 2000, following an administrative hearing for securities fraud, and findings of numerous violations of the Securities Act, the acting director of the Securities Division entered an order barring Defendants from association with any broker-dealer or investment advisor in New Mexico and ordered each Defendant to pay a civil penalty of $50,000 and investigative costs of $1000. However, the Division determined that the bankruptcy court order barred the imposition of the penalties and cost assessment and the acting director modified the administrative order by rescinding that portion imposing the penalties and cost assessment. In the interim, the Division made no effort to collect the penalties. Defendants have not paid the civil penalties or cost assessment.
{44} A grand jury indicted Defendants in February 2001, based on the identical statutes that the hearing officer in the administrative proceeding had determined Defendants violated. In October 2001, Defendants moved to dismiss the indictment on the ground of double jeopardy. In November 2001, the Division filed the order in which it amended its May 2000 administrative order to remove the civil penalties and cost assessment. There appears to be a difference of opinion between the Division and Defendants as to the reason for this amendment. The Division states that it amended the order based on legal advice that the bankruptcy court order barred the imposition of the penalties and cost assessment. Defendants indicate that the Division amended the order so it could proceed with the criminal case against Defendants.
{45} In January 2002, the district court in the criminal case applied Nunez and dismissed the criminal charges. The court determined that the State could not subject Defendants to a second, separate proceeding for the same conduct, under the same statutes, after punishment was already ordered pursuant to entry of the administrative order. In particular, the court determined that the civil penalties were “primarily punitive in nature and therefore do constitute penalties under the third prong of the [Schwartz] double jeopardy test.” While finding that “[t]he ‘Education and Training Fund’ is in the public interest and is remedial in nature,” the court also found that “[t]he civil penalties ... are primarily punitive in nature and any remedial quality of the penalties is outweighed by the punitive nature of the penalties.”
{46} For the reasons we set out in our discussion and disposition of Kirby, declining to extend Nunez, we reverse Collins.
ISSUES NOT ADDRESSED
{47} Based on our holdings in Kirby and Collins, we need not address, and therefore do not address, the issue raised by the State in both Kirby and Collins that Defendants were not placed in jeopardy, due to the unenforced status of the civil penalty, including its argument that the Division had to reduce its administrative order to judgment in district court. Similarly, we do not address the State’s suggestion in Kirby that reversal is required because New Mexico courts are allowing themselves to somehow be wrongfully manipulated.
CONCLUSION
{48} We reverse State v. Kirby and State v. Collins. The criminal prosecutions under the Securities Act, following administratively imposed civil penalties under that Act, do not place Defendants in double jeopardy under the New Mexico Constitution or under Section 30-1-10.
{49} IT IS SO ORDERED.