State v. Nunez

2 P.3d 264

2000-NMSC-013 Plaintiff-Appellant, Mexico, New

STATE of

v

. David Michael Diaz NUNEZ and

Jesus

Chavez, Defendants-Appellees. Mexico, Plaintiff-Appellee, of New

State Vasquez, Gallegos, and Alex

Edward

Defendants-Appellants. Mexico, Plaintiff-Appellee, New

Marguerite Vasquez, Defendant-

Appellant. 23,860. 23,796,

Nos.

Supreme Court of New Mexico. 30, 1999.

Dec. May

Rehearing Denied Madrid, General,

Patricia A. Attorney Ann General, Harvey, M. Attorney Assistant San- Fe, ta for State of New Mexico. Kerr, Albuquerque, Liane E. for Jesus Diaz Nunez. Boult, Albuquerque,

Reber for David Mi- chael Chavez. Subin,

Phyllis Defender, H. Chief Public C. Henderson, David Appellate Assistant De- fender, Gibbs, Appellate Susan Assistant De- fender, Fe, Santa Vasquez Edward Marguerite Vasquez. Hannum,

D. Eric Albuquerque, for Alex Gallegos. Foreman, Mound, TX,

S. Rafe Flower for Saul Salcido. McGinn,

Randi Allegra Carpenter, C. Al- buquerque, for Amicus Curiae New Mexico Lawyer’s Criminal Defense Association. Drebing, Mark L. Albuquerque, for Ami- City cus Curiae Albuquerque and Albu- querque Department. Police OPINION FRANCHINI, Justice. This case concerns

{1} five consolidated appeals in which each of the defendants faced charges possession criminal for the or sale of drugs, subject and also were to the civil property, such as vehicles and currency, allegedly that was associated with appeals the crime. These each raise the same issue: whether civil forfeiture under Act, 1978, the Controlled Substances NMSA (1972, §§ 30-31-1 to -41 through as amended 1997), punishment and by is limited protections against jeopardy guaran- by Constitution, teed the New Mexico Const, II, 15, § art. and double-jeopardy statute, 1978, § NMSA 30-1-10 We again posses- for Act is Chavez was arrested that civil forfeiture under the conclude marijuana with intent to distribute. purposes for of New Mexi- sion (APD) Albuquerque Department jeopardy. Police protections against double co’s van,

police seized a 1986 Chevrolet which was I. FACTS marijuana, allegedly transport used to vehicle, currency in found in the $50. double-jeopardy issue we ad- {2} currency in in found Chavez’s home. $300 today properly preserved was at the dress in trial all the defendants these level July APD a On filed cases. of the defendants consolidated Some against petition of forfeiture seized $3268 than raised issues other the one resolved and, 8, 1994, peti- August on filed a June opinion. all Because we decide the cases against vehicle and tion of forfeiture $350 double-jeopardy grounds, on we will ad- July. answers to seized Chavez filed dress other issues. petitions in which that he was he asserted currency the owner the vehicle seized A. State v. Nunez police. year Half a after the forfei- Diaz Nunez was arrested on Jesus filed, charges petitions ture were 7, 1995, and, 9, 1995, May April on was against on two arrests were filed Chavez marijuana charged possession with with 9,1995. February 10, 1995, complaint April a intent sell. On APD In March Chavez and the against was filed Nunez’s 1981 compromise at two settlements re arrived Victoria, alleg Ford in which he was Crown property. Regarding garding the seized marijuana. transporting edly Nunez July currency seized in vehicle and indigent legal rep to obtain was unable APD judgment was entered which the to contest the forfeiture. He did resentation kept and the van was returned to the $350 hearing and appear at the forfeiture Albuquerque rel. Po Chavez. See State ex judgment May default was entered Dep’t v. Blue and lice One 1986 Chevrolet Department Safety ex rel. Pub. See State (N.M.Dist.Ct. Van, 94-162 No. MS White Victoria, 1981 Ford No. SF- One Crown 1995) Forfeiture). (Judgment Mar. As 95-789(e) (N.M.Dist.Ct. 1995) (De May judgment to the seized June $3268 Judgment). fault kept APD was entered which the $2179 Nunez, defender, through public was returned to Chavez. See $1089 August filed a motion to dismiss the Albuquerque Dep’t ex rel. Police charges upon criminal based the violation of Sixty Eight Three Thousand Two Hundred Jeopardy Double Clauses of the United (N.M.Dist.Ct. Dollars, Mar. No. 94-147 MS States New Mexico Constitutions. Forfeiture). 9, 1995) (Judgment of pe- was court determined that the forfeiture days A settle- few after the forfeiture {8} “[sjince nal in nature and State 13, 1995, ments, a on March Chavez filed seeking elected obtain forfeiture before charges. criminal He motion to dismiss the punishment, cannot now the State him argued punished had once the State pro- a in a criminal seek second by forfeiting property and was therefore his therefore, and, ceeding; motion defendant’s jeopardy from by principles of double barred Nunez, granted.” should be See State v. No. him time in the criminal punishing a second (N.M.Dist.Ct. 1995) 28, Aug. CR-95-128-S granted trial court proceedings. The (Order Dismiss). appeals, and The State Chavez, v. No. motion to dismiss. See State affirm. 1995) (Or- (N.M.Dist.Ct. 5,May CR-95-312 Jeop- to Dismiss for Double der re: Motion B. v. State Chavez affirm. ardy). appeals, and we The State David was arrested Michael Chavez {5} 20, 1994, possession drug on for June Gallegos C.State v. marijuana possession paraphernalia and Gallegos pos- police was arrested to distribute. The seized Alex with intent 1, 7, September 1994. July on currency his session cocaine from home. On $3268 police against and cur- seized found his mat- tion of forfeiture the vehicle $299 8,1995. rency Gallegos September was filed on When tress. testified he was em- ployed by company Vasquezes appear to a construction and the failed to contest forfeiture, money paycheck judgment on was the remainder of his a default was entered 14, day which he had cashed earlier on the of the November 1995. In re Forfeiture of Fairmont, police they arrest. The testified that asked 1988 Ford No. CV-95- White 1995) (Default (N.M.Dist.Ct. Gallegos proof, pay such as a stub or a Nov. Forfeiture). employer, money from his Judgment letter that the was paycheck proof from a but that such was response charges to the narcotics provided. complaint never A forfeiture 7, 1996, pre-trial on March Edward filed against filed on 1994. October $299 Marguerite motion to dismiss which claims Gallegos, hoping money, to recover that, joined, they arguing to have because sought help attorney of an him who told forfeiture, already penalized by had been legal handling that the fees for such a matter jeopardy prevented prosecu- further Gallegos would cost far than more $299. motion, ap- tion. The trial court denied the concluded he had no but to choice let the parently hearing at a on March money go. judgment A default was entered trial, Marguerite, single Edward and 4, 1995, May Gallegos on when failed jury were convicted on all counts on appear- to contest the forfeiture. See State Vasquez, March 1996. See State v. No. Albuquerque ex Dep’t rel. Police v. Two (N.M.Dist.Ct. 1996) Mar. CR-95-383 Dollars, Ninety Hundred Nine No. MS 94- Sentence). (Judgment They appeal now (N.M.Dist.Ct. 1995) (Default 4,May double-jeopardy their criminal convictions on Judgment). grounds, and we reverse. charges against Criminal were filed moved, Gallegos April on 1995. He on II. AND THE FEDERAL NEW MEXICO 16, 1995, October to dismiss the criminal CONSTITUTION charges double-jeopardy grounds. Gallegos, motion was denied. See State v. It is settled law in New Mexico (N.M.Dist.Ct. 14, 1996) No. CR-95-1108 Feb. give not bound to “[w]e are the same (Order). Gallegos pleaded guilty posses meaning to the New Mexico Constitution 28, 1996, February sion of cocaine on and a Supreme places the United States judgment May was filed 1996. See State Constitution, upon the United States even in (N.M.Dist.Ct. Gallegos, No. CR-95-1108 construing provisions having wording that is 1996) May (Judgment, Sentence and Or identical, so, substantially in ‘unless such Sentence). Suspending appeals der He now terpretations purport to restrict the liberties double-jeopardy his criminal conviction on guaranteed citizenry the entire under the grounds, and we reverse. ” ex federal charter.’ State rel. Serna v. Hodges, 89 N.M. D. Vasquez State v. Edward Brisendine, (quoting People v. Marguerite Vasquez 528, 315, 1099, Cal.Rptr. Cal.3d 119 531 P.2d (1975)), Marguerite Vasquez, grounds by Edward and 1112 overruled on other wife, Rondeau, 408, 412, August husband and were arrested on v. 89 N.M. 553 P.2d State 688, (1976). Moreover, patrol checkpoint. at a border In “when this Court 1995, they charged interpretation October of were with derives of New Mexico law possession of opinion, cocaine with intent to distrib- from a federal our decision remains ute, cocaine, conspiracy to posses- distribute law of New Mexico doc even federal marijuana distribute, Breit, sion of change.” with intent trine should later State v. 1996-NMSC-067, ¶27, 655, conspiracy marijuana. and to distribute 122 N.M. police seized a 1983 Supreme Ford Fairmont that was P.2d 792. The United States allegedly states, transport drugs, recognized rights used under $40 interp law, possession, depart that was in Edward’s their own from federal $39 Marguerite’s possession. peti- A retations.1 v. issued United States ardy jurisprudence, interprets its Mexico New 2135, 116 S.Ct. ap Ursery, 518 U.S. using the interstitial Constitution State Gomez, Ursery, Supreme explained in L.Ed.2d 549 proach. As we civil forfeitures are “[i]n rem Court held court approach, the the interstitial Under pur- nor criminal for ‘punishment’ neither right being asserted asks first whether Jeopardy Ur- Double Clause.” poses of the constitution. protected is under federal 2135. The sery, 518 U.S. is, claim the state constitutional If it then not, realm of controlled-sub- thus —in the If it is then the state Court not reached. is forfeitures, essentially A court stanee-related state constitution examined. every type of civil forfeiture —eliminat- approach may diverge from other adopting this ground for dismiss- any double-jeopardy reasons: precedent three ed federal analysis, differ cases under the United ing structural civil forfeiture flawed federal govern Many articles and eases state and federal ences between States Constitution. criticized, summarized, ment, meticulously characteristics. or distinctive state have replicate this applied Ursery. We will not 1997-NMSC-006, ¶19, 122 N.M. except to describe oft-repeated information (citation omitted). P.2d Ursery that distinct from es- aspects of are Thus, step in the first conclude, law. Mexico We tablished New analysis of whether is determination Gomez analysis, part of the first Gomez under the protects the States Constitution the United that, Ursery, federal constitution after principle, question. As a matter of right bringing, prevent not the State does prefer interpret our State Constitution we Act, sepa- Substances under the Controlled conformity “[W]e with federal doctrine. actions for and civil forfeiture rate uniformity in the ad recognize the value of rights asserted offense. The the same rights guar application of the vancement protected us are not before the defendants consti our state and federal anteed both law. federal under 1996-NMSC-067, ¶27, Breit, tutions 792,. An feder 930 P.2d effective part of the second Under the depends upon significant mea system alist justify departure analysis, we our Gomez consistency cooperation and between sure of because doctrine from federal constitutional governments. See State and federal state Mex characteristics of New distinctive (N.J. Hunt, 450 A.2d 91 N.J. jurisprud double-jeopardy and forfeiture ico’s 1982) J., ¶ (Handler, why, concurring). 1997-NMSC-006, 19, This is Gomez, ence.3 Gomez, not invoke the State we will 1. As demon we right unless a constitutional below, Constitution has a New Mexico in detail strate Gomez, protected under federal law. always that has re precedent time-honored 1997-NMSC-006, 19, 122 N.M. Moreover, punitive. garded not, under the second If it is then double-jeopardy and federal New Mexico analysis, inquire step and, we the Gomez facially recent different protections distinctive, jurisprudence our depart whether law has ly, double-jeopardy case our system in our there are differences many whether As the standard. ed from the federal doctrine is governance, or whether federal opinion in this dem eases cited New Mexico hesitated, when wanting. We have onstrate, Ursery, would follow we to were pres have been three circumstances these with, required to and would be in conflict ent, law, that the New Mexico Consti to conclude dismantle, body significant of settled individ greater protection of provides tution independently which was decided much of constitution.2 rights than does the federal ual case law.4 federal opinion to- that our reject emphasize today, We opinion {18} In our {16} exclusively on the entirely and double-jeopar day is founded regarding the

federal doctrine citeWe Mexico State Constitution. as it is New dy implications of civil forfeiture authori- on its own jurisprudence, not Act. federal applied under the Controlled Substances strength of Court, ty, solely on the basis but Supreme the United States opinion is devot- argument. Much of double-jeop- its its singular reversal of recent distinguishing ed to law from paraphernalia money federal New F.narcotics or approval Mexico law. When we with refer which instrumentality is a or fruit cases, because, view, crime; federal we do so in our they provide a truthful statement of matters entirely

we decide under the New Mexico drug paraphernalia H. all as defined Constitution. New Mexico law is the sole (V) [in subsection of the “Definitions” sec- authority upon which we base our decision Act, 1978, § tion of the NMSA 30-31-2 today. (1997)]. added.) (Emphasis The forfeitures of the III. RELEVANT FORFEITURE LAWS various automobiles and trucks these con- The Controlled Act Substances de- {19} solidated cases were out carried under the substances, empowers fines controlled auspices of Subsection D of this statute. The Pharmacy regu- Board of to administer and cash forfeitures were authorized Subsec- manufacture, distribution, late their and dis- provisions tion F. remaining Several pensation, penalties and establishes for the regulated this statute the forfeiture of the illegal trafficking of controlled substances. substances, cpntraband, controlled and in- provisions to this Pertinent ease are the Act’s gave that strumentalities rise to the various forfeiture, 1978, §§ for civil NMSA 30-31-34 prosecutions in these cases. 1989). (1972, through to -37 as amended judicial specifies The Act that types property may The proceeding is civil rather than 1978, § forfeited are listed 30-31- NMSA criminal: (1989): pursuant In the event of seizure to [a following subject to forfeiture: specific court or order circum- order], require stances that do not a court A. all controlled substances and all proceedings under ... the Rules Civil analogs controlled substance which have Procedure the District Courts of manufactured, distributed, New dispensed been promptly Mexico shall be instituted acquired or in violation of the Controlled thirty days later than Act; after seizure. Substances 30-31-35(0 (1981). materials, 1978, § products B. all raw NMSA equipment any including kind firearms The New Mexico forfeiture statute which are used or intended for use provisions includes pro- innocent-owner manufacturing, compounding, processing, property tect from forfeiture when the viola- delivering, importing exporting any con- tion of the Controlled Substances Act was trolled substance controlled substance committed without “knowledge the owner’s analog in violation of the Controlled Sub- 30-31-34(0(1), (4). (2), or consent.” Section Act; stances We shall address double-jeopardy below the property

C. all which is used or significance intend- provisions. of these We will also ed for use as a for property container statutory address provision places described in Subsection A or B of this action, proof the burden of in a forfeiture section; prove property the State to that the crime, used but on the defendant aircraft, conveyances, including D. all prove it was not. See NMSA vessels, vehicles or which are used or in- § 30-31-37 The forfeiture laws also transport tended for use to or in man- provide disposition prop- of forfeited transportation ner to facilitate the for the erty, implications and we shall mention the purpose of sale of described in behind agen- the fact that law enforcement section; A or B Subsection of this proceeds cies benefit of forfei- books, E. all records and research 30-31-35(E). § tures. See materials, products formulas, including microfilm, data, tapes which are holding by used the United States or intended for use in violation Supreme in Ursery jeopar- that double Act; dy Controlled Substances implicated by is not civil forfeitures under 981(a)(1)(A) (1994), expressly law denies and 21 cause federal ease § 18 U.S.C. (a)(7) (1994 881(a)(6) interpretation of the Fifth Amend- Supp. II similar § & & U.S.C. analysis 1996), double-jeopardy ment.5 applies to the purposes 30-31-34 of our Section regarded our past In we State times {26} Ursery, Constitution. See United States Jeopardy as be- Clause Constitution’s Double 2135. Howev- ing “subject to same construction otherwise, er, determines unless Court counterpart Fifth interpretation as its authority Ursery no when our States Constitu- Amendment to the United light Mexico of the New laws are viewed 756, Day, 94 N.M. tion.” v. State Constitution. (1980); v. accord P.2d Swafford State, 112 N.M. 7 n. DOUBLE JEOPARDY IV. (1991) (finding suggestion “that the n. 3 no clause, in jeopardy New double Mexico Jeopardy The Clause A. Double context, provides fur- multiple punishment Jeopardy Mexico Double The New by protection than afforded ther counterpart. differs from its federal Clause fed- interpreted relevant federal clause Fifth to the United States Amendment law”). However, with eral ease simply, person “No shall states Constitution Breit, our interstitial rela- keeping with subject offense to be ... for the same be Constitution, we tionship with the Federal ----” or limb put jeopardy life twice Supreme parted ways with the United States Const, specifies V. New Mexico U.S. amend. of the Fifth Amendment. Court’s views only im- double-jeopardy protections that are Breit, Jeopardy Double held plicit in the federal version: New Mexico Constitution Clause put person ... be twice No shall following caused a mistrial barred retrial offense; and when jeopardy for the same misconduct, prosecu- prosecutorial when the indictment, or affidavit information improper was his or her conduct tor knew any person is convicted upon which pro- intended to prejudicial, and either charges or different de- different offenses disregard in willful a mistrial or acted voke trial and a new grees of the same offense retrial, mistrial, resulting or reversal. accused, may she] granted [or he ¶32, Breit, 1996-NMSC-067, degree again tried for offense that the reason- concluded 930 P.2d 792. We of which greater than the one the offense Kennedy, 456 ing Oregon was convicted. [or she] he (1982), was 72 L.Ed.2d Const, II, § N.M. art. only if the it barred retrial flawed because a mistrial. provoke prosecutor is reit- intended protection constitutional ¶¶ 19-24, 1996-NMSC-067, Breit, double-jeopardy our expanded

erated 930 P.2d 792. statute: put person be twice No shall compared to recent When for the same crime. defense Supreme Fifth-Amend United States may be jeopardy may not be waived and constitu jurisprudence, Mexico’s ment New stage any by the accused at raised statutory protection against double tional prosecution, either before after nature, face, is of a different jeopardy, on its indictment, informa- judgment. When inviolate. encompassing and more charges complaint different crimes tion or crime and degrees the same or different Jeopardy At- The Moments When B. accused, [or granted he a new trial taches again for a crime or be tried she] greater than the one degree of the crime proceed and criminal Civil originally convict- [or she] of which he attach moments of ings each have different ed. trial, jeopardy attaches In a criminal ment. added). empowered of fact is moment the trier (emphasis The non- 30-1-10 Section regarding the determination especially significant be- make provision is waiver 74 guilt. defendant’s innocence or resulting See State v. judg- either trial or a default

Davis, 14, 1998-NMCA-148, 297, ment, 126 N.M. double-jeopardy defense would trial, nonjury 968 P.2d 808. In a upon means subsequent arise initiation of a jeopardy that begins attaches when court criminal proceeding. Conversely, if the de- to hear at least some evidence on behalf of subjected fendant is first prose- to a criminal trial, jury In a jeopardy cution, the state.6 attaches double-jeopardy defense would be point at jury impaneled when a and triggered at the moment the state com- try James, sworn to the case. State v. 93 subsequent menced forfeiture action. N.M. 603 P.2d In guilty plea the case of a plea of nolo V. FORFEITURE DEFINED contendere, jeopardy attaches the time the Constitution, In the New Mexico {32} accepts court plea. the defendant’s See State ownership property of meaningful is as James, 7, 9, life, and rights fundamental as safety, (Ct.App.) (guilty), grounds, rev’d on other happiness: and (1979); N.M. 603 P.2d 715 Deg State v. persons free, All equally are born and nan, (R.I.1991) (nolo). 587 A.2d We natural, have certain inherent and inalien- explain why will jeopardy below is not rights, among able which rights are the by guilty plea. waived enjoying defending liberty, life and In civil proceedings, forfeiture {29} acquiring, possessing protecting prop- many suggested jeopar authorities have erty, seeking and of obtaining safety dy attaches at the time the court enters its happiness. judgment.7 final This is because the final Const, II, § art. decree forfeiture marks the moment when Forfeiture is complete divesti- ownership rights of the defendant are ture of ownership without Thus, below, explain altered. as we shall compensation. Dictionary See Black’s Law if even there was no trial because the defen (7th ed.1999). Thus, extinguishes one appear dant did not hearing, the forfeiture of the most liberty fundamental interests. jeopardy upon attaches the issuance of a Mary Cheh, M. Something Can Easy, judgment default jeop order. We hold that Quick, and Also Be Fair? Runa- Profitable ardy attaches a civil proceeding way Civil Stumbles on the Consti- Forfeiture at the judg time the court enters its final tution, (1994) 39 N.Y.L. Sch. L.Rev. ment, either at the conclusion of a trial or Cheh, Easy [hereinafter statutorily It ]. is a upon entering judgment. a default created sanction for the commission of cer- protection against multi illegal tain acts or for the breach of certain ple prosecutions of the same offense is obligations or conditions. See Black’s Law dependent upon whether first at Dictionary 661. tached the criminal or civil proceeding. Forfeiture, as a combating means of sequence, Whatever the New Mexico trafficking substances, of controlled Jeopardy prosecu Double Clause forbids the based on principle people who com- tion of the separate same infraction in two mit profit crimes must not wrong- from their proceedings. Department Revenue v. doing. Ranch, Kurth justified Modem as a means (1994) (Sealia, J., 128 L.Ed.2d 767 dis taking profit out of crime and as a (“[I]f senting) prohi there is constitutional destroy device to “enterprises,” multiple punishments, bition on the order is, business, any association, cartel, possibly cannot make differ concerted action that tends to continue ence.”). The New Mexico Constitution bars operating if even involved individuals are placed whichever action the defendant jailed. objectives These are laudable

jeopardy a second time for the same offense. appeal good common sense and elemen- tary cases like those we principles address morality. It is the es- today, first, civil pursued justice forfeiture is deprive sence of a criminal of his are, effect, analysis ... Multiple punishment entails destroy what booty and to sub- activity. three factors: whether the State of criminal nests jected separate proceed- the defendant to omitted). (footnote Cheh, Easy, supra, at 5-6 (2) ings; precipitating the conduct whether Thus, ideally, under the Con- forfeitures separate proceedings consisted of one discourage illegal Act Substances trolled offenses; or two whether offense profits of the and divest criminals economies penalties proceedings in each drug of the trade. “punishment” for the be considered ana forfeiture is often Civil purposes Jeopardy Double Clause. different lyzed as the confiscation three contraband, types property: First 1051 904 law, that, by anything (1995). “cannot be which is possessed only under possessed at all or contrast, majority Ursery In conditions,” or such as contaminated strict justified applying its conclusion a two- substances, products, controlled misbranded 277-78, pronged Ursery, 518 at test. U.S. firearms, possessed counterfeit unlawfully Ursery quoted 116 2135. The court S.Ct. with money, property, and vehicles stolen that from one of its earlier forfeiture test are numbers.8 Second false identification v. Assortment 89 cases: United States One monetary profits de- proceeds, which are the Firearms, 104 79 U.S. S.Ct. illegal enterprise as well as rived from (1984), superceded L.Ed.2d 361 on other purchased with any goods or investments by Cooper grounds by statute as noted Brand, money. L. Recent that See Rachel Greenwood, 305 n. 3 City F.2d Pol’y Harv. & Pub. Developments, 20 J.L. (5th Cir.1990). two-pronged sup- This test is (1996). instrumentalities, 292, 306 Third are posed to determine whether forfeiture stat- committing a property used in which are by Congress punitive ute was intended to be crime, they integral are to the crime — or remedial. which crime could not means without First, set out to determine wheth- we have charged, committed as the sine have been penalizing Congress, establishing in er trafficking in controlled sub- qua non of mechanism, expressly indicated either Mexico, under the Con- stances. New preference for impliedly a one label or the Act, is sum- contraband trolled Substances Second, Congress has indi- where other. NMSA marily forfeited the State. See penal- a civil cated an intention to establish Summary § forfei- 30-31-36 ty, inquired we have further whether implicate of contraband does ture statutory was so either in scheme property that jeopardy. Contraband is negate purpose or effect as inten- itself, regardless it was illegal in of how tion. used, or not how it was whether acquired, right, anyone owns it. No one has the even Firearms, at II, 4 of our Constitu- Ward, under Article Section (quoting United States v.

tion, acquire, possess, protect contra- 242, 248-49, L.Ed.2d U.S. However, all other in forfeiture of (1980)) (citation omitted), band. quoted part Sub- types under the Controlled 277-78, 116 Ursery, 518 S.Ct. 2135. Act, jeopardy attaches. stances most obvious distinction be- in- two tests is that tween these Schwartz MULTIPLE VI. THE NEW MEXICO unexpressed by cludes two factors left Ur- PROSECUTIONS TEST that, us, indispensable sery seem A. The Three-Part Test From Schwartz evaluating multiple prosecution double- Ursery and the Two-Part Test from “sepa- jeopardy claim: there were whether proceed- proceedings” charac- rate and whether the Among distinctive state double-jeopardy ju- ings “one offense.” were directed in New Mexico’s teristics considerations, “[m]ultiple By discounting these three-pronged risprudence is the addressing whether Ursery ex Court avoids analysis” described punish- question multiple Kennedy: the cases rel. Schwartz pro- multiple prosecution prong If asks whether the forfeiture ment or cases. conclude, Schwartz, ceedings punitive in these are “are so form and effect seeking separate pun- despite Congress’ separate proceedings to render them offense, contrary.” An single for a there is no intent to the Id. affirmative ishments question depends upon very question prohibition against multi- answer to this ple prosecutions high proof’ standard —“clearest has been violated. The —which guarantees legislative prevail will most conservative members the United intent that, Supreme except egregiously punitive most cir- States Court have admitted id.; Wells, double-jeopardy if the clause does not cumstances. Adam C. Com- even ment, protect Multiple-Punishment multiple punishments, reach it does & the Double See, against multiple prosecutions. e.g., Jeopardy Clause: The United States v. Ur- 297, Decision, 153, Ursery, sery 518 at 116 2135 71 St. 170 U.S. S.Ct. John’s L.Rev. (Scalia, J., concurring). argu- all In the context of the other Ursery, proof’ ments of “clearest is such However, significance greater ju- requires standard that it inaccessible the complete two-part the almost reliance diciary suspend interpretation its own legislative Ursery/89 on the Firearms test legisla- the constitution favor of that of the particular sanction determination to label courts, ture.9 federal Unlike New Mexico question “civil” or “criminal.” The fust expression courts have never used the “clear- Congress Court asks is “whether intended proof’ evaluating est as a standard for 881, § proceedings 21 and 18 U.S.C. legitimacy of forfeiture actions. 981, § U.S.C. to be criminal or civil.” Ur- 288, sery, including 518 at In U.S. 116 S.Ct. those {41} Commentators — implementing prong, Ursery Ursery this first courts that have followed —almost “[tjhere universally interpret Ursery justify Court found that is little doubt that Congress abrogation any double-jeopardy protection intended these forfeitures be proceedings,” Congress Ursery civil because de- in civil actions.10 states signed explicitly holding applies forfeiture under the statute to be in its “civil rem, impersonally “targeting property generally.” Ursery, forfeitures 518 at U.S. 270, itself.” Id. at imagine 116 S.Ct. 2135. The 116 S.Ct. 2135. It is difficult to also puni- Court noted federal forfeitures are a forfeiture scenario that would be so governed by procedure surpass by Ursery. civil mechanisms tive as to the bar set procedure rather than criminal mechanisms. only We have discovered two 289, respond Id. at 116 S.Ct. 2135. We shall only which one of deals with forfei eases — arguments to these in rem civil/criminal held, Ursery ture —that under the “clearest below. standard, proof’ punitive that a sanction was stage analysis, jeopardy purposes. In the second for double v. State Klein, 771, (Ind.Ct.App. the Court evoked declaration of 89 Fire 702 772 N.E.2d arms, that, 1998), denied, “‘“[ojnly proof” 719 the clearest N.E.2d 386 transfer (Sullivan, J., denial), purpose dissenting and effect the forfeiture to transfer Congress’ prosecuted will suffice to override the defendant for various preference manifest civil sanction.” 89 crimes in relation to an accusation of sexual Firearms, 365, 465 at 104 1099 U.S. S.Ct. assault. Under an Indiana statute that au Ward, 249, (quoting 448 U.S. at 100 S.Ct. thorized the seizure that had Nestor, (quoting Flemming 2636 v. 363 U.S. been used the commission of certain enu 603, 617, 1367, crimes, 4 L.Ed.2d 1435 merated his state forfeited vehi (1960))). cle, claiming escape. found that had Court the federal been used to Id. statutes, perhaps having Appeals applied “while The Indiana punitive aspects, important two-part Ursery certain serve test and found that because 290, nonpunitive goals.” Ursery, stipulated by 518 at U.S. forfeiture of the vehicle was question specific S.Ct. 2135. The second relevant statute as a sanction for the attempted rape structured further reinforce the Court’s crimes of and criminal con finement, complete legislative jeopardy prevented deference to intent. double further ex after We settled this matter rel. prosecution for those crimes the forfei However, charges place. Kennedy. ture had v. In that case we con- taken Schwartz attempted proceed- penalty criminal deviate conduct and that if in a civil cluded not “may were as ing fairly deviate conduct barred be characterized retribution, those double because crimes were or as then the deterrent revoca- offenses in among penalty may the enumerated punishment; tion is if the remedial, at 773-75. forfeiture statute. Id. fairly it is then characterized purposes jeop- of double case, People v. The non-forfeiture Schwartz, ardy analysis.” Wood, A.D.2d N.Y.S.2d 1055; New Mexico 904 P.2d accord Taxa- (1999), Ursery 124-27 mentioned and held Whitener, 117 Dep’t tion & Revenue jeopardy prevented a criminal (Ct.App.1993) contempt proceeding for harassment after (discussing holding approval with already been the defendant had sanctioned Halper, States v. 447- United family-court contempt proceeding based on (1989), L.Ed.2d 487 underlying conduct. The same court States, abrogated by Hudson United hardly dispute that Wood could the defen- 93, 95, 100-03, 118 S.Ct. already punished dant had been because the (1997), 450 L.Ed.2d that “the labels ‘criminal’ proceeding jail sanction first was a under the importance paramount ‘civil’were not of sentence. appli- and could not to defeat the be utilized if there are other eases like Even {44} law”). protections cable of constitutional The these, solitary exceptions they all to are the turns, not of the before us resolution issue impact two-part of the otherwise universal proceeding fact that a the insti- Ursery abrogation of the double- test: procedure, civil tuted under the rules of but civil protection when a of forfeiture on whether the sanction prosecution brought and a are criminal punishment. to be intended a form See below, the same As we offense. demonstrate Whitener, 134, 117 P.2d at N.M. at significant body we would have to discard a (stating that “the most relevant consideration if we New Mexico law were to established and wheth- was the of the sanction character narrowly Jeop- our own construe so Double punitive in fairly er it could be called na- ardy Clause. ture”). Regarding B. Mexico’s Doctrine New Ursery willing The Court’s {47} Legislative Deference to Intent Congress so much its ness cede to immediate virtue The {45} pro control over fundamental constitutional Ursery/89 Schwartz test over the Firearms contrary Mexico law. See tections to New two-part no is that there is deference to test Klein, Redrawing R. the Criminal- Susan legislative regarding the determination intent Boundary, L.Rev. 2 Buff.Crim. Civil rights. constitutional fundamental (1999) (The Supreme Court United States congressional to describe forfeiture decision routinely legis label a “now blesses whatever a is one of main proceeding civil sanction.”). places on Our Court of lature arguments Ursery depends upon Appeals disapproval for such expressed support conclusion that its forfeitures that, Mexico, approach, stating New punishment. Ursery, at an individual’s “[t]he State cannot restrict 288-89, 116 Whitener, rights constitutional statute.” 833; 869 P.2d accord The Controlled Substances Act ex- 710-11, Barber, plicitly that forfeiture shall insti- State declares (legislature (Ct.App.1989) 457-58 tuted “the Rules Civil Procedure for guaranteed right expressly cannot dimmish the District of New Mexico.” Courts Section constitution). 30-31-35(C). However, Mexico, “If an action New prohibi Legislature government fact that has chosen to label a constitutional violates tion, manifesting “criminal” is no amount proceeding “civil” or not dis- of evidence benign proceeding. legislature’s purportedly intent au- positive of nature of the true Distinguished thorizing that action can render the action C. Schwartz P.S., constitutional.” In re 175 Ill.2d issues we addressed (1997) (Hei Ill.Dec. 676 N.E.2d differ from the issues we address Schwartz C.J., ple, dissenting). today. an administra Schwartz concerned nominally civil

tive sanction rather than judi It is the role of the Specifically, addressed forfeiture. Schwartz ciary, legislature, interpret and not jeopardy prohibits the State “whether double subjecting legisla constitution. fact that an accused drunk driver The mere both an administrative driver’s license revo ture has chosen to affix to a statute the proceeding prosecu cation and a appellations “civil” or “criminal” does Schwartz, tion.” sanctify deprivation of constitutional test, applying three-part In at 1048. our rights guaranteed that are to all criminal subjected concluded that the State had emphatically, legislative defendants. Most separate proceedings DWI defendants intent should not be considered determina precipitating separate conduct multiple prosecution Legisla tive of cases. proceedings single consisted of a offense. intent, meaning, tive no matter how well Id. at 904 P.2d at 1051-53. Howev legitimacy upon cannot bestow constitutional er, test, part as to the third we con imposition multiple punishments cluded that the administrative license revoca multiple proceedings single for a offense. double-jeopardy tion was not Legislators, in choosing whether describe purposes. “criminal,” a sanction as “civil” or will natu making this determination we rally judi seek to minimize the likelihood of Supreme followed the United States Court’s Gottman, Note, scrutiny. cial Andrew J. Cf. holding Halper, in 490 U.S. at Notice, Timothy Fair Even Terrorists: for legislative apply that the choice to the McVeigh and a New the ex Standard for “criminal” or “civil” labels are not determina- Clause, Post Facto 56 Wash. & Lee L.Rev. particular puni- tive of whether a sanction is (1999) (“No Congress rational would Schwartz, 628-29, 904 P.2d tive. place retrospective ever a criminal label on a at 1053-54. In we that “[i]n Schwartz held bill”). Jeopardy New The Mexico Double to ascertain sanctions order whether these simply Clause not be circumvented be punitive purposes are we must look at the Legislature cause the has one of two labeled actually that the sanctions serve. We make sanctions as “civil.” by evaluating govern- this determination the purpose enacting legislation, ment’s the sure, single pro To in a {49} evaluating rather than the effect of the sanc- ceeding, Jeopardy the New Mexico Double tion the defendant.” Id. at 904 P.2d prevent Legislature Clause does not from the (citation omitted). Looking at 1056 at the authorizing multiple punishments for the purposes behind the administrative revoca- In same offense.11 do circumstance we license, tion of a that it driver’s we concluded Legislature defer because it is the role of the “significant operation is that the of automo- proper pun define crimes and ascribe the public highways activity biles on is an that is Tsethlikai, ishments. See State v. regulated by government.” An Id. es- (Ct.App.1989) 785 P.2d aspect government regulation of sential (‘When conduct a defendant violates two conditional; issuing they of licenses that are statutory provisions, of the role the constitu only long participant are valid as as the guaranty assuring tional limited govern- adheres to the standards “set sentencing legisla court has not exceeded its participation regulated for ment a activi- are, course, authority.”). tive There limi violation, ty.” Upon Id. a the administra- legislative power. tations on this See punitive “reasonably tive sanction is not if it Swaf 13-14, ford, 112 N.M. at 810 P.2d at 1233-34 goals public regulatory adopted serves in the (setting two-part forth “a Though test determin Id. interest.” we found ing legislative punish”). intent to did license revocation have certain rights the defen primary ob- The asserted that the aspects, we concluded today us not cases before are predominately dants jectives of the sanction were Following protected by the test. Go at 1058-59. federal Id. remedial. mez, will examine whether we therefore suspending driver’s license heldWe New Mexico protection under the there is legitimate nonpunitive DWI “serves the 1997-NMSC-006, Gomez, 19, 122 test. public protecting purpose apply now 932 P.2d We presented by drunk dangers drivers three-pronged Schwartz test. compliance with the helps regulatory enforce activity of driv- governing laws the licensed VII. PROCEEDINGS P.2d at 1057. SEPARATE

ing.” Id. prong first Applying the contrast, the statutes test, that, dispute no there is the Schwartz today do applicable to the cases we address law, the criminal New Mexico under current activity, but regulated concern lawful not sep prosecution action forfeiture are illegal activity. Traffick rather certainly reject any proceedings. We arate govern ing in controlled substances identity attempt to contrive an between away by ment-granted privilege that is taken that set proceedings such as forth two explain As sanction forfeiture. (2d Millan, 2 F.3d United States below, 30-31- forfeitures Section detail Cir.1993), in which court asserted that designed indeed could nev 34 were —and part of a actions both were the two were objec designed serve the remedial er be —to prosecution.” If there “single, coordinated compensating government or soci tive proceeding, these would one cases were illegal costs of ety for the incalculable us. not be before pecuniary inflicts drug trade. Forfeiture for the crime and penalty OFFENSE VIII. ONE of the crime. seeks deter recurrence in the second factor Schwartz Schwartz, logic though Applying the even at issue consists the conduct test —whether aspects, some remedial more than one offense —is more one or design and behind motives two different bodies complex. Because punitive. unquestionably statutes are trafficking applied drug laws and law are — at hand distinct forfeitures the cases whether laws—we must determine forfeiture administrative sanction discussed from the punishes conduct or different each statute purposes their and inten Schwartz because courts, apply to the same conduct. Most both primarily punitive. tions are question, it they address this answer Blockburger test invoking the well-worn The Schivartz test set forth New {53} act or evaluating for which states that when “the same distinctive method Mexico’s violation of two dis- protections against constitutes a possible violations of the transaction ap- statutory provisions, test to be prosecutions multiple punish- the multiple tinct two plied there are though the to determine whether ments. Even Schwartz test one, only provi- is whether each at revocation offenses directed administrative license forfeiture, proof a fact the does requires we it to be of other than civil find sion rather States, Blockburger v. 284 U.S. entirely adaptable to cases address not.” United the we (1932). L.Ed. dispassionate na- 76 306 today. A of the S.Ct. measure augmented Blockburger it test has been three-part is that ture of the Schwartz test conducive, hand, integral to New holding of Mexico’s on one our courts jurisprudence. double-jeopardy administrative revocations Schwartz that Swaf- 8-9, hand, ford, at 810 P.2d at 1228-29 punitive, of and on the other are Blockburger into (incorporating New Mexico holding today forfeitures under the our that multiple punishment analyzing punitive. The Substances Act are test Controlled Schwartz, claims); N.M. at Ursery/89 two-part Firearms test would be Blockburger in de- unnecessary (applying at 1051-52 departure from Mexico P.2d an New precipitating conduct termining “whether the law. hearing pros- on prove the revocation and the criminal that it was not bent splitting pre- ecution consists one or two of- offense the same offense order to fenses”). advantages bringing the tactical a serve separate action. forfeiture We that an examina conclude

{57} tion of the Act reveals Controlled Substances IX. PUNISHMENT prove that no fact there is needed to trafficking drug violation is not that also factor, The third Schwartz whether {61} prove grounds needed for forfeiture. punishment, proceedings impose both is the All the forfeitures under Section Though most contentious. this factor and expressly predicated 30-31-34 are the fact part Ursery/89 second Firearms that the was “in violation of defendant question, address basic test same Controlled Act.” The Substances legislative does not Schwartz defer intent entirely statute subsumes criminal of- require nor does it the insurmountable fense. proof’ “clearest standard. interpretation sup- is further ported by provisions the innocent that owner A. The Evaluation Punitive/Remedial limit application of the forfeiture statute under Schwartz exclusively to those who in “violation are above, As mentioned Schwartz we § the Controlled Substances Act.” See 30- stated that remedial nature (2), 31-34(G)(1), By making exception an by looking a sanction is established at the Legislature innocent owners the could purposes behind the statute that authorizes intended have the criminal offense to be Schwartz, the sanction. N.M. at necessary justify element the civil for- 1056; Whitener, at accord feiture action. (describing holding 869 P.2d at 832 Therefore, in ease of for Halper, U.S. at S.Ct. feitures under the Controlled Substances stating that “the determination wheth- Act, hereby presumption establish a given a civil punish- er sanction constituted action when forfeiture and a criminal action required particularized ment assessment rely are at the directed same defendant and penalty imposed purposes and the general evidence, serve”). on the penalty same then both fairly said to proceedings concern the same offense. The above, As noted Schwartz makes proving State will bear burden of other nonpunitive sanction clear need not be Specifically, wise. the State will have to “ ” ‘solely’ Schwartz, remedial. prove convincing with clear and evidence that 633-34, 904 (discussing P.2d at 1058-59 state the criminal action and action 448, 109 Halper, ment unquestionably completely directed at dis 1892, that fairly “a civil sanction cannot tinct and unrelated offenses. solely to purpose, be said serve remedial presump We establish this explained but rather can

{60} be as also tion in they serving favor defendants pur because either retributive or deterrent protected partition should from poses, punishment, an unfair is as we have come ing added)). of their offenses. is (emphasis When there more understand the term” than of trafficking one count in controlled Schwartz concluded that “the fact that the substances, the State is from regulatory forbidden insti scheme has some incidental deter tuting a criminal action on some counts and a effect not pun rent does render the sanction forfeiture action the others. In New Mexi for purposes ishment of double co, partitioning Schwartz, this analysis.” would run afoul of the Jeopardy Boeg Double Clause. See State at 1058. P.2d Common sense tells us that lin, there are which circumstances the reverse (“An (Ct.App.1977) split may statutory offense not be as is true well: certain schemes— many subject parts into and made the forfeitures like under Controlled Sub multiple prosecutions.”). It would be incum- stances certain as- have remedial Act— con- associated with primarily ascribed forfeitures though purposes their pects prosecutions. Even trolled-substances punitive. ap- qualities though of these remedial some Thus, indicates that Schwartz ply to Sub- the New Mexico Controlled a is determining whether sanction remedial Act, outweigh punitive not its they stances do punitive double-jeopardy purposes re for nature. balancing purposes of all behind quires a id. at the sanction. See (indicating that an incidental deter 1058-59 1. Reimbursement outweigh the remedial purpose rent does ob frequently most mentioned sanction). This is ascertained

intent of a gov jective is that forfeiture reimburses statutory examining the scheme creates minimize for cost of its efforts to ernment if We also believe that neither the sanction. illegal including in availability drugs punitive purposes pre nor the the remedial incarcerating vestigating, dominate, prosecuting, and guided by evaluation should be Moreover, drug civil forfeiture a fundamental traffickers. the sanction affects whether Thus, ease, right allegedly compensate for the societal right. helps in a if the close statutory, caring loss of for drug stake such as the costs of trade such as were license, victims, likely most conclu pro administrative productivity, lost and social that the is illegal sion would be sanction remedial. grams temptation that combat the However, today, address the matter we drugs. Arthur Leach John G. See W. & disagreement Malcolm, there much about is whether Appro An Criminal Forfeiture: purposes of forfeiture under the Con De priate Solution to Civil Forfeiture bate, trolled Substances Act are more remedial 260 n. 81 Ga. St. U.L.Rev.

than about this punitive. (“Forfeiture Our conclusion ... it com is remedial because strongly matter the fact that influenced expenditures pensates government its deprive purpose of the sanction is to on law and on other enforcement activities defendant of the fundamental constitutional problems resulting societal from the offend right “acquiring, possessing protecting instrumentalities.”). claim ing is no There Const, II, property.” § art. 4. government reimburses the strong presumption creates dollar, specific dollar dollar even punitive. sanction is Rather, forfei amount could be determined. “rough justice” remedy ture as defended Thus, below, explain as we liquidated or a “a form of dam reasonable while statutes New Mexico’s forfeiture indemnify ages” designed the costs related Act have certain the Controlled Substances trafficking substances.12 to the of controlled they goals, primarily serve remedial decided below, explained Con As the New Mexico Moreover, ly objectives. punitive there are Act was without trolled Substances created these aspects—or certain earmarks—of for purpose in mind. that are feiture laws demonstrative their As punitive nature. one commentator con cluded, drug Mexico’s forfeiture stat “New harm Removes

ute, law, in its codified Criminal Offenses is also ascribed Forfeiture penalty drug for convicted intended as nature, objective removing harm remedial penal It is felons. remedial, society of commerce. purport most civil and from the stream statutes Kessler, Thus, individual L. and not be.” 1 Civil & Criminal social betterment Steven § elimi goal 9.04[5] Fed. & Practice when the state Forfeiture: (1999) (footnote omitted). substances, dan confiscates nates harmful nuisances, instrumentalities, gerous abates Aspects un- B. Remedial of Forfeitures goods.13 is little impounds illegal and There Act der Controlled Substances aspect of harm is doubt that the removal Sub a of the Controlled In this we will outline forfeitures section {66} itself, aspect, by does qualities usually But this that are stances Act. of remedial number not predominately 5.Encouraging proper render forfeiture a manage- reme dial property sanction. ment of argument Often mentioned is {71} property

3. Confiscation of harmful encourages property forfeiture owners actively manage property Similarly, their to ensure the confiscation of {69} contraband, that it will illegal purposes. proceeds, be used for and instrumentali 290, Ursery, See illegal drug justified of U.S. 2135. ties trade is as law, Under may federal innocent way protecting society owners lose from harm. Pos property contraband, they even when session of never consent to or such as a controlled substance, completely illegal unaware of use of unlawful for all citizens and its property.14 their punishment. Such an forfeiture is not outcome New See J. Moms Clark, precluded, Mexico is by both Civil and the innocent Criminal Penalties and provisions owner A Framework Controlled Sub Constitution Forfeitures: (1976). by stances Act and Analysis, al 60 Minn. determinations our L.Rev. 30-31-34(0(1), (2), (4); § courts. See profits illegal Proceeds are the re activities Truck, Pickup One 1970 property purchased Ford illegal with those Forfeiture of 97, 100, profits deprives (Ct.App. and their the own 1991) (holding an nothing portion er of innocent to which co-owner’s he she is entitled. Cheh, property subject confiscated Easy, supra, at 15. It is as forfei claimed ture). well instrumentalities property that is used to facilitate crime- Aspects C. Punitive of Forfeitures un- objectives. serves remedial harmful na The der the Controlled Act Substances property of such ture and the remedial char acter of such disputed. forfeitures is See In this explain section shall we Nilsen, Eric Blumenson & Eva Policing factors that demonstrate how un- forfeitures Drug War’s Hidden Economic der the Controlled Substances Act were de- Profit: Agenda, 65 U. Chi. L.Rev. 45-46 signed punitive. to be property Forfeiture of harmful can be benefi precedent regards New Mexico for- However, factor, cial. even consid when punitive feitures as qualities ered with the other remedial we mention, not outweigh punitive does na Ursery’s holding Were we to follow ture forfeiture under the Controlled Sub that civil punitive, forfeitures are not stances Act. repudiate would be quarter forced to over century of unequivocal consistent and state

4. Restitution ments the New appellate Mexico courts criminal, civil quasi forfeiture is indeed proceeds Forfeiture can be used to penal, punitive Moreover, in nature.15 provide restitution illegal for victims of the presumption forfeiture is drug Nancy King, trade. Portioning See J. can opinions be traced to the earliest Punishment: Constitutional Limits on Suc- Court, Supreme Territorial prior to our Penalties, cessive & Excessive Pa. U. statehood.16 presumption continued af L.Rev. 174 n. 175 n. 176 n. 220 ter New Mexico was into admitted the Un (1995). However, New Mexico’s Controlled ion.17 In years, more recent the forfeiture Substances Act provision makes no for the rights similarly water regarded been best, compensation direct of victims. At vic- punishment.18 obliquely tims benefit when forfeited property proceeds or the of their sale revert Ursery majority did not men general fund or States, are used law en- holding tion its in Boyd v. United 30-31-35(E) agencies. § forcement 6 S.Ct. 29 L.Ed. 746 Warden, (permitting (1886), agencies law enforcement to use grounds overruled on other apply pro- forfeited sell Penitentiary Hayden, d. M state, county, 294, 302-07, municipal general ceeds 18 L.Ed.2d 782 funds). (1967),that “quasi forfeitures have ownership, penalty is no more extreme concept was reiterated nature.” subsequent right without stripping person in the a of that of times than a number Court majority case the including compensation. another decades discuss, v. Plymouth Sedan did not One signif- a We would have renounce

Pennsylvania, 380 U.S. body precedent were we to conclude icant (1965) 1246, 14 (stating “a forfei L.Ed.2d rather than that forfeitures were remedial in charac quasi-criminal proceeding is ture early punitive. Though many of our forfei- ter”). Mexico, “quasi-criminal” this In New far removed from the sanc- ture cases are of civil forfeitures characterization contemplated by the Sub- tions Controlled and has be Plymouth, adopted from 1958 Act, never, Mexico has stances New jurisprudence.19 The a fixture of our come issue, context, addressing any ever effectu- characteriza validity quasi-criminal this characterizing it as ated a forfeiture without both New holdings of is bolstered tion punitive. quasi-criminal or penal or courts that the appellate and Mexico federal pro exclusionary applies to forfeiture rule In rem 2. in violation of ceedings. Evidence obtained guaran protections and seizure

the search majority pre- a Ursery rests New Mexico the United States teed upon ponderance of its rationale rem neither the de can be used Constitutions proceeding, which it nature of the forfeiture at the forfeiture criminal trial nor fendant’s guilty property of the characterizes terms proceeding.20 why segment explain we will fiction. reasons, it is well estab For these jurisdiction guilty property and the in rem “[fjorfeitures that, lished in New Mexico Additionally, synonymous. fiction are not are to be at law and statutes not favored why in rem doctrine does not shall show strictly against forfeiture.” State construed Ursery suggests, that is a imply, as Ozarek, 91 N.M. Rather, proper a under- sanction. remedial (1978).21 Forfeitures, be en “should supports standing of rem doctrine within both the letter forced when for dou- conclusion that forfeiture City spirit of the law.” Mitchell ble-jeopardy purposes under the Controlled (In Dep’t re Farmington Police Forfeiture of Act. Substances Thirty Hundred Dol Thousand Two Seven 746, 748-49, Cents), 111 N.M. lars & No jurisdiction directed at a. In rem [hereinafter 1276-77 persons’ interests with mis regard forfeiture We $2780.00]. commonly, “in rem” is Most it divests the individual trust because proceeding as a or action instituted defined protecting right acquiring, possessing “of to “in against thing in contradistinction fundamental liber property”-one of the most against Const, personam” actions which are directed II, § art. ty interests. See Dictionary 797. person. Black’s Law use, temporary It is “not a mere restraint However, jurisprudence, this defi modern loss, satisfy pre-existing used to or device practically conceptually nor nition is neither Cheh, Easy, jurisdiction.” secure debts or that the names of the accurate. It is true sanction It is the most extreme supra, at 10. styled as the inanimate proceedings are property own bring against the can the state object in a civil were defendant (“Forfeiture capital what is to fines er. Id. See, e.g., v. One 1967 Peterbilt action. incarceration.”). With re is to (In Intended re & Tractor Seizure right property, fundamental gard to the Forfeiture Tractor), Peterbilt One 1967 penalty more extreme can no the state devise (1973). However, as the Unit 506 P.2d 1199 compen away property without taking than Supreme sagely observed ed States may impose state It is true that the sation. ago, larger “in a and more years over 120 than the expensive penalties more harsh sense, applied to ac terms are general or a property as an old car of such direct ob parties, where the tions between regard with of cash. But small amount dispose cash, ject to reach and right fundamental that car or 84 them, admiralty courts hoary annals of law” when

owned or of some interest therein.” 714, 734, personam jurisdic- in Pennoyer Neff, 24 L.Ed. could not obtain v. 95 U.S. often (1878), of- grounds by tion those who committed maritime 565 overruled on other over 186, 206, fenses, Heitner, jurisdiction 97 but could obtain in rem S.Ct. Shaffer 2569, $2730.00, wrongdoers’ in L.Ed.2d 683 An rem over the ocean vessels. 53 1276; directed, against P.2d at also property action not N.M. at see is interests, Thus, se, resolving Herpel, supra, at 1916-19. in mari- per but rather at claims, titles, law, brought against a rights property.22 and in that an action was time individuals, wrongdoer. aspect persons-as govern ship as if it This And it were ments, guilty corporations-who possess of in doctrine is known as the those inter rem ests, claims, titles, rights.23 property fiction. This fiction treats inani- objects they beings. as if sentient mate were in The rem doctrine has guilty property op The fietion-as origins its in need for the court to have practi posed to the less theoretical and more jurisdiction property over when its owner is understanding jurisdiction of in rem cable absent, owner, when there is no or when the recognizes persons-is its on in which effect ownership In extent of is unknown.24 such dispensable Ursery argu to all the Court’s circumstances, jurisdiction in rem allows the punishment.25 are not ments forfeitures dispose property, court of with abso proceeding ... is in [This] forfeiture finality, anywhere everyone as to who lute property proceed- rem. It is the which is whatsoever, any in it interest whether and, fiction, against, legal ed resort to absent, unknown, they present, are guilty though it held and condemned as if is no Flesch v. even there owner. Circle conscious instead of inanimate and were City Excavating Corp., 137 Ind. & Rental prosecution it insentient. In a criminal (1965) (an App. 210 N.E.2d 868-69 wrongdoer person proceeded in who is right specif action in rem “the in determines convicted, against, punished. The world, property against equally ic all of the for- part is no binding everyone”) quality of rem feiture provision the criminal jurisdiction significant in a value forfei offense. Amendment to the Constitution proceeding ture under the Controlled Sub Fifth respect apply. does not Act. Act de stances Forfeiture under the prives ill-gotten 275, 116 defendants of and ill-used Ursery, (quot U.S. However, property. illegal drug trade is ing Property Various Items Personal global enterprise. many States, In eases one can United (1931) presume (alteration, not that all who those have 75 L.Ed. 558 omis known, property sions, interest are have emphasis original)). Because apprehended, or within court’s only persons punished, majority’s been are can be jurisdiction. Herpel, B. object See Stefan Toward a persons claim that of a Kleptocracy: Constitutional Civil separates from forfeiture action Forfeiture America, L.Rev.1910, 1918 96 Mich. punishment. realm (review Levy, A of Leonard License to Steal: However, Mexico, in New we have (1996)) (Some, Property Forfeiture expressly guilty property fic- dismissed the most, defendants whose is sub tion as “anachronistic” and not reflective of ject persons to forfeiture “are or entities an in the true nature of rem civil forfeiture typically over which an court will American proceeding under the Controlled Substances personal jurisdiction.”). jur In have no rem $2730.00, Act. N.M. at any isdiction allows court divest 1276; Pickup, see also 1970 Ford wrongdoer anywhere they interest fact, P.2d at N.M. at may possess property. in that unlawful Court has that the States Su- noted United preme fic- Court itself has characterized this ‘ guilty property b. The fiction “archaic,” “an tion “as animistic survival times,” previously “irrational” and “atavis- Our Court has criticized remote ’ ” $2730.00, being the in tic.” 809 P.2d at rem doctrine “rooted crime, (quoting consequence of a the court divests a Continental Grain Co. FBL-585, defendant, compensation, any in- Barge 80 S.Ct. without (1960) (quoting property-that in L.Ed.2d 1540 In re terest defendant has been (2d Lenahan, Jr., intended, punished. R. 48 F.2d In rem was never and Cir.1931))). interpreted, abrogate criticisms are still valid should to fun- These never be aspects rights. of New damental constitutional and distinctive Mexico law. jurisdiction

c. rem is 3. Deterrence revolting “It is no have better is act “[t]he “Deterrence” defined reason for a rule of law than that so it was behavior, process discouraging or certain Henry laid down the time of IV.” Oliver Moreover, particularly by objec- fear.” as an Holmes, Law, Wendell The Path 10 Harv. law, of criminal tive deterrence connotes “the 457, 469 L.Rev. The fact that prevention of criminal behavior fear of guilty property fiction is old does mean it punishment.” Dictionary Black’s Law 460. applicable is either or venerable modern way using is a Deterrence Case, Leading Jeopardy law. See Double example of a defendant as an to others who Forfeiture, Clause-In Rem Civil 110 Harv. might tempted be to commit the same crime. (1996) (“In Ursery, L.Rev. the Court It is announcement to the world of the recognize failed that modem civil forfei consequences caught for those who are com- motivation, application, is far ture different mitting prohibited Mary act. See M. from result the civil forfeiture statutes Cheh, Using Constitutional Limits on Civil ” years used ‘the earliest of this Nation.’ Objec- Remedies to Achieve Criminal Law (quoting Ursery, 518 U.S. at Understanding Transcending tives: 2135)). accepted purpose it that Once is Distinction, 42 Criminal-Civil Law Has- target, of in rem forfeiture is to not the tings [hereinaf- L.J. 1355 n. 166 itself, property by person’s but a interest in Cheh, “In ]. ter Constitutional order for a property, that it is that self-evident the for effective, potential deterrent be costs punishment.26 feiture is individual, probabil- to that discounted liable, say To that an owner is not but that costs, ity that the individual will incur such liable, talking his vessel is seems to us like sufficiently high [or must be to dissuade her liability A Thus, riddles. man’s demand taking from that him] action. against him is measured the amount of strength depends of the on the deterrent size property may that be taken from him to Case, penalty.” Leading supra, at satisfy that demand. In the matter of that 212. Sanctions deter are different liability, property a man and his cannot be remedy. those that A deterrent “must separated---- recompense amount to than or more restitu- humans, theory tion. The is as rational Co., Transp. Place v. Norwich & N.Y. weighers of the risks and benefits of their 30 L.Ed. U.S. actions, being penalized if will risk the worst (1886); Grain, see also Continental they having pay face market value 80 S.Ct. 1470. Cheh, Constitutional, gains.” their illicit su- problems gave rise to the (1991) (footnote omitted). pra, at 1355 guilty property fiction still exist: courts must property universally acknowledged still with that has no It is deal owner and defendants who do not within our to deter reside forfeiture statutes meant jurisdiction contemplate trafficking in con- who are unidentified. The those who jurisdiction, purpose of in rem even in its As the definition indi- trolled substances. form, cates, juris- accomplished by most archaic was to extend the deterrence is instill- ing potential drug cost diction of the courts. It still serves the same fear dealers. The However, exceed, purpose. forgotten designed must of the forfeiture directed, profitability possible, any that the in rem action is not at from the crime. itself, Case, Leading supra, property but at interest that Defen- when, property, deprived profits of all exist and that as the dants are trade, con constitutional drug potentially icized and raises serious proceeds of their agency may The law enforcement including legally acquired cerns.28 any worldly goods, proceeds keep property forfeited instrumentality property, that served as an 30-31-35(E). But the therefrom. Section punishment is intended to crime. The harsh applied toward the value object as an lesson to the world of the conse- enterprise enforcing the Act. nebulous illegal drugs. quences being involved with 30-31-35(E)(2). Nothing in this stat Section This deterrent function forfeitures property to be requires value of the ute Act a the Controlled Substances serves de- reimbursing in a fashion to applied remedial cidedly punitive purpose. specific agency’s prosecuting the costs property was derived. from which the crime 4. No correlation to harm that the sanction If it is clear that, face, {89} apparent It is on their harm, quantum of then greatly exceeds the provisions the forfeiture of the Controlled Conversely, is no punitive. Substances Act were never intended serve expenditures or if the state’s more remedial as a source of for the state’s costs restitution harm the value of the crime, the cost of the exceed investigating prosecuting fact, indicat property. the State forfeited illegal any harm to innocent victims from money prose may lost in the ed that it have trade, drug cost to soci or the unmeasurable Vasquezes even of both Nunez and the cution ety trafficking from the of controlled sub forfeiting property. These dis their after Cheh, Easy, at 18 supra, stances. See parities merely the contention (“[Cjivil underscore never were intend asset forfeitures punitive. The cases that the forfeitures are a form of restitution nor are ed serve as Vasquezes further illus of Nunez and the they designed goal.”). A stat serve any and re parity between costs trate to, example, attempted ute that recom covery Act under the Controlled Substances pense government investigation its and unintentional. Also is both coincidental costs, prosecution would a fine devise notion, in Hal- unpersuasive is the set forth reasonably approximated the dollar State, by that forfei per and mentioned efforts, government’s amount of the based justice” “rough approximation of tures are a upon past average expenditures. In con monetary Hal costs of the crime. See Act, trast, under the Controlled Substances 446, 449, 109 per, 490 S.Ct. property the value of the forfeited is never merely an admission that a rationale is Such absolutely bearing no on mentioned and has cost sanction is unrelated to the value of the for its confiscation.27 The stat reasons ameliorating under the harm and further no that the corre ute makes demand punitive nature of these forfei scores the prosecutorial expenses late its to the value of Cheh, tures. property. Easy, supra, the seized See (“Whether at 10 the nature the value If a remedial sanction is de any equivalence property seized bears utterly recompense incalculable signed to property or to harms caused use of the drug illicit trade then there social costs of the pure culpability property owner is punitive. question that civil forfeiture is no happenstance.”). Legislature in did not about the will never be consensus There courts with conten

tend overwhelm the damage caused monetary value of the social accountings tious of the costs associated with any particular drugs, much by illegal less illegal drug trade. property that cost. The share of defendant’s Moreover, Act, regard to its value or the law is taken without under the responsibility for the seizing property portion of agency enforcement defendant’s thus, can, custody property for social devastation. The “take use whose agencies characterized as sanction law the enforcement enforcement completely arbi harm is Act or correlation to the the Controlled Substances remove punishment. it is trary-in other words disposition it for in accordance with law.” 30-31-35(E)(2). (stating that a civil sanc aspect King, supra, of con Section if, “assuming does punitive the statute temporary much crit tion is forfeiture law been forfeiting proportion- attempt to calibrate sanc- cent co-owner from her [sic] makes some particu- property interest in because of the crimes purpose, tions to a remedial that the ate guilty question imposed in a of a co-owner. lar sanction in was respectful P.2d at 342. Federal law is less purpose”). form or amount to that unrelated rights people of innocent than we are in 5. Tied to crime no New Mexico. There are New Mexico eontrolled-substanees that have af- cases Among compelling the most firmed the forfeiture of when the arguments that civil forfeiture is completely any illegal was owner unaware upon that it is conditioned the commission of activity by the lessors or borrowers as necessarily requires a crime. The forfeiture Co., Leasing Yacht Calero-Toledo Pearson proof offense and its terms 663, 680-90, compels relinquish property the defendant (1974) (holding L.Ed.2d 452 that forfeiture of rights precisely because he or she has com marijuana yacht, police found after Appeals mitted crime.29 Our Court of was board, though unconstitutional even determining legislature’s “that correct yacht totally owner-lessor of was innocent directly to tie com choice the presence drugs), of of and unaware or United drug mission of offenses the Con Chrysler 1978 Le Baron Sta- States One punitive trolled Act confirms Substances the 1048, Wagon, F.Supp. tion 1051 provisions.” Albuquerque of nature these (E.D.N.Y.1986) (affirming forfeiture of inno- (In Dep’t Police v. Martinez re Forfeiture of company’s car which was to trans- cent used Thirty Fourteen Thousand Six Hundred port drugs by employee who was the son Dollars), 408, 412-13, Nine 120 N.M. company’s president primary of the 563, (Ct.App.1995) 567-68 [hereinafter stockholder). Forfeiture New Mexico is $14,639]. only “If applies wrongdoers. sanction that punish forfeiture had been understood not to Innocent owner owner, have no the there would been reason Our forfeiture statute includes some {92} truly case of a innocent owner. reserve the provisions. A common carri- innocent owner Indeed, assumption it that on the subject ap- er is not forfeiture “unless part punish forfeiture serves that the pears person that or other owner question past of that Court’s reservation charge conveyance consenting of the is a States, Austin v. makes sense.” United party privy to a violation of the Controlled 125 L.Ed.2d 30-31-34(0(1). Substances Act.” Section (1993). Aircraft, vehicles, and vessels cannot be for- if the violation of Act feited was “commit- D. Summation ted or omitted without knowl- [the owner’s] strength of of Because {94} 30-31-34(0(2). edge or consent.” Section precedent, New Mexico nature conveyance The “forfeiture of a encumbered jurisdiction, of in the deterrent function rem security a bona fide interest shall be sanction, lack of be of the correlation subject party the interest of secured crime, penalty and the the fact tween party knowledge had of the secured neither crime, that sanction is to a tied nor consented to the” violation of Act. sanc exclusion innocent owners 30-31-34(0(4). Section tion, right is and the fact that a fundamental affected, Appeals proper that remedial ob Our Court conclude jectives ly provi of forfeitures under the Controlled concluded these innocent owner incidental, that the “legislature’s Substances Act are sions demonstrate the intent to decidedly puni purposes of punish only the sanction persons drug those involved in double-jeopardy purposes. $14,639, tive for trafficking.” 120 N.M. at reasoning P.2d at 568. of this The force X. PROCEDURAL ISSUES exemplified Appeals holding our Chavez, exception all Pickup, in In re 1970 Ford One With Forfeiture of above, appeals protected which an inno- consolidated were mentioned the cases these by guilty part plea agree- pleas appeal resolved to the criminal issue for as charges, Hodge, forfeitures as a result of default 118 N.M. ment. See State 415-16, judgments, argues or both. The State 882 P.2d 6-7 Another case, double-jeopardy when, exception applies the defendants waived their inas plea agreements appeal defense with them issue raised on concerns double- jeopardy did not attach jeopardy with the default claim. and, thus,

judgments, double-jeopardy their above, As un we have stated disagree. claims are barred. We statute, der New Mexico anti-waiver double-jeopardy may defense be raised at Agreements A. Plea time, judgment. both before and after The State maintains that the 30-1-10; Breit, 1996-NMSC-067, Section see guilty plea Gallegos in a resulted waiver (“The right 122 N.M. P.2d 792 double-jeopardy claims. the defendant’s protected to be from double is so argument Montoya State bases its v. New fundamental, relinquished it cannot be (10th Cir.1995). Mexico, 55 F.3d appeal.”). if a conviction is affirmed on even Montoya, the defendant violated the terms plea agreement, A which result result, probation. probation his As a his was claims, potential no waiver other effect previ to his revoked he sentenced right on a defendant’s to raise a double- ously suspended plus an additional sentence Handa, jeopardy defense. See Act, years four under the Habitual Offender 229-30; Jackson, 897 P.2d at State v. (1977, §§ to -20 NMSA 31-18-17 130, 132-33, 774-75 1993). through In a amended federal habeas (Ct.App.1993). petition brought before the Tenth Circuit that We note the Court of {99} Appeals, Montoya contended that Handa, Appeals, addressing in in issue years additional four to an amounted 40-43, 227-30, 120 N.M. at 897 P.2d at and in increased sentence after retrial violation of Jackson, 132-33, 116 N.M. at 860 P.2d at jeopardy. Montoya, double 55 F.3d at 1497- 774-75, relying on stat while the anti-waiver Montoya 98. The Tenth Circuit held that ute, applied exception also an in established double-jeopardy had his claim waived under Broce, 563, 569, United States the United States Constitution because he 102 L.Ed.2d 927 agreed, original plea bargain, in his to a (1989), general guilty plea to the rule that a if sentence enhancement he should ever vio appeal only of all waives issues. Broce probation. late Id. at 1499. The Tenth Cir applicable to constitutional claims. federal apply to cuit declined the New Mexico non- permit The anti-waiver statute is sufficient to statute, 30-1-10, waiver Section because it a double-jeopardy defendant to raise a claim statutory-rather a raised than constitutional- appeal if even that claim was not raised claim, cognizable “[s]tate and claims are not though trial court before the and even proceedings they in habeas unless are consti guilty plea agree defendant entered into a Montoya in tutional nature.” Id. is distin ment which was not conditioned on reserva guishable from eases before this Court tion of that claim. because was decided under the United Constitution, not States under the laws of the Gallegos not We thus hold did {100} State of New Mexico. by entering double-jeopardy waive his claim guilty plea agreement. into a Gallegos the case before today, interpret us we the effect of the defen Judgments B. Default plea agreement dant’s under the New Mexico Nunez, Gallegos, Constitution and New Mexico law. General Because ly, guilty plea right appeal. a Vasquez, Marguerite Vasquez waives the Edward Handa, appear hearings, 120 N.M. failed to at their forfeiture (Ct.App.1995). excep property judg There are their forfeited default rule, exception tions to this however. One ment. The State would have us dismiss their applies double-jeopardy when the defendant reserved claims on the basis that Jeopardy: Double Combined Civil attach if defendants jeopardy cannot Trials, 26 L.Rev. 375- during Criminal Stetson appearance the forfeiture made no (1996) (“[T]he way avoid only feasible suggests that be proceedings. The State bring is to both civil and appeared the defendants never cause answers, they proceeding.”). in combined were not criminal suits one filed claims never remedy other factors rights to contest the It will also some parties and waived their means, according bring question fairness of mod into forfeiture actions. notably, indigent State, Most never ern forfeiture. the defendants were risk, applied available the assistance sanction was not defendant will have put at them, they voluntarily proceeding in be directly against aban of counsel the forfeiture property, punished cause both the doned their were forfeiture, single placed place will trial.31 Of and were thus never actions take course, bring adopted this

jeopardy. courts have the State is restricted Federal only ing only a criminal action or a forfeiture reasoning.30 line of However, bring if it elects to both action. to claim that a It is absurd proceed complaint and a criminal punished by a person is not default forfeiture facts, ing growing out of the same the action explained, look to judgment. As we have only single, brought bifurcated by statutory purpose served sanctions proceeding. they punitive whether are order determine Schwartz, in nature. single that a are not unmindful We Whitener, 1056; P.2d at accord logistical pro proceeding may pose some See, 869 P.2d at 832. We have now estab e.g., complexities. Garcia-Riv cedural era, New Mexico forfeiture stat (discussing procedural lished supra, at 398-404 punitive, not unquestionably utes are criminal trial and civil differences between effect, forfeiture). purposes. However, their but their Once proceedings bifurcated statutes is dealing nature the forfeiture with common mechanism established, it is nonsense to hold that the procedurally factually but distinct identical ap punish the defendant state seeks is no aspects single of a action.32 There law, ap pears, but not if the defendant fails way, current New Mexico other intended, jeopardy pear. If is prosecute, to that the will be able State Act, punished attaches. Whether the court both under the Controlled Substances upon of depends the character the defendant the and the forfeiture. crime deprivation property of the sanction —the upon

through defendant’s forfeiture —and PROOF XII. BURDEN OF during proceeding. presence or absence the of aspects most onerous of the One {106} attach hold that does We {103} statutes is that Mexico forfeiture the New judgment in a upon entry of a default the showing the burden of the defendant bears proceeding under the Controlled forfeiture exempt be from the that he or she should Act. Substances provisions statutes: of the forfeiture necessary for state to ne- It is not the TRIAL XI. SINGLE any exemption exception or in the gate civil We hold that any Act in com- Substances Controlled pun Act is the Controlled Substances under information, or other plaint, indictment double-jeopardy purposes under ishment trial, hearing pleading any or other therefore New Mexico Constitution. We proceeding Sub- under the Controlled henceforth, that, all com hold proof of of Act. The burden stances charges plaints and criminal for violations exception upon person exemption or is may Act both be the Controlled Substances claiming it. only single, proceed bifurcated brought a ambiguous language 30-31-37. This single proceeding will Section ing. eliminate proof specify precise burden of double-jeopardy violations. fails to potential for See Comment, Garcia-Rivera, by when it initiates a forfei- Dodging borne the State Luis nominally a civil At ture action. Forfeiture is overstated. the time the forfeiture action filed, $14,639, property always already is is almost action. See (forfeiture possession of the State because it was requires P.2d at 568 “a civil bur at the time of confiscated the arrest. The proof’). a den of Under civil burden proceeding begins presumption with a virtual proof, would need to establish State Moreover, proper. that confiscation was by preponderance its case a of the evidence. nominally pro (“It because forfeitures are civil general 13-304 NMRA 1999 is a See UJI protections ceedings, indispensable that are party seeking rule in civil cases that a a setting proof beyond in a a recovery party relying upon a [or defense] —such doubt, counsel, right pre reasonable to proving every has the burden essential innocence, sumption right to confront by of the claim [or defense] element guaranteed. one’s accusers —are not evidence.”). greater weight of the Mitchell, 391, 401-04, Helvering v. However, Section 30-31-37 82 L.Ed. statutory exception general rule that can State’s case be established with evidence by prepon- civil claims must be established that would be in a criminal inadmissible ambiguous lan- derance the evidence. Its court, and oftentimes the defendants cannot guage suggests proof that the burden of in a they afford counsel either because are indi prove forfeiture action is not on the gent property or because the that would be crime, property that the was used in a but on pay lawyer used has been taken prove the defendant to that it was not. This argue absolving State.33 Critics open possibility leaves the State government stringent proof of a burden of initially required prob- to offer no more than power impose has “shifted the economic property question able cause judges prosecutors.” sanctions contraband, proceeds, instrumentality or the Smith, David B. Asset A Serious Forfeiture: drug adopted of a crime. This is a standard Property Rights, Briefly Threat to ... Our federal law and some states. See Sean Perspectives Legis., Reg., on Litig., & Oct. Dunn, Note, Ursery: M. United States v. Smith, at 3 [hereinafter ]. Threat We Drug Their Amend- Offenders Forfeit Fifth agree applying proof the civil burden of Rights, ment 46 Am. U.L.Rev. 1212-15 to forfeitures under the Controlled Sub (1997) (discussing proof burdens places stances Act an unfair burden de law). federal fendants. The fact that the State bears a low that, We therefore hold proof probable it burden either cause —be trial, portion the forfeiture of the the burden preponderance evidence—when proof prove by will be on the State to clear deprivation of a initiates the fundamental convincing evidence that right process grave constitutional raises due question subject so, doing forfeiture. Whitson, v. concerns. See Schaefer joining Supreme we are Court of Flori 481, 484, (1927). (“Appel- P. 259 619 place proof da’s decision to this standard of right protected possession lant’s be upon proceedings. state forfeiture See De objec- property of his is His fundamental. partment Prop Law v. Real Enforcement strictly legal, tion is technical or unsub- (Fla.1991) (“We erty, 588 So.2d con itself.”). goes very right It stantial. to the clude that the proof state has the burden of Ozarek, It is that in v. true State trial, by at which should be no than less clear 276, 573 P.2d at we stated “that the evidence.”). convincing This is a mea imposed on burden the owner the burden urged by many drug-related sure critics of per- going forward and not the burden of See, Smith, Threat, e.g., supra, forfeitures. However, any suasion.” fairness to the de- at 25. by fendant undermined the fact that the expressly deciding We are not {111} any by State can rebut defense no more than proof this time whether the burden set preponderance of the evidence. always forth in Section 30-31-37 is unconsti advantages to the may tutional. That apply {109} statute still in a solitary cannot State under these circumstances be action that involves no (1965), However, 1731, 14 L.Ed.2d in a bifur overruled prosecution. criminal S.Ct. 314, 320-22, by Kentucky, portion v. proceeding, both the criminal U.S. cated Griffith (1987).34 708, 93 unquestionably are L.Ed.2d 649 portion and the forfeiture “The owner criminal in nature. criminali effectively stands accused either applica The retroactive Cheh,

ty to it.” outright or indifference triggered tion of law is at the moment when proceeding Easy, at 38. In a criminal supra, law change of becomes enforceable. A burden of cannot be relieved of the by an change appellate of law court is not stringent standard of establishing under opinion established until the date the court’s proof stripped of that a defendant should be Obviously, once the new rule is filed. “acquir right right enforceable, a constitutional subsequently will apply to all —the ing, possessing protecting property.” apparent Conversely, eases. it seems filed II, § art. 4. See N.M. Const. change by appellate of law that a court application any

will no have retroactive XIII. RETROACTIVITY is finalized case before the date the Rogers, is filed. court’s decision State v. question The final is the ex (“The 519, 521, N.M. holding today applies tent to which our retro question or of whether not a rule of law is to actively. pro Mexico The New Constitution retrospectively only applied be arises that, legislature vides act of the shall “[n]o finalized.”). been A causes have case is remedy party, or right affect either judgment “a of conviction finalized when change procedure, in the rules of evidence or rendered, availability appeal ex been IV, any N.M. art. pending case.” Const. hausted, petition time and the for a for cer question § 34. The threshold retroactive petition elapsed or a tiorari for certiorari ly applying law is a new rule Griffith, finally denied.” at 321 n. doing would constitutional whether so violate 6, 107 these extremes S.Ct. Between prohibitions against post facto laws. See ex pending eases that are on the rule’s effective (states I, may pass § art. U.S. Const. circumstances, ap In those on direct date. Const, laws); II, § 19 post facto art. ex peal, retroactivity is two limited to situations: (same prohibition). phrase “ex The Latin by that is either the issue addressed new post implicates meaning in its facto” literal below, preserved raised and rule must be any Generally, passed law “after the fact.” apply must the failure the rule constitute prohibi “that the constitutional means fundamental error.35 post applies tion on facto laws ex disadvantage of penal statutes which However, ap- when the new rule Young fender them.” Collins affected plies protection jeopar- against to the blood, 2715, 111 dy, apparent applica- it is not that retroactive L.Ed.2d 30 precluded be from finalized cases. tion should Moreover, preservation forth it is evident that the State we set Santillanes determining requirements factors and fundamental error to be considered because, pending apply. do not This is rule of criminal law should cases whether new statute, applied retroactively: “[R]etrospeetive or New Mexico’snon-waiver Sec- 30-1-10, double-jeopardy application tion defense prospective must be determined looking basis at three cannot be waived be raised on a case case rule, time, including appeal. Conceivably, on un- purpose issues: of the new rule, today, holding provi- upon and the our the non-waiver placed reliance the old der reopen justice require that cases of sion could State upon effect the administration as 1972 when the Controlled Sub- application would have.” Santi as old retroactive 215, 224, passed. question State, Act was first This N.M. 849 P.2d lanes v. 115 stances (1993). analysis by our v. alluded to Court Jackson three-pronged was 367 ¶¶3-8, State, 1996-NMSC-054, 122 from the N.M. by Court taken Santulones ease, 433, Supreme 925 P.2d We chose “address Court United States 618, 636, Walker, retroactivity of on its merits” but the issue Linkletter v. MINZNER, C.J., expressly analyzing applicability avoided THOMAS A. ¶ DONNELLY, of non-waiver statute. Id. 5. Judge New Mexico Court of Appeals (sitting by designation), concur. conclude that the retro We {116} application holding today of our active SERNA, JJ., (Dissenting). BACA and would, finalized cases under the Santillanes test, upon have a deleterious “effect the ad ORDER ON MOTIONS FOR Santillanes, justice.” ministration of REHEARING Evaluating N.M. at 849 P.2d at 367. rehearing having Motions for

validity been forgotten of old and forfeitures under {121} together filed in this ease with submit- Act would un briefs Controlled Substances be by just parties being fully ted and the impracticality because the mere evidence, rehearing hereby recovering regenerating court advised: The motions for rec ords, sorting out the relevant criminal are denied. charges, retrieving property, refreshing the clarify portion In order to one {122} witnesses, parties. locating memories of however, opinion, opted we to do so have It would be so difficult to into breathe life by separate published Order. many that ancient cases neither the State Gonzales, NMSC-033, 32, v. guaran

nor the former would defendants be 44, 989 P.2d 419. adjudication. only teed a fair Sometimes the possible way ameliorating past wrongs question arises {123} by assuring they happen that never may permitted whether the State be to set today future. We hold that our decision will judgments aside default it has obtained only be retroactive those cases are pending may proceed so that cases with pending opinion on the date this is filed. prosecutions criminal which would otherwise 1-055(C) jeopardy. constitute double Rule XIV. CONCLUSION provides: good NMRA 2000 “For cause We hold the New Mexico Dou- shown, may entry the court set aside Jeopardy bringing crimi- ble Clause forbids and, judgment by default if a default charges petitions nal and civil forfeiture entered, may been likewise set it aside in separate proceedings. the same crime in general, accordance with Rule 1-060.” In holding jeopar- Our is unaffected whether judgments “because default are disfavored dy proceeding attached first the criminal generally and causes should be tried on their Moreover, or in civil forfeiture action. merits, we have counseled trial courts to be double-jeopardy rights the defendants’ in determining liberal the existence guilty pleas unaffected either or default 60(B).” grounds satisfy Rule Sunwest judgments. Albuquerque Bank Rodriguez, 108 N.M. 211, 213, Nunez, “A trial the cases of Chavez and setting affirm court has abused the dismissal of their criminal its discretion Further, charges. judgment aside a default we reverse the its decision con Gallegos, Vasquez, arbitrary convictions of Edward stituted or unreasonable action.” Marguerite Vasquez. intervening inequi Id. no ‘When there are ties, should, any general proposi doubt aas that, henceforth, We further order tion, be resolved in favor of movant complaints civil and criminal securing upon the end a trial the merits.” charges for the same crime under the Con- Herrera, Springer Corp. may brought trolled Act both Substances 1072, 1074(1973). single, proceeding. in a bifurcated Fur- thermore, portion in the forfeiture There are a number of authorities proceeding, prove the State must its case proposition party obtaining convincing holding clear and evidence. Our default move to have it set aside. 10 today pending is retroactive to eases al., James Wm. Moore et Moore’s Federal opinion date this is filed. (3rd ed.1999); § Practice 55.50[2][f] Ferraro Co., Rosenberg v. Arthur M. 156 F.2d IT IS SO ORDERED.

{120}

93 SERNA, (2d Cir.1946); Co., (dissenting). Gray v. Justice John Jovino (E.D.Tenn.1979) (“And, as F.R.D. respectfully I must DISSENT. {128} upon panel, [in ] Ferraro was stated majority opinion, New Mexico Under the Hand, Judge which Learned even sat the late analysis from both stands alone the federal plaintiff to set where it is the who seeks states, analysis despite and the other judgment, ‘... aside defendant’s default Ursery fact that nu- been examined motion whoever makes the must show ”). depar- adequate for it ...’ issue was state courts. In its radical basis The merous Gary City also School ture, considered majority goes even much further Co., Ind.App. Elec. Continental proposed analysis than Justice Ste- (1973), N.E.2d which Justice vens, only Justice on the States United States, Klapprott Black in United Ursery. Supreme who dissented from L.Ed. 1099 Ultimately, persuaded I am not that we (1948) simple English, “In quoted: is were, reject Ursery, I I should even clause, language ‘other reason’ for all opinion by creating errs a consti- believe the particularly except specified, reasons the five tutionally protected property right drug power adequate vests in courts to enable proceeds. judgments such them to vacate whenever justice.” appropriate accomplish action is Danne, Annotation, Jr., Majority

See also H. William I. The Creates a Constitutional Allowing ‘Good What Constitutes Cause’ Right to the Proceeds of Crime Party to Relieve His De Federal Court majority’s proceeds of crime 55(c) Under Rule the Federal Rules fault me, is, troubling. analysis deeply In a Procedure, Civil 29 A.L.R. Fed. of (“While law, attempt simplify this area of laudable usually suffering party it is majority simply goes much too far. aside, entry default moves to it Rule who set 55(e) so, majority ignores I preclude doing believe party who ob does so.”) doing “[rjaising tained bar of the default admonition Breit that exceedingly jeopardy should be an We, therefore, ap- hold that Breit, remedy.” uncommon 1996-NMSC- justice, propriate, accomplish to allow the ¶ 930 P.2d 792. The State to to set aside move default majority proceeds “monetary judgments already defines as the pending obtained in cases and to proceed profits illegal enterprise one bifurcated derived from an prosecution in the manner out in the filed set any goods purchased or well as investments opinion. ¶ money.” Majority Opinion, 35.1 with that majority has the “[n]o holds that one Baca Justices and Serna dissent II, right, Article of our Con- opinion. Section original from the stitution, acquire, possess, protect con- IT IS SO ORDERED. However, in of all traband. the forfeiture PAMELA B. MINZNER /S/ types other under the Controlled MINZNER, PAMELA B. Justice Chief Act, Majori- jeopardy attaches.” Substances F. JOSEPH BACA /S/ added). ty (emphasis Opinion, 35 In other JOSEPH F. Justice BACA words, (drug proceeds or fruits of crime GENE E. FRANCHINI /S/ drug money) money purchases made with FRANCHINI, GENE E. Justice II, protected 4 of under Article Section M. PATRICIO SERNA /S/ ma- Mexico Constitution under the the New PATRICIO M. Justice SERNA jority opinion. holding unprece- both certainly unsupported; it is also dented PETRA JIMENEZ MAES /S/ MAES, policy. PETRA bad JIMENEZ Justice Thus, pro- by relying upon of academic 1. The statute's reference to the definitions statute, major- "money drug ceeds which is a fruit” of the commentators rather than our crime, unintentionally expanding purchases ity appears made to be and does include 30-31-34(F). drug proceeds. scope with of the statute. Section majority majority’s analysis, knowingly takes the extraordi Chavez nary step elevating of the fruits of crime agreed money drug proceeds. that the was the level of a constitutional interest. See and, fact, accepted bargained for Chavez ¶ (“It Majority Opinion, is true that the drug pro- the result the forfeiture of his may impose penalties state more harsh or ceeds, appeal and he did not the forfeiture expensive proper than the forfeiture of such judgment. This Court has it a final before ty as an old ear or a small amount of cash. judgment by a New court that Cha- Mexico cash, regard But with to that car or and the Thus, currency drug proceeds. vez’s was right ownership, penalty fundamental no currency issue whether Chavez’s was le- stripping person more extreme than of that gally acquired finally has been resolved and right compensation.”). Although without before this Court. contrary language regarding there is some Despite majori- judgment, this proceeds opinion, Majority within the see ¶ ty astonishingly, Opinion, specific and without discus- (outlining qualities remedial sion, noting “[pro forfeiture and that one is that affirms the dismissal of Chavez’s crimi- profits illegal ceeds are the charges jeopardy. activities and nal on the basis of double property purchased illegal profits result, with those majority In order to reach this deprives and their forfeiture the owner of judgment involving must conclude entitled”),2 nothing any to which he she is only drug pro- Chavez which he forfeited majority’s position confusion in the on the deprivation ceeds to APD resulted in a drug proceeds forfeiture of is transcended right property, Chavez’s constitutional majority’s treatment of Defendants thereby constituting punishment pur- for cases, particularly these Defendant Chavez. Thus, poses of the double clause. majority If the intended to hold that the New majority apparently concludes that protect drug Mexico Constitution does not spite of Chavez’s concession that the curren- proceeds, majority would have reversed cy drug proceeds, was the forfeiture of the charges the dismissal of Chavez’s money jeopardy. It constitutes indeed currency because the forfeiture of in his ease drug for remarkable create dealers a con- would not have been due right proceeds stitutional to the of their crim- fact that agree Chavez reached a settlement activity. inal ing money drug proceeds. this was The same result is true Defen charged Defendant Chavez was Gallegos, although dant this conclusion with, among things, possession other of mari- be obscured the fact that the forfeiture juana with intent to distribute for two differ- judgment. was obtained default Be notes, majority ent occasions. As the Defen- Gallegos cause failed to contest the forfeiture dant Chavez and APD “compromise reached $299, trial court entered a default regarding currency. settlements” Ma- however, judgment. Again, ¶7. this is a final jority Opinion, $2529, kept APD Gallegos’ currency determination that kept returned to Chavez. Chavez his $1089 legally acquired and was in fact fruits words, van. currency other was the majority, forfeited, of his crime. The in the recitation bargained item Chavez and he result, facts, implies Gallegos legally thereby conceding that the cur- rency currency which his he forfeited to APD was obtained and could not contest illegal fruit of drugs. inability his sale of Because forfeiture due his to afford an ¶9. judgment, attorney.3 Majority there was no default Opinion, even under These ("Defendants Rather, Majority Opinion, activity. 2. See the evidence in the district deprived profits proceeds of all the nearly of their presents airtight court demonstration trade, drug potentially worldly goods, money paycheck that tire came from ....” [his] including legally acquired property, that served argument appropriate misunderstands the crime.”). instrumentality as an inquiry appeal pres- in this case. This does not opportunity ent the for this Court to review the majority apparently accepted 3. The Galle- validity accuracy judgment. In- default gos’s argument utterly that “there is no evidence stead, judgment judi- the default ais conclusive $299 in the record to show that the ... was finding money cial was the fruit of proceed instrumentality illegal either a or an irrelevant; her] his Gallegos [or does not a killer cannot inherit from facts chal are judgment, validity of lenge the forfeiture victim. the thus, it purposes appeal, of this is an and 15; Brand, Cheh, Easy, supra, e.g., see currency Gallegos’s fact that is established (“Neither pro- of supra, at 305 forfeiture the drug proceeds. By reversing Gallegos’s con crime, from money of such as obtained ceeds jeopardy grounds, the ma

viction on double drug that property bought a or with deal jority Gallegos punished that was concludes contraband, money, as nor forfeiture of such which, according by forfeiting property to to drugs, anything illegal deprives an accused of majority, right, has a he constitutional For legal right.”). to which has a [or she] he which, demonstrated, only to as can refer his however, reason, majority has cho- some drug proceeds. reject ubiquitous and proposition, sen to creating a By prop constitutional so, doing my opinion, denigrates in in erty drug proceeds, right majority in acquire right of the to fundamental nature goes further than much even Justice Stevens possess legally property. and obtained Stevens, dissent, in in Ursery. his Justice holds, Thus, majority as no legal of not a proceeds writes that crime are court and as on the other has held no Justice interest, drugs property illegal similar to advocated, individu Supreme Court has paraphernalia, and in concurred the affir constitutionally protected property a als have mance conviction result of the of defendants right proceeds of the unlawful sale $250,000 ing imprisonment, in and a crim life drugs.4 Although majority may illicit be fine, currency inal as in as well forfeiture attempting proceeds a right to limit such $405,089 separate pro in the amount of a drug by including property” in “stolen eases ceeding pro “the such because “contraband,” Majori its within definition punitive.” Ursery, is ceeds not U.S. at ¶ 35, disagree plausible ty Opinion, I that a 298, 116 (Stevens, J., concurring money and drug between distinction exists part) judgment part dissenting money possessed both added). stolen because (emphasis conclud Justice Stevens crime, both, fruits of legally, both are the proceeds forfeiture of ... “[t]he [of ed sub unlike contraband such controlled activity], unlawful like the confiscation of stances, inherently property which is are not money bank, punish does not stolen from to con illegal. it price While reasonable respondents no because exacts as an clude that forfeiture of a vehicle liberty lawfully property derived from added). legally acquired is instrumentality, which (emphasis them.” Id. other words, merely used property that one that has been Stevens believes Justice crime, manner, it is a right illegal punishment, I proceeds no to the of a such as is believe conclusion drug money. proposition universally is critical error to reach similar which, recognized, regarding drug proceeds, unlike the even commentators on issue, majority opinion heavily acquired. legally whom so never relies. vehicles were allowing negotiate, majority is Chavez profits proceeds Seizure crime concede, drug profits his and then and forfeit similarly The idea of noneontroversial. pick rather than his depriving profits criminal of of his [or $2529— jail charges carry possible which wrongdoing equity her] rooted and is time, liberty deprivation inter true his morally compelling. idea that one from property taken profit wrong own est. Because [one’s] should Gallegos was undergirds equitable the familiar rule that both Defendants Chavez (“We ¶ Gallegos’s majority regard mistrust be- If the believes forfeiture with crime. Gallegos’s money legally acquired, then it is ... individual of one cause it divests the judgment paradoxical interests.") that the forfeiture left liberty (emphasis most fundamental opinion. by majority’s intact added). sepa- right property is I believe liberty. right rate and from the distinct Further, majority, recognizing while Roth, Regents Colleges 2701, Board of interest, mistakenly involves a 33 L.Ed.2d refers interest as of the most funda- to this "one Opinion, liberty Majority mental interests.” drug proceeds, currency to which strategy neither had the successful which Defendants any legal right, Nunez, I Gallegos, would reverse the district Vasquez Edward and Mar- court’s dismissal of criminal charges guerite Vasquez employed. Chavez’s Gallegos’s and affirm criminal conviction. Act, Under the Forfeiture a con- tested forfeiture action could establish that a Judgments

II. Default person other than the defendant is the actual property, property owner and the majority The also concludes that subject could still be forfeiture the own- jeopardy judgment attaches to a default in a property er knew that was used for proceeding. Majority Opin- forfeiture ¶ illegal purposes, in ion, which case the defendant (asserting, 102 support, without that legitimately any could not per- claim form of because forfeiture is that it is “ab- punishment regardless sonal of whether the surd” and “nonsense” to conclude that de- criminal defendant pro- received notice of the judgments fault do jeopar- not violate double ceeding. A contested action could dy). Respectfully, disagree. I A default also establish a record from which it would judgment property either renders the “own- possible appellate for an court to in represents review erless” or abandonment of the meaningful way a claim jeopardy. of double property by the owner. Even Justice Ste- example, For in the case Defendant recognized Galle- vens fact in dismissing this gos, appear he should at least have to majority’s Ursery govern- reliance in on the proceeding government to force the to estab- ability summarily ment’s forfeit unclaimed concerning lish a record property’s taint property: “Property that is not ... claimed Court, than abandoned; majority rather force this as the proves is nothing considered does, presume, possibly inaccurately, that that proper- the Government is able forfeit he told the truth about the ty 312, source his that no one owns.” 518 U.S. at 116 money. claim, forfeited Without a (Stevens, J., contested concurring S.Ct. 2135 in judg- presume we should instead from the default part dissenting part) ment in in (empha- and judgment added). money that the was the fruit aof sis Other courts have reached a crime as government shown and that regarding similar conclusion judg- default property has been abandoned. ments. “If no one makes a claim to the property in a civil proceeding, judgment Because a default estab- ‘ownerless,’ property and, therefore, is then lishes that the is either ownerless punishes its forfeiture no one.” State v. Sel- abandoned, owner, or then there is no includ- ness, Or.App. 154 742 defendant, ing the punished who has been (1998), allowed, review 987 Or. put in jeopardy purposes of the Double Jeopardy Nunez, Clause. Defendants Galle- persuasive why [T]he most reason a forfei- gos, Vasquez Edward Marguerite and Vas- upon ture that is based a default or failure quez presumably forfeited instrumentalities claim, timely

to file a does not bar a subse- proceeds through and judgments, default quent prosecution, criminal is that the thereby de- abandoning ownership their fendant has either failed to assert an Thus, own- property. I would conclude that these instance, ership interest the first punished Defendants not were the default failing answer, effectively has aban- proceedings and does not property____ doned claim to the apply. I would reverse the dismissal of the Moreover, otherwise, hold “[t]o would al- charges against Nunez, Defendant low criminal defendants to choose their affirm and the convictions of Defendant could, punishment. A criminal Gallegos, Defendant Vasquez, Edward defendant possessions decide to material Marguerite Vasquez. Defendant forfeit going prison.” lieu III. No Distinctive State Characteristics Prince, People Cal.App.4th added) Cal.Rptr.2d (emphasis standard, Under the Gomez this Walsh, (quoting United F.Supp. departs States analysis from federal because (D.Ariz.1994)). apparently analysis flawed, the federal because of holding law characteristics, departing from federal or because distinctive state Gomez, Jeopardy of the New 1997- Double Clause analogs. undeveloped federal provides protec- broader NMSC-006, P.2d 1. Mexico Constitution context, the multiple punishment prior holdings of tion majority concludes that from, following, this majority deviating distinctive state char- represent a this Court support As aspect of respect, disagree. I critical Schwartz. With acteristic. majority on Breit. departure, has a relies Mexico majority asserts “New However, prosecutori- always Breit involved precedent that has re- because time-honored multiple pros- context of con- al misconduct punitive,” garded forfeiture different, multiple punishments, than facially ecutions rather provisions are stitutional question partially law reserved “double-jeopardy case Breit answers Mexico’s that New majori- standard,” support Schwartz does departed from the federal specif- require ty’s departure from federal law the following Ursery would “dis- Indeed, law, punishment. multiple significant body of settled ic context mantl[ing] a Schwartz, by this Court has as independently of demonstrated much of which was decided ¶ consistently depart from federal Majority Opinion, declined law.” federal ease punishment. addressing multiple law when Departure From Federal A. Previous reported ... suggestion in the ‘We find no Law law that New Mexico Mexico case New clause, multiple pun- jeopardy in the double majority’s importantly, Most {140} context, protection provides further ishment departed has that New Mexico assertion as than that the federal clause afforded misleading. is In standard from the federal law.” interpreted by federal ease relevant 625-26, Schwartz, 904 P.2d at 7 n. 810 P.2d at Swafford, 112 N.M. at 1050-51, this Court stated: 1227 n. 3. “protects double Clause The against distinct abuses: second three above, that I believe As noted {142} ac- for the same offense after prosecution law, analysis in summarizes federal Schwartz prosecution for the same quittal; a second below, and, event, as discussed conviction; multiple pun- and offense after anal- not conflict with the test does Schwartz Here we for the same offense.” ishments Woodruff, ysis Ursery. As pro- with the third of these are concerned ¶¶ 1997-NMSC-061, tections, multiple protection against rely on a when our cases punishments. overruling subsequent analysis, a federal present case involve

Both Schwartz Court, analysis by Supreme the federal arising crimi jeopardy claims out of majority occurred apparently believes as following proceedings. proceedings civil nal New Ursery, not render the earlier with does Schwartz, Thus, mul this case involves under provid- precedent “established Mexico cases majority apparently tiple punishments, as the Mexico ing interpreting the New a basis for by applying from agrees the test derived broadly than provision(s) more constitutional ¶ Schivartz.5 cases analog(s).” Id. 15. Our the federal depart Schwartz, that, from repeatedly declined re- have we held punishment analysis multiple analysis on the punishments, “our federal spect multiple Schwartz, 120 jeopardy. See prong of double both and state the federal is identical (“Due to the P.2d at 1050 N.M. at 904 P.2d at 1050. “We Id. at clause.” Double however, and State similarity of the Federal question, whether reserve[d] Clauses, consistently has Clause, Jeopardy this Court Jeopardy Double the New Mexico clause as interpreted the state multiple construed and than the circumstances other protections offered doctrine, providing same greater pro- provides clause.”); Swafford, 112 N.M. at By Id. the federal than the federal clause.” tection below, multiple punishments. prosecution majority has I I believe the 5. As discuss analysis merged principles of successive (“Taking (stating 810 P.2d at 1233 as our statutory cue the that Section 30-1-10 is constitutional). repeated Supreme admonitions of the than rather multiple punish- that the limitation on sole Dismantling C. of New Mexico intent, Precedent legislative adopt today ments Required is Not two-part determining legislative test for in- (citations omitted). punish.”) tent to In this majority The declares that New case, below, I discussed further believe precedent Mexico has a “time-honored characteristics, there are distinctive state always regarded punitive.” forfeiture as specifically, relatively our narrow forfeiture Majority Opinion, multiple 17. There are statute, favor, argue against, not in (1) problems with this statement: much of departing Ursery. authority majority the older cited (2)

clearly distinguishable; more recent case law; dependent law is B. Facial federal Distinctions Between the Fed- even true, proposition if the eral and New were the test Mexico Provisions are require Irrelevant Schwartz does not this Court to hold jeopardy. forfeiture violates double majority asserts the New majority pre- states that “the Jeopardy facially Mexico Double Clause is sumption that can be counterpart. different from the federal opinions traced to the earliest of the Territo- ¶¶ However, Majority Opinion, 24-27. Court, Supreme prior statehood,” rial to our facially language different relates to succes- United, ¶ 73, Majority Opinion, and relies on prosecutions clearly sive criminal and does Lucero, (Gild.) 422, v. States N.M. apply present not to the cases. See (1869). However, a careful read of Lucero Const, II, § (stating art. that “when the reveals that this Court viewed in rem forfei- indictment, information or upon affidavit ture that regulation does not involve the any person which charges is convicted differ- trade, case, present such as the as remedial degrees ent offenses or different of the same nature, in punitive, not in accordance with granted offense and a trial new the ac- Supreme opinion the United States Court’s cused, may again [or she] he not be tried for (3 Taylor States, How.) in v. United degree an greater offense of the offense 11 L.Ed. (opinion than the one of which he [or she] was con- J.) (“In Story, sense, every imposing one law victed.”). provision embodies the well- penalty a may or forfeiture be a deemed principle established that conviction of a less- law; sense, penal in another such laws are implies acquittal greater er offense of a deemed, truly called, often deserve to be offense, Martinez, see 120 N.M. added)). (emphasis remedial.” than Rather (1995), 905 P.2d 716-17 and it rejecting Supreme position Court’s in multiple pun- does concern the issue Taylor remedial, that in rem forfeiture is this ishment in the cases before this Court. The in merely distinguished Court Lucero Taylor majority 30-1-10, also relies on Section because the at statute issue involved the provision. Contrary non-waiver to the ma- regulation Lucero, Beyond trade. the oth- jority’s position, I do not believe this upon by er cases majority only relied statutory provision “expand[s]” the constitu- incidentally refer to and forfei- protection tional jeopardy. of double See ture and provide adequate therefore do not Majority Opinion, I believe this is a support proposition for the opinion. in the statutory would, right that similar to Swaf- Further, these in cases arose different con- ford, protect multiple pun- defendants from texts and contemplated could not have Legislature. ishments intended I narrow form of permitted in Sec- Legislature, do not believe enact- tion 30-31-34 because that statute was not ing provision, this intended to limit own its yet in existence. authority separate punishments to enact separate be proceedings administered It is true that recent New Mexico permissible would otherwise be under the cases being have referred to forfeiture as Montoya, Constitution. punitive However, 55 F.3d at 1499 in nature. none of these purposes of specific for double jeopardy; ishment principles of double discussed eases may fairly penalty “If be char- fact, jeopardy: has even alluded case no New Mexico problem only with forfeiture or as retribu- jeopardy acterized deterrent to a double existed since though tion, punishment; statute has even then the revocation Rather, largely stem these cases may fairly 1972.6 characterized as penalty be in Oza of forfeiture discussion remedial, this Court’s punishment for then it is not law rek, dependent on federal which was jeopardy analysis.” of double purposes right against self-incrimina concerning the Schwartz, P.2d at 1055 Ozarek, exclusionary rule. See tion and Hanson, added); (emphasis accord State (relying on P.2d at 210 (Minn.1996) (address- N.W.2d 87-88 Sedan, Plymouth ing issue this Court addressed the exact 1246). Court, Ursery, did Supreme The that, Halper, concluding Schwartz Thus, Ozarek those eases. not overrule purposes of punishment for a civil sanction is proposition that forfeiture stands for purposes if its can be jeopardy procedural due purposes of some punitive “solely characterized as deterrent/retribu- however, did not process rights; Ozarek tive”). test, particular penalty this Under truly pro criminal forfeiture into transform aspects and still have incidental constitution require would such ceeding that Id. at fairly characterized as remedial. right to con protections as the procedural al (“[T]he at 1058 fact that the proof requirement of and the front witnesses incidental deter- regulatory scheme has some majority beyond a doubt. reasonable pun- sanction effect does not render the rent a civil similarly designate opinion fails to purposes of double ishment fully criminal ac proceeding as a Thus, Ursery, to follow analysis.”). order convincing stan adopting a tion clear would not need “dismantle” proof beyond a than proof dard of rather law. New Mexico required doubt as would be reasonable Therefore, proceeding. Ozarek require the result reached progeny do not its is Not Test IV. Schwartz majority in this case. See the “Unique” New Mexico 700, Catlett, 355, 133 Wash.2d ultimately adopted by analysis (1997) that argument (rejecting a defendant’s actually strikingly similar to majority is the puni describing forfeiture prior case law signifies to that Ursery This me the test. required a conclusion quasi-criminal and tive itself, necessarily ap- its though not the test purposes punishment for was that forfeiture majority’s not flawed under the plication, is prior case jeopardy, the because of double analysis. exclusionary rule under the had addressed Amendment, not addressed had Fourth the opinion, adopted in the The test inappo jeopardy, and was therefore double Schwartz, is from taken jeopardy analysis). to the double site (1) subjected the defen- the State whether Finally, if New Mexico even (2) separate proceedings; whether dant to noting forfei- precedent that “time-honored” separate pro- precipitating the the conduct disposi- is not punitive, this conclusion is ture offense or two Schwartz, ceedings consisted of one test. under the Schwartz tive (3) offenses; penalties in whether the and Court, Halper, forth the relying on set this considered proceedings merely each of the determining, not in following test purposes of the Dou- “punishment” for the puni- has some particular a sanction whether Jeopardy pun- ble Clause. is but whether the sanction aspects, tive 2135, century. v. Curtiss- See United States for over a Ursery, U.S. 6. Cf. 327-28, Export Corp., ("For Wright Items Court the Various L.Ed.2d 549 (Evidence (1936) 81 L.Ed. 255 prohibited held that the forfeiture to have 'goes long way practice longstanding legislative have been proceeding would prior criminal the directly contrary rule, proving presence the of unas in direction of and to the common-law constitutionality ground for the question constitution sailable practice’).”). have called into would thought ality constitutional forfeiture statutes “ Schwartz, jority proof 120 N.M. at 904 P.2d at 1051. concludes that ‘clearest is such Although majority asserts the Su- requires an inaccessible standard that it preme Ursery unexpressed” in “left judiciary suspend interpretation its own and first two factors in “discount[ed]” the [L]eg the constitution in favor of that of the Schwartz, majority “in- which the considers “[ujnlike islature,” and asserts that federal ¶ 38, dispensable,” Majority Opinion, courts, courts New Mexico have never used Ursery careful review of reveals the Su- expression proof ‘clearest as a standard preme clearly fac- Court was aware these evaluating legitimacy of forfeiture merely presence tors and assumed their ¶ However, Majority Opinion, actions.” analysis purposes of under the third Ursery in from Fire rule derived prong: proceedings whether the constitute arms, ap in which was cited Schwartz with punishment. n. Ursery, at 273 objection parently analysis. no to its two-part I 116 S.Ct. 2135. believe that the Schwartz, 904 P.2d at 1053. Ursery actually represents in an at- test Nevertheless, majority eschews this test tempt clarify prong the third articulated instead, support, pre and without creates Schwartz, penalties whether the separate sumption proceeding that a involv proceedings punishment, two constitute ing deprivation con the “fundamental very majority’s analysis similar to the right ‘acquiring, possessing stitutional comparing punitive and the remedial ” protecting property,’ jeopar violates double Thus, purposes I am of the statute. uncer- dy under the New Mexico Constitution. See rejects why majority tain the federal Majority Opinion, (stating pur that the analysis Ursery; appears ma- pose depriving a defendant of jority merely rejecting the result in Ur- strong presumption “creates a sanc sery. punitive” tion is and therefore unconstitution civil The test to determine whether al). analysis existing conflicts with New Ursery forfeiture constitutes Mexico law that holds that defendants bear (1) legislative body is: whether the intended demonstrating the burden a violation of (2) punishment; to create a criminal Gonzales, jeopardy. See State v. not, statutory whether the scheme was so ¶¶ 1997-NMCA-039, 123 N.M. purpose either or effect as to Additionally, majority’s 940 P.2d 185. negate legislative body’s intention es- analysis, hinging right property, on the a civil tablish remedial mechanism. 518 U.S. opinion conflicts with this Court’s in In re 116 S.Ct. 2135. This test was derived Nelson, with, (per 450 P.2d 188 earlier cases is consistent of, curiam), approval rather than a which was with reversal the Court’s recent cited jeopardy jurisprudence. According Schwartz, 631, double to 120 N.M. at 904 P.2d at 1056. courts, example, Ursery federal for Nelson, does upheld In this Court the indefinite represent purposes a “new rule of law” for of and, suspension practice of a to license law applying holding retroactively. its United claim, process addressing a due concluded (10th Emmons, States v. 107 F.3d 765 process that there was no due violation be Cir.1997). suspension protection cause the was for “the public, profession, of the and the adminis majority departs Ursery The justice, punishment rejection tration of and not the Ursery’s requirement in the Nelson, person disciplined.” proof’ puni the “clearest that a statute is so Although proceedings profession tive as to render the forfeiture 450 P.2d at 193. a essentially recognized property right criminal in character.7 ma al is a The license un significant analysis application 7. One other difference in the ture statute criminal necessitates majority inexplicable rejection inquiry). of the is double majority without further The intent, legislative prong Ursery engaging reliance on the first characterizes as in "al- test, Ursery though complete legislative even this test would seem most ing ¶ reliance” on the label- expedite punishment analysis Majority Opinion, to used of "civil” or "criminal.” Franco, majority Contrary majority’s suggestion, in some situations. State v. to the Cf. (1999) (conclud- however, prong 257 Neb. N.W.2d 633 this does not cede test ing legislature’s judicial power legislative that the intent to make a forfei- to the branch. ¶91 Constitution, Majority Opinion, a crime. Mills v. sion of the New Mexico der (“The Exam’rs, necessarily requires proof of forfeiture Psychologist Mexico Bd. New compels its terms 1997-NMSC-028, ¶14, criminal offense 941 the relinquish property right any pre to apply the defendant did not precisely he or she has committed right of that because deprivation that sumption crime.”). addition, majority Thus, majori states punishment. constituted provision supports owner analysis with Schwartz that the innocent ty’s is inconsistent disagree. An sup I owner’s Mexico cases. Without this conclusion. and other New law, subject majority ap to forfeiture even property can be port in New Mexico reject allegedly not commit a crime. pears Ursery’s though result- that owner did 30-31-34(G)(2) approach favor of states that “no con- to forfeiture oriented Section subject under this veyance another. any act or omission by reason of section The Forfeiture Statute V. com- for the owner have been established Sufficiently Punitive to Not her] without his knowl- [or mitted or omitted in Nature Become Criminal Thus, edge the forfeiture stat- or consent.” prove only requires the state to that the ute majority relies Schwartz or consented to the use his owner knew separate whether forfei order determine violating conveyance an individual jeopardy. her proceeding ture violates Act, above, not that own- However, Substances test in Controlled as stated er, herself, violated the Controlled may himself whether sanction Schwartz determines Act, by possessing or either dis- fairly as remedial. Addi Substances characterized be relied, sup- tributing controlled substances. This tionally, Halper, on which Schwartz Ursery ports the conclusion be considered stated that a civil sanction “encourages property to take care in jeopar owners purposes of double managing property and ensures that divorced their dy only if it is “so extreme so objective] permit used they will not [remedial from the Government’s thereby reinforcing the Halper, illegal purposes,” punishment.” as to constitute objectives of statute. 518 U.S. majority, at 1892. The remedial S.Ct. 2135; analysis, id. S.Ct. although claiming apply this re (“The J., and, concurring) key authority, pre (Kennedy, casts the test without instrumentality-forfei- that the its distinction is to be unless sumes sanction at those who “outweigh[ed]” by statutes are directed punitive aspects its ture ¶ crimes, 66; carry but at owners who are Opinion, out the aspects. Majority remedial ¶ (‘We prop- criminal misuse of the culpable for the Majority Opinion, 64 also be accord erty.”). nor the neither the remedial lieve predominate, the evalua punitive purposes opinion holds that forfeiture guided by whether the sanc

tion should be state can most sanction the “the extreme I right.”). believe tion affects a fundamental Majori- bring against property owner.” again violates our admonition this test (“ is to fines ty Opinion, ‘Forfeiture exceedingly jeopardy should be “double capital punishment is to incarcera- what Breit, remedy.” uncommon 1996-NMSC- 10)). Cheh, Easy, supra, at (quoting tion.’” 067, 35, 122 792.8 statutory for the activities criminal fines $15,000, to while range from majority states that one of the at issue $5000 present in forfeitures the supporting value of the compelling arguments the the most to or a 1989 range from $2179 are criminal case $39 that civil forfeitures conclusion Thus, of forfeit- Chevy pickup. the value the they conditioned on the eommis- is that purposes differentiating among multiple that holding Halper "does not authorize 8. The in inquiry every proceeding, it be civil or a broad into the whether courts to undertake subjective underlie may thought purposes Halper, be to lie 490 U.S. at criminal in name.” judicial proceeding. given J., (citation Such an a concurring) behind (Kennedy, S.Ct. speculative, amorphous inquiry be and would omitted). quagmire in of mire the court and would acceptable to appear may in have even been Justice ed items these cases does not emphasized that possible, in fact Stevens. Justice Stevens exceed the criminal fines and majority opinion in lower, disagreement with the substantially his was often whereas obvi- Ursery largely on founded the forfeiture ously, capital punishment always more se- house, early in fact of a and noted any vere than amount of incarceration. majority eases on “involved the relied Importantly, majority, by rely- mission was forfeiture of vessels whose entire commentators, ing heavily incorrectly so prece- unlawful and on the Prohibition-era analogizes the New Mexico forfeiture statute sustaining distillery the forfeiture of dent Compare 30- modem federal law. Section ____ early in- Notably none of those cases (1994 31-34, § Supp. with 21 & II U.S.C. of a as a form of volved the forfeiture home 1996). above, reading As alluded to punishment for misconduct that occurred counterpart federal reveals clear differ- Ursery, 518 therein.” ence, which fact served as the basis in (Stevens, J., concurring judg- in Ursery: in fol- Justice Stevens’ dissent “The part dissenting part); and in also ment see lowing subject shall be to forfeiture (discussing at 300 n. 116 S.Ct. 2135 id property right shall United States no scope novelty and the of’ 21 U.S.C. “unusual property, exist them: ... All real includ- 881(a)(7)). § title, ing any right, ... interest any any whole of lot or tract of land and May in New Mexico Be VI. Forfeiture appurtenances improvements, or which is Fairly as Remedial Characterized used, used, any or intended to manner be test, Applying I the Schwartz be- commit, part, or to facilitate the com- can lieve that the forfeiture statute neither of, punishable mission a violation of this title “only characterized as a deterrent or as ” year’s imprisonment than .... more one retribution,” Schwartz, 881(a)(7) added). § (emphasis 21 U.S.C. “so and so P.2d at nor as extreme opinion attempts While the to characterize government’s from the remedial divorced” extremely forfeiture in New Mexico as broad objectives be characterized reaching, and far Mexico’s statute is New majority argues that criminal. The forfei- actually much narrower than the federal because it is not related ture counterpart, which allows damages to the amount suffered property, including a residence and land. concerning illegal drug trade. New Mexico’s statute is limited to contra- However, I believe this overlooks one of the band, containers, paraphernalia, conveyances, important purposes most remedial forfei- Thus, proceeds. and cash under New Mexi- primary purpose ture: The of forfeiture is to law, property, purchased co real with even committing the means of the crime. remove drug proceeds, subject can never be forfei- Dep’t Albuquerque Police v. Martinez majority’s ture. The reliance on commenta- (In re Fourteen Thousand Six Forfeiture analysis tors’ of the much-broader federal Dollars), Thirty Hundred Nine problematic forfeiture law demonstrates the (Ct.App.1995) (stating 902 P.2d 563 tendency theory, towards rather than reason- purpose of instrumentalities ing based on facts before the Court. prevent “is to their use the commission of Further, respect types with to the subsequent involving transportation offenses statute, articulated of controlled substances and concealment conveyances forfeiture of is limited to the deprive drug trafficker needed mo- crimes, drug trafficking most extreme bility” (quoting the comment to Uniform distribution, second, third, § which are Act Controlled Substances U.L.A. result, (1988))). degree Indeed, fourth stat- although Halper only felonies. As is, contrary opinion’s contemplated “rationally ute to the conclusion that a sanction be otherwise, objectives, Halper, tied to the seriousness of the to remedial related” Thus, crime. the narrow nature of New at New Mexico’s U.S. S.Ct. majori- narrowly goal to this Mexico’s statute does not call for the statute is tailored serve law, ty’s departure by targeting property who know or from federal fact owners “fairness”). crime, recently making concluded drug consent to the future This Court the a based on a property likely. more In sentence enhancement misuse of their resulting in prior misdemeanor conviction not argument that the addressing forfeiture imprisonment justified a of obtained without way as term “is a of instrumentalities harm,” does Mexico or counsel not violate the New protecting society majority from “[fjorfeiture Woodruff, constitutions. 1997- federal See of harmful concedes that ¶ NMSC-061, 37, 124 605. property Majority Opin can be beneficial.” Although specific ¶ unaddressed the ion, Further, Ranch, left 69. unlike Kurth question imprisonment a whether actual 782, 114 legiti where “the designated potential imprisonment term of revenue-raising purpose might mate right triggers the in misdemeanor to counsel support [drug] equally tax could be ... a Constitution, cases under the New Mexico by increasing imposed the fine well served ¶ that no significant see id. 25 n. it is court conviction,” upon this the State case can interpreted a or federal con either state by increasing not aim achieve this remedial right apply stitutional counsel to outside Increasing penalties. the criminal criminal potential the context actual or incarcera penalties the Controlled Substances tion, aside from a limited number cases Act would not have the desired effect rights. involving parental the termination of removing drug instrumentalities imply required To now that counsel is in a trade and “innocent” would reach owners proceeding civil inconsistent best seems knowingly who allow their to be question call countless and would into hereto selling illegal purpose drugs, used constitutionally-obtained misdemeanor fore but do not violate the themselves Act. With majority convictions. references au The no mind, I statutory purpose disagree thority proposition for the that counsel must majority with the that forfeiture in New provided proceedings. Defending be civil punishment for purposes Mexico constitutes against a civil in New Mexico far forfeiture of double under Schwartz because against defending less onerous than oneself fairly the forfeiture statute charac charges, criminal less at with much stake. as terized remedial. Further, availability of because this counsel preceding depends on the criminal trial Advisory Concerning VII. Conclusions forfeiture, required thus no counsel is Due Process majority opinion for under the individuals Right A. to Counsel forfeiture, facing only equal protection con majority’s Additionally, arise. ref cerns majority opinion The contains sev questions erence counsel raises whether appear to me to holdings eral which be advi jury proceeding requires a a bifurcated sory. majority attempts to a The create portion. my for the remain forfeiture right part in the second of a counsel view, nor right neither to counsel single, proceeding which would re bifurcated right process due the New Mexico following disputes solve forfeiture criminal require state-provided would ¶ Constitution (“Most Opinion, Majority trial.9 See jury right counsel or a to a trial notably, indigent defendant will have proceeding, whether bifurcated available of counsel in the assistance proceeding with a criminal or not. both proceeding prop because erty place actions will the criminal take Burden of B. Proof trial.”). majority single in a apparently process, majority “that does so on basis of due concludes but ... process proof analysis. without form of due bears low burden of when of a fundamental Majority Opinion, (discussing deprivation it initiates the setting beyond holding appears internally proof to be in- reason- also —such doubt, counsel, Opinion, (noting Majority V presumption right consistent. See the able innocence, forfeiture, advantages stating in a State’s right one’s accusers— to confront nominally pro- that “because forfeitures are ceedings, civil guaranteed”). are indispensable protections in a Further, right grave majority apparently constitutional raises is [which] due the ¶ process Majority Opinion, concerns.” 108. basing its of declaration the unconstitutional- majority sup 30-31-37 as The cites Section ity proof of the standard of under the Con- However, port for this conclusion. because trolled Substances Act on the Due Process strictly this Court construes the forfeiture However, despite alleged Clause. uneon- the statute, I believe this is an incorrect inter statute, stitutionality majority of the the does pretation of the statute. Section 30-31-37 outstanding judg- not disturb the forfeiture obligation “negate of its relieves the State against Clearly, ments these defendants. the any exemption exception or in the Controlled so, majority could not due because forfei- the Act____The proof Substances burden judgments, having appealed by ture not been any exemption exception upon per is defendants, subject these are not to the claiming it.” This son statute does re additionally Court’s review. This illustrates obligation prove move the State’s the affir advisory aspect nature of this of the requirements mative within the forfeiture majority’s opinion. property statute itself that the was involved drug Ursery,

in a transaction. Cf. Single VIII. Offense (Stevens, J., at 299 n. 116 S.Ct. 2135 (“To concurring dissenting) justify [the] majority determines that the forfeiture, the Government assumed the bur trafficking of distribution crime of con- (a) proving respondent den of that had com pro- trolled substances and the forfeiture (b) offense, such an mitted that single ceeds or instrumentalities constitutes it.”). property played part in had some Fur Specifically, majority offense. “con- ther, respect with to the innocent owner ex clude[s] an examination of the Con- despite wording ception, and of the Sec trolled Act Substances reveals there is 30-31-37, tion this has held “that Court prove drug trafficking no fact needed imposed burden on the owner the burden prove violation that is not also needed going per forward and not the burden of forfeiture,” thus, grounds for “[t]he forfeiture Ozarek, suasion.” 573 P.2d entirely statute criminal of- subsumes the (“The only at 210 owner need assert ¶ Majority Opinion, fense.” In 57. order to vehicle was used without his [or her] knowl result, majority applies reach this edge and consent to shift the burden Blockburger, federal test from State.”). 304, 52 180. that, majority holds “in the previously applied This Court trial, portion forfeiture the burden of Blockburger question to a similar proof prove by will the State clear Schwartz, discussed, previously and as convincing evidence that the analogous Schwartz addressed an double subject question Majority to forfeiture.” jeopardy by applying ¶ issue federal in law Opinion, Inexplicably, majority Indeed, stead state constitutional law. proof also states that the burden Sec- Powers, Appeals, Court of 1998— may always tion 30-31-37 be unconstitu- ¶¶ NMCA-133, 21-29, 126 N.M. (“[Sec- Majority Opinion, tional. discussed, recently in the context of apply in solitary 30-31-37] tion still prosecutions, successive the Block- whether action involves no criminal burger sufficiently pro “same elements” test prosecution.”). peculiar reasoning also right against jeopardy tects the grave protection double equal seems to raise con- Powers, the New Mexico Constitution. Apparently, although majority cerns. Appeals held that the “same property, concludes that forfeiture of a fun- Blockburger “adequately elements” right, punishment test damental constitutional protects criminally prosecuted, right if one is also Defendant’s to be free from when the proceedings, State institutes the context of successive purposes prosecutions invoking governed is not our state constitu Powers, 1998-NMCA-133, ¶29, process protections heightened such as a tion.” due proof. majority burden of P.2d 454. The conveyance subject of a Powers, to and- as the the not overrule ease does ... is a approach appears from Gomez would re that the owner “unless interstitial pres majority privy fails to indicate that a violation of quire, consenting party or to the question is particular Act,” this law on ent federal 30- the Controlled Substances Section rights in inadequate protect Defendants’ 31-34(G)(1), convey that other owners’ fact, majority the concedes this case. subject to forfeiture unless the ances are Court, JJrsery, Supreme the United States crime, drug to the owner knows or consents of whether a for failed to address the issue 30-31-34(0(2). result, aAs forfei Section single drug crime constitute feiture and following instrumentality has of an the ture jeopardy. purposes for of double offense (1) subject property a con elements: the Thus, Opinion, notwith Majority (2) veyance; or intended for use it was “used standing majority’s generalized claim of transport or in manner facilitate the law, constitutional exclusive reliance state purpose of’ transportation for the of sale ¶ 18, Majority Opinion, majority is clear 30-31-34(D); substances, Section controlled particular ly applying federal law (3) subject property owner of the Michigan test. v. factor of the Schwartz use, 30- to such Section knew consented 1032, 1040-41, Long, 463 31-34(G)(2). contrast, pos By the crime of (1983) (“[WJhen ... a state 77 L.Ed.2d substance with intent session of a controlled fairly appears primarily to rest court decision elements: to distribute or traffic different law, or to be with the on federal interwoven substance; (1) a controlled the defendant had law, adequacy and in and when the federal (2) it was a controlled the defendant knew any possible ground dependence of state law (3) substance; and intended to defendant opinion, face of is not clear 14-3104 it to another. See UJI transfer explana accept most reasonable will as the 1999; NMRA 14-3111 NMRA 1999. UJI court tion that the state decided the ease Thus, instrumentality the forfeiture of way it did because it believed that federal requires proof of the distinct element so.”). Thus, required it do under the law conveyance transport a controlled of a use Gomez, majority’s approach of interstitial substance, possession crime of whereas the limit departure law is therefore from federal requires proof of a with intent to distribute factor of test: ed to the third the Schwartz higher culpable mental state on the level of a forfeiture constitutes whether owner/defendant, an part of intention jeopardy. purposes of double “If either transfer controlled substance. question of whether forfei- On the proof facts to requires the information 30-31-34 and criminal tures under Section which the other does support a conviction 30-31-20, -22, Sections convictions under not, plea and a are not the same the offenses single purposes of offense for constitute unavailing.” jeopardy Owens double majority jeopardy, I believe the mis- 682, 684, Abram, 274 P.2d 58 N.M. misinterprets applies law and federal (1954), v. Tan approval cited with in State statutory provisions the Controlled ton, majority Act. asserts Substances support provisions the innocent owner illustration, it is useful By way of single that a offense is issue conclusion relating to facts Defendant to consider the provisions applica- “limit these because Marguerite was ar Marguerite Vasquez. exclusively to statute tion of the forfeiture registered in driving a vehicle rested while in “violation of Controlled those who are ” govern to the and later forfeited her name (quoting Act.’ Section 30- Substances Id. husband, Vasquez, was Edward ment. Her 31-34(G)(1)). I disagree I because believe police passenger in car. The seized provision the dis- owner reveals the innocent marijuana, 123 roughly kilograms of two required for as com- tinct elements cocaine, currency in the grams of required for the crime pared to the elements seventy-nine dol approximately amount of trafficking controlled sub- of distribution or Ed charges, trial on his criminal lars. At plain language of the forfeiture stances. The his, drugs that the were not ward claimed that a common carrier is statute states them, were tion of double because these nothing about his wife knew Clark, separate offenses. personal use. In order to they were his Cf. Wash.2d Marguerite’s proportionate interest in forfeit Austin, vehicle, (concluding, under that forfeiture is community assuming it was Jeop punishment purposes of Double for the to property, government had the burden ardy Clause in the United States Constitu preponderance that prove by a of evidence tion, jeopar declining hold that but to double trans Vasquez the vehicle for Edward used dy because the defendant had been violated pur porting substance for the the controlled had to that the forfeiture failed demonstrate Marguerite Vasquez pose of sale and that offenses), single and over the crime were contrast, By or consented to use. knew (overrul Catlett, by 945 P.2d at 703-06 ruled possession prosecute in for with order to her punishment ing concerning the issue of Clark distribute, needed to the State intent concluding, Ursery and under an based beyond prove a doubt that Mar reasonable analysis, independent constitutional state culpabil guerite higher had a level of mental punishment pur is not for ity, that she intended to sell the controlled poses jeopardy Washing of double under the words, assuming they substances. In other Constitution). ton challenged and asserted had the forfeiture ownership property, in the interest Retroactivity IX. Edward Vas government needed to refute emphasis majori Marguerite Following did not quez’s assertions ty places drugs they upon and that the forfeiture of instrumental know about the were Opinion, proceeds, Majority its in and see personal use order to meet burden ities ¶ (“But cash, action, regard that car or but it did not need to with the forfeiture right ownership, drugs his fundamental no refute his assertion that the were prose penalty stripping than Marguerite’s until it chose to is more extreme person right compensation.”), of that without Marguerite for the criminal offense. cute jeopardy protection under and the double This difference elements further Constitution, pur Majority the above-stated difference New Mexico see scores ¶ (“When Opinion, compared poses for these statutes: the forfeiture of to recent prop Supreme conveyance is at an owner of United States Court Fifth-Amend directed jurisprudence, erty, irrespective of the owner’s commission ment New Mexico’s constitu crime, prevent statutory protection against tional and of a order to the future face, nature, jeopardy, property, crime of on its is of a different misuse whereas the distribute, inviolate.”), being encompassing more ma possession with intent offenders, jority only places arbitrary upon then limits those directed serves allegedly only law of deterrence defendants who have suffered the the criminal interests retroactivity Blockburger by restricting violation and retribution. Under ¶ then, test, holding. Majority Opinion, each “offense” re See same elements Although majority quires proof of a fact that the other does not. claims that the hold Tanton, ing 88 N.M. at 540 P.2d at 815 is the inevitable result of New Mexico Cf. (“The law, municipal sup dating days, court to ma facts offered back to territorial jority contradictory driving while conclusion port a conviction under the reaches intoxicating liquors holding punishment would not as is a influence of which, necessarily applied conviction for of law” if sustain a homicide “new rule forfei court.”).10 dating in the district There ture eases back would “have vehicle fore, majority upon correct that the administration of even were deleterious ‘effect ” (citation justice.’ Majority Opinion, punishment under the New forfeiture is omitted). Constitution, precedent required can viola If Mexico there be no the result course, majority willing when tire the fact that the tion of double occurs 10. Of though prosecution the forfeiture even it was to consider for the same act and crime second pursuant judgment requires to a default obtained prosecution. both in law and fact as the first hypothetical approach a somewhat to this issue. N.M. at 274 P.2d at 631-32. event, we clarified in Owens that a viola- multiple prosecution inquiry, the issue majority majority, advanced irrelevant; it would rep be does, would be this case would then claims subject a jeopardy to a violation of double law” and the Santu rule of a “new resent regard- inappos multiple prosecutions analysis retroactivity would defendant lones Santillanes, prosecution result- an earlier less whether ite.11 (“The punishment, effect no acquittal, issue of retroactive and therefore at 366 ed conviction, punishment. a court’s decision overturns only when and therefore arises law pro- law when law or makes new suffers is the prior case harm the defendant prior itself, on the have relied ceeding regardless officials of the outcome. enforcement law.”). state of the majori Although Schwartz case should make clear ty’s reliance on that Versus Prosecution X. Successive majority opinion this issue as treats the Multiple Punishment majority multiple punishment, the one of majority criticizes the United The confusion opinion some itself demonstrates “addressing Supreme Court for States ¶ (“The Majority Opinion, 30 this issue. multiple question in are the cases whether multiple prosecutions protection against multiple prosecution cases.” or dependent upon is not the same offense ¶38. this in- I believe Majority Opinion, jeopardy first attached in the crimi whether highly significant by majority is sight the heading the proceeding.”). nal or civil Under substantially clarify and, explored, could test,” multiple prosecutions of “New Mexico Unfortunately, law. howev- jeopardy double “multiple punish majority refers to the er, opinion from the majority suffers Schwartz, Majority Opin analysis” of ment places Court’s deficiency that it on the exact ¶ 36, ion, application discusses the but then majority opinion re- Ursery. in The opinion evaluating in “indispensable of this test as in analysis this Court heavily on the lies double-jeopardy claim.” multiple prosecution Schwartz, we determined Schwartz. ¶38. majority “[i]f The contends by appeal was one of presented the issue Schwartz, conclude, sep that these are under Indeed, three-part multiple punishment. seeking separate punish proceedings arate by ma- that is used test from Schwartz offense, ques is no single there ments for pun- multiple at jority only be directed can against multiple prohibition tion that as a true could not be construed ishment and Majority violated.” prosecutions has been third inquiry. The prosecution successive ¶ this confusion be Opinion, 38. I believe penal- considers “whether part of the test multiple multiple punishment tween con- proceedings be in each ties cases, genesis in finds its prosecution which purposes of the ‘punishment’ for the sidered Hess, Marcus v. ex rel. United States Schwartz, 120 Jeopardy Clause.” Double (1943), 87 L.Ed. 443 U.S. contrast, By P.2d at 1051. N.M. at Halper, represents a in perpetuated and was eases, as- prosecution courts for successive majority’s opinion. flaw in the fundamental subjected to defendant whether the sess Swafford, 112 N.M. at We stated prosecution for more than one Thus, P.2d at 1227: a true successive single under offense. [A]ny power.... judicial con- applied of the essence agree case should not be I that this related reason. I be- and statutes that retrospectively, but for a different flict between court rules applies today procedure that the anti-waiver statute this Court lieve resolved statutory protection Gomez, double rules.”). violations of the generally 1997- favor of the NMSC-006, See In- claims. and not to constitutional 932 P.2d 122 N.M. III, deed, New 1 of the Article Section requirement (characterizing preservation Constitution, legislative does branch Mexico appellate practice and a rule of Rule 12-216 as respect preservation with rules of not create Thus, interpret the stat- procedure). in order matter, generally rights, constitutional it uncon- would not render ute in a manner that stitutional, conflicts 30—1—10 extent that Section and to the Section 30-1-10 stands I believe that 12-216, declared have to be it would with Rule jeopardy is a proposition that double Community See Southwest unconstitutional. meaning right of Rule within fundamental Smith, Servs. v. Health 12-216(B). procedure are ("Pleading, practice and idea, underlying deeply The one that sence of violation of these interests tra- ingrained Anglo-American in at ditionally least the thought protected system jurisprudence, is that the State jeopardy, I do not believe that the Double power with all its resources and should not Jeopardy Clause was ever intended to reach repeated attempts be allowed to make case, type of situation issue offense, alleged convict an individual for an punishments” to as referred “successive thereby him subjecting [or to embar- her] Hess, Kurth Ranch. rassment, expense compel- and ordeal and (Frankfurter, J., concurring). ling him in a continuing [or her] to live anxiety insecurity____ state of Multi- XI. Conclusions ple prosecutions give also an majority holds that Mexi- New opportunity presentation to rehearse its co law has which distinctive characteristics proof, increasing thus the risk of erro- departure analysis. warrant from federal conviction for neous one more However, majority’s opinion the test charged. same offenses approach; similar to rather the federal omitted). (Quotation marks and citation simply reaches different result with a sub- separate proceedings in these stantially analysis, similar a result which is protected none of cases violates the interests broad, extremely unsupported by authority, prosecution prong the successive of dou- by and in fact contradicted all nine Justices First, jeopardy. proceed- ble the forfeiture Supreme of the Court. Even the authors of ing cannot be considered a true criminal upon the numerous law review articles which Further, Powers, prosecution. inas the fact majority majori- support do not relies governmental agencies pursue that different ty’s holding drug proceeds protected are prose- the forfeiture action and the criminal property as a constitutional interest. “severely limit[s] cution the extent to which proceeding] [forfeiture could be used present cases warrant neither opportunity as an the State to rehearse its departure Ursery radical from nor a con- strategy subsequent felony trial for punishment clusion that these cases involve Powers, 1998-NMCA-133, 28, charges.” purposes Jeopardy for of the Double Clause. 114, Additionally, 126 N.M. 967 P.2d 454. majority’s if depart Even decision clearly provides separate pro- the statute for Ursery appropriate, were there is insuf- ceedings clearly contemplates both a justification proceeds ficient to hold that forfeiture sanction and criminal sanction. activity constitutionally pro- are criminally charged Because the State Defen- Further, property tected I interest. believe prior entry dants these cases if punishment that even action judgments, jeop- at which the time purposes jeopardy, for of double a default ardy according majority, attached to the De- judgment punishment does constitute be- reasonably expect fendants “could not cause the is ownerless or aban- proceeding] [forfeiture would relieve All doned. of the consolidated cases before any obligation [them] further to answer in completely this Court could have been re- Powers, charges. court” for the criminal Beyond solved two these issues alone. 1998-NMCA-133, ¶27, 114, 126 N.M. 967 issues, that, these I conclude under either Similarly, singular P.2d 454. because the tests, Ursery or Schwartz the forfeiture goal jeopardy prohibition of the double statute, purpose both in and in effect in these against multiple punishment “prevent is to cases, sufficiently puni- is remedial and not sentencing prescribing great- court from proceeding tive transform the from civil to legislature er than the intend- purposes criminal in character ed,” 7, Swafford, 112 N.M. 810 P.2d at Jeopardy Double Clause. (internal quotation 1227 marks and citations therefore, respectfully, I DIS- omitted), Legislature’s clear indication SENT. complementary that forfeiture is to criminal regarding sanctions abates concern this BACA, J.,

prong jeopardy. of double Due to the ab- concurs.

109 Cordova, 211, 217, v. 784 P.2d State ENDNOTES APPENDIX: XV. (1989) 30, art. (interpreting 36 N.M. Const. Hass, 714, 719, Oregon v. 95 1. 420 U.S. II, 10; holding § that New Mexico would (1975) (“[A] 1215, 43 L.Ed.2d 570 State S.Ct. probable two-pronged cause retain test own law impose as a matter its is free Texas, 108, Aguilar v. 378 U.S. established activity police than greater restrictions (1964), 114-15, 1509, 12 L.Ed.2d 723 S.Ct. necessary upon to be those Court holds States, 410, Spinelli v. United 393 U.S. standards.”); Cooper v. constitutional federal (1969), 412-13, 584, 21 L.Ed.2d 637 89 S.Ct. 58, 62, California, 386 U.S. 87 S.Ct. Gates, contrary to Illinois v. 462 U.S. (“Our (1967) course, holding, of L.Ed.2d 730 230-39, 76 L.Ed.2d 527 impose power to does not affect the State’s Aguilar (1983), abrogated which both on searches and seizures higher standards Spinelli). required by than the Federal Constitution today only so.”). holding our on the 3. We base to do chooses unique of New Mexico’s dou- characteristics See, Gomez, 1997-NMSC-006, e.g., 2. ble-jeopardy jurisprudence. ¶¶ 33-40, 122 (interpret N.M. 932 P.2d See, e.g., ex rel. v. Kenne- Schwartz Const, II, 10; holding § ing N.M. art. 619, 634, dy, 904 P.2d N.M. exigent must show circumstances state (1995) punitive); (stating forfeitures are automobile; justify warrantless search Dep’t City Farmington Police Mitchell Ross, United States contrary to (In Two Thousand re Seven 798, 800, 809, 72 L.Ed.2d 572 Forfeiture of Cents), Thirty Dollars & No Hundred ¶¶ (1982)); Breit, 1996-NMSC-067, 19-24, N.M. (interpret 930 P.2d 792 Const, (stating that forfei- [hereinafter $2730.00 ] II, 15; holding § ing N.M. art. Act are tures under Controlled Substances prosecutorial jeopardy attaches at trial when applica- penal gauged standards defendant, prejudicial misconduct when proceedings). to criminal ble improper prosecutor knows the conduct provoke a mis but acts either with intent to Adamson, See, e.g., v. Ricketts 483 5. U.S. disregard of the conse trial or with willful (1987) 1, 11, 2680, 1 107 97 L.Ed.2d S.Ct. conduct; contrary Oregon quences of the (federal subject jeopardy is to know 679, 102 2083, 667, Kennedy, v. 456 S.Ct. U.S. waiver); Montoya v. New intelligent ing and State, (1982)); Campos v. 117 72 L.Ed.2d 416 (10th Cir.1995) Mexico, 1496, 55 F.3d 1499 (1994) 155, 158-59, 117, 120-21 870 P.2d N.M. (defendant double-jeopardy may waive de Const, II, 10; § hold (interpreting N.M. art. plea agreement). But see fense means of ing that arrest must be based on warrantless Jackson, 130, 133, v. 860 P.2d State 116 N.M. circumstances; exigent probable cause 772, (Ct.App.1993) (“Being bound 775 Watson, 423 States v. United contrary to broad, 30-1-10, language of clear Section 820, 411, 423, 46 L.Ed.2d 598 96 S.Ct. U.S. reject any argument success Defendant 141, Attaway, 117 N.M. (1976)); v. State double-jeopardy claim at fully his waived (1994) 103, (interpreting 113-14 870 P.2d plea hearing.”). II, 10; § establishing, on N.M. Const. art. James, 606, 605, 603 v. 93 N.M. State 6. grounds, knoek-and-an constitutional state Archuleta, 715, (1979); State v. 112 716 P.2d warrant, entry to rule for execute nounee 88, 55, 58, (Ct.App.1991). 91 811 P.2d N.M. interpretation con prior similar of federal Eighth Dist. v. Judicial 7. See Gordon Arkansas, 927, stitution in Wilson v. 514 U.S. Court, 240, (1996); 216, 243 112 Nev. 1914, (1995)); 934, 131 L.Ed.2d 115 S.Ct. 976 Continuing Cox, Halper’s also Stanley see E. Gutierrez, 431, 432, 863 v. State By A Thorn Jeopardy Implications: Double (1993) 1052, (interpreting 1053 Deep, as Any Name Prick 39 Other Would Const, 10; II, holding good-faith § art. 1235, 1253 Louis U. L.J. St. Leon, 468 States v. United exception in U.S. 14; Cheh, Mary Easy, supra, 3405, at M. 897, 922, 82 L.Ed.2d 677 8. 104 S.Ct. Using Limits on Civil Cheh, Constitutional (1984), warrant incompatible with the Objec- Law Constitution); Remedies to Achieve Criminal Mexico guarantees of the New 110 449, Understanding Halper, 490 109 S.Ct. Transcending

tives: 12. See U.S. Distinction, justice); 42 (rough Criminal-Civil Law Has- Lot Emerald Cut 1892 One (1991) 1325, 237, States, 232, tings 1341 93 [hereinafter L.J. 409 U.S. Stones United Cheh, (1972) 489, ]. Constitutional (liquidated 34 L.Ed.2d 438 S.Ct. damages). Gottman, Note, 9. Andrew Fair No- See J. tice, Timothy McVeigh Even Terrorists: Emerald, 13. and a New the ex Post Facto Standard for (Civil “prevents forbidden mer- Clause, Wash. & Lee L.Rev. circulating in the United chandise (1999) (suggesting proof’ that the “clearest Malcolm, States.”); supra, at 260 n. Leach & manipulation by standard allows for (“Forfeiture pro- is remedial because always courts because a court can claim that community by removing dangerous tects proof

there is no clear that a statute has a com- from the stream of instrumentalities long effect as as there is even a ____”). merce effect); single factor that indicates a remedial See, Michigan, Case, e.g., 14. Bennis v. 516 U.S. Leading Jeopardy Double Clause —In 442, 447-53, 134 L.Ed.2d 68 116 S.Ct. Forfeiture, Rem 110 Harv. Civil L.Rev. (1996) (“[T]he (upholding the forfeiture of a car 210 n. 54 Court’s ‘clearest jointly by couple rule, a married which was owned proof guidance devoid activity illegal in his used the husband necessary showing, protect fails to defen- Brand, despite prostitute, with a wife’s innocence adequately.”); supra, dants at 302-03 (“The crime); v. Pearson Yacht Calero-Toledo sweeping that civil for- determination Co., Leasing non-punitive precludes any fur- feitures are (1974) (upholding forfei- 40 L.Ed.2d 452 inquiry ther into double consider- yacht who cases, of a leased to two individuals leaving ture ations such thus no room for marijuana brought cigarette on board al- Jeopardy consideration the Double though prior knowledge the owner had no objectives.”). Clause’s ‘humane’ used); yacht wrongfully would be See, Honda, e.g., In re 1982 681 A.2d Acres, Sixty 930 F.2d United States (Del.1996) (using Ursery to con- (11th Cir.1991) (upholding the forfei- 860-61 clude that Delaware forfeiture statute is Alabama farm and ture residence punish); criminal and does not v. Kien- despite the wife held title her testimo- which (same ast, (S.D.1996) N.W.2d ny woman and that she was battered statute); regarding South Dakota forfeiture drug reporting illegal husband’s feared her Dunn, Note, Sean M. v. United States Ur- activity). sery: Drug Their Offenders Forfeit Fifth 1207, Rights, Amendment 46 Am. U.L.Rev. 15. See v. One 1967 Peterbilt Tractor State (1997) (“Because Ursery 1240 the Court in (In re Intended One Seizure & Forfeiture of pursuant § held that civil forfeitures 881 654, Tractor), 652, 506 1967 Peterbilt 84 N.M. jeop- do constitute for double (1973) 1199, (“[Notwithstanding 1201 P.2d ardy purposes, likely it is individuals is, proceeding, a criminal it never- this facing drug charges now will be forced to theless, principal in on the issue involved this separate proceed- defend themselves two proper appeal of that it is such nature Hendren, ings.”); Jennifer B. Annual Sur- gauge applicable standards the same Law, vey Caselaw: Criminal 19 U. Ark. proceeding.”); a criminal State v. Cessna 707, (1997) (“Ursery Little Rock L.J. 711 (In Corp. Int’l Fin. re One Forfeiture of adopting be read as the view no 40, 42, Aircraft), 90 N.M. 559 P.2d Cessna implicate rem forfeiture would the Double (1977) (“The 417, provisions of 419 forfeiture Clause.”). Jeopardy penal Act the Controlled Substances are 9, Swafford, consequently pre-seizure 11. 112 no no- N.M. at 810 P.2d at nature and (“[T]he constitutionally required.”); question punish- hearing 1229 or whether tice unconstitutionally multiple Albuquerque Dep’t ments are v. de- ex rel. Police One State 280, 282, Van, pends legislature on whether the has autho- Black 1983 120 N.M. Chevrolet 211, multiple punishment.”). (Ct.App.1995) (quoting 213 rized 901 P.2d

HI McBroom, 573, 588, Cessna, 419, P. Inv. Co. v. 42, 6 N.M. 30 559 at 90 at P.2d N.M. Ozarek, (“It 859, (1892) penal); State v. 91 863 is true that statute forfeitures are (1978) 275, 275-76, 209, misdemeanor, P.2d 209-10 573 but N.M. a transaction a makes such (“The provisions of the Controlled punishment, forfeiture prescribes the the same statute nature.”); State penal Act are wit, Substances of not less than nor more $25 fine Barela, 701, 838, 700, P.2d v. 93 604 839 N.M. $100, of double the than and the forfeiture received.”), (Ct.App.1979) (stating proceeding amount of such interest so collected or criminal), overruled on other quasi 318, 852, d, 153 14 S.Ct. 38 U.S. aff' 1982 Ford grounds In re Forfeiture of L.Ed. 729 (State Stevens), Bronco v. N.M. 100 Co., 17 v. Denver & R.G.R. Seward 17. 1310, (1983); Pick 1970 Ford P.2d 1312 673 (1913) 585, 980, 557, 989-90 N.M. 131 P. 99, up, 113 (quoting N.M. 823 at 341 at P.2d (“The compliance with company, claiming a Ozarek, 210, 276, 573 at 91 at P.2d N.M. provided order, it had show that should $2730.00, penal); are 111 N.M. at forfeitures seats, provided a ton of coal or a two and had (“The 749, provi P.2d 1277 809 at wood, stove; no could court load of but Act sions of the Substances are Controlled fine, forfeiture, contempt for a punish by nature.”); Albuquerque Dep’t Police penal order?”). comply failure to with the (In Martinez re Fourteen v. Forfeiture of Thirty Nine Thousand Six Hundred Dol McLean, v. ex rel. Erickson 18. See State lars), 120 408, 412-13, 563, 902 P.2d N.M. (1957) 272, 983, 264, 308 P.2d 988 62 N.M. $14,639] (Ct.App.1995) [hereinafter 567-68 (“ “punishment annexed ‘Forfeiture is (stating that tie forfeiture of direct between illegal act negligence in law some drug property and commission of offenses lands, owner whereby ... all his he loses ’ ” of forfeiture confirms nature (quoting 2 Clesson Sel- interests therein.” laws); Schwartz, 634, 904 P.2d wyn Kinney, Irrigation Treatise on & Water Ranch, Kurth (concluding from 511 at 1059 (2d 1118, ed.1912))); Rights § at 2020 1937, 768, at 114 that forfeitures Co., 80 Reynolds Springs rel. v. ex South City “distinctly punitive purposes”); have 478, (1969) 146, 144, 481 N.M. Chavez, 1997-NMCA-034, Albuquerque v. (same). (mention ¶ 258, 19, 123 N.M. P.2d See, Ozarek, e.g., N.M. at rev’d on concept), other ing quasi (quoting “quasi criminal” state- P.2d 1998-NMSC-033, 125 grounds, Plymouth, ment Haywood 928; City Albuquerque 1246); $2730.00, N.M. at (In ($28,000.00)), re 1998- Forfeiture of proceed- (stating forfeiture 809 P.2d at 1277 ¶ NMCA-029, 124 N.M. 954 P.2d 93 criminal); Haywood, 1998- ings quasi (mentioning quasi-criminal character for NMCA-029, 954 P.2d 93 124 N.M. $14,- Peterbilt Tractor citing feiture for- (mentioning quasi-criminal character of 639). $14,- Tractor Peterbilt citing feiture Lucero, 16. See United States 639). (“ (Gild.) 422, far as ‘[S]o statutes $14,639, 120 412, at 902 P.2d See regulation impose trade fines or 20. N.M. for the of v. forfeitures, generally 1995 Corvette they to See One are doubtless at 567. create Council, 114, Mayor City penal, literally 724 strictly and not 353 Md. & construed ” denied, (quoting Mayor 682-85(Md.), Phil 680, cert. laws.’ 528 U.S. as remedial A.2d [of Davis, 269, 321, adelphia] v. Serg. 927, 276 6 Watts & 120 L.Ed.2d 251 145 Cromwell, (Pa.C.P.1843))); Milligan v. 3 Co., 48 Ditch 21. Accord State Sunset ed.) (Gild., 557, 564, 359, 9 P. N.M. E.W.S. (1944); 1970 219, 17, 26, 224 145 P.2d N.M. (“The (1886) 1882 the maxi act of fixes 362 99, 823 P.2d at 341 Pickup, 113 N.M. at Ford on mum of be recovered interest Ozarek, 91 N.M. at 573 (quoting annum, percent per 12 but contracts at such 209-10). at charges in provide does 207, Shaffer, 433 at 97 S.Ct. See thereof, 22. except implied the excess “judi- phrase, Mortgage & Land excess.”); (recognizing “that Scottish ‘[t]he 2569 such 112 1995) (The jurisdiction J., thing,” customary (Sarokin, dissenting)

cial over a is a jurisdiction elliptical way referring property dependent to over and monies “is not on ” persons thing’ (quoting in a the interests of property, the criminal nature of the but on (Second) of Conflict of illegal Restatement Laws the use their owners make (1971))); introductory Therefore, § 56 ReMine ex note it who them.... is the owners Court, 1379, Liley v. rel. District 709 P.2d punished by property.” the forfeiture of such bane) (Colo.1985) (en (stating (citation omitted)). 1382 the term “any encompasses brought “in rem” action 30-31-34; § 27. See see also Trac- Peterbilt person against pur- which essential (“The tor, 657, 506 P.2d at 1204 pose the suit is determine or to title to is risk of forfeiture attendant on the factor of in property”). affect interests transportation storage on 212, Shaffer, See at 23. transport value the vehicle used to (“The juris- fiction an 2569 assertion of Ariza, parte 215, keep.”); Ex 913 S.W.2d cf. property anything diction over an is but as- (Smith, J., pet. granted) 221 (Tex.App.1995, jurisdiction sertion over owner of the (“The rehearing) on motion for federal forfei- property supports ancient form without ture statute contains no formula which at- justification.”); substantial modern tempts to correlate the value of the forfeited Chickie, (3d Cir.1944) (“The 141 F.2d 86 property government’s damages.”), with the plaintiffs action rem claim a directs a per grounds, rev’d curiam on other 934 True, thing. plaintiffs judgment, ishe (Tex.Crim.App.1996, pet.). S.W.2d 393 no successful, persons, only affects but so far as Nilsen, generally 28. See Blumenson su- & thing, concerns their which is interest pra, 35-114; Smith, David B. Asset Forfei- personified litigation.”). as a defendant Property ture: A Threat Serious to Our 24. See Devlin v. ex rel. State New Mexico Rights, ... Briefly Perspectives Legis., on Dep’t, Police Reg., Litig., & Oct. at 4-7 [hereinafter (stating that the location of Smith, Threat ]. property within court’s forum confers 29. Ursery, See United States F.3d jurisdiction in rem when the defendant Cir.1995) (6th (proof); 574-75 Leach & absent); Discovery Columbus-America Malcolm, (“Forfeiture supra, at 260 n. 81 Co., Group v. Atlantic Mut. Ins. 974 F.2d it because involves real transfer of (4th Cir.1992) (discussing maritime wrongdoer sovereign value from forward). in which cases no came owner precisely wrongdoer because the has done See, (“This Wells, e.g., supra, 25. at 169 wrong.”). legal resort fiction is flawed because German, 30. See United States v. F.3d form failing elevates over substance (10th Cir.1996); United States v. of in reality account rem forfeiture Torres, (7th Cir.1994); 28 F.3d actions-namely, that civil forfeiture often States, United F.Supp. McGowan v. punish property.”); does the owner (W.D.N.C.1995). 1465, 1468 Brand, (“The supra, willing- at 305 Court’s justify, arguments, ness on such contrived We note the New Mexico the seizure of as crucial as one's Legislature passed a new Act that Forfeiture worrisome.”); Case, Leading supra, home many would have ameliorated of the con- (“[I]f 210 n. 54 does not rest its cerns, opinion, plague discussed proceed- decision the in basis of rem reasons, modern For forfeiture. unknown ing, opinion justifica- its is left with one governor. the Act was vetoed precedent.”). tion: naked force of Act, Leg., Forfeiture S. 42d 2d Sess. (N.M.1996) States, (vetoed 6, 1966). See Austin 26. v. United Mar. Included 9, 113 2801, 125 602, 616 n. provision L.Ed.2d in S.Ct. 488 the Act was a that shifted (1993) (“[FJorfeiture proceedings historically proof State of the initial burden in forfei- imposing been punish have understood as healing: proof ture “The of is on burden nature.”); establish, despite prosecution in by ment their rem United and con- clear (3d Baird, 1213, evidence, v. vincing subject States 63 1223 property F.3d Cir. that the

113 9(B). about ly § Law not alone its concerns inherent Id. enforcement to forfeiture.” injustices longer permitted to forfeiture law. agencies would no be modern personally profit from forfeiture assets. State, Christopher P. v. 112 N.M. 32. See Rather, would direct the dis- the trial court (1991) (bifurcated 416, 417, 485, 816 P.2d 486 property. Proceeds position of forfeited hearing on motion transfer matter victim and then go would first to restitution court, to adult in which chil children’s court § general id. 12. Another fund. See judge court first determined whether dren’s required single pro- provision would have acts, delinquent child ad committed then ceeding criminal action and the for both the child was to treat dressed whether amenable forfeiture, requirement in- similar to the ment); Luna, 773, 779, 606 State v. N.M. opinion: in this troduce (1980) 183, (discussing bifurcated judgment A for the A. insanity hearing is raised when defense property upon: shall be entered insanity separated from which issue of

(1) proper- guilt), abrogated grounds by conviction of an owner of the issue other forfeiture; 128, 151, ty California, for a crime related Horton v. U.S. 2301, 110 any proceeding brought shall be L.Ed.2d 112 S.Ct. proceeding in the same as the criminal Cheh, Easy, supra, (presumption); at 46 33. however, matter: the two issues shall be Threat, 4, Smith, supra, (hearsay, law- presented jury; to the same bifurcated Comment, Noya, yer); T. Hoisted Shannon by Their Own Petard: Adverse Inferences (2) proof by convincing clear evi- Forfeiture, 86 J.Crim. L. & Criminolo- Civil property un- dence that the is forfeitable (1996); Nilsen, 493, gy 495-96 Blumenson & person that a der state law and convicted (In against supra, proper- at 47-50 an action of a related to the forfeiture is an crime ty safeguards im- “few of the constitutional property. owner of the posed prosecutions apply.”). on criminal 4(A)(1) (2) (as by § Id. & amended S. Judi- no 34. We note Santillanes makes Comm., 30, 1996; ciary amendment Jan. mention of the fact the United States 1996). Comm., by struck Fin. Feb. S. Supreme Court discarded the Linkletter test Judiciary in- New Mexico Senate Committee Kentucky high 1987. Griffith corporated proceeding” provision, the “same adopted a court rule universal retroactivi- italicized above. amendment would ty, holding “a conduct new rule double-jeopardy claims like have obviated prosecutions applied of criminal is to ret- be today. those us This amendment was before eases, federal, pend- roactively to all state or subsequently struck Finance Senate ing yet on direct review not final.” Grif- event, Committee, and, the entire bill fith, 479 Our governor. was vetoed never, except incidentally, courts have ex- Interestingly, House of the United States pressed approval preference rule for the Representatives recently passed the Civil As See, Acosta, e.g., 1997- State v. Griffith. Act which was similar set Forfeiture Reform NMCA-035, ¶10, 123 N.M. 939 P.2d significant ways to our own Forfei vetoed rule); (mentioning Stroh Griffith Act. Asset Forfeiture Reform ture See Civil Dep’t Brewery v. Director Co. Act, Cong., H.R. 106th 1st Sess. Res. Control, Beverage 112 N.M. Alcoholic (1999); Labaton, Stephen House see also 480 n. 1102 n. Prop Making Bill It Harder to Passes Seize J., dissenting) (noting (Montgomery, (“An Times, erty, N.Y. at A1 June “severely Linkletter was undercut” Grif- coalition of liberals and conservatives unusual fith). Representatives persuaded the House of (on 12-216(B) Thursday NMRA 1999 approve legislation to make it 35. See Rule below, appeal preserved question law en must be much harder Federal state interest, general public or involve funda- to confiscate forcement authorities error); Osborne, they bring charges in narcot mental before (1991) (fundamen- cases.”). 654, 662, 808 P.2d ics and other This Court is obvious- applies is not tal error even the issue below).

preserved

2 P.3d 315

2000-NMSC-014 Mexico, of New

STATE

Plaintiff-Appellee, ANTILLON, A. Defendant-

Carlos

Appellant. 23,796.

No.

Supreme of New Mexico.

Dec. 1999.

Rehearing May Denied 2000. Madrid, General, Attorney

Patricia A. Ann General, Harvey, Attorney M. Assistant San- Fe, ta State New Mexico. Subin, Defender, Phyllis H. Public Chief C. Henderson, Appellate David Assistant De- Gibbs, fender, Appellate Assistant De- Susan fender, Fe, A. Santa for Carlos Antillon. OPINION FRANCHINI, Justice. Antillon was for traf- Carlos arrested

See also P.3d ficking in controlled substances. The State pleaded his forfeited vehicle he then guilty charges. appeal- to criminal When he double-jeopardy ed the criminal conviction on grounds, permit the trial court did not him to perfect by including the record materials re- lated the forfeiture. We remand so may perfect Antillon and we record order that his conviction be vacated in accordance Nunez, 23,- holding in with our State v. No. 796, 2000-NMSC-013, 63, 2 concurrently which is with this filed opinion.

Case Details

Case Name: State v. Nunez

Court Name: New Mexico Supreme Court

Date Published: Dec 30, 1999

Citation: 2 P.3d 264

Docket Number: 23,796, 23,860

Court Abbreviation: N.M.