1. A. No prosecution based under this act shall be commenced unless the district attorney of the county in which the offense occurs shall have previously determined that the matter or performance is harmful to minors and the defendant shall have received actual or constructive notice of such determination. Persons shall be presumed to have constructive notice of such determination on the fifth business day following publication of a notice of such determination in a newspaper of general circulation in the county in which the prosecution takes place.
2. B. Any person adversely affected by such determination may, at any time within thirty days after such notice is given, seek a judicial determination of its correctness. The court shall, unless otherwise agreed by the parties, render judgment not later than two court days following trial. Filing of an action under this section shall stay prosecution until a judicial determination is rendered, but no appeal shall have such effect unless so ordered by the trial court.
3. C. No criminal action shall be commenced in any other judicial district within this state during the pendency of the civil action authorized by Subsection B of Section 4 [this section] regarding the same matter, exhibition or performance.

History: 1953 Comp., § 40-50-4, enacted by Laws 1973, ch. 257, § 4.

ANNOTATIONS

Bracketed material. — The bracketed material was inserted by the compiler and is not part of the law.

Compiler's notes. — The term "this act" means Laws 1973, Chapter 257, which appears as 30-37-1, 30-37-2, 30-37-3, 30-37-4 to 30-37-8 NMSA 1978.

Constitutionality. — The threat of a determination of harmfulness – apart from the possibility of prosecution - was substantial enough to establish standing, insofar as the case and controversy requirement of Article III of the federal constitution was concerned, for publishers, distributors and sellers of printed materials in their action to challenge the constitutionality of this article. Am. Booksellers Ass'n v. Schiff, 868 F.2d 1199 (10th Cir. 1989).

Burden of proof. — Once the district attorney determines that certain material is harmful to minors, the statute places upon the distributor or retail establishment marketing such material the burden of establishing that the material is not harmful to minors. Am. Booksellers Ass'n v. Schiff, 868 F.2d 1199 (10th Cir. 1989).

Notice requirements do not apply to child solicitation by electronic communication device. — Where defendant was charged with two counts of child solicitation by electronic communication device, § 30-37-3.2 NMSA 1978, and where, prior to trial, defendant filed a motion to dismiss in which he asserted that the "notice" requirement in this section was an essential element of the offense of child solicitation by electronic communication device, and that the state was required, but failed, to make a determination that the acts underlying defendant's charges were harmful to minors and without such a determination, he could not have received actual or constructive notice as required under this section, and where the district court denied defendant's motion, finding that the notice requirement in this section does not apply to child solicitation by electronic communication device and defendant had constructive notice of the criminality of his actions from the clear language of the child solicitation by electronic communication device statute, the district court did not err in denying defendant's motion to dismiss because an examination of this section reveals that solicitation of minors through electronic communications, as prohibited by § 30-37-3.2, are not "matters" or "performances" subject to the notice requirements of this section. State v. Julg, 2021-NMCA-058, cert. denied.