State ex rel. Governor's Organized Crime Prevention Commission v. Jaramillo

OPINION PAYNE, Justice. This case involves the validity of a subpoena duces tecum issued pursuant to the Organized Crime Act, as amended, §§ 39-1-1 et seq., N.M.S.A. 1953 (Supp. 1975 & Inter. Supp. 1976-77). The Governor’s Organized Crime Prevention Commission, in an investigation to determine whether the liquor industry in New Mexico has been infiltrated by organized crime, subpoenaed records of a Santa Fe bank covering loans and bank accounts belonging to the State Liquor Director Carlos Jaramillo. Jaramillo moved to quash the subpoena, stating that the Act was unconstitutional. The trial judge denied the motion and Jaramillo appealed. Jaramillo challenges the constitutionality of the Act under three theories: (1) Does the United States Constitution require a showing of probable cause before records of a business can be subpoenaed? It is Jaramillo’s claim that the fourth and fourteenth amendments of the United States Constitution require a showing of probable cause before records of a business can be subpoenaed. We disagree. The Commission is an investigatory rather than an accusatory body and therefore its subpoenas are administrative subpoenas. Dixon v. Pennsylvania Crime Commission, 347 F.Supp. 138 (M.D.Pa.1972); Illinois Crime Investigating Com’n v. Buccieri, 36 Ill.2d.556, 224 N.E.2d 236 (1967). Administrative subpoenas, including subpoenas duces tecum, are not subject to the search and seizure provisions of the fourth amendment. United States v. Morton Salt Co., 338 U.S. 632, 70 S.Ct. 357, 94 L.Ed. 401 (1950); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 66 S.Ct. 494, 90 L.Ed. 614 (1946); 1 K. Davis, Administrative Law Treatise, § 3.05 (1958). The fourth amendment, however, requires that a subpoena be sufficiently limited in scope and relevant in purpose. See v. City of Seattle, 387 U.S. 541, 544, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). The United States Supreme Court has set three requirements an agency must meet in issuing subpoenas: (a) the inquiry must be within the authority of the agency; (b) the demand must not be too indefinite; and (c) the information must be reasonably relevant to the purpose of the investigation. Morton, supra, 338 U.S. at 652, 70 S.Ct. 357. If a subpoena does not meet the three requirements then it is violative of the fourth amendment. Under the Act the Legislature provided that the Commission must petition the district court to obtain a subpoena. The district court must determine whether the investigation is within the power of the Commission, whether the subpoena is definite enough and whether the material sought is reasonably relevant. What is reasonably relevant depends on the nature and purpose of the investigation and relevancy cannot be determined in the absence of a stated purpose. Once the purpose is ascertained it must be shown that the material sought has a logical relation to the purpose of the investigation. Oklahoma Press, supra, 327 U.S. at 209, 66 S.Ct. 494; See also Davis, supra, § 3.06. If the Commission is able to make such a showing the subpoena will issue. After a subpoena is issued the individual or institution upon whom it is served has an opportunity to challenge it. The subpoenas issued under the Act ask only for voluntary compliance. Under § 39-9-4 D, N.M.S.A. 1953 (Inter. Supp. 1976-77) of the Act the Commission is authorized to go to any district court to seek enforcement of the subpoena. The Legislature must have contemplated that the subpoenaed person would be allowed to show at that hearing why the subpoena should not be enforced. We need not reach the question of whether the subpoena in the present case was proper. The trial court held that Jaramillo could not intervene to challenge the sufficiency of the petition upon which the subpoena was issued. Jaramillo did not appeal that ruling. (2) Is the Act unconstitutionally vague and indefinite? Appellant claims that the Act is unconstitutionally vague and indefinite. We hold the Act is not the type of statute that is amenable to a claim of vagueness. In State v. Najera, 89 N.M. 522, at 522, 554 P.2d 983, at 983 (Ct.App.1976) the Court of Appeals stated: The vagueness doctrine is based on notice and applies when a potential actor is exposed to criminal sanctions without a fair warning as to the nature of the proscribed activity, (citations omitted). No one can be found guilty of violating the Act. The Act is not a penal act. The only sanction that can come from the Act is a contempt citation for failure to abide by a court order. The Act therefore is not unconstitutionally vague or indefinite. (3) Does the title of the Act violate art. IV, § 16 of the New Mexico Constitution? The New Mexico Constitution provides that, “The subject of every bill shall be clearly expressed in its title.” Appellant claims that because the 1977 amendment to the Act for the first time authorizes the Commission to investigate racketeering, the title of the amendment should have contained the word “racketeering.” We disagree. In the case of State v. Humble Oil & Refining Co., 55 N.M. 395, 420, 234 P.2d 339, 356 (1951), this Court stated: It seems to us that the construction of the section of the constitution in question which most -,truly follows its spirit without being so narrowly technical on the one side so as to substitute the letter for the spirit, or so foolishly liberal on the other as to render the constitutional provision nugatory, is that when it appears from the title of the act that certain specific provisions of another act are to be amended, the body of the amending act may contain only matter which is reasonably germane to the subject matter of the sections which are stated by the title to be the subject of amendment We hold that racketeering is reasonably germane to the subject matter of organized crime and therefore the word “racketeering” does not need to appear in the title to Ch. 215,1977 N.M. Laws 712, which amended the Act. We affirm the decision of the trial court. IT IS SO ORDERED. SOSA, EASLEY and FEDERICI, JJ., concur. McMANUS, C. J., specially concurring and dissenting.