NMAGO 02-01.

• Case Date: March 07, 2002
• Court: New Mexico

New Mexico Attorney General Opinions 2002. NMAGO 02-01. March 7, 2002OPINION OF Opinion No. 02-01PATRICIA A. MADRID Attorney GeneralBY: Mary H. Smith Assistant Attorney General TO: The Honorable Rebecca Vigil-Giron Secretary of State 325 Don Gaspar Ste 300 Santa Fe NM 87503 QUESTION: íIs a provision of the Campaign Reporting Act [NMSA 1978, Section 1-19-34.4 (1993, as amended through 1997)] unconstitutional because it provides for binding arbitration of alleged violations of that Act for which a penalty has been imposed?íCONCLUSION: íNo. Section 1-19-34.4 is constitutional, provided that the provisions of the Uniform Arbitration Act are applied to allow judicial review of the arbitrator's decision. íFACTS: íThe Secretary of State administers and enforces the Campaign Reporting Act ("CRA"). If the Secretary of State determines that a person has violated a CRA provision for which a penalty may be imposed, she must notify that person of the specific violation and the fine imposed, and inform the person that he or she has ten working days to correct the violation and to explain in writing, under penalty of perjury, the reasons, if any, for violating the Act. Section 1-19-34.4(C). The Secretary of State then sends a notice of final action. Id. íThe person may protest the notice of final action by submitting a written request for binding arbitration. Section 1-19-34.4(D). The person selects a single arbitrator from the Secretary of State's list of five arbitrators to conduct the hearing. Section 1-19-34.4(E). Following the hearing, the arbitrator may impose any penalty the Secretary of State is authorized to impose, and must submit a written decision. Section 1-19-34.4(F). The arbitrator's decision shall be "final and binding." Id. The CRA provides that the arbitration procedures are governed by the Uniform Arbitration Act, NMSA §§ 44-7-1 through 44-7-22 (1971). Id. íANALYSIS: íThe CRA compels arbitration of disputes relating to violations of the Act. Courts around the country generally have stated that if the statute compelling arbitration allows the parties access to the courts for review of the arbitrator's decision, the statute generally is considered constitutional.(fn1)However, such compulsory arbitration violates the constitutional guarantee of due process if the statute compelling arbitration closes the courts to the parties and makes the arbitrator's decision the final determination of the rights of the parties.(fn2) íThe New Mexico Supreme Court has...