State v. Ellenberger

629 P.2d 1216, 96 N.M. 287
CourtNew Mexico Supreme Court
DecidedMay 21, 1981
Docket13449
StatusPublished
Cited by43 cases

This text of 629 P.2d 1216 (State v. Ellenberger) is published on Counsel Stack Legal Research, covering New Mexico Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Ellenberger, 629 P.2d 1216, 96 N.M. 287 (N.M. 1981).

Opinion

OPINION

EASLEY, Chief Justice.

Norman Ellenberger was indicted by a grand jury on ten counts of fraud in excess of $100 in violation of Section 30-16-6, N.M.S.A. 1978, and twelve counts of making false public vouchers contrary to Section 30-23-3, N.M.S.A. 1978. The trial court dismissed all the charges involving alleged false vouchers. The State filed an interlocutory appeal as to dismissal of those counts to the Court of Appeals, which affirmed. We granted certiorari and reverse.

The issues are whether Ellenberger is within the class of persons subject to the provisions of Section 30-23-3, which makes the filing of a false public voucher a felony, and whether the false voucher charges are merged with the fraud charges.

Ellenberger is the former head coach of the University of New Mexico men’s basketball team. While so employed, Ellenberger allegedly made twelve false travel vouchers for which he received nine separate checks. The nine counts of fraud are based upon the receipt of the money from the twelve false vouchers. The trial court ruled that Ellenberger was not a “public official” and that Section 30-23-3 did not apply to him and further held that the two sets of charges were merged. The Court of Appeals affirmed the decision that the statute did not apply to Ellenberger but did not reach the merger issue.

1. Whether Section 30-23-8 Applies to a State University Head Coach.

The Section provides:

Making or permitting false public voucher consists of knowingly, intentionally or willfully making, causing to be made or permitting to be made, a false material statement or forged signature upon any public voucher, or invoice supporting a public voucher, with intent that the voucher or invoice shall be relied upon for the expenditure of public money.
Whoever commits making or permitting false public voucher is guilty of a fourth degree felony.

This statute is part of an article headed “Misconduct by Officials”. While nothing on the face of the statute would limit its application to public officials, the Court of Appeals, relying on its opinion in State v. Thurman, 88 N.M. 31, 536 P.2d 1087 (Ct. App.1975), cert. denied, 88 N.M. 29, 536 P.2d 1085 (1975), held that the legislatively-enacted heading to the article revealed a legislative intent that the statute apply only to public officials and hence would not apply to a public employee.

While we agree with the Court of Appeals that a legislatively-enacted heading may be useful in the effort to resolve ambiguities in the meaning of a doubtful statute, American Automobile Ass’n, Inc. v. Bureau of Rev., 88 N.M. 148, 538 P.2d 420 (Ct.App.1975), rev'd on other grounds, 88 N.M. 462, 541 P.2d 967 (1975), it is not the business of the courts to look beyond the plain meaning of the words of a clearly drafted statute in an attempt to divine the intent of the Legislature. As this Court stated in State ex rel. Barela v. New Mexico State Bd. of Ed., 80 N.M. 220, 222, 453 P.2d 583, 585 (1969), “[w]e are not permitted to read into a statute language which is not there, particularly, if it makes sense as written.” We agree with the following statement of the rule:

The rule which permits reading the title of an act in aid of statutory construction applies only in cases where the legislative meaning is left in doubt by failure to clearly express it in the law. Moreover, the ambiguity which justifies a resort to the title must arise in the body of the act; an ambiguity arising from the title is not sufficient.* * * The title of an act cannot limit the plain meeting of the text.* * * The title is not conclusive in regard to the meaning of a statute.

73 Am.Jur.2d, Statutes, § 98 (1974) (emphasis added and footnotes omitted). Thus the starting point of statutory analysis must always be the statute itself which represents the primary expression of the intent of the Legislature. The heading to an article represents little more than a convenient tag to an organizational grouping of statutes; it therefore cannot be used to create an ambiguity in an otherwise clear expression of the intent of the Legislature. See Hewatt v. Clark, 44 N.M. 453, 103 P.2d 646 (1940).

We now proceed to an examination of the language of the statute. The first sentence sets forth the elements of the crime of making or permitting false public voucher and contains no language which could possibly be construed as limiting its application to a certain class of persons. The second sentence declares that “[w]ho-ever commits [this crime] is guilty of a fourth degree felony.” The Court of Appeals found it significant that the statute as originally enacted began with “[a]ny person who.” 1959 N.M. Laws, ch. 11, § 3. The statute was amended to its present language in the recodification of the Criminal Code in 1963, at which time it was grouped with other, related statutes into the present Article 23. 1963 N.M.Laws, ch. 303. We fail to see the significance of the change from “[a]ny person who” to “[w]hoever.” Webster’s Third New International Dictionary (1971) defines “whoever” as “whatever person: any person at all that: no matter who * * There could be no clearer statement of an intent that the statute apply to anyone who commits the acts proscribed therein. We therefore conclude that the statute is unambiguous and applies to public employees as well as public officials.

Even if we assume for the sake of argument that the statute is ambiguous and statutory construction is appropriate, we reach the same conclusion. The apparent restrictiveness of the heading to the article, “Misconduct by Officials”, is tempered by the language of the statutes found therein. Several of the statutes, including the very first sentence of the first statute after the title, specifically include public employees within their terms. §§ 30-23-1, 30-23-2, 30-23-5, 30-23-6 and 30-23-7, N.M.S.A. 1978. The explicit extension of the statutes beyond the apparent limitations of the act’s heading indicates that the heading is intended merely as a convenient description rather than as a limitation of the scope of the statutes found therein.

At this point it is appropriate to note that Ellenberger’s contention that under N.M. Const., Art. IV, § 16, the scope of an act cannot exceed its title, is without merit. That provision relates to the title of a bill presented to the Legislature and its primary purpose is to prevent fraud or surprise upon the Legislature because of concealed or hidden provisions in an act which the title fails to express. City of Raton v. Sproule, 78 N.M. 138, 429 P.2d 336 (1967). That is not the situation here, and “Misconduct by Officials” was not the title of the bill by which this statute was enacted.

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Bluebook (online)
629 P.2d 1216, 96 N.M. 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-ellenberger-nm-1981.