2023 New Mexico Statutes › Chapter 57 - Trade Practices and Regulations › Article 22 - Charitable Solicitations › Section 57-22-9.1 - Investigative demand; civil penalty.

A. Whenever the attorney general has reason to believe that any person may be in possession, custody or control of information or documentary material, including an original or copy of any book, record, report, memorandum, paper, communication, tabulation, chart, photograph, mechanical transcription or other tangible document or recording, that the attorney general believes to be relevant to the subject matter of an investigation of a probable violation of the Charitable Solicitations Act, the attorney general may, prior to the institution of a civil proceeding, execute in writing and cause to be served upon the person a civil investigative demand. The demand shall require the person to answer interrogatories or to produce documentary material and permit the inspection and copying of the material. The demand of the attorney general shall not be a matter of public record and shall not be published by him except by order of the court.
B. Each demand shall:
(1) state the general subject matter of the investigation;
(2) describe with reasonable certainty the information or documentary material to be provided;
(3) identify the time period within which the information or documentary material is to be provided, which in no case shall be less than ten days after the date of service of the demand; and
(4) state the date on which any documentary material shall be available for inspection and copying.
C. No demand shall:
(1) contain any requirement that would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the state;
(2) require the disclosure of any documentary material that would be privileged or that for any other reason would not be required by a subpoena duces tecum by a court of the state; or
(3) require the removal of any documentary material from the custody of the person upon which the demand is served except in accordance with the provisions of Subsection E of this section.
D. Service of the demand may be made by:
(1) delivering a duly executed copy of the demand to the person to be served or, if the person is not a natural person, to the registered or statutory agent for the person to be served;
(2) delivering a duly executed copy of the demand to the principal place of business in New Mexico of the person to be served; or
(3) mailing by registered mail or certified mail a duly executed copy of the demand addressed to the person to be served at his principal place of business in the state or, if the person has no place of business in the state, to his principal place of business.
E. Documentary material demanded pursuant to Subsection A of this section shall be produced for inspection and copying during normal business hours at the principal place of business of the person served or may be inspected and copied at such other times and places as may be agreed upon by the person served and the attorney general.
F. Documentary material and its contents produced pursuant to a demand or answers to interrogatories shall not be produced for inspection or copying by anyone other than an authorized employee of the attorney general. The district court in the county in which the person resides or has his principal place of business or is about to perform or is performing the practice that is alleged to be unlawful under the Charitable Solicitations Act may order documentary material, its contents or answers to interrogatories to be produced for inspection or copying by someone other than an authorized employee of the attorney general.
G. At any time before the return date of the demand, a petition to set aside the demand, modify the demand or extend the return date on the demand may be filed in the district court in the county in which the person resides or has his principal place of business or is about to perform or is performing the practice that is alleged to be unlawful under the Charitable Solicitations Act, and the court upon showing of good cause may set aside the demand, modify it or extend the return date on the demand.
H. If after service of the demand the person neglects or refuses to comply with the demand, the attorney general may invoke the aid of the court in the enforcement of the demand.
I. This section shall not be applicable to criminal prosecutions.
J. In an action brought pursuant to the Charitable Solicitations Act, if the court finds that a person has violated a provision of that act or rules promulgated pursuant to that act, the attorney general may recover, on behalf of the state, a maximum civil penalty of five thousand dollars ($5,000) per violation.
History:
Laws 1999, ch. 124, § 16.
ANNOTATIONS
Effective dates.
— Laws 1999, ch. 124, § 18 made Laws 1999, ch. 124, § 16 effective July 1, 1999.
Authority to investigate and enforce are separate.
— The attorney general's authority to investigate possible violations of the Charitable Solicitations Act, and in that capacity, to issue civil investigative demands and its authority to enforce the act are two separate powers and functions.
The Coulston Found. v. Madrid
, 2004-NMCA-060, 135 N.M.667, 92 P.3d 679.
Civil investigative demands properly enforced.
— Where it is not disputed that the attorney general was conducting an investigation of The Coulston Foundation and it is also undisputed that the foundation admitted to processing the audited financial statements sought by the attorney general and that those statements are relevant to the attorney general's investigation into funds used in the chimpanzee endowment program, although the attorney general's affidavit lacks an ideal factual foundation, the attorney general substantially complied and the civil investigative demands were properly enforced.
The Coulston Found. v. Madrid
, 2004-NMCA-060, 135 N.M.667, 92 P.3d 679.