The New Mexico Court of Appeals heard oral arguments Thursday from Assistant Attorney General Andrew Montgomery and attorneys for Public Regulation Commission (PRC) Commissioner Jerome Block, Jr. and his father, Jerome Block, Sr.

The case against the Blocks, involving 12 criminal counts including embezzlement, evidence tampering and election code violations, is the first prosecution under New Mexico’s public campaign finance Voter Action Act.

The charges stem from the younger man’s misuse of public campaign funds in his 2008 race for a seat on the state’s powerful PRC, which oversees utilities, insurance, transportation, pipeline and other industries.

Jerome Block, Jr. received more than $101,000 in taxpayer money to run for the office, which pays $90,000 a year.

Block and his father were indicted in 2009.

But District Judge Michael Vigil dismissed six of those charges last year, ruling that criminal charges represented double jeopardy because Secretary of State Mary Herrera had already fined Jerome Block, Jr. $11,700 for misusing taxpayer funds.

The AG’s office appealed Vigil’s ruling.

Thursday’s oral arguments before the Court of Appeals in Albuquerque centered less around double jeopardy, than the defense’s contention that the AG lacks the authority to prosecute the case under the Voter Action Act.

The argument hinged largely on the legislature’s intended meaning of the word “or” in a provision of the law allowing the Secretary of State to assess fines for violations of the Act, or to refer a case to the AG for prosecution.

The AG’s office may not choose to prosecute a case under the Voter Action Act without first receiving a referral from the Secretary of State, the defense argued — and then-Secretary of State Mary Herrera assessed a fine against Commissioner Block rather than referring a criminal case against him and his father to the AG.

“The legislature set her up as gatekeeper,” defense attorney Theresa Duncan said, likening the Voter Action Act’s fines and criminal prosecution provisions to a mother that allows a child a “cookie or a Popsicle, but not both.”

“Police officers have discretion on the street,” Duncan said. “They can chose to give a warning. It’s not unusual for the first person to encounter a person to have discretion.”

Montgomery flatly rejected Duncan’s ‘gatekeeper’ argument, stating repeatedly that it’s up to the AG to determine whether or not a violation was done knowingly and with criminal intent — the threshold for criminal prosecution.

“Why would the legislature depend on the subjective intent of a non-lawyer, non-prosecutor to determine if there are grounds to prosecute,” Montgomery asked. “It doesn’t make sense.”

“She’s invested with authority to oversee this process and she gets first shot of criminal prosecution,” Duncan said.

The $11,000 fine imposed by Sec. Herrera was “punishment,” Duncan said — not a mere civil fine but a “criminal penalty.”

“That comes out of the wallet of the candidate, who may not be a wealthy individual,” she said. “The amount of the fine’s one reason the fine is punitive.”

The Blocks have paid $400,000 in legal fees in the case, Block Jr. said late last year.

Lawmakers wanted to make it difficult to prosecute candidates under the Voter Action Act in part because “if they are convicted of a 4th degree felony, that’s it — they cannot run for office again,” Duncan said.

“Shouldn’t that be it,” interjected Court of Appeals Judge Celia Foy Castillo. “Do we want criminals running for office?”

In 2008 public campaign finance reports, Block had reported spending $2,500 in taxpayer funds on a performance by San Miguel County Clerk Paul Maez’s country-western band “Wyld Country” — a campaign concert that both men later admitted had never occurred.

As county clerk, Maez oversaw the San Miguel County polls in which Block beat five other candidates for the northern N.M. PRC district seat.

“Given the amount of money handed over to candidates, we have to hold them to a high standard,” Common Cause New Mexico Executive Director Steven Robert Allen said after the oral arguments. “That’s what the Voter Action Act is supposed to do. … We have to have very strict penalties for candidates who misuse public money. I believe that’s what the plain language of the statute does.”

“It would run counter to sound public policy to give the Secretary of State the gatekeeper role,” Allen said.

Unlike his father, PRC Commissioner Jerome Block, Jr., was not present at the oral arguments Thursday.

“I have a lot of comments but I’ll wait until the court makes its resolution,” Block Sr. told Veritas New Mexico after the hearing.

The Court gave no indication of when its decision may be announced.

The AG’s office has posted briefs for the case on the AG’s blog website.