specially concurring and dissenting.
The trial court granted appellant’s petition to intervene and object to the issuance of the subpoenas for the limited purpose of challenging the constitutionality of the Act which created the Organized Crime Prevention Commission. The majority opinion correctly holds that the Act does not violate the fourth and fourteenth amendments of the United States Constitution, nor is the Act unconstitutionally vague, nor is title of the Act defective. I concur in the opinion to that extent. However, I feel that there are certain constitutional questions which this Court should properly consider.
The New Mexico Constitution Art. II, § 18 provides “No person shall be deprived of life, liberty or property without due process of law * * * ” Art. II, § 10 guarantees that “The people shall be secure in their persons, papers, homes and effects, from unreasonable searches and seizures, * * * ” It is not clear from the record before us if the appellant properly raised the constitutionality of the Act under our constitution before the trial court. The trial court in its decision concluded that the Act did not violate the due process clause of the New Mexico Constitution. The majority opinion does not reach this question because it was not raised or briefed by appellant.
I recognize that this Court does not decide abstract constitutional questions, State v. Hines, 78 N.M. 471, 432 P.2d 827 (1967), nor do we reach constitutional issues when a case may be disposed of on other grounds, Ratliff v. Wingfield, 55 N.M. 494, 236 P.2d 725 (1951). We do, however, reserve the power to decide questions not preserved for review when those issues concern the general public interest or fundamental rights of a party. N.M.R.Civ.App. 11 [21-12-11, N.M.S.A. 1953 (Supp.1975)]. That due process of law is a fundamental right cannot be questioned. This Court has on rare occasions granted a party standing to raise certain constitutional issues, e. g., State ex rel. Segó v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975 (1974), or decided constitutional questions in its discretion, e. g., State v. Campbell, 75 N.M. 86, 92, 400 P.2d 956, 960 (1965). Since this issue was decided by the trial court, I feel that this Court should consider the question of whether the New Mexico Constitution requires a showing of probable cause before records of a business may be subpoenaed.
The majority opinion is correct in the legal interpretation of the federal due process standards as applied to administrative subpoenas. The United States Supreme Court has granted broad subpoena powers to administrative agencies to investigate private individuals and their papers, but this state need not adopt that federal standard. In State of New Mexico ex rel. Serna v. Hodges, 89 N.M. 351, 356, 552 P.2d 787, 792 (1976) we stated:
[We are] the ultimate arbiters of the law of New Mexico. We are not bound to give the same meaning to the New Mexico Constitution as the United States Supreme Court places upon the United States Constitution, even in construing provisions having wording that is identical, or substantially so, “unless such interpretations purport to restrict the liberties guaranteed the entire citizenry under the federal charter.” People v. Brisendine, 13 Cal.3d 528, 548, 119 Cal.Rptr. 315, 328, 531 P.2d 1099, 1112 (1975).
The Legislature passed this Act in the exercise of its authority, but the Legislature’s power is limited, as is the Judiciary’s, by our constitution and that constitution is the yardstick by which we must measure legislative acts. State v. Mechem, 63 N.M. 250, 316 P.2d 1069 (1957). The guarantees of due process and freedom from unreasonable searches may not be abridged by either the legislative, executive, or judicial branch of government.
The Act gives the Commission power to subpoena records in its investigations. Although administrative subpoenas are not equivalent to the search and seizure provisions associated with a warrant, a subpoena in aid of an investigation is clearly a search of a citizen’s papers and effects. This type of a subpoena which calls for the production of private records functions in the same manner as a warrant insofar as it violates one’s constitutional right to be secure in their papers and effects. Therefore, it appears that a minimum of due process is required, i. e., a showing of probable cause to investigate. In this instance, I would adopt a different approach from the federal due process standard and grant the citizens of this state greater protection “in their persons, papers, homes and effects” by requiring the Commission to prove to a judicial officer that it has probable cause to call for the collection and release of such documents. I recognize that this would place an additional burden on the Commission in fulfilling its duties, but I feel the constitution mandates this result.
Notwithstanding the above issues, there still remains a question as to the relevancy and specificity of the documents requested by the Commission. This issue was not resolved by the trial court because the scope of appellant’s intervention was limited to challenging the constitutionality of the Act. This decision was proper based upon N.M. Rules Civ.Pro. Rule 24(b) [§ 21-l-l(24)(b), N.M.S.A. 1953 (Repl.1970)]. The propriety of the subpoena remains as at major issue to be resolved in a subsequent proceeding if challenged by the Bank. The majority opinion requires the Commission to meet three requirements in supporting the validity of its subpoena; (1) the inquiry must be within the authority of the agency, (2) the request must be specific, and (3) the information must be relevant. Although I would require the subpoena to meet a probable cause standard, it remains to be seen if the subpoena can meet even the lesser requirements outlined by the majority.
For the reasons stated above, I concur in the majority opinion on the issues decided therein, but I dissent in the ultimate result which would require a standard of less than probable cause to enforce a subpoena issued by the Organized Crime Prevention Commission.