Yesterday, in State ex rel. Foy v. Austin Capital Management, Ltd., the New Mexico Supreme Court (opinion by Justice Maes) held that retroactive application of the treble damages provision of the Fraud Against Taxpayers Act does not violate the federal or state ex post facto clauses.
The Supreme Court declined to rule on whether the civil penalties provision (which imposes a $5,000 to $10,000 fine per violation) violates ex post facto principles. The Court may reconsider that issue if and when the penalties are imposed.
I won’t be offering my own opinion, since my firm has been involved related lawsuits.
