In determining the applicable statute, two concepts are considered: (1) are the statutes in conflict, and (2) what was the legislative intent? In State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977), the statute granting the trial court discretionary power to suspend a sentence conflicted with the mandatory sentencing provision of the habitual offender statute. Because of the wording of § 40A-29-5, supra, it was held that the Legislature intended the mandatory sentencing provision should apply.
Using "shall" and "all disputes" in the clause indicates that the selected forum is exclusive and mandatory. Paper Exp., Ltd., 972 F.2d at 756 (7th Cir. 1992); Yamada Corp. v. Yasuda Fire & Marine Ins. Co., Ltd., 305 Ill. App. 3d 362, 367, 712 N.E.2d 926 (1999); State v. Lujan, 90 N.M. 103, 105, 560 P.2d 167 (1977) (stating that "shall" is generally mandatory). If only jurisdiction is specified, the clause will not generally be enforced because "permissive forum selection clauses authorize jurisdiction in a designated forum, but do not prohibit litigation elsewhere."
It is widely accepted that when construing statutes, "shall" indicates that the provision is mandatory, and we must assume that the Legislature intended the provision to be mandatory absent an clear indication to the contrary. See State v. Lujan, 90 N.M. 103, 105, 560 P.2d 167, 169 (1977). The plain reading of Section 70-2-28 requires, among other things, that the Attorney General bring suit for penalties when those penalties are applicable.
79 N.M. 175, 176, 441 P.2d 215, 216 (Ct.App. 1968); see also State v. Edmondson, 112 N.M. 654, 658, 818 P.2d 855, 859 (Ct.App. 1991) ("The chief purposes of habitual-offender statutes are (1) the deterrent/rehabilitative purpose of discouraging those who have previously committed serious crimes from engaging in similar conduct within New Mexico and (2) the punitive/protective purpose of incarcerating for a longer period of time those who have shown a repeated inclination to commit serious offenses."); State v. Lujan, 90 N.M. 103, 104, 560 P.2d 167, 168 (1977) (quoting State v. Gonzales, 84 N.M. 275, 276, 502 P.2d 300, 301 (Ct.App. 1972)). By enacting Section 31-18-17, the Legislature intended to single out repeat violent sexual offenders for more severe punishment than that received by habitual offenders generally and intended to protect society from their criminal activity.
We are persuaded by the Arizona cases and therefore hold that the designation of a fourth or subsequent DWI offense as a felony does not create a new crime, but rather increases the punishment for offenders with multiple DWI convictions. See State v. Lyon, 103 N.M. 305, 311, 706 P.2d 516, 522 (Ct.App.) (enhancement sentence not an element of the conviction, but rather a consequence of the prior DWI conviction; it does not create a new class of crimes, but creates new consequences for the criminal conduct), cert. denied, 103 N.M. 287, 705 P.2d 1138 (1985); cf. State v. Lujan, 90 N.M. 103, 105, 560 P.2d 167, 169 (1977) (holding that habitual criminality, punishable under the habitual criminal statute, is a "status" rather than a separate offense). E. Notice Requirement and Procedural Consequences
The provisions of the Habitual Offender Act are mandatory. State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977); State v. Santillanes, 98 N.M. 448, 649 P.2d 516 (Ct.App. 1982). The district attorney has an affirmative duty to prosecute habitual offenders.
Since the Montano v. Williams decision, this Court, as well as the Court of Appeals, has continually held "shall" to be mandatory. Mountain States Tel. v. New Mexico State Corp., 90 N.M. 325, 563 P.2d 588 (1977); State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977). Nevertheless, the mandatory provisions of the Act have been eroded by the doctrine of "substantial compliance".
See § 1-2-2(I), N.M.S.A. 1953 (Repl. Vol. 1, 1970); State v. Lujan, 90 N.M. 103, 560 P.2d 167 (1977); Application of Sedillo, 66 N.M. 267, 347 P.2d 162 (1959). According to Webster's Third International Dictionary (1971), to "fix" is "to give a final or permanent form to": make definite and settled: to "determine" is "to fix conclusively or authoritatively . . . to settle a question or controversy . . . to settle or decide by choice of alternatives;" "control" is the "power or authority to guide or manage: directing or restraining domination."
The plain language of Section 31-18-17(B) mandates the imposition of a four year enhancement. See State v. Lujan, 1977-NMSC-OlO, ¶ 4, 90 N.M. 103, 560 P.2d 167 ("The words 'shall' and 'must' generally indicate that the provisions of a statute are mandatory and not discretionary."); State v. McWhorter, 2005-NMCA-133, ¶ 5, 138 N.M. 580, 124 P.3d 215 ("If the language of the statute is clear and unambiguous, we must give effect to that language and refrain from further statutory interpretation.").
The Uniform Statute and Rule Construction Act compels us to regard the word “must” as expressing “a duty, obligation, requirement or condition precedent.” NMSA 1978, § 12–2A–4(A) (1997); see also,State v. Lujan, 1977–NMSC–010, ¶ 4, 90 N.M. 103, 560 P.2d 167 (holding that the word “must” in the statute indicates “that the provisions of a statute are mandatory and not discretionary”). {12} It is undisputed that the claims of lien filed in this case were not verified.