High court rules public not allowed in Capitol for session

Justices reject petition arguing New Mexicans entitled to attend, not just livestream, proceedings

The future has a way of being unimaginable. The framers of the New Mexico Constitution in 1911 might never have predicted the general public and lobbyists would ever have to watch democracy in action from outside the state Capitol, as the New Mexico Supreme Court ruled they would in a 3-2 decision Tuesday.

Chief Justice Judith Nakamura described the ruling as a difficult one to make, but she nonetheless concurred with Justices Barbara Vigil and Michael Vigil in denying a petition by several lawmakers to open the Roundhouse to the public for the special legislative session this week.

The ruling means those who want to follow the session will be watching hearings from their computer screens — rather than in committee rooms and House and Senate galleries — due to ongoing public health concerns from the COVID19 pandemic.

While the court issued an order denying the petition, it has not yet released an opinion

explaining the prevailing justices’ rationale.

Nakamura said one would be coming. The issues presented in oral arguments Tuesday were “very important, and we do plan to write” about the decision, she said.

A. Blair Dunn, a lawyer on behalf of 24 predominantly Republican lawmakers and the state’s former land commissioner, Libertarian Aubrey Dunn, who had filed the petition, had argued the framers of the state constitution intended for people to be physically present for legislative sessions.

“Democracy dies in darkness,” A. Blair Dunn said in his opening remarks to the court, quoting the slogan of the Washington Post.

Attorney Dunn, Aubrey Dunn’s son, was a 2018 Libertarian candidate for attorney general.

Starting Thursday, lawmakers will gather at the Capitol to begin debating tough decisions on how to shore up an estimated $2 billion shortfall in projected revenues for the fiscal year 2021 budget, largely because of financial havoc wreaked by the pandemic. Gov. Michelle Lujan Grisham also has outlined five key proposals that might come up for a vote during the session, including efforts to streamline the November general election and financial assistance for small businesses affected by the pandemic-related shutdown.

The Legislative Council announced earlier this month the building would be accessible only to members of the media, lawmakers and their staffs.

The general public and the state’s corps of lobbyists will not be allowed into the building to watch floor hearings from the chamber galleries, offer input during committee hearings — where legislation is debated and often amended before it moves to the House or Senate floor — or rub elbows with lawmakers, as has happened for years before COVID-19 arrived.

A. Blair Dunn argued Tuesday the state constitution requires public access to the Roundhouse. “Meaningful participation” in a legislative session requires physical presence, he said — and making an appearance is an action that should be protected under the First Amendment.

He also argued about the possible pitfalls of a technological solution to a closed Capitol.

Underscoring those arguments, the courthouse lost its internet connection for nearly 10 minutes Tuesday, forcing the Supreme Court to pause oral arguments.

When they came back online, justices questioned whether lawmakers would pause legislative proceedings this week if there are problems with the video feed.

Thomas Hnasko, an attorney for the Legislative Council, assured justices that lawmakers would do so.

Hnasko argued streaming debate, committee hearings and votes online satisfies the constitutional requirement that the public be allowed to observe the New Mexico Legislature in action.

They would “take that extremely seriously and stop the proceedings” if technical issues prevent online streaming,” he said. “I have the utmost faith in that.”

At the discretion of those chairing House committees, the public will be allowed to speak at hearings via videoconference. The Senate has decided, however, the public will only be allowed to email a committee, rather than take part in a videoconference, Hnasko said.

Meeting in person “could result in a catastrophe for our citizens from a public health standpoint,” he added.

Hnasko said virtual proceedings balance the need to protect the public from “the acute public health problems brought by the pandemic” with the need to ensure the legislative session remains open and transparent.

New Mexico Republican Party Chairman Steve Pearce denounced the justices’ decision in a statement.

“It’s the people’s government,” Pearce said. “It’s a violation of what open government represents.”