Court rules Legislature can bar public from Roundhouse

Justices David Thomson, left, and Michael Vigil look through copies of the state Constitution during a break in a Supreme Court hearing Tuesday over the decision to close the state Capitol to the public during the special session. (Eddie Moore/Albuquerque Journal)

Copyright © 2020 Albuquerque Journal

SANTA FE – A special session of the New Mexico Legislature can begin this week without the presence of the public or lobbyists in the Roundhouse, the state Supreme Court ruled Tuesday.

In a 3-2 decision, the Supreme Court rejected a petition seeking to overturn top-ranking lawmakers’ decision to close the state Capitol to everyone but legislators, staffers and media members due to the coronavirus outbreak.

The Supreme Court’s five justices deliberated for more than two hours Tuesday before announcing their decision.

Before it was announced, the attorney representing the Legislative Council, the bipartisan group of top lawmakers, said opening up the Roundhouse to the public could prove deadly in a state where 447 people have already died due to complications from COVID-19.

“This mass gathering in the Capitol would be nearly impossible to police and could result in a catastrophe from a public health standpoint,” contract attorney Thomas Hnasko said.

“Business will not be conducted in secret – it will be open for everyone to see,” he said, referring to the Legislature’s plan to webcast all committee hearings and floor sessions.

However, the attorney for a group of 24 legislators – 20 Republicans and four Democrats – that challenged the closure decision argued that barring New Mexicans from the state Capitol would infringe on their right to participate in the legislative process.

New Mexico Supreme Court Chief Justice Judith Nakamura questions attorney Blair Dunn during a Tuesday court hearing in Santa Fe. The Supreme Court ultimately rejected a petition filed by Dunn that sought to keep the Roundhouse open to the public during a special session that starts Thursday. (Eddie Moore/Journal)

“Simply watching the webcast from your couch or wherever is not meaningful public participation,” attorney Blair Dunn said during Tuesday’s oral arguments.

He also argued that not allowing members of the public to attend the special session – which starts Thursday – violates a provision in the New Mexico Constitution that stipulates that “all sessions of each house shall be public.”

But several Supreme Court justices questioned Dunn about the definition of “public” and whether allowing people to watch legislative committee hearings and floor debates might meet the constitutional requirement.

In a twist, the Supreme Court hearing itself was conducted remotely, with Justice Barbara Vigil and attorneys participating virtually via online technology

It was delayed at one point for roughly 10 minutes due to an internet outage, prompting Sen. Mark Moores, R-Albuquerque, who was in the Supreme Court chambers watching the proceedings, to tell reporters, “I think they just proved our point.”

Supreme Court justices took note of the technical difficulties, with Justice Shannon Bacon asking the Legislative Council’s attorneys whether lawmakers would promise to stop their work if a similar outage were to occur.

Hnasko said that he could not provide a guarantee but that lawmakers would take such concerns seriously.

Bacon also pointed out that large swaths of New Mexico lack broadband connectivity, describing such areas as “technological deserts,” and said many state residents do not have access to computers.

“I’m really concerned about that in a state like New Mexico,” Bacon said.

Bacon joined fellow Supreme Court Justice David Thomson in dissenting from the court’s decision to reject the petition. Chief Justice Judith Nakamura and Justices Barbara Vigil and Michael Vigil concurred in the decision.

Meanwhile, the move to close the Roundhouse to the public during the special session is not unique, as 33 other U.S. state capitol buildings have been closed to the public due to COVID-19, according to the National Conference of State Legislatures.

House Speaker Brian Egolf, D-Santa Fe, said recently that members of the public would still be able to testify on bills during the special session, despite not being allowed in the building.

Specifically, he said that public testimony would be allowed during House committee hearings, either through online programs or by phone, and that all committee meetings and floor sessions will be webcast by the Legislature.

The special session will focus largely on budget adjustments in response to an estimated $2 billion revenue downturn for the coming fiscal year, caused by the pandemic and plummeting oil prices. However, other issues could also be added to the agenda by Gov. Michelle Lujan Grisham.

Both the House and Senate are expected to approve rule changes at the start of this week’s special session that would allow at least some legislators to participate remotely. Two committees will meet Wednesday to discuss those rule changes.

Sen. Mark Moores, R-Albuquerque, attends a hearing at the New Mexico Supreme Court in Santa Fe. Moores is one of the legislators trying to prevent the Roundhouse from being closed to the public during the special session that starts on Thursday. (Eddie Moore/Albuquerque Journal)

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