Pirtle v. Legislative Council Comm. of the N.M.

Decision Date30 June 2021
Docket NumberNo. S-1-SC-38356,S-1-SC-38356
Citation492 P.3d 586
CourtNew Mexico Supreme Court
Parties Sen. Cliff PIRTLE, Rep. Zach Cook, Rep. Rebecca Dow, Sen. Craig Brandt, Rep. Willie Madrid, Rep. Alonzo Baldonado, Sen. Bill Sharer, Sen. Gabriel Ramos, Sen. Mark Moores, Sen. Pat Woods, Sen Gregg Fulfer, Rep. Gregg Schmedes, Rep. Kelly Fajardo, Rep. David Gallegos, Rep. Candie Sweetser, Sen. Candace Gould, Sen. Sander Rue, Rep. Catherine Brown, Rep. Rachel Black, Rep. Jane Powdrell-Culbert, Rep. Tim Lewis, Sen. Ron Griggs, Sen. Gregory Baca, Sen. Clemente Sanchez, Aubrey Dunn, Petitioners, v. LEGISLATIVE COUNCIL COMMITTEE OF the NEW MEXICO LEGISLATURE, Respondent.

Western Agriculture, Resource and Business Advocates, LLP, A. Blair Dunn, Esq., Albuquerque, NM, for Petitioners

Hinkle Shanor, LLP, Thomas Mark Hnasko, Santa Fe, NM, UNM School of Law, Michael B. Browde, Albuquerque, NM, for Respondent

NAKAMURA, Justice.

{1} In these turbulent, ever-evolving pandemic times, governmental entities across the country have been called upon to make difficult decisions on how best to remain effective in discharging their duties, and to do so in a manner designed at once to comport with constitutional requirements and protect the health and safety of their leaders, members, staff, and, principally, the citizenry they serve. This original proceeding in mandamus represents a challenge—albeit an exceedingly narrow challenge—to such tightrope decision-making. The parties’ pleadings center on a single issue: the constitutionality of a June 9, 2020, directive promulgated by the New Mexico Legislative Council (the Council). The directive, among other things, banned in-person attendance at a then-impending special legislative session that was called to address COVID-19-related and other issues. Petitioners invoke Article IV, Section 12 of the New Mexico Constitution and general notions of due process as prohibiting the "closing" of the special session and argue that the Council's directive exceeded constitutional limits. Having denied the petition in a prior order issued after oral argument, we write to explain the reasoning and rationale for our ruling.


{2} New Mexico, along with the rest of the nation, has for over a year battled a pervasive health crisis occasioned by the COVID-19 pandemic. The rapid spread and all too often deadly nature of this novel coronavirus—for which there was no vaccine or cure at the time the Council took its challenged action—are reflected in the chilling statistics compiled throughout the pandemic. As of June 6, 2020, within days of the Council's issuance of the directive, 1.86 million COVID-19 cases were confirmed across the United States with nearly 108,000 deaths. See World Health Organization, Coronavirus Disease (COVID-19) Situation Report No. 138 , at 7 (June 6, 2020).1 On June 9, the very day the Council issued the directive, New Mexico alone had confirmed more than 9,100 cases with 404 deaths. See N.M. Dep't of Health News Alert, Updated New Mexico COVID-19 Cases, Now at 9,105 (June 9, 2020).2 Although the efficacy of the Council's directive must be measured by the facts and circumstances that confronted the Council in June 2020, we would be remiss if we did not acknowledge the tragic reality that the national death toll caused by the pandemic recently climbed past 600,000 lives lost.3

{3} The pandemic was met with an immediate and concerted response from our state's executive branch. On March 11, 2020, contemporaneous with the reporting of the first confirmed cases of COVID-19 in New Mexico, Governor Michelle Lujan Grisham issued the first of a series of public health emergency declarations.4 This prompted the issuance of a series of emergency public health orders, which beginning on March 16, 2020, restricted mass gatherings and various business operations. See N.M. Dep't of Health, Public Health Order (March 23, 2020).5 To date, each of the Governor's emergency declarations has emphasized the need "for all branches of State government" to take or continue taking action to minimize the spread of the virus and to reduce its "attendant physical and economic harms," while each of the public health orders has set forth the same or similarly worded "core directive" cautioning "all New Mexicans [to] stay[ ] in their homes for all but the most essential activities and services." See, e.g. , State of N.M. Executive Order 2020-036 (June 1, 2020);6 N.M. Dep't of Health, Public Health Order, (June 1, 2020).7

{4} In mid-May 2020 at an online news conference, the Governor called for a special legislative session to address, among other issues, the economic fallout of the pandemic. See Dan Boyd & Dan McKay, Legislative Special Session Set for June 18 , Albuquerque Journal (May 20, 2020).8 In anticipation of the special session, the Council convened on June 9, 2020—remotely by video conference—to iron out what the minutes of that meeting described as "Special Session Logistics." See N.M. Legislative Council, Minutes of the Three-Hundred-Ninety-Second Meeting , at 1-2 (June 9, 2020).9 Consistent with both the Governor's executive orders encouraging all governmental branches to take steps to curb the spread of the virus and the Secretary of Health's emergency stay-at-home orders, the Council passed—with bipartisan support and no opposition—a directive prohibiting on-site, public attendance at the special session, while allowing some, but not unlimited, in-person media coverage of the event. See N.M. Legislative Council supra at 2-3.

{5} The special session commenced on June 18, 2020, as scheduled. "[E]ach session of the house and senate and the committee meetings of each body [were] webcast," as independently required by a preexisting legislative rule. See N.M. Legislature, Joint Rules , Rule 12-1C.10 In addition, the Council made provision for the taking of public comments in real time during the committee meetings, and for proposed legislative measures and relevant agendas to be posted in advance on the Legislature's website. See N.M. Legislature Home Page, Twitter Feeds (June 18, 2020).11

{6} Shortly before the start of the special session, Petitioners sought a writ of mandamus from this Court, declaring unconstitutional that portion of the Council's directive prohibiting in-person attendance at the special session. The crux of Petitioners’ constitutional claim was two-fold: that enforcement of the Council's directive would (1) effectively "close" the special session and, in so doing, violate Article IV, Section 12 of the New Mexico Constitution, and (2) violate the citizenry's due process right "to participate in the legislative process." We denied the petition and, for reasons developed in Part II(C) below, remain unpersuaded that Petitioners’ constitutional claims, as pleaded, prevail in the context of this mandamus proceeding.


{7} Of the two constitutional grounds advanced by Petitioners, only their claim founded on the "public" sessions provision of Article IV, Section 12 warrants extensive discussion in this opinion, and this is in large part to provide comment on the dissent's unduly expansive treatment of that claim. As will be discussed, Petitioners’ state constitutional argument, as narrowly set out in the mandamus petition, is tethered tightly to an ultimately unconvincing plain-language, textual analysis of the term "public," an analysis incompatible with the multiple meanings of that term as reflected in dictionary definitions in use at the time our state Constitution was adopted and ratified. The dissent resolves the quandary presented by Petitioners’ own narrow pleading choices by essentially ignoring them and in their place crafting unsolicited a historical analysis that goes far afield of the textual issue framed in the petition. As explained in greater detail later in this opinion, we in the majority decline to follow that uncharted, unbriefed, and unvetted path. Rather, we adhere to established jurisprudential norms in deciding the public sessions issue exactly as it was presented, by evaluating the merits of the pure textual analysis exclusively relied on by Petitioners.

{8} Before considering the constitutional questions raised in the petition, we pause to consider two preliminary, threshold issues, one involving Petitioners’ standing to challenge the Council's directive and the other concerning the Council's authority to have issued the directive.

A. Standing

{9} On the issue of standing, we begin by noting that all but one of the Petitioners are state senators or state representatives (the Legislative Petitioners)—so far as it appears, solely in their representative capacities as legislators—who seek to litigate their disagreement with the Council's decision to "close" the special session. The Legislative Petitioners are joined in their cause by Petitioner Dunn, a private citizen who is described in the petition as one of "many rural New Mexicans lack[ing] access to reliable internet service that would provide the opportunity to participate in [the special session remotely via] livestream or webcast."

{10} Significantly, none of the Petitioners specifically allege a "beneficial[ ] interest[ ]" in the outcome of this mandamus proceeding or any "particularized nexus between their specific interests and the duties of state officials." See State ex rel. Coll v. Johnson , 1999-NMSC-036, ¶ 17, 128 N.M. 154, 990 P.2d 1277 (articulating the rule that "the existence of a generalized duty that state officials owe to the people of the state as a whole, such as ... passing and signing lawful legislation[,] ... is not sufficient to authorize an enforcement action [in mandamus] by a person seeking to serve as a ‘private attorney general "). As for the Legislative Petitioners, the basis of their individualized standing is neither expressly alleged in the petition nor otherwise apparent. See Raines v. Byrd , 521 U.S. 811, 821, 829-30, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997) (denying...

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