Public Access Still Denied

An internet failure temporarily halted a Supreme Court hearing Tuesday on the constitutionality of holding a special legislative session with only online access for observers. Yet, the court still ruled that it would not force lawmakers to allow public attendance.

On a divided vote, justices denied a petition by 20 Republican legislators, four Democratic legislators, and one private citizen asking the high court to open the Roundhouse to the public during the special session set to begin on Thursday, June 18.

All four Democrats represent rural areas with less reliable internet access, which was a main reason for asking the court to let the public participate in the session live rather than online.

"This is an extraordinarily difficult issue. I have little to say today except that based on the argument that was presented in the petition, the writ is denied…I do want to announce that the court is split on the issue," Chief Justice Judith Nakamura said after the court reconvened Tuesday evening, noting that the court would provide a written explanation of its ruling at a later date.

The decision upholds new rules approved specifically for this special session by the Legislative Council last week in light of the public health concerns caused by the COVID-19 pandemic.

In the committee meeting, members decided that only legislators, staff, and media would be allowed to enter the building. They voted to enact special precautions such as spacing legislators 6 feet apart during committees and floor sessions; requiring masks and providing testing on site; and requiring staff to get tested before coming to work.

The public will have access to the session via webcast, and both the Senate and the House are working on separate provisions to allow the public to participate live via Zoom, phone or email.

Blair Dunn, the attorney who represented the petitioners in court, argued that remote access does not adequately fulfill the New Mexico constitutional requirement that "all sessions of each house shall be public."

Partly, he argued, even the best technology is inherently unreliable, and vast numbers of New Mexicans living in rural areas do not have access to the internet or to cell phone service. He also argued that the rule violated the public's due process rights and rights to petition the government about issues that have profound impacts on their lives, such as tax reforms and civil rights legislation.

At one point, the livestream of the hearing glitched out and caused proceedings to stop for nearly ten minutes and lawyers to wait on stand by as the courts dealt with the problem—an event which illustrated Dunn's concerns.

"Invariably you are going to have technical issues like what happened today," Dunn told SFR over the phone when the court was in recess. "It does not matter how good your technology may or may not be, because no matter how much money you spend on technology, you just can't ensure the internet will work perfectly and that there won't be some error."

Dunn told the court that similar issues were a problem in the Legislative Council meeting where the rules about public access were decided.

On the books, the Legislative Council's decision to block public access was a unanimous and bipartisan vote. However as one of the justices pointed out in the hearing, six of the legislators who signed onto the petition are also voting or advisory members of the council.

Dunn said that at least one member—Sen. Clemente "Memé Sanchez, D-Grants—had tried to vote against it but had not been able to register his vote due to technical difficulties with calling in to the meeting.

"My understanding is that Sen. Clemente Sanchez was not in agreement with that, but because of whatever he had going on with technology he could not record his vote. It's an example of a mis-recording that resulted in a different outcome than an in-person meeting might have," Dunn tells SFR.

Justice Shannon Bacon echoed this concern. She noted, "we have technological deserts in New Mexico," and said she was "very concerned" about accessibility issues in areas such as Hidalgo County, where not a single public library is currently open or able to offer internet access to the public.

Thomas Hnasko, the lawyer representing the Legislative Council, argued that allowing New Mexicans to participate remotely might actually make the session more accessible by allowing people who do not have the means to drive to Santa Fe to join in person to nonetheless make their voices heard.

He further argued that the New Mexico constitution does not require in-person participation in order to be public, but rather requires that the government process not take place in secret.

There is no rule on the books requiring the Legislature to pause if its website goes down, but Hnasko told the court he believes lawmakers would honor their duty to open government.

"I have the utmost faith in the second branch of government that if anything ever happened that ran afoul of the constitutional requirement that the session be public—in other words something occurred to cloak them in secrecy—that the second branch of government would take that seriously and stop the proceedings," he said.

New Mexico's own rules mirror how the government process is currently being conducted at the federal level in Washington, and 33 other states have passed similar rules to prohibit public access to capitol buildings.

Finally, Hnasko argued that it is the Legislative Council's "duty to ensure that the building is safe for the public" as well as to protect transparency, and that the council's rules balance these two obligations.

Officials promise to livestream meetings online at http://sg001-harmony.sliq.net/00293/harmony, and media will be allowed limited access.

Watch the entire Supreme Court proceeding via NM PBS:

This story is part of the "Your New Mexico Government" Project (#YourNMgov), a collaboration between New Mexico PBS, KUNM Radio, and the Santa Fe Reporter. This endeavor is funded by the New Mexico Local Journalism Fund with public media support provided by the Thornburg Foundation.