New Mexico Senate Republican Office Immediate Release Thursday, June 11, 2020 Contact Sen

New Mexico Senate Republican Office Immediate Release Thursday, June 11, 2020 Contact Sen. Pirtle: 575-626-7046

SENATOR CLIFF R. PIRTLE R – Roswell – 32

Opening Capitol During Special Session is Epitome of Good Government- Some Legislators are going to Court to stop its Closure

State Senator Cliff Pirtle (R-Roswell) along with other lawmakers (complete Petitioner list is below, Writ is attached) want to guarantee the public has the right to participate in the upcoming Special Session of the Legislature next week so they are going to court to do it. Senator Pirtle, along with several other state legislators, are filing a Writ of Mandamus with the New Mexico State Supreme Court to stop a recent action that blocks the public’s right to participate in person during the upcoming session.

“Keeping the State Capitol open to the public epitomizes the importance of an open government, an open New Mexico, and how critical it is for the public to have rights and freedom,” Senator Pirtle said. “It is imperative that the public be able to participate in person because legislators are going to be making decisions that directly affect the public’s interest. Their rights, our rights are protected by the State Constitution and I am a firm believer in protecting our rights, Covid or no Covid.”

The New Mexico Legislature’s Legislative Council Committee Wednesday voted to close the State Capitol to members of the public during the upcoming Special Session for safety precautions due to the Covid 19 pandemic and to only allow legislators and staff inside the building. The session will be webcast but members of the public, who will not be allowed in the capitol. “We need more transparency, not closed, backroom deals,” Senator Pirtle said.

Senator Pirtle said members of the public should be trusted to stay safe during the ongoing shutdown the governor has ordered and should be trusted to go into the State Capitol when laws are being made that affect their lives and their pocketbooks.

“Throughout this entire shutdown of our state by the governor, I have advocated New Mexico remain open. Now, I am going to court to ensure the people’s capitol is open.”

Through the writ, Senator Pirtle said the legislators are asking the State Supreme Court to order the State Legislature to properly fulfill its official duties and to correct its abuse of discretion when the Legislative Council voted to close the capitol to the public during the Special Session. The Legislative Council is a joint interim committee with 16 members made up of leadership members and other members of both the Senate and House of Representatives. Its duties are listed in state statute 2-3-3. Legislative council; powers; duties.

Petitioners:

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, AUBREY DUNN,

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S-1-SC-38356 Filed Supreme Court of New Mexico 6/11/2020 11:43 AM Office of the Clerk

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Petitioners,

vs. No. ______

LEGISLATIVE COUNCIL COMMITTEE OF THE NEW MEXICO LEGISLATURE,

Respondent. ______

EMERGENCY VERIFIED PETITION FOR WRIT OF MANDAMUS OR PROHIBITION ______

WESTERN AGRICULTURE, RESOURCE AND BUSINESS ADVOCATES, LLP A. Blair Dunn, Esq. 400 Gold Ave. SW, Suite 1000 505-750-3060 [email protected]

Attorneys for the Petitioners The Petitioners – Legislators from both the Republican Party and the

Democratic Party – ask this Court to issue a writ of mandamus to the interim

Legislative Council Committee to prevent them from closing to the public the impending Special Session that is set to commence on June 18, 2020. The action to

close the Special Session to the public is contrary to the plain language of Article

IV, Section 4 of the New Mexico Constitution, is contrary to the duty of transparency owed to the public in a representative democracy and deprives the public of their owing due process of law achieved through public input in to matters of important public policy for New Mexico. A small segment of Legislators should not be allowed to eschew the body from its constitutional boundaries and it is incumbent upon this Court to return the Legislature to the boundary set forth in the Constitution that “[A]ll sessions of each house shall be public.” N.M. Const. art. IV, § 12.

Petitioners want to be abundantly clear that it is within the purview and authority of the Legislature to take measures to protect public health short of closing the Legislature to impose other restrictions on the public accessing the capital to follow capacity limitations, social distancing measures or ppe requirements such as masks, and that Legislative Council Committee should be taking action to introduce such measures instead of taking a short-cut to cut off public access altogether.

1 BACKGROUND On June 9, 2020, 16 members of the Legislative Council Interim Committee were present for a meeting where a majority voted to close the Special Session of the New Mexico Legislature set to begin on June 18, 2020 to the public. See

http://sg001-harmony.sliq.net/00293/harmony. The legal basics here cannot legitimately be in dispute. The New Mexico Constitution specifically provides that all sessions of each house shall be public with no exception, see N.M. Const. art. II,

§ 12. Black’s Law Dictionary defines public as being “open or available for all to use, share, or enjoy.” PUBLIC, Black's Law Dictionary (11th ed. 2019). Moreover, it is a well understood fact that many New Mexicans, even if it was technologically possible to allow for everyone who wishes from our whole state to meaningfully participate in a teleconference or video conference legislative session, lack the access to technology to participate in such a fashion. There is no conceivable way that the action of the members of the Legislative Council Committee to close the Roundhouse to the public comports with the requirements of the Constitution or due process.

JURISDICTION

1. This is a civil action in the form of a petition for Writ of Mandamus or

Prohibition against State Officers, the members of the Legislative Council

Committee, to require that they refrain from committing an unlawful act, to reverse

their position, and to prohibit them from closing the People’s Legislature to the

2 public and to return their actions to the lawful boundaries of the New Mexico

Constitution. The Petitioners ask for a peremptory writ to be issued, and this matter briefed and argued as to how the Legislative Council Committee’s announced intentions can be squared with the plain language of Article IV, Section 12 of the

New Mexico Constitution.

2. This petition is also brought pursuant to this Court’s original jurisdiction under the Constitution, see N.M. Const. art. VI, § 13.

PARTIES

A. Petitioners

3. Legislator Petitioners are duly elected members of the New Mexico

Legislature serving in either the House or the Senate from both the Republican and

Democratic parties.

4. Petitioner Aubrey Dunn is a former New Mexico Commissioner of

Public Lands and a rancher in rural central New Mexico. Commissioner Dunn, in

recent history, was denied the extension of fiber optic internet service at his home

and business by the actions of the New Mexico Public Regulatory Commission. Due

to this fact, Commissioner Dunn, like many rural New Mexicans lacks access to

reliable internet service that would provide the opportunity to participate in

livestream or webcast meetings.

3 B. Respondent

5. Respondent is the interim Legislative Council Committee that is

comprised of legislators from both houses and both parties that are selected by the

members of the Legislature from their respective parties to serve on the committee.

CONSTITUTIONAL AND STATUTORY FOUNDATION FOR A MANDAMUS ACTION

6. The Petitioners do not expect it to be disputed that a Writ of Mandamus

is the proper vehicle of relief, as the Petitioners are asking the Court to impose upon

a state official a proper reading of the law and are not contesting a discretionary act

afforded to any particular member, any number of members or to the bodies as a

whole.

7. This Court’s authority to resolve this matter through Mandamus is well

settled and most squarely applied to its reasoning as stated in State of N.M ex rel.

Clark v. Johnson, 2009-NMSC-003. In that case, the Court stated:

[I]t has been clearly and firmly established that even though a private party may not have standing to invoke the power of this **18 *569 Court to resolve constitutional questions and enforce constitutional compliance, this Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance.

State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶ 15, 120 N.M. 562, 568–69, 904

P.2d 11, 17–18, citing State ex rel. Sego v. Kirkpatrick, 86 N.M. 359, 524 P.2d 975

(1974).

4 ARGUMENT

8. The Legislative Council Committee’s intended action is illegal for two reasons, either one of which would, on its own, suffice to entitle the Petitioners to relief: (i) the Legislative Council Committee’s action to close the Special Session violates the plain language of the New Mexico Constitution; and (ii) closing the session then deprives the citizens of their owing due process of law to participate in the legislative process.

I. The Legislative Council Committee’s Action Violates Article IV, Section 12 of the Constitution of New Mexico.

9. The Constitution’s clear and unambiguous language provides that all sessions of the New Mexico Legislature shall be open to the public. No provision in the Constitution provides the power to the Legislature to ignore the plain language of the Constitution or provides an exception that allows for this requirement to be avoided in a Special Session occurring in a public health pandemic.

II. The Legislative Council Committee’s Action Deprives New Mexico Citizens of Owing Due Process.

10. Perhaps of equal importance, conducting a closed or non-public session in violation of the Constitution is undoubtably also a due process violation by the

Legislature as a whole. This Court defines due process as “notice and ‘an opportunity to be heard at a meaningful time and in a meaningful manner.’” State ex rel. Children, Youth & Families Dept. v. Maria C., 2004-NMCA-083, ¶ 26, 136

5 N.M. 53, 62 (citing Mafin M., 2003–NMSC–015, ¶ 18, 133 N.M. 827, 70 P.3d 1266

(internal quotation marks and citation omitted). In that same case, the Court of

Appeals citing the U.S. Supreme Court noted that “[r]oot principles of fairness dictate that procedural due process be afforded whenever a government decision threatens to deprive an individual of a fundamental liberty or property interest.

Mathews, 424 U.S. at 332–33, 96 S.Ct. 893.” State ex rel. Children, Youth &

Families Dept. v. Maria C., 2004-NMCA-083, ¶ 24 (emphasis added). Thus, when the Legislature convenes in a special session for the purposes of addressing a budget

shortfall, which inevitably puts the taxpayers’ money at issue through additional taxation which deprives them of their property but does not allow for the public to

participate in those decisions, the Legislature has failed to afford meaningful opportunity to participate in a meaningful way that cannot be cured by some unfair

(as unavailable to many lacking adequate phone or internet service) webcasting of

the Legislature’s session. Nor is there an exception in the Constitution that allows a Legislature to side-step their constitutional procedural due process obligations in a time of crisis as pointed out by Judge Browning, stating that,

First, to apply substantive due-process exceptions to procedural due process is unprecedented—the Court cannot find any case where the court applies the substantive due-process special-relationship doctrine or danger-creation exception to a procedural due-process claim.

A.M. through Youngers v. New Mexico Dep't of Health, 2015 WL 13668431, at *47

(D.N.M. Dec. 7, 2015).

6 CONCLUSION

WHEREFORE, for the foregoing reasons, the Petitioners respectfully request this Court:

A. issue a Writ of Mandamus declaring that the Legislative Council

Committee’s action to close the impending Special Session inconsistent with the explicit language of the Constitution requiring all sessions to be public, and requiring that the Legislature hold is Special Session open to the public to attend; and

B. grant such other relief as the Court considers appropriate.

Respectfully Submitted,

/s/ A. Blair Dunn A. Blair Dunn, Esq. WARBA, LLP 400 Gold Ave SW, Suite 1000 Albuquerque, NM 87102 (505) 750-3060

7 VERIFICATION r. Senator Cliff Pirtle, duly elected member of the New Mexico Senate, do hereby swear and affirm that that foregoing is true and correct to the best of my knowledge and acknowledge the same this I 0th day ofJ 2020.

Senator CliffR. Pirtle

8 VERIFICATION I, Representative Rebecca Dow, duly elected member of the New Mexico House of Representatives, do hereby swear and affirm that that foregoing is true and correct to the best ofmy knowledge and acknowle:~2

Representative Rebecca Dow

9 VERIFICATION

L .t•u*) 0..-. a nnl awca of Ccnttal New Mcn:o. do bcrd,y swear ad aflinn lhal tbal focqoi.aa is lrUC and""'"' so the bnt of DI)' ~Jcdac .ck.no'4-lt'dJc: lhi: aamc dais 11th day of Jane: 2020.

CERTIFICATE OF SERVICE I certify that a copy of this pleading was served in accordance with Rules 12-307 and 12-504 NMRA this 11th day of June 2020 as follows:

Raúl Burciaga, Director Legislative Council Services 411State Capitol 490 Old Santa Fe Trail Santa Fe, NM 87501

Hector Balderas NM Attorney General 201 3rd St NW #300 Albuquerque, NM 87102

/s/ A. Blair Dunn A. Blair Dunn, Esq.