NMSC Denies Mandamus Requiring In Person Special Session


Pirtle v. Legislative Council is a fairly long opinion on an extremely narrow issue. This is yet another pandemic case, but not one involving a challenge to the public health orders. Instead, over a year ago, a group of state legislators challenged the constitutionality of a directive promulgated by the legislative council preventing in person attendance at the June 2020 special legislative session. The Court denied this petition at the time, and writes now to explain its decision.


In an effort to deal with the challenges of the then-new pandemic, the Governor called a special legislative session in June 2020. 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 Legislative 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.

Shortly before the start of the special session, the petitioners (a group of legislators and one private person) sought to invalidate the portion of the Council’s directive prohibiting in-person attendance. The petitioners argued that the ban violated Article IV, Section 12 of the New Mexico Constitution and that it violated citizens’ due process right to participate in the legislative process. The Court denied the petition at argument and writes now to explain that decision.



As is appropriate, the Court began by discussing the standing problem. Almost all of the plaintiffs were state legislators, but none had alleged, and the Court could not discern, that they were harmed. This case only survived the standing problem because the petitioner’s attorney had also included his father, Aubrey Dunn, as a plaintiff. Mr. Dunn had alleged sufficient facts to survive a standing challenge. In addition, however, he also argued that he had standing under the “public importance” doctrine, an exception which can give an individual standing when important constitutional principles are involved. The Court agreed and, because one of the petitioners had standing, allowed the suit to proceed.

The Legislative Council’s Powers

Next, the Court looked at whether the Council had the authority to pass the directive. The gist of the petitioner’s argument appears to have been that while the Council can make recommendations, ultimately the power resides in the legislature as a whole. This was because, according to the Petitioners, the statute gave the Council power only over the Capitol’s physical property, not over the persons on that property. The majority rejected this as “too restrictive a reading” of the statute setting forth the Council’s powers.

The Council was created by statute as a joint committee of 16 members (8 from each house) that includes the legislature’s four highest ranking members. It has many duties, including studying major problems when the legislature is not in session (i.e., most of the time), formulating policies, and, critically, exercising operational control over the Capitol building and grounds. The majority and dissent disagreed over whether this control extended to people or merely to the physical facilities.

Two statutes were at play. Section 2-3-5(I) requires the director, under the direction of the Council, to “make all rules and regulations for the conduct of all persons in and about the buildings and grounds under his control necessary and proper for the safety, care and preservation of the same.” The majority examined whether this language gave the Council the power to pass the directive. Looking to the word “safety,” which is more commonly used for people than for property, the majority determined that it did.

Similarly, Section 2-3-4 also gave “control, care, custody and maintenance” of the capitol grounds to the council. Here, the majority seized on the word “control,” concluding that it encompassed not just the grounds, but regulation of persons on the grounds. As additional support, it looked to the history of how the grounds were regulated as well as some hypotheticals about how they would be regulated under the dissent’s view, which the majority viewed as unworkable in the modern security and pandemic context.


Having concluded that the Council had the authority to issue the directive, the Court proceeded to Petitioners’ argument that the directive was unconstitutional. Petitioners challenged the directive on due process grounds and under Article IV, Section 12 of the New Mexico constitution.

The court addressed the due process argument first. Petitioners argued that the directive violated citizens’ procedural due process rights of notice and opportunity to be heard by denying them the ability to participate in the legislative process. But there was no legal support for this argument. The U.S. Supreme Court had never found such a right, and several circuits had expressly rejected it. In a representative democracy, the grounds for that rejection make perfect sense: the legislative process itself provides the due process. Or, as the Supreme Court has stated, the correct challenge to a law is not through a judicial due process challenge to the legislative decision itself, but through the democratic political process.

There are, of course, exceptions. But the exceptions lie in cases where the legislative decision affects a small number of people in individually tailored ways. That was not the case here.

The majority next addressed Article IV, Section 12. Article IV governs the legislature, and Section 12 provides:

All sessions of each house shall be public. Each house shall keep a journal of its proceedings and the yeas and nays on any questions shall, at the request of one-fifth of the members present, be entered thereon. The original thereof shall be filed with the secretary of state at the close of the session, and shall be printed and published under his authority.

N.M. Const. Art. IV, Section 12

The Petitioners argued that this section required all sessions to be “open” to the public, and that the directive violated that by closing the sessions to the public. The majority disagreed with this interpretation. Looking to dictionaries from the time the clause was written, the majority could find no consensus as to the meaning of “public.” Two meanings were common: that a thing was widely known, or that a thing was accessible. Without further guidance to choose between the two, the majority concluded that the term was ambiguous.

This decision disposed of the petitioners’ arguments. Petitioners had put all of their eggs in one judicial basket, arguing that the plain meaning favored them and was dispositive. As a result, they could only win if the special session was not public in either sense of the word. But the majority easily concluded that the special session was public inasmuch as it was widely available through various means, achieving the legislative purpose of transparency. The majority also found it significant that the drafters could have, but did not, used more specific language if they had meant that meetings must be open to the public.

Circling back to mandamus–the relief sought by petitioners here–the majority noted that the remedy is only available when there are clear legal grounds to compel a result. Here, it was far from clear whether the sessions were required to be physically open to the public. Absent a clear constitutional mandate, the majority thought it better to defer to the legislature’s own view of how it should manage its affairs.

Finally, the court addressed an important–though not dispositive–point. Throughout the opinion, the majority makes clear in a restrained yet brutal way its belief that the Petitioners missed many opportunities to raise important arguments. The dissent chose to bring up some of those arguments on its own. But that approach is contrary to the American adversarial system. The very function of that system is to inform the courts by means of the arguments from both sides. When a court decides a matter that is not brief, it is necessarily doing so with less information than it would otherwise have. Often that results in worse decisions. The majority was critical of the dissent’s willingness to venture beyond the arguments raised by the parties.

The Dissent

Justices Bacon, joined by Justice Thomson, wrote separately in dissent. In their view, the New Mexico constitution limits the legislature’s ability to exclude the public from attending sessions in person, and, even if it did not, the legislative council lacked the authority to do so.

According to dissent, the “public” requirement required citizens to have contemporaneous access to observe and participate in the session. This interpretation seems to come from “common sense” and a canon that the words in a constitution should be construed according to how an ordinary person would understand them. But I had difficulty linking those concepts to the conclusion that “public” necessarily included a right to participate. And, as the majority noted, this argument apparently was never made by the Petitioners.

The dissent also takes issue with the majority’s interpretation of the legislative council statutes. Here, it contends that those statutes are directed at the physical property, not at the safety of persons on that property. This is a strong argument, and I at least find it difficult to choose between the two points of view. The majority’s approach is certainly more workable–it should not require rare and precious legislative session time to decide if skateboarding is permitted on capitol grounds. But the dissent’s argument seems slightly more straightforward, even if it leads to unwelcome results. As the 3-2 split shows, this was a close call, and perhaps the legislature will revisit these statutes in the future.

Looking for a New Mexico appellate attorney? Contact us or give me a call at (505) 273-9379.