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, Pеtitioners, v. LEGISLATIVE COUNCIL COMMITTEE OF THE NEW MEXICO LEGISLATURE, Respondent.
No. S-1-SC-38356
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
June 30, 2021
2021-NMSC-026
Released for Publication August 17, 2021.
ORIGINAL PROCEEDING
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. BrowdeAlbuquerque, 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
{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 efficаcy 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
{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
II. DISCUSSION
{7} Of the two constitutional grounds advanced by Petitioners, only their claim founded on the “public” sessions provision of
{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
{11} With respect to Petitioner Dunn, it is at least arguable that, as a concerned citizen, he has direct standing to challenge the constitutionality of the Council‘s directive barring in-person attendance at the special legislative session. See State ex rel. Burg v. City of Albuquerque, 1926-NMSC-031, ¶¶ 20, 31, 31 N.M. 576, 249 P. 242 (noting the general rule that mandamus may lie “to enforce the performance of a public duty by public officers, upon application of any citizen whose rights are affected in common with those of the public,” and applying the rule to a plaintiff who sought to vindicate his own individual right to vote on the proposition at issue). Notably, however, Petitioner Dunn does not explicitly stake out such a direct standing claim in the petition. Instead, he asks this Court to confer standing on him solely by reason of the great public importance doctrine. We confer standing on Petitioner Dunn in his individual capacity in recognition of the importance of the constitutional questions involvеd. See, e.g., New Energy Econ., Inc. v. Martinez, 2011-NMSC-006, ¶ 13, 149 N.M. 207, 247 P.3d 286 (reiterating that “[t]his Court, in its discretion, may grant standing to private parties to vindicate the public interest in cases presenting issues of great public importance” (internal quotation marks and citation omitted)). This allows the proceeding to move forward irrespective of any standing problems relating to the Legislative Petitioners. See Horne v. Flores, 557 U.S. 433, 446 & n.2 (2009) (concluding that a school superintendent had standing to seek vacatur of a trial court‘s orders, while declining to consider whether the state legislature also had standing to pursue identical relief); see generally Wikimedia Found. v. Nat‘l Sec. Agency, 857 F.3d 193, 217 (4th Cir. 2017) (applying the principle that once a court decides “that a single party ha[s] standing, it ma[k]e[s] no difference to the resolution of [the] case whether any other party ha[s] standing“).
B. The Council‘s Authority to Act
{12} We turn next to the question of the Council‘s authority to have issued the directive in the first place (the authority issue).12 Viewed most liberally in favor of Petitioners, the petition can be read to state—but not to explain—the view that “[a] small segment of [l]egislators should not be allowed to eschew [sic] the [Legislature] from its constitutional boundaries” and that the Council‘s role in developing safety policies should be limited to “taking action to introduce such measures” as “capacity limitations, social distancing . . . , [and personal protective equipment] requirements such as masks,” and not to “cut off public access altogether.”
1. General principles of statutory interpretation
{14} The authority issue requires us to determine the intended purpose and effect of the statutory sections cited above. See Jordan v. Allstate Ins. Co., 2010-NMSC-051, ¶ 15, 149 N.M. 162, 245 P.3d 1214 (“This Court‘s primary goal when interpreting statutes is to further legislative intent.“). In determining legislative intent, we look to the plain language of the statute and the context in which it was enacted, taking into account its history and background. See Maes v. Audubon Indem. Ins. Grp., 2007-NMSC-046, ¶ 11, 142 N.M. 235, 164 P.3d 934. We examine an act in its entirety, “constru[ing] each part in connection with every other part to produce a harmonious whole, . . . and consider[ing] the practical effects of our interpretation.” Reule Sun Corp. v. Valles, 2010-NMSC-004, ¶ 41, 147 N.M. 512, 226 P.3d 611 (internal quotation marks and citation omitted). Our application of the canons of statutory interpretation is guided by an awareness of the proposition that “it is necessary [for judges] to think thoughts and not words.” State v. Strauch, 2015-NMSC-009, ¶ 13, 345 P.3d 317. Additional and more specific principles of statutory interpretation also guide our analysis and will be discussed as needed.
2. Statutory analysis
{15} The Council is a creature of statute as are its composition, duties, and powers; all are products of enabling legislation—
{16} The direct and supervisory operational control features of the Council‘s duties—as set forth in Sections 2-3-4 and 2-3-5(I)—warrant our attention here. We address first
{18} The pivotal question at this stage of our analysis, then, is whether the Council‘s directive barring in-person attendance at the special session during the throes of a pandemic falls within the type of operational decision-making authority the Legislature intended to delegate to the Council under
{19} First, such a narrow reading of
{20} It is true that the Legislature‘s use in
{21} However, the intended meaning of
{22} This same premise guides our analysis of
Notwithstanding the [financing and accounting] provisions of Chapter 6, Articles 1 and 2, NMSA 1953, the exclusive control, care, custody and maintenance of the building in which the legislature is housed, the adjacent utilities plant and the surrounding grounds are transferred from the capitol buildings improvement commission, and the capitol custodian commission, to the legislative council.
(Emphasis added.) Thus, among other things, the statute vests in the Council the exclusive control over the legislative complex and grounds and, as we next discuss, transfers that authority to the Council from two distinct and now-defunct nonlegislative bodies, the capitol buildings improvement commission and the capitol custodian commission. Our interest lies in the capitol custodian commission (the CCC), whose membership during its existence consisted of the governor, the secretary of state, and the attorney general and whose duty it was to hire and oversee the work of a capitol custodian. See
{23} Given the substantial overlap in the designated operational duties of the CCC and the Council, and the use in their respective enabling statutes of the identical “safety, care and preservation” language discussed above, we are unconvinced by the dissent‘s downplay of the import of
{24} A more restrictive reading of the relevant statutes—one limiting the Council‘s operational duties to those that protect the condition of the Capitol buildings and grounds while excluding the Council‘s consideration of public safety concerns—would have the unwanted consequence of hindering the all-important efforts of the Council and Director to provide adequate security and safety measures in and around the Capitol complex. Indeed, our adoption of such a strict and artificial construction would cast doubt on the efficacy of all manner of routine, but nonetheless important, decisions the Council—the legislative body entrusted with the care and custody of the Capitol complex and the duty to “represent[] the entire Legislature while that body is not in session“—might ordinarily be expected to make. See State ex rel. Riddle v. Oliver, 2021-NMSC-018, ¶ 19, 487 P.3d 815.
{26} An additional issue should be addressed. We note that the authority
{27} In all, it cannot be said—at least not with sufficient certitude to warrant mandamus relief—that the Council overstepped its statutory authority in taking action to address what Petitioners readily acknowledge to have been pressing public safety concerns arising from the public‘s physical presence at what was, in the true sense of the word, a special legislative session.
C. The Constitutionality of the Council‘s Directive
{28} As we segue into our consideration of the constitutional ramifications, if any, of the Council‘s directive, it is worthwhile to discuss the origins and breadth of the power given our Legislature—similar to the power given Congress and most state legislatures nationwide—to adopt its own rules of procedure. See
{29} The exclusive authority vested in the majority of American state legislatures to make their own procedural rules finds its historical roots in British law favoring parliamentary autonomy and dates back at least to the English Bill of Rights of 1688, which contained a provision denouncing the “impeach[ment] or question[ing]” of “the Freedome of Speech and Debates or Proceedings in Parlyament, in any Court or Place out of Parlyament.” 1 W. & M., Sess. 2, ch. 2 (1688).16 The emphasis placed on legislative autonomy over procedural matters under British law was carried over to the American colonies, whose legislatures, “[l]ong before the American Revolution, . . . strove to emulate Parliament‘s independence” based on several concerns, including, perhaps most prominently, those involving the careful balance and separation of powers between coordinate branches of government. See James E. Castello, The Limits of Popular Sovereignty: Using the Initiative Power to Control Legislative Procedure, 74 Cal. L. Rev. 491, 530-32, 539-43, 547, 549 (1986) (tracing the history of constitutional rulemaking clauses in America). In modern times, “the power of a legislative body to govern its own internal workings [is] viewed as essential to its functioning except as it may . . . be[] expressly constrained by . . . [c]onstitution[al limits].” People‘s Advoc., Inc. v. Superior Ct., 226 Cal. Rptr. 640, 642 (Cal. Ct. App. 1986).
{30} In practical terms, legislative rulemaking powers are comprehensive and far-reaching, allowing, for example, a legislative body to create and delegate authority to a committee, commission, or other entity to assist in administering or enforcing a procedural rule. See Webb v. Rock, 400 N.E.2d 959, 961-62, 965 (Ill. App. Ct. 1980) (upholding the validity of a statute delegating legislative power over certain administrative responsibilities to the majority and minority leadership of the state senate and the house of representatives and to members of certain legislative committees and commissions “as determined by such leadership” (internal quotation marks and citation omitted)); Joint Legis. Comm. on Ethical Standards v. Perkins, 432 A.2d 116, 121-22 (N.J. Super. Ct. App. Div. 1981) (recognizing that the legislature “has the power to set reasonable rules for the . . . order of its houses“; “to establish by general laws restrictions on the conduct of persons, including legislators, within a common classification“; and “to establish an agency or body to enforce those general laws“). And, to dispel any doubt, the term “procedural rules” is sufficiently broad to “include the question whether legislative business should be conducted in open or closed session.” Hughes v. Speaker of the N.H. House of Representatives, 876 A.2d 736, 748 (N.H. 2005) (citing Abood v. League of Women Voters of Alaska, 743 P.2d 333, 337 (Alaska 1987) (recognizing that “[t]he question whether legislative business should be conducted in open оr closed sessions is a procedural question which has traditionally been the subject of legislative rules“)).
{31} Courts have shown a marked reluctance to interfere with a legislative body‘s application or interpretation of its own procedural rules, generally declining to review such determinations as involving questions beyond the judiciary‘s reach. See Consejo de Desarrollo Economico de Mexicali, A.C. v. United States, 482 F.3d 1157, 1171-72 (9th Cir. 2007) (pointing to the federal Rulemaking Clause,
The [C]onstitution empowers each house to determine its rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the house, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just. It is no objection to the validity of a rule that a different one has been prescribed and in force for a length of time. The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
United States v. Ballin, 144 U.S. 1, 5 (1892) (emphasis added).
{32} Under the Ballin formulation, “the advantages or disadvantages, the wisdom or folly, of . . . a [legislative procedural] rule” are of no judicial concern; it is only when a legislative body adopts internal procedures that “ignore constitutional restraints or violate fundamental rights” that a court can and must become involved. Id.; see Vander Jagt v. O‘Neill, 699 F.2d 1166, 1170 (D.C. Cir. 1983) (recognizing that a court “must provide remedial action” in the event Congress adopts internal procedures that violate the “constitutional restraints” or “fundamental rights” exception to nonjusticiability carved out in Ballin). We turn, then, to the core question whether, as here pleaded, the terms of the Council‘s directive exceed constitutional limits.
2. Relevant legal standards
{33} As indicated, Petitioners advance two distinct constitutional claims. Petitioners first contend that the Council‘s directive prohibiting the public from physically attending the special session runs afoul of the mandate of
{34} Thus, in the form presented by Petitioners, this mandamus proceeding is predominantly a case of constitutional interpretation. In interpreting a constitutional provision, our primary goal is to discern and give effect to the drafters’ intent. See State v. Boyse, 2013-NMSC-024, ¶ 8, 303 P.3d 830 (“The most important consideration for us is that we interpret the constitution in a way that reflects the drafters’ intent.” (internal quotation marks and citation omitted)). Questions of constitutional construction are governed by the same rules that apply to statutory construction, with courts “often using the dictionary for guidance” in ascertaining the ordinary meaning of the words at issue. Id. ¶¶ 8-9.
{35} The outcome of this case is dictated in large measure by the narrow contours of the writ of mandamus, which this Court has described as “a drastic remedy to be invoked only in extraordinary circumstances” and then “only to force a clear legal right against one having a clear legal duty to perform an act.” State ex rel. Richardson v. Fifth Jud. Dist. Nominating Comm‘n, 2007-NMSC-023, ¶ 9, 141 N.M. 657, 160 P.3d 566 (internal quotation marks and citation omitted); see Appalachian States Low-Level Radioactive Waste Comm‘n v. O‘Leary, 93 F.3d 103, 112 n.9 (3d Cir. 1996) (observing that the legal duty sought to be enforced by mandamus must be “positively commanded and so plainly prescribed as to be free from doubt” (internal quotation marks and citation omitted)). Although relief by mandamus is most often applied “to compel the performance of an affirmative act by another where the duty to perform the act is clearly enjoined by law,” Rainaldi v. Pub. Emps. Ret. Bd., 1993-NMSC-028, ¶ 6, 115 N.M. 650, 857 P.2d 761
{36} For reasons that will become apparent in our ensuing discussion, the COVID-19 pandemic, though clearly and undisputedly providing the impetus for the Council‘s directive, does not directly factor into our analysis of Petitioners’ constitutional claims. Nor, under our analysis, is Petitioners’ entitlement to mandamus relief on their constitutional claims dependent on the deferential standard of review set out in Jacobson v. Massachusetts for governmental action taken to promote public health and safety in times of emergency. See 197 U.S. 11, 25, 29 (1905). The Jacobson Court upheld the constitutionality of a state compulsory-vaccination law enacted to combat a smallpox outbreak, and in so doing limited judicial scrutiny of emergency public health laws to those restrictions which have “no real or substantial relation” to the public health crisis then at hand or are “beyond all question, a plain, palpable invasion of rights secured by the fundamental law“). Id. at 31. Resort to Jacobson‘s deferential review standard is unnecessary in the context of this mandamus proceeding since, as fully explained below, Petitioners’ submission to this Court was insufficient as a matter of law to demonstrate a clear cognizable constitutional right to physically attend the special legislative session. The prominent feature of the Jacobson doctrine—the restriction or suspension of existing constitutional rights during a public health crisis—finds no place in the situation which now confronts us in the majority where no constitutionally protected rights are determined to have been violated in the first place.
{37} Nor, in the posture of this case, need we definitively weigh-in on the developing judicial discourse over the precise contours and proper application of the Jacobson doctrine. It suffices to say that, although Jacobson has recently been the subject of considerable criticism, its deferential police power review standard remains relevant today, save arguably in the context of free-exercise-of-religion cases. Compare, e.g., Fay v. Merrill, — A.3d —, No. SC 20486, 2021 WL 560780, ** 1, 16 (Conn. 2021) (recognizing that Jacobson and other federal case law “provide[] important context” for what was in essence a textual/historical analysis of whether a legislatively-ratified executive order “adding ‘COVID-19’ as a permissible reason for absentee voting” comported with the Connecticut state constitution), with Roman Catholic Diocese of Brooklyn v. Cuomo, — U.S. —, 141 S. Ct. 63 (2020) (per curiam) (applying strict scrutiny to evaluate a challenge to California‘s COVID-19 restrictions on attendance at religious activities without discussing or citing Jacobson), and Tandon v. Newsom, — U.S. —, 141 S. Ct. 1294 (2021) (per curiam) (same).
{38} Against this backdrop and with these considerations in mind, we now consider in turn the constitutional challenges mounted by Petitioners.
3. Petitioners’ due process claim
{39} We first address Petitioners’ contention that the Council‘s directive violates our citizens’ procedural due process rights of notice and an opportunity to be heard by denying them the ability “to participate in the legislative process.” Petitioners broadly assert that the convening of “a closed or non-public session [constitutes] a due process violation by the Legislature,” an assertion unsupported by prevailing case law. To begin, “The United States Supreme Court has not yet recognized a federal constitutiоnal or common law right to attend legislative sessions.” Hughes, 876 A.2d at 747-48 (noting that “the right to observe deliberations of governmental bodies did not exist” in England and that “[t]he English tradition of holding legislative debate in secret was carried on in the legislative bodies of Colonial America[,]” as witnessed by the exclusion of the public from “both the Continental Congress and the Constitutional Convention” (quoting Larry M. Elison & Deborah E. Elison,
{40} Further, at least two federal circuit courts have expressly rejected the notion that constitutional due process protections attend the passage of legislation. See LC & S, Inc. v. Warren Cnty. Area Plan Comm‘n, 244 F.3d 601, 602 (7th Cir. 2001) (indicating that the prospective character and general applicability of legislation render the notion of “[l]egislative due process” essentially meaningless, if not “an oxymoron“); United States v. LULAC, 793 F.2d 636, 648 (5th Cir. 1986) (“When the legislature enacts a law . . . that affects a general class of persons, all of those persons have received procedural due process by the legislative process itself . . . . The challenges to such laws . . . must be based on their substantive compatibility with constitutional guarantees.“). This view was given support by no less an authority than Alexander Hamilton, who stated on the eve of the 1787 Constitutional Convention that “[t]he words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of legislature.” Founders Online, National Archives, N.Y. Assembly Remarks on an Act Regulating Elections (Feb. 6, 1787).17
{41} More broadly, the rule is settled that all governmental action that involves purely legislative—as opposed to adjudicative—decisions is not subject to the notice and hearing requirements of procedural due process. See, e.g., Interport Pilots Agency, Inc. v. Sammis, 14 F.3d 133, 142 (2d Cir. 1994) (“[C]onstitutional due process requirements apply only where the official action is designed to adjudicate disputed facts in particular cases.” (internal quotation marks and citation omitted)). In this regard, the Supreme Court has made clear that the appropriate relief for those who disagree with a governmental agency‘s adoption of a legislative-type decision lies not in a due process challenge to the decision itself, but in the democratic political process. Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (rejecting a due process challenge to a general, city-wide increase in tax evaluations of property, promulgated without an opportunity for taxpayers to be heard or to appear before the board, and in so doing, stating that the taxpayers’ “rights are protected in the only way that they can be in a complex society, by their power, immediate or remote, over those who make the rule“). Although policy decisions affecting the rights of a small number of people may invoke procedural due process protection,
[w]hen governmental action affects more than a few individuals, concerns beyond economy, efficiency and expedition tip the balance against finding that due process attaches. We may expect that as the sweep of governmental action broadens, so too does the power of the affected group to protect its interests outside rigid constitutionally imposed procedures. Moreover, the case for due process protection grows stronger as the identity of the persons affected by a governmental choice becomes clearer[.]
O‘Bannon v. Town Court Nursing Ctr., 447 U.S. 773, 800-01 (1980) (Blackmun, J., concurring) (footnotes omitted) (internal quotation marks and citation omitted).
{42} Given these established precedents, and since the matter at hand does not present a situation where “[a] relatively small number of persons” were “exceptionally affected, in each case upon individual
4. Petitioners’ claim under Article IV, Section 12 of the New Mexico Constitution
{43} We turn then to the state constitutional issue that divides the Court, narrowly framed by Petitioners as whether the Council‘s directive prohibiting in-person attendance at the special session contravenes the “plain language” of
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.
{44} Petitioners’ constitutional challenge is directed to the format and administration of the special session, not its subject matter. Despite the limited contours of their plain-language analysis, Petitioners press for a broad interpretation of
{45} As explained below, we reject Petitioners’ plain-language argument, concluding that the undefined and unadorned word “public” as used in
{46} By way of background, the New Mexico Constitution was drafted and adopted at a convention meeting held in Santa Fe over a seven-week period in October and November 1910. See Proceedings of the Constitutional Convention of the Proposed State of New Mexico (1910). The Constitution was approved by the voters in January 1911 and went into effect at the inception of New Mexico statehood on January 6, 1912. See Robert W. Larson, New Mexico‘s Quest for Statehood 1846-1912, 288-90, 304 (1968). The transcriptions of New Mexico‘s constitutional convention neither contain debate or discussion of the public sessions provision in
{47} Again, it bears emphasis that our overarching goal in construing the New Mexico Constitution is to ascertain the intent and objectives of the drafters. Boyse, 2013-NMSC-024, ¶ 8. In ascertaining the drafters’ intent with respect to the public sessions requirement of
a. Textual analysis
{48} As will be shown, the adjective “public” did not have a single, definitive meaning at the turn of the twentieth century but instead was (and continues to be) an “elastic term with many different shades of meaning.” In re Gi Nam, 273 F.3d 281, 287 (3d Cir. 2001) (internal quotation marks and citation omitted) (applying the quoted language to the term “penalty“). Dictionaries dating back to the late nineteenth and early twentieth centuries generally defined the term “public” to include a variety of senses, arguably the most prominent of which was the sense denoting something known or notorious—or, as at least two dictionary sources of the day put it, the opposite of “private.” See William C. Anderson, A Dictionary of Law 842 (1893) (defining the adjective “public” as, among other things, “generally known. Opposed, private.“); 8 Oxford English Dictionary 1558 (1st ed. 1933) (reissue of the New English Dictionary (1884-1928)) (describing the various definitions of “public” to mean “[i]n general, and in most of the senses, the opposite of PRIVATE“).
{49} An alternative use of the term “public” as meaning “open,” “open to all,” or some other variant thereof was also common to legal and general dictionaries of that day, including the 1910 edition of Black‘s Law Dictionary. See Henry Campbell Black, A Law Dictionary 964 (2d ed. 1910) (defining the adjective “public” to mean, among other things, “[o]pen to all; notorious“); see also William Dwight Whitney, The Century Dictionary 4830 (1890) (defining “public” in the sense relevant here as “[o]pen to all the people“). That same 1910 edition of Black‘s, in turn, defined the word “open” to mean “[p]atent; visible; apparent; notorious; not clandestine; not closed, settled, fixed, or terminated,” Black supra at 854, thus appearing to reinforce the known or notorious aspect of the term “public.” Whitney, however, took a different approach, defining “open” in its primary sense in terms of availability of access, as in “[u]nclosed, literally or figuratively; not shut or closed; hence, affording access, or free ingress and egress: as, an open door.” Whitney supra at 4118. But even Whitney‘s definition of “open“—particularly his use of the words “literally or figuratively” as equal and alternative modifiers of the word “unclosed“—is arguably sufficiently broad to encompass means of access other than actual physical attendance.
{50} Given the competing definitions of “public” set out above, and the absence from historical dictionaries of clear guidance as to the proper meaning of that term when used to describe a governmental proceeding, the public sessions requirement set out in
{51} This textual ambiguity—unrecognized and unaddressed by Petitioners—is fatal to Petitioners’ textually-based claim for mandamus relief. As our definitional survey reveals, the word “public” had two primary meanings at the time the framers put it to use in
{52} First, assuming the use of the term “public” in
{53} And, although not essential to our ruling today, we note that it is at least arguable that the online, real-time access made available to the special session proceedings via the Legislature‘s website may alone have been sufficient, from a textual standpoint, to satisfy the availability-of-access element of the definitional term “public.” See Komatsu v. City of N.Y., No. 20-CV-7046 (ER), 2021 WL 256956, *1 (S.D.N.Y., Jan. 26, 2021) (suggesting in dicta that the plaintiff‘s “viewing” of city council meetings held during the COVID-19 pandemic, “which were available for public streaming online” on a platform that allowed “members of the public . . . to testify” at hearings that had “public comment portions,” was equivalent to “attending” the meetings). This conclusion appears to be consistent with Whitney‘s treatment of the terms “public” and “open” in his circa 1890 dictionary, which, as mentioned, defined “public,” as here relevant, as [o]pen to all the people,” and in turn loosely defined “open” as “[u]nclosed, literally or figuratively.” Whitney supra at 4118, 4830 (emphasis added). It is no stretch to conclude that the Council‘s directive served to accomplish what Whitney‘s
{54} Beyond the definitional analysis undertaken above, another textual consideration buttresses our conclusion that the bare use of the term “public” in
{55} For parallel reasons, the counterpart sibling state constitutional provisions cited by the dissent do not avail Petitioners’ plain-language argument. The dissent, while eschewing its own definitional analysis of the term “public,” points in particular to language contained in the New York and Wisconsin constitutions that makes plain the public‘s right to physically attend legislative proceedings held in those states. Dissent ¶¶ 84 (invoking
{56} At bottom, the uncertainty engendered by the drafters’ unelaborated use of thе term “public” in
b. The propriety—or lack thereof—of a sua sponte historical analysis
{57} As indicated, Petitioners have made no effort to overcome the obvious frailties in their plain-language argument, neither attempting to explain why we should resolve in their favor the patent ambiguities created by the public sessions requirement of
{58} As a general rule, appellate courts rely on adversarial briefing to decide legal issues and avoid reaching out to construct legal arguments that the parties, intentionally or otherwise, have not presented. See Cone v. Bell, 556 U.S. 449, 482 (2009) (“Appellate courts generally do not reach out to decide issues not raised by the appellant [or other party seeking relief.]“). Much has been written by courts and commentators in favor of the wisdom of this rule and about the perils and pitfalls in deviating from its well-established norm. The Georgia Supreme Court provided a simple and succinct explanation of the rule in Turner v. Flournoy:
It is not the function of [an appellate court] to advocate or advance positions not advanced by the parties. With rare exceptions, this Court, like all appellate courts, should decide the issues presented by the parties, as the parties present them. When we do otherwise, when we decide an issue sua sponte, we invite error because the issue has not been fleshed out fully; it has not been researched, briefed and argued by the parties. Moreover, the parties are blind-sided when an appellate court reaches an issue on its own motion. They have no inkling that the court even thought about such an issue until they receive and read the court‘s opinion. That is not fair.
594 S.E. 2d 359, 361-62 (Ga. 2004) (footnotes omitted).
{59} Avoidance of sua sponte judicial action makes particular sense in the realm of constitutional interpretation. As another state supreme court has observed, “[constitutional] interpretation is a complex task, requiring courts to weigh many variables before arriving at a balanced and reasonable construction of [the drafters‘] intent,” a task made all the more difficult without the benefit of proper briefing and reasoned argument. Bartus v. Wis. Dep‘t of Health & Soc. Servs., 501 N.W.2d 419, 424 (Wis. 1993) (urging courts “to exercise caution” before addressing such issues sua sponte).
{60} These reasons alone provide ample justification for this Court to refuse to tread where Petitioners have not. But there is more.
{61} That the origins of
{62} In the procedural posture presented here, and since the petition does no more than briefly gesture at the public sessions issue and then only touches on the textual, not the historical, underpinnings of
{63} Our exercise of judicial restraint in this matter is also consistent with if not dictated by the extraordinary nature of the mandamus remedy sought by Petitioners and time-honored principles governing mandamus proceedings. One such core principle is that mandamus generally will not lie to compel or prohibit an act where, as here, the duty to act “is not plainly prescribed but is to be gathered by a doubtful inference from a statute [or constitutional provision.]” 52 Am. Jur. 2d Mandamus § 52. And while courts have departed from this rule in situations where the interpretation of an ambiguous statute or constitutional provision readily yields “a peremptory obligation for the officer to act,” see Lovitky v. Trump, 949 F.3d 753, 760 (D.C. Cir. 2020) (internal quotation marks and citation omitted), we discern no sound reason to countenance such a departure unsolicited and without input from Petitioners in this case. See generally State ex. rel. Coleman v. Wexler Horn, 568 S.W.3d 14, 25 (Mo. banc 2019) (Powell, J., dissenting) (“[I]n seeking mandamus, [t]he burden [is] upon relator to plead and prove a clear legal right to the relief asked.” (second and third alterations in original) (internal quotation marks and citation omitted)). The point is that mandamus is not available just for the asking—or, as applied here, to these Petitioners who did not see fit to ask for any form of constitutional intеrpretation beyond the written text of
c. A response to the dissent
{64} Before closing, a few comments about the dissent are in order. As the dissent portrays it, our treatment of Petitioners’
{65} The dissent also takes this opinion to task for failing to construe the term “public” so as to provide guidance on the meaning of that term at its “constitutional minimum.” Dissent ¶ 70. As we understand it, this critique faults us for not doing more in offering guidance on an issue that we have deliberately chosen not to fully decide. To that extent the critique misses its mark, for an appellate court, in declining to decide an issue head-on for whatever reason, can offer only so much gratuitous advice on that same issue without rendering an improper advisory opinion. See generally State v. Rodgers, 235 S.W.3d 92, 97 (Tenn. 2007) (“However convenient or desirable for either party that the questions mooted in the case be authoritatively settled for future guidance, the court is not justified in violating fundamental principles of judicial procedure to gratify this desire.” (internal quotation marks and citation omitted)); see also United States v. Schiavo, 504 F.2d 1, 27 (3rd Cir. 1974) (Aldisert, J., dissenting) (noting that guidance on a particular issue “must await the proper case or controversy“). Of necessity, the appellate process, and the appellate courts that oversee it, are subject to appropriate, oft
{66} As a final matter, our dissenting colleagues, in their apparent zeal to champion a previously unrecognized right to attend legislative sessions under
III. CONCLUSION
{67} For the foregoing reasons, we abide by our prior order denying the mandamus petition, maintaining the view that the New Mexico Legislative Council‘s directive prohibiting in-person attendance at the June 2020 special session was not shown to violate a clear and indisputable legal duty.
{68} IT IS SO ORDERED.
JUDITH K. NAKAMURA, Justice, Retired, sitting by designation
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
BARBARA J. VIGIL, Justice
C. SHANNON BACON, Justice, dissenting
DAVID K. THOMSON, Justice, dissenting
BACON and THOMSON, Justices (dissenting).
{69} We respectfully dissent on two grounds. First,
I. THE DOORS TO THE CAPITOL MUST REMAIN OPEN TO PROVIDE PUBLIC ACCESS
{70}
{71} In advance of the special session,20 a legislative subcommittee passed, without opposition, “a directive prohibiting on-site, public attendance at the special session.” See maj. op. ¶ 4. The majority‘s effective endorsement of this directive should be clearly stated—the Legislature has the power to pass a rule for the Capitol that closes the doors to the general public, at any time, and for any reason, so long as the session meets the minimum constitutionally acceptable standard for being public, which remains unclear. Respectfully, the majority should choose its path and state that it is deferring to the Legislature‘s construction of “public” or actually take up the task of construing
{72} We read our Constitution to provide two separate and distinct means of assuring governmental transparency:
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.
{73} The second provision, which requires the “keep[ing of] a journal,” provides the citizens of New Mexico with a minimal record of the past, what the Legislature has done, and how their elected delegate previously voted. See Bezio v. Neville, 305 A.2d 665, 668 (1973) (reasoning that “the journals . . . were intended to furnish the courts and the public with the means of ascertaining what was actually done in and by each branch of the Legislature,” both for the purpose of public scrutiny and to assure legislative conformity with constitutional provisions (internal quotation marks and citation omitted)).
{74} The first provision requires that the sessions “be public,” allowing citizens to have contemporaneous access to observe and participate
{75} Guidance from the United States Supreme Court provides that, in interpreting constitutional text:
[W]e are guided by the principle that the Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning. Normal meaning may of course include an idiomatic meaning, but it excludes secret or technical meanings that would not have been known to ordinary citizens in the founding generation.
District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008) (alteration omitted) (internal quotation marks and citations omitted); see also United States v. Sprague, 282 U.S. 716, 731 (1931) (“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention i[s] clear there is no room for construction and no excuse for interpolation or addition.“); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824).
{76} The majority construes “public” in
{77} The use of the term “public” is an improvement on the more minimal requirement in the United States Constitution‘s journal clause to provide more transparency, and more information to the general public on how their government is working. See
{78} Rejecting Petitioners’ plain-language argument, the majority states that “Petitioners neither identify independent indicia of the drafters’ intent nor mention, much less discuss, any canon of statutory or constitutional
{79} The right of the public to have access to legislative debate and representative deliberations is a beneficial evolution from the United States Constitution. As much as we appreciate the majority‘s exposition of the early history of the development of self-government to assert that the term public is ambiguous, on this point, we recognize that we have evolved. Despite the majority‘s contention that the analysis of this historical evolution places us on an “uncharted, unbriefed, and unvetted path,” maj. op. ¶ 7, we proceed with the recognition that, “constitutional history [] helps us to preserve the lessons embodied in the drafting of the provisions at issue and to explore the consequences of the language chosen.” Robert F. Williams, The Brennan Lecture: Interpreting State Constitutions As Unique Legal Documents, 27 Okla. City U. L. Rev. 189, 205 (2002) (internal quotation marks and citation omitted). In assessing this difficult issue, if we must look to the history of a dictionary (as the majority has done) or the history of constitutional text (as we do), we respectfully suggest the latter is a better approach as, “state constitutions have their own unique origins, history, language, and structure—all of which warrant independent attention and elucidation.” Delaware v. Van Arsdall, 475 U.S. 673, 706-07 (1986) (Stevens, J., dissenting).
{80} Prior to the nineteenth century, legislative branches of government in both England and the United States met in secret. In England, members of that elected body feared retribution from the Crown. See Elison, supra, at 179 (“In England, parliamentary debates were originally closed to the public on the theory that secrecy protected against interference by the Crown and later debates were closed to conceal the members’ statements and votes from constituents.“); Elizabeth Gregory McPherson, Reporting the Debates of Congress, 28 Q. J. of Speech 141 (1942) (“Publication of the [parliamentary] debates . . . was surrounded with danger to both reporter and publisher.“); Harold L. Cross, The People‘s Right to Know, Legal Access to Public Records and Procеedings 180 (1953). Colonial legislatures carried on this tradition, as did the Continental Congress. The Constitution was drafted with limited allowance for public participation.
{81} In his autobiography, John Adams recounted the founders’ discussion of the Articles of Confederation, stating his desire for more transparency:
Mr. Wilson of Pennsylvania, upon one Occasion moved that the debates should [be] public, the Doors opened, galleries erected, or an Adjournment made to some public Building where the People might be accommodated.
Mr. John Adams seconded the Motion and supported it, with Zeal. But No: Neither Party were willing:
Founders Online, Nat‘l Archives, The Adams Papers, Diary and Autobiography of John Adams, Vol. 1, Tuesday, Aug. 20, 1776, https://founders.archives.gov/documents/Adams/01-03-02-0016-0173 (last visited June 24, 2021).
{82} Representative bodies at the state level struggled with this during the ratification of the Constitution. “The convention also made its official journal available to any printer who requested it. But what about the people who insisted on witnessing the event with their own eyes and ears?” Pauline Maier, Ratification, The People Debate the Constitution, 1787-1788 166 (2010) (footnote omitted). Government recalcitrance toward allowing more public participation in the legislative process prevailed in early United States history demonstrated by the limited requirement of Article I, Section 5, Clause 3 of the United States Constitution.
{83} After the ratification of the Constitution, the focus shifted to create a procedural change to implement a policy of increased
{84} States however give substance to the Adams’ theory of public participation in legislative sessions. New York made clear its intent that the doors literally remain open:
Each house of the legislature shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy. The doors of each house shall be kept open, except when the public welfare shall require secrecy. Neither house shall, without the consent of the other, adjourn for more than two days.
{85} This Court does not defer to the Legislature when we interpret the New Mexico Constitution; regardless of the constitutional grant of authority to the Legislature to adopt is own rules of procedure, we must determine what is required by
{86} The grant of authority to a branch of government to determine its procedural rules does not necessarily convey deference to that branch of gоvernment to determine whether such rules pass constitutional muster. Id. We take issue with the majority opinion insofar as it could suggest that the Legislature‘s prerogative to enact procedural rules requires us to defer to a determination by the Legislature that any rule enacted is constitutional, simply because the Legislature has the power to enact a rule.
{87} Deference to the Legislature in the governance of its own affairs does not include delegating our obligation to ensure that the Legislature‘s rules comport with the Constitution. See The Federalist No. 78, at 466 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (“A constitution is, in fact, and must be regarded by the judges, as a fundamental law.“). This is an obligation that this Court has repeatedly recognized:
Deeply rooted in American Jurisprudence is the doctrine that state constitutions are not grants of power to the legislative, to the executive and to the judiciary, but are limitations on the powers of each. No branch of the state may add to, nor detract from its clear mandate. It is a function of the judiciary when its jurisdiction is properly invoked to measure the acts of the executive and the legislative branch solely by the yardstick of the constitution.
State ex rel. Clark v. Johnson, 1995-NMSC-048, ¶ 20, 120 N.M. 562, 904 P.2d 11 (quoting State ex rel. Hovey Concrete Prods. Co. v. Mechem, 1957-NMSC-075, ¶ 2, 63 N.M. 250, 316 P.2d 1069 (1957), overruled on other grounds by Wylie Corp. v. Mowrer, 1986-NMSC-075, 104 N.M. 751, 726 P.2d 1381 (1986)).
{88} Let us speak plainly, although the majority recounts numerous facts concerning the current COVID-19 public health emergency, see maj. op. ¶¶ 2-5, those facts do not bear on the majority‘s holding and are not necessary to the majority‘s reasoning. The majority yields to the Legislature‘s interpretation of the term public in a way that gives the Legislature free rein to completely eliminate in-person access for the general public to the Capitol, so long as the Legislature provides limited remote access (and some media coverage) to the sessions, pandemic or not. The majority opinion‘s endorsement of this construction divests the general public of its right to attend any legislative session in person. We do not dissent becausе we conclude that the Legislature cannot reasonably restrict access to a legislative session. We dissent because we reason that the majority opinion determines that
II. THE LEGISLATIVE BODY AS A WHOLE SHOULD MAKE THE IMPORTANT POLICY DECISION TO LIMIT PUBLIC ACCESS
{89} In addition to our disagreement with the majority‘s overly broad constitutional analysis, we also respectfully dissent because the Legislature improperly abdicated its responsibility to make this important policy decision, to close the special session to any in-person participation by the public. While we agree with the majority‘s assertion that the Legislature has the power to adopt its own rules of procedure, see
{90} The Council asserts that it, and it alone, had the authority to close the Capitol to the public during the special session. Specifically, the Council states:
By advocating for a risky course of allowing many members of the public into the building, the petition also ignores that the safe use of the Capitol is expressly delegated by law to the Legislative Council, see
NMSA 1978, § 2-3-4 (1953) , and to the Legislative Council Service Director. Id. § 2-3-[5].
{91} The legislative language begs for a review of the duties previously held by the capitol building improvement commission and the capitol custodian commission. See State v. Javier M., 2001-NMSC-030, ¶ 31, 131 N.M. 1, 33 P.3d 1 (“Although we primarily look to the plain language, we may also consider the history and background of the statute to determine the Legislature‘s intent.“); State v. Cleve, 1999-NMSC-017, ¶ 8, 127 N.M. 240, 980 P.2d 23 (advising that a court may give constructive effect to “the context surrounding a particular statute, such as its history, its apparent object, and other statutes in pari materia“); see also
{92} The Legislature created the capitol buildings improvement commission to establish adequate quarters for the legislative and executive departments, relieve congestion in current facilities, employ architects, acquire land, and the like. See NMSA 1953, §§ 6-2-1 to -12 (1963 Supp., repealed 1968). These duties have no bearing on decisions related to the business of the Legislature or who may attend sessions of the Legislature.
{93} The capitol custodian commission‘s duties are those suggested by the title itself. Additionally, the statutory scheme makes clear that the role of this commission was the “preservation, repair, care, cleaning, heating and lighting” of the building and the care and beautification of the grounds. See NMSA 1953, §§ 6-1-9 to -15. Again, duties that have no bearing on the Council‘s decision here.
{94}
{95} Our established rules of statutory interpretation should guide this discussion. This Court‘s primary goal in statutory interpretation is to effectuate legislative intent. See, e.g., Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047; Jordan, 2010-NMSC-051, ¶ 15. The first and primary indication of legislative intent is the plain-language reading of a statute. See, e.g., DeWitt, 2009-NMSC-032, ¶ 29; State v. Young, 2004-NMSC-015, ¶ 5, 135 N.M. 458, 90 P.3d 477. As we engage in this plain language analysis, we must be mindful “not [to] read into a statute any words that are not there, particularly when the statute is complete and makes sense as written.” State v. Trujillo, 2009-NMSC-012, ¶ 11, 146 N.M. 14, 206 P.3d 125. In light of any ambiguity, we may consider the history and background of the statute. See, e.g., State v. Rivera, 2004-NMSC-001, ¶ 13, 134 N.M. 768, 82 P.3d 939; Javier M., 2001-NMSC-030, ¶ 31; Cleve, 1999-NMSC-017, ¶ 8.
{96} As we look to Sections 2-3-3, -4, and -5, we must, in accordance with our principles of statutory construction, ascribe legislative effect to those statutes. In doing so, we first look at the plain language. As detailed above, the statutes largely vest the Council with administrative duties, custodial obligations for certain facilities, and the ability to aid in certain legislative functions. This is true not only of the Sections 2-3-3, -4, and -5, but for all of the sections found in Chapter 2, Article 3. See generally
{97} Even if one were to find ambiguity in Sections 2-3-3, -4, and -5, the statutory history of the Council would resolve that ambiguity. See Truong v. Allstate Ins. Co., 2010-NMSC-009, ¶ 33, 147 N.M. 583, 227 P.3d 73 (“[W]e consider the statute‘s history and background insofar as it may help to give effect to the Legislature‘s intent and aid us construing [a statute].” (internal quotation marks and citation omittеd)). The Council assumed the various duties of the capitol buildings improvement commission, see NMSA 1953, §§ 6-2-1 to -24, and the capitol custodian, see NMSA 1953, §§ 6-1-10 to -17. See also
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice