As the New Mexico Legislature enters its third week, the back-and-forth wrangling over whether the House of Representatives is following constitutional rules in running a virtual session is still playing out.
Lawyers for House Speaker Brian Egolf, D-Santa Fe, and the Legislative Council filed a response over the weekend asking the state Supreme Court to dismiss a lawsuit filed by House Republicans that claims rule changes allowing House members to participate remotely violates the New Mexico Constitution.
The reason, they argued in a 31-page response, is that it’s not the court’s purview to intervene in legislative affairs, such as how lawmakers choose to run the annual session.
Nor can Egolf or the Legislative Council be considered parties in the complaint, the response says, since it was up to the full House of Representatives to vote to approve the temporary rules giving lawmakers the right to take part from their offices or homes via Zoom.
“At the core of the legislature’s ‘essential function’ is the exclusive power granted to each chamber to fashion rules under which the legislative body will function,” lawyers for the defense wrote in their response.
“The Court has traditionally respected the procedures adopted by the legislature and has declined, based on separation of powers concerns, to consider constitutional challenges to those procedures,” they wrote.
The response goes on to say the petitioners have not made it clear how participating remotely — which is an option, not a requirement — restricts their rights. It also says the decision to set temporary rules to offer House members the chance to avoid the state Capitol during the COVID-19 pandemic protects those lawmakers and reduces the chance of spreading the virus.
“The risk of an outbreak at the Capitol is a far greater threat to members ‘full participation rights’ than allowing members to attend the session via a videoconferencing service,” the lawyers wrote.
House Republicans contested the rule changes even before they were imposed, charging that members of the public have a right to be present for the session.
House Minority Leader Jim Townsend, R-Artesia, and Reps. Rod Montoya, R-Farmington, and Larry Scott, R-Hobbs, filed the lawsuit, which also asked the Supreme Court to issue a stay to the legislative proceedings until the court made a final decision.
Early last week, justices declined to permit the stay and gave Democrats until Feb. 7 to file a response.
In an email Monday, Rep. Daymon Ely, D-Corrales, wrote that Democrats “filed a response in support of House rule changes which constitutionally prioritize the health and safety of members and staff, while providing high levels of transparency and historic public participation.”
He said he “eagerly” awaits a final decision from the Supreme Court.
Efforts to reach Townsend for comment were unsuccessful. Montoya and Scott said early Monday evening they had not seen the Democrats’ response.