NM Supreme Court denies petition for open special session

The New Mexico Supreme Court ruled Tuesday in a 3-2 decision that the state Legislature can hold a special session without allowing in-person attendance from the public. 

The decision was a result of a petition filed on behalf of a long list of state lawmakers by Albuquerque-based attorney Blair Dunn. The petitioners argued that this week’s special legislative session should be physically open to the public, not just online. With the backdrop of the current COVID-19 pandemic, legislative leadership announced earlier this month that the state capitol building would be closed to the public, with some exceptions for members of the press.  

The high court issued a written order, but no written opinion. Chief Justice Judith Nakamura, the only Republican on the court sided with Justices Barbara Vigil and Michael Vigil. Justices Shannon Bacon and David Thomson dissented.

Lawsuit claims public health order prevented important surgery

A Bernalillo County man filed a lawsuit Wednesday against the state after his scheduled surgery was cancelled in order to comply with one of the state’s COVID-19 public health orders. 

Edward Tsyitee, through his lawyer Blair Dunn, said he was scheduled for surgery to remove his gallbladder on April 13, but was denied by two different medical facilities because the state’s current public health order includes “Temporary Restrictions on Non-Essential Health Care Services, Procedures, and and Surgeries.”

In a sworn affidavit, Tsyitee recounted that in December 2018, during a visit to the emergency room, he was told he had gallstones and that a doctor advised him to schedule a surgery to remove his gallbladder. But days before his surgery, Tsyitee said his doctor called to tell him the surgery was postponed because of the state’s public health order. 

“Gallbladder surgery, while listed as an elective surgery, has become necessary for me to maintain my life and health,” Tsyitee wrote. “I am in pain, and suffering other medical issues due to the fact that I cannot have my gallbladder removed at this time.”

According to his affidavit, Tsyitee went to a second emergency medical center because he was suffering from “rectal bleeding” about 10 days after his surgery was cancelled. 

“I was concerned that I was suffering internal bleeding due to the gallbladder issues,” Tsyitee wrote. 

But testing showed there was no internal bleeding and doctors again sent him home. 

Along with the lawsuit seeking damages, Tsyitee also filed a request for a temporary restraining order to allow him to go in for surgery. 

A Department of Health spokesperson told NM Political Report that he department does not comment on pending litigation. 

A March 24 update to the state’s public health order specified that “non-essential” meant procedures that could be postponed for three months without putting a person in danger of further complications. 

The state’s public health order was amended on May 1 to allow for some non-essential procedures with the condition that medical centers follow current guidelines for limiting the spread of COVID-19.

A balance between liberty and safety during a pandemic

Current state restrictions, and more looming, due to the emergence of COVID-19 in New Mexico raises the question for some people: Is this legal? Since Gov. Michelle Lujan Grisham declared an emergency earlier this month, she has ordered purchasing restrictions, limited group gatherings and ordered restaurants to limit service to take-out only. 

While at least one New Mexico scholar and the New Mexico American Civil Liberties Union agree that the governor’s actions can be justified, an Albuquerque attorney does not and has said he is working towards challenging the order in court. 

Matthew Simpson, who teaches political theory at the University of New Mexico, said there’s a balance in U.S. government between public safety and personal freedoms, and in times of crisis, safety usually wins.  

“The measures that might be best for promoting people’s well being isn’t really compatible with maximizing their liberties and so government officials have to try to balance those two and have to weigh them against each other,” Simpson said. “I think at the end of the day protection of life has to take precedence, and usually does take precedence, over the protections of liberty, just because you can’t have liberty if you’re not alive.”

Simpson added that even though New Mexicans are currently restricted from physically gathering in groups of more than ten, their right to assemble is arguably not being violated. “The government isn’t saying you can’t talk to people about your common concerns, they’re just saying you can’t engage in these behaviors that are going to be vectors for this deadly disease,” Simpson said. 

But that doesn’t mean putting public safety above rights always works out, he said. The Supreme Court sided with President Franklin Delano Roosevelt when faced with whether U.S. Japanese internment camps during World War II violated personal rights. 

“I think with the benefit of hindsight, almost everybody thinks that that was just a fundamental violation of rights,” Simpson said.

ABQ city councilors introduce gun legislation

Three Albuquerque city councilors announced they filed three proposed ordinances related to gun possession in the council chambers, storage of guns and threats of violence online. 

Councilors Pat Davis, Isaac Benton and Diane Gibson held a press conference Wednesday afternoon to present their proposals. 

One ordinance would prohibit guns at functions like city council or county commission meetings and public forums, like town hall meetings with constituents. 

Gibson said many city meetings get heated and some of her constituents have expressed concern for their safety.   

“Many of these gatherings involve a lot of emotions, people are very passionate,” Gibson said. “It’s already a highly charged situation at many of these venues.”

Another ordinance would make it a misdemeanor to leave a gun accessible to others without some sort of lock or device that would prevent the use of it. 

“When you lay a gun down and walk away, we want to be sure it’s not accesible for a kid who can use it, someone who commits suicide or a bad guy who sees it as a target to take,” Davis said. 

Davis, a former police officer, added that simply locking it in a vehicle would not be compliant with the proposal, noting that many guns are stolen out of owners’ cars. 

“If it’s in your car it just needs to be secure and so it can’t be operable,” Davis said. “You can’t shoot a gun that doesn’t shoot bullets.”

The third ordinance would extend a city ordinance prohibiting threats of violence to online platforms. 

One Albuquerque attorney said the councilors would be violating the state constitution if the proposals passed. 

Blair Dunn, who has a history of suing state agencies, said he’s already preparing a case against the councilors. 

“They can’t do it, it’s against the constitution,” Dunn said. 

Indeed, New Mexico’s constitution includes a provision that only allows gun laws on the state level. 

But during the councilor’s press conference, Davis said he and his colleagues are prepared to defend their legislation. 

“We believe we have a defendable case and we’re willing to take it as far as we have to in order to keep our city safe,” Davis said. 

Dunn is already representing a group that is suing New Mexico’s secretary of state and attorney general for denying an attempt to overturn a state gun law through a petition process. 

Regardless, the proposals will need more support than from the three councilors to get a shot at passing.

NM group files suit against Sec. of State and AG over referendum process

A group of New Mexicans filed a lawsuit Thursday afternoon against two state officials who rejected numerous attempts to start the process to overturn laws passed in this year’s legislative session.   

The lawsuit, filed by former Libertarian attorney general candidate Blair Dunn on behalf of a group called the New Mexico Patriot Advocacy Coalition, asks a state district court judge in Curry County to deem actions taken by the two elected officials as unconstitutional. The lawsuit claims New Mexico Secretary of State Maggie Toulouse Oliver, in consultation with state Attorney General Hector Balderas, violated the rights of New Mexicans by denying 10 attempts to overturn recently passed laws. The state constitution allows for a referendum process in which petition signatures are gathered to overturn laws, though the process is rarely used and has only been successful once in state history. 

Previous attempts by House Minority Leader Jim Townsend, R-Artesia, to overturn gun restriction laws were also rejected. Townsend’s three attempts were denied by Toulouse Oliver for what she called technical errors and on the grounds that the state’s process for referendums to reverse laws does not apply to laws “providing for the public peace, health and safety.” One of Townsend’s attempts to overturn a gun background check law is among the ten instances the coalition says Toulouse wrongfully denied. The other petition attempts, filed by the coalition, aimed to overturn laws ranging from the recent minimum wage increase, election changes and a law that shot down the ability for local governments to enact right-to-work laws.

Dems dominate statewide races

Democrats swept statewide races on Election Day, and will control not just the governor’s office and all of the executive agencies, but also independent state agencies that oversee everything from state funds to state lands. Democratic incumbent Tim Eichenberg easily won the race for State Treasurer over Republican Arthur Castillo and Democrat Brian Colón defeated Republican Wayne Johnson for State Auditor. In the three-way race for Attorney General, Democratic incumbent Hector Balderas beat Republican Michael Hendricks and Libertarian Blair Dunn. And another Democratic incumbent, Maggie Toulouse Oliver defeated Republican Gavin Clarkson and Libertarian Ginger Grider to hold on to the Secretary of State seat. The closest statewide race on Election Day was for State Land Commissioner.

NM Supreme Court strikes down straight-party voting

The New Mexico Supreme Court unanimously struck down a controversial proposal to add a straight-party option to November’s ballot. Secretary of State Maggie Toulouse Oliver announced last month that she would reinstate an option on November’s ballot to allow people to vote for all candidates of a given party with one mark on the ballot. That decision was challenged by the Libertarian and Republican parties of New Mexico, along with a Utah-based political action committee, a non-profit advocate group for independent candidates and one Democratic write-in candidate. On Wednesday, Chief Justice Judith Nakamura called it a tough decision, but said only state lawmakers can add add straight-party voting to the ballot. “Until the legislature makes a decision one way or the other, the Secretary of State cannot,” Nakamura said.

The first campaign finance reports of general election are in for governor, other races

Campaign finance reports filed Monday showed positives for both gubernatorial candidates, with the Republican showing a lead with money left, but the Democrat raised, and spent, more money. Republican nominee Steve Pearce finished the campaign finance period—which lasted from July 1 to Sept. 3—with nearly $1.9 million cash-on-hand for the final two months of the race. This was well ahead of the $1.2 million cash-on-hand for his opponent, Democrat Michelle Lujan Grisham. Lujan Grisham, however, raised $1.9 million in the period and spent almost $1.5 million.

Libertarians miss general election ballot for governor

New Mexicans likely won’t see a Libertarian candidate for governor on the ballot in November. While still unofficial, the results of a recount conducted Wednesday show the party’s primary candidates for those races lacked enough write-in votes to make it onto the general election ballot. Bob Walsh, a gubernatorial hopeful, and Robin Dunn, running for lieutenant governor, both entered the race on the Libertarian ticket after the filing deadline, forcing them to run as write-in candidates. Per state law, Walsh and Dunn each needed 230 votes in the primary election to be included as candidates in November. Walsh was short by 44 votes, and Dunn by 40, to make it onto the general election ballot.

Dem Guv candidates raise big money as primary nears

Two of the three candidates seeking the Democratic nomination for governor have over $1.5 million cash on hand for the final stretch before the primary election on June 5. Early voting has already started. State Sen. Joseph Cervantes has now loaned his own campaign over $2 million and raised only about $15,000 from others. He now has $1.65 million cash on hand. U.S. Rep. Michelle Lujan Grisham raised over $410,000 and spent nearly $640,000 between April 3 and May 7.