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New Mexico

Open Courts Compendium

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Author

Nicole T. Russell
Christina C. Sheehan
Modrall, Sperling, Roehl, Harris & Sisk, P.A.
500 4th St NW Suite #1000
Albuquerque, NM 87102

Pat Rogers
Patrick J. Rogers, LLC
20 First Plaza Center NW
Albuquerque, NM 87102

Last updated Sept. 4, 2019

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I. Introduction: Access rights in the jurisdiction

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A. The roots of access rights

As a threshold matter, both the United States Constitution and the New Mexico Constitution guarantee a criminal defendant the right to a public trial. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. This guarantee is reinforced by state rules that set forth specific carve-outs to the presumption of both courtroom and record access for criminal matters. In accordance with the common law, New Mexico statutes and rules likewise extend the presumption to civil proceedings. Thomas v. Thomas, 1999-NMCA-135, ¶ 28, 128 N.M. 177, 185, 991 P.2d 7, 15 (“[t]he favored public policy expressed in the rule is also a principle of common law.”); see State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 10, 98 N.M. 109, 111, 645 P.2d 982, 984 (“The right to inspect and copy judicial records was recognized at common law.”).

Under common law, whether the general public might be excluded from a trial was a matter within the discretion of the trial court, State v. Velasquez, 1966-NMSC-037, ¶ 10, 76 N.M. 49, 52, 412 P.2d 4, 6, and the right of media to inspect judicial records did not extend beyond that generally available to the public. Bingaman, 1982-NMSC-059, ¶ 13, 98 N.M. at 111, 645 P.2d at 984. New Mexico then adopted the Tenth Circuit’s holding in United States v. Hickey, 767 F.2d 705 (10th Cir. 1985) that there was a common law right to inspect and copy judicial records, and explained that the purpose behind the right is to aid in preserving the integrity of the judicial process. See Thomas, 1999-NMCA-135, ¶ 1. The New Mexico court found that, “[a]lthough there are exceptions to both the rule and the common law right, such as when competing interests outweigh the need for access to court files, we see no such reason in this case for the court to have diverged from the standard policy of allowing public access to court files.” Id. ¶ 28; see also Bingaman v. Brennan, 1982-NMSC-059, ¶ 10, 98 N.M. at 111, 645 P.2d at 984.

The common law reflecting a presumption of public access to both courtrooms and court records has now been incorporated into the following Rules:

  • Rule 1-104 NMRA: Courtroom Closure (Rules of Civil Procedure for the Magistrate Courts)
  • Rule 2-114 NMRA: Courtroom Closure (Rules of Civil Procedure for the Magistrate Courts)
  • Rule 3-114 NMRA: Courtroom Closure (Rules of Civil Procedure for the Metropolitan Courts)
  • Rule 5-124 NMRA: Courtroom Closure (Rules of Criminal Procedure for the District Courts)
  • Rule 6-116 NMRA: Courtroom Closure (Rules of Criminal Procedure for the Magistrate Courts)
  • Rule 7-115 NMRA: Courtroom Closure (Rules of Criminal Procedure for the Metropolitan Courts)
  • Rule 8-114 NMRA: Courtroom Closure (Rules of Procedure for the Municipal Courts)
  • Rule 12-322 NMRA: Courtroom Closure (Rules of Appellate Procedure)
  • Rule 1-079 NMRA: Public Inspection and Sealing of Court Records (Rules of Civil Procedure for the District Courts)
  • Rule 1-079.1 NMRA: Public Inspection and Sealing of Court Records; Guardianship and Conservatorship Proceedings (Rules of Civil Procedure for the District Courts)
  • Rule 2-112 NMRA: Public Inspection and Sealing of Court Records (Rules of Civil Procedure for the Magistrate Courts)
  • Rule 3-112 NMRA: Public Inspection and Sealing of Court Records (Rules of Civil Procedure for the Metropolitan Courts)
  • Rule 5-123 NMRA: Public Inspection and Sealing of Court Records (Rules of Criminal Procedure for the District Courts)
  • Rule 6-114 NMRA: Public Inspection and Sealing of Court Records (Rules of Criminal Procedure for the Magistrate Courts)
  • Rule 7-113 NMRA: Public Inspection and Sealing of Court Records (Rules of Criminal Procedure for the Metropolitan Courts)
  • Rule 8-112 NMRA: Public Inspection and Sealing of Court Records (Rules of Procedure for the Municipal Courts)
  • Rule 10-166 NMRA: Public Inspection and Sealing of Court Records (Children’s Court Rules and Forms)
  • Rule 12-314 NMRA: Public Inspection and Sealing of Court Records (Rules of Appellate Procedure)

The Supreme Court of New Mexico has jealously attempted to guard any perceived legislative encroachment on court “procedures.” The Supreme Court Rules in New Mexico take on more significance than legislative statutes for purposes of many “open court” issues. In Ammerman v. Hubbard Broad., Inc., the New Mexico Supreme Court held rules of privilege and procedure to be the exclusive domain of the judiciary. 1976-NMSC-031, ¶ 3, 89 N.M. 307, 309, 551 P.2d 1354, 1356. As such, the Court held those statutory privileges created by the legislature to be unconstitutional. Id. Nevertheless, as the majority of the Rules discussed were promulgated in 2016, their reach and impact remain relatively untested.

New Mexico courts have found some First Amendment protection in the dissemination of discovered material, subject to the limits of Federal Rule of Civil Procedure 26(c). See Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 1, 122 N.M. 307, 924 P.2d 273. In Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 1, 144 N.M. 601, 190 P.3d 322, the court noted that while the right to disseminate discovered material receives “some [First Amendment] protection, judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context” (internal citations omitted).

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B. Overcoming a presumption of openness

Court Access: Rule 1-104 New Mexico Rules Annotated (“NMRA”) mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in New Mexico Statutes Annotated (“NMSA”) 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); (3) proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and (4) pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625.

An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104(A). Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Rule 1-104(C). If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Id. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id. An order for closure must be in writing, shall articulate the interest protected and specify the court’s findings underlying the order.

Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2) the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Rule 1-104(E).

Court Records: Pursuant to Rule 1-079 NMRA, “court records are subject to public access unless sealed by order of the court.” The following court records shall be automatically sealed without motion or order of the court:

“(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Subsection A of Section 32A-5-8 NMSA 1978;

(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;

(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;

(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-31 NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;

(5) proceedings commenced under the Mental Health and Developmental Disabilities Code, Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;

(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been submitted to informal or formal probate proceedings. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;

(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged incapacitated person under Chapter 45, Article 5, Part 3 NMSA 1978, as provided in Rule 1-079.1 NMRA;

(8) proceedings commenced for the appointment of a conservator under Chapter 45, Article 5, Part 4 NMSA 1978, as provided in Rule 1-079.1 NMRA;

(9) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978; and

(10) proceedings commenced under the Assisted Outpatient Treatment Act, Chapter 43, Article 1B NMSA 1978, subject to the disclosure requirements in Section 43-1B-14 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”

Rule 1-079(C) NMRA. A court order must establish that:

“(a) the existence of an overriding interest overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079(G) NMRA. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

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C. Procedural prerequisites to closure

Court Access: Pursuant to Rule 1-104 NMRA (civil proceedings) and Rule 5-124 NMRA (criminal proceedings), motions for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Rule 1-104(A); Rule 5-125(A). For criminal proceedings, “a written motion for courtroom closure shall be filed and served at the time of arraignment or within ninety (90) days thereafter, unless upon good cause shown the court waives the time requirement.” Rule 5-124(B)(2).

If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Rule 1-104(B)(1); Rule 5-124(C)(1). If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Rule 1-104.

An order for closure must be in writing and articulate the interest protected, specifying the court’s findings underlying the order. The court may at its discretion continue a courtroom proceeding to allow time to file written responses or replies. Id. The court shall hold a hearing on the pleadings—unless the motion has been denied on its face—for which timely notice must be given to media organizations, persons, and entities that have requested to receive notice. Any member of the public must be permitted a reasonable opportunity to be heard at the hearing. Id.

To the extent that sensitive or confidential information relevant to the motion arises at the hearing, the court may hold part of the hearing in camera; the record of this review shall be preserved under seal for appellate review and shall not be revealed without an order of the court. Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2) the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Id.

Court Records: Rule 1-079 NMRA (civil proceedings) and Rule 5-123 NMRA (criminal proceedings) set forth the procedural requisites for record closure. Pursuant to both rules, “court records are subject to public access unless sealed by order of the court.” Any party or member of the public may file a motion for an order sealing the court record.

That motion should—as applicable—identify any relevant statute, regulation, rule, or source of law that addresses access to court records. Any party or member of the public may file a response to the motion to seal. Such a record filed must be secured in an envelope or other appropriate container by the movant and lodged with the court, which the movant shall label as “CONDITIONALLY UNDER SEAL” and affix to the envelope or container a cover sheet that contains the information required under Rules 1-008.1 and 1-010 NMRA, and which states that the enclosed court record is subject to a motion to seal. Rule 1-079(F); Rule 5-123(F). The clerk shall then endorse the cover sheet with the date of its receipt and shall retain but not file the court record unless the court orders it filed.

If the court grants an order sealing a court record, the clerk shall substitute the label provided by the movant on the envelope or container with a label prominently stating “SEALED BY ORDER OF THE COURT ON (DATE)” and shall attach a file-stamped copy of the court's order. Pending the court’s ruling, the lodged record will be conditionally sealed. Rule 1-079(F); Rule 5-123(F).

The court may order that a record be filed under seal to the extent that it finds and articulates:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079(D) NMRA; Rule 5-123(G) NMRA. The order shall require the sealing of the record only to the extent necessary. Rule 1-079(D); Rule 5-123(G). The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Rule 1-079(D); Rule 5-123(G).

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II. Procedure for asserting right of access to proceedings and records

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A. Media standing to challenge closure

The media, like any other interested member of the public, has standing to file a written response to any motion to close court proceedings or seal court records. Further, “[m]edia organizations, persons, and entities that have requested to receive notice of proposed courtroom closures shall be given timely notice of the date, time, and place of any [such] hearing.” Rule 1-104 (D)(1) NMRA. The media, however, has no right to intervene as a party in a criminal case. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303.

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B. Procedure for requesting access in criminal cases

Court Access: Both the United States Constitution and the New Mexico Constitution guarantee a criminal defendant the right to a public trial. See U.S. Const. amend. VI; N.M. Const. art. II, § 14. Consistent with these constitutional rights, New Mexico statutes require all courtroom proceedings to be open to the public unless otherwise provided by law. Rule 5-124 NMRA (citing NMSA 1978, § 34-1-1 (1851)). Pursuant to Rule 5-124, any member of the public opposing a motion for courtroom closure may file a written response to the motion at any time before the requisite hearing; any party in opposition may file a response within fifteen (15) days after the motion. Unless the court denies the motion on the pleadings, a public hearing on the motion shall be held. Media organizations, persons, and entities that have requested to receive notice shall be given timely notice of the date, time, and place of the hearing.

Court Records:  Prior to sealing, Rule 5-123 NMRA allows for any party or member of the public to file a response to the motion to seal under Rule 5-120 NMRA. After a court record has been sealed, “[a] party or member of the public may move to unseal . . . A copy of the motion to unseal is subject to the provisions of Rule 5-120 NMRA and shall be served on all persons and entities who were identified in the sealing order.” Rule 5-123(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 5-123(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id. Finally, the media has no right to intervene as a party in a criminal case. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303.

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C. Procedure for requesting access in civil matters

Court Records:  Court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure by statute. Rule 1-079 NMRA. Just as any party or member of the public may file a motion for an order sealing the court record, any party or member of the public may file a response to the motion to seal. Id. Following a court order to seal the record or discrete parts thereof, a party or member of the public may move to unseal a sealed court record. Id.  “When applicable, the motion should identify any statute, regulation, rule, or other source of law that addresses access to court records in the particular type of proceeding. A copy of the motion to unseal shall be served on all persons and entities who were identified in the sealing order.” Rule 1-079(I) NMRA. In determining whether to unseal, the court will consider the same factors that dictate sealing:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079(G) NMRA. “If the court grants the motion to unseal a court record, the order shall state whether the court record is unsealed entirely or in part.” Id.

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D. Obtaining review of initial court decisions

Protective orders issued by New Mexico trial courts will only be reversed or modified upon a finding of abuse of discretion by those courts. Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 13, 122 N.M. 307, 311, 924 P.2d 273, 277. In King v. Allstate Ins. Co., the court held that an order granting or denying a motion for a protective order cannot be reviewed by writ of error. 2004–NMCA–031, ¶ 1, 135 N.M. 206, 86 P.3d 631. Rather, such protective orders might only be appealed if they are certified by the trial court for an interlocutory appeal or as of right from a contempt citation for failure to comply. Id. ¶ 19.

Any court records sealed pursuant to Rule 1-079 NMRA or Rule 5-123 NMRA remain sealed even if subsequently forwarded to the appellate court as part of the record on appeal. However, sealed court records may be reviewed by the appellate court judges and staff unless otherwise ordered by the appellate court. Any other motions requesting modification to a sealing order in a case on appeal must be filed with the appellate court. Rule 1-079 NMRA; Rule 5-123 NMRA.

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III. Access to criminal proceedings

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A. In general

Consistent with federal and State constitutional rights, U.S. Const. amend. VI; N.M. Const. art. II, § 14, New Mexico statutes require all courtroom proceedings to be open to the public unless otherwise provided by law. NMSA 1978, § 34-1-1 (1851) (“Except as provided in the Children's Code [NMSA 1978, § 32A-1-1] and in other laws making specific provisions for exclusion of the public, all courts of this state shall be held openly and publicly, and all persons whatsoever shall be freely admitted to the courts and permitted to remain so long as they shall observe good order and decorum.”).

The Committee Commentary for Rule 5-124 NMRA addresses its procedures:

“The prerequisites to a courtroom closure order . . . are taken from State v. Turrietta, 2013-NMSC-036, ¶¶ 17, 19, 308 P.3d 964, which provides that the court cannot order a full or partial closure of the courtroom unless the closure is warranted under the four-factor “overriding interest” standard set forth in Waller v. Georgia, 467 U.S. 39 (1984). Under Waller,

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the district court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.”

As in civil proceedings, the courts must consider reasonable alternatives to closure. Id. (“For example, if the alleged overriding interest is the potential for witness intimidation, reasonable alternatives to closure might include ‘screening observers, admonishing spectators of possible criminal sanctions, the wait-and-see method, or increased security in the courtroom.’”).

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B. Pretrial proceedings

New Mexico embraced the Supreme Court’s holding in Press-Enterprise Co. v. Super. Ct. (Press-Enterprise II), 478 U.S. 1 (1986) that access to criminal proceedings applies to preliminary hearings. Further, preliminary proceedings cannot be closed unless specific, on the record findings are made demonstrating a “reasonable likelihood” exists that access would deprive defendant of a fair trial (lesser burden then the “substantial probability” test required by First Amendment). N.M. Const. art. II, § 14 (citing Press-Enterprise Co. v. Superior Court of California, 478 U.S. 1 (1986)). Finally, New Mexico follows the Supreme Court’s ruling in Neb. Press Ass’n v. Stuart, 427 U.S. 539 (1976), to hold that pretrial publicity, even pervasive, adverse publicity, does not inevitably lead to an unfair trial. See, e.g., State v. Vasquez, 2010-NMCA-041, ¶ 38, 148 N.M. 202, 213, 232 P.3d 438, 449 (citing State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991) (“Exposure of venire members to publicity about a case by itself does not establish prejudice.”).

New Mexico Rules support the common law tradition. Because “[a]ll courtroom proceedings shall be open to the public unless the courtroom is closed by an order of the court entered under this rule,” Rule 5-124(A) NMRA, it follows that pretrial proceedings are accessible to the public as well.

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C. Criminal trials

Consistent with federal and state constitutional rights, U.S. Const. amend. VI; N.M. Const. art. II, § 14, New Mexico statutes require all courtroom proceedings to be open to the public unless otherwise provided by law. NMSA 1978, § 34-1-1 (1851) (“Except as provided in the Children's Code [32A-1-1 NMSA 1978] and in other laws making specific provisions for exclusion of the public, all courts of this state shall be held openly and publicly, and all persons whatsoever shall be freely admitted to the courts and permitted to remain so long as they shall observe good order and decorum.”).

The Committee Commentary for Rule 5-124 NMRA sets forth the procedures:

“The prerequisites to a courtroom closure order . . . are taken from State v. Turrietta, 2013-NMSC-036, ¶¶ 17, 19, 308 P.3d 964, which provides that the court cannot order a full or partial closure of the courtroom unless the closure is warranted under the four-factor “overriding interest” standard set forth in Waller v. Georgia, 467 U.S. 39 (1984). Under Waller,

(1) the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, (2) the closure must be no broader than necessary to protect that interest, (3) the district court must consider reasonable alternatives to closing the proceeding, and (4) it must make findings adequate to support the closure.”

As in civil proceedings, the courts must consider reasonable alternatives to closure. Id. (“For example, if the alleged overriding interest is the potential for witness intimidation, reasonable alternatives to closure might include ‘screening observers, admonishing spectators of possible criminal sanctions, the wait-and-see method, or increased security in the courtroom.’”).

In 1982, the New Mexico Supreme Court held in State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303, that when restrictions on media coverage are sought for criminal trials, proponents of the ban must specify reasons for and show cause for such a limitation. Kaufman determined that in deciding to impose restrictions on media coverage of a criminal prosecution, the trial court must weigh competing interests of the defendant and the public to determine if the limitation sought would be effective in protecting the interests threatened and if it would be the least restrictive means available. Further, Kaufman held that the court is charged with the duty of considering all reasonable alternatives to limiting media coverage.

Finally, the court’s consideration of these issues should be in the court record and some minimum form of notice should be provided to the media before restrictions are placed to their access of a criminal prosecution. The court noted that this notice should take place at a hearing, where those present have the opportunity to object. Id. ¶ 20 (citing N.M. Const. art. II, § 17; U.S. Const. amends. I, VI).

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D. Post-trial proceedings

The New Mexico courts have not addressed the right of access to post-trial proceedings, though pursuant to Rule 5-124 NMRA—which deems all courts of New Mexico open to the public save for those statutorily excluded—it appears that post-trial proceedings must be open. “This statute reflects the general premise that the courts operate in a forum of full disclosure, and barring exceptional circumstances, hearings in chambers are to be avoided.” N.M. Att'y Gen. Op. 72-34 (1972). Further, it is likely that the media must be provided notice of any attempt to limit their right to attend a post-trial hearing. See State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 20, 98 N.M. 261, 265, 648 P.2d 300, 304 (holding that the media must be provided notice of any attempt to limit their right to attend a hearing).

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E. Appellate proceedings

New Mexico courts have not addressed directly the issue of access to appellate proceedings but, as with post-trial proceedings, Rule 5-124 NMRA—which deems all courts of New Mexico open to the public save for those statutorily excluded—it appears that appellate proceedings would be open.  Rule 5-124 NMRA further provides that, at the trial level, “[a]ny evidence or argument tendered to the court for an in camera review that is not ordered to be disclosed shall be placed under seal and preserved for appellate review.”

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IV. Access to criminal court records

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A. In general

Pursuant to Rule 5-123 NMRA, “court records are subject to public access unless sealed by order of the court.” The following court records shall be automatically sealed without motion or order of the court:

“(a) grand jury proceedings in which a no bill has been filed under Section 31-6-5 NMSA 1978;

(b) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;

(c) proceedings commenced upon an application for an order for wiretapping, eavesdropping or the interception of any wire or oral communication under Section 30-12-3 NMSA 1978;

(d) pre-indictment proceedings commenced under Chapter 31, Article 6 NMSA 1978 or Rule 5-302A NMRA;

(e) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”

In proceedings to determine competency under NMSA 1978, Chapter 31, Article 9, the following records shall be sealed automatically without order of the court:

“(a) A motion for competency evaluation and responsive pleading;

(b) Any court record that contains the details of a competency, forensic, psychiatric, medical, or psychological assessment or evaluation;

(c) Any court record that includes the details of a treatment plan; and

(d) Any court record that includes an assessment of the defendant's dangerousness under Section 31-9-1.2 NMSA 1978 or an assessment of the defendant's risk under Section 31-9-1.6 NMSA 1978.”

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B. Arrest records

New Mexico’s Arrest Record Information Act is designed to prevent the infringement of an individual’s rights when information is inaccurate, incomplete, or disseminated irresponsibly. NMSA § 29-10-2. Arrest record information is defined as “notations of the arrest or detention or indictment or filing of information or other formal criminal charge against an individual made by a law enforcement agency.” § 29-10-3. Information in arrest records revealing confidential sources, methods, information or individuals accused but not charged with a crime is confidential. § 29-10-4.

Information available for public inspection include posters, announcements or lists for identifying or apprehending fugitives or wanted persons; original records of entry such as police blotters maintained by criminal justice agencies; published court or administrative opinions or public judicial, administrative or legislative proceedings; records of traffic offenses and accident reports; announcements of executive clemency; and statistical or analytical records or reports in which individuals are not identified and from which their identities are not ascertainable. § 29-10-7(A). A law enforcement agency is not prohibited from confirming prior arrest record information to members of the news media or any other person, upon specific inquiry as to whether a named individual was arrested, detained, indicted or whether another formal charge was filed on a specified date, if the arrest record information disclosed is based on data enumerated by Section 29-10-7(A), (B).

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C. Dockets

Pursuant to the New Mexico Federal Court Rules, the public may access an electronic docket under the “one free look” opportunity. District of New Mexico, Administrative Procedures Manual 7 (2017), https://www.nmd.uscourts.gov/sites/nmd/files/NMD_APM.pdf. The electronic docket and documents are available during regular business hours at public computer terminals located at each Clerk’s Office. Id. When a guardian is appointed for an incapacitated person or upon the appointment of a conservator, records, reports and evidence submitted to the court or recorded by the court shall be confidential, except that the public shall be granted access to some information, including docket entries. NMSA 1978, § 45-5-303(I); § 45-5-407(M).

Pursuant to state court rules, the docket number and case type for the categories of cases listed in this paragraph shall not be sealed without a court order. Rule 1-079 NMRA. “When docketing a motion to seal, the clerk's docket entry should be part of the publicly available register of actions and should reflect that a motion to seal was filed, the date of filing, and the name of the person or entity filing the motion.” Id. However, “any docket entries related to the motion to seal should avoid including detail that would disclose the substance of the conditionally sealed material before the court has ruled.” Id.

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Pursuant to NMSA 1978, Section 30-12-9,

“Any investigative or law enforcement officer who, by any means authorized by this act, has obtained knowledge of the contents of any wire or oral communication, or evidence derived therefrom, may . . . disclose such contents to another investigative or law enforcement officer to the extent that such disclosure is appropriate to the proper performance of the official duties of the officer making or receiving the disclosure; [and] . . . [a]ny person who has received, by any means authorized by this act, any information concerning a wire or oral communication, or evidence derived therefrom, intercepted in accordance with the provisions of this act, may disclose the contents of that communication or such derivative evidence while giving testimony in any criminal proceeding in any court of this state or in any grand jury proceeding.”

Outside these constraints, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 13, 98 N.M. 109, 111, 645 P.2d 982, 984. To this end, New Mexico courts have denied access to surveillance records when those records were not introduced at the suppression hearing, under seal or otherwise, and the case was disposed of by guilty plea. Id. Physical evidence, documents, wiretaps and video recordings which are not marked as exhibits or received into evidence are not “public records,” nor are items submitted for court examination for in camera inspection. NMSA 1978, §§ 30-12-1 to -14; N.M. R. Evid. 510(c).

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E. Discovery materials

In New Mexico, discovery materials likely will not become public record unless they are introduced or utilized in open court during criminal or civil proceedings. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 13, 98 N.M. 109, 111, 645 P.2d 982, 984 (finding that under the Abuse of Privacy Act, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions). Once they are introduced during criminal or civil proceedings, they become part of the record, and, as such, enjoy the presumption of access by the public. Rule 5-123(A) NMRA.

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F. Pretrial motions and records

The New Mexico courts have not specifically ruled on this issue, although the Tenth Circuit held in United States v. McVeigh, 119 F.3d 806, 813 (10th Cir. 1997) that “the press and public have a right of access to pretrial release proceedings and documents filed therein.” Further, Rule 5-123 NMRA states that “court records are subject to public access unless sealed by order of the court,” and defines “court record” as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case.” Rule 5-123(B) NMRA. This definition, comprising pretrial records, indicates that they are likewise subject to public access.

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G. Trial records

Rule 5-123 NMRA states that “court records are subject to public access unless sealed by order of the court,” and defines “court record” as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case.”  Rule 5-123(B) NMRA. Trial records are thus subject to public access. However, the following court records shall be automatically sealed without motion or order of the court:

“(a) grand jury proceedings in which a no bill has been filed under Section 31-6-5 NMSA 1978;

(b) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;

(c) proceedings commenced upon an application for an order for wiretapping, eavesdropping or the interception of any wire or oral communication under Section 30-12-3 NMSA 1978;

(d) pre-indictment proceedings commenced under Chapter 31, Article 6 NMSA 1978 or Rule 5-302A NMRA;

(e) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”

Outside the aforementioned exclusions, those seeking record closure must file a motion for an order sealing the court record, through which they show:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 5-123(G) NMRA.

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H. Post-trial records

The New Mexico courts have not specifically ruled on this issue. However, Rule 5-123 NMRA states that “court records are subject to public access unless sealed by order of the court,” and defines “court record” as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case.”  Rule 5-123(B) NMRA. This definition, comprising post-trial records, indicates that they are likewise subject to public access.

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I. Appellate records

The New Mexico courts have not specifically ruled on this issue. However, Rule 5-123 NMRA states that “court records are subject to public access unless sealed by order of the court,” and defines “court record” as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case.”  Rule 5-123(B) NMRA. This definition, comprising pretrial records, indicates that they are likewise subject to public access.

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J. Other criminal court records issues

In contemplating requests to inspect public records pursuant to the Inspection of Public Records Act, New Mexico courts have found that “[n]othing in the plain language of IPRA authorizes a blanket denial of public access to records, express or implied, solely because those records are the subject of an ongoing criminal investigation.” Noll v. N.M. Dep't of Pub. Safety, No. A-1-CA-35981, 2019 WL 1615040, at *6 (N.M. Ct. App. Mar. 19, 2019). Rather, “the Legislature explicitly mandated that custodians separate exempt information from nonexempt information so that any and all nonexempt information can be made available for inspection.” Id.

While “[t]here is no statute, rule, or constitutional provision that provides for the expungement of an adult's felony record in New Mexico, Stump v. Albuquerque Police Dep't, No. S-1-SC-35912, 2017 WL 1090982, at *2 (N.M. Mar. 23, 2017), New Mexico courts have acknowledged the “inherent power” of the district courts to expunge criminal records. See, e.g., Stump, at *3; State v. Ring, No. 31,852, 2013 WL 5309899, at *4 (N.M. Ct. App. Aug. 27, 2013).

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V. Access to civil proceedings

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A. In general

Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625.

An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Id. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id. If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Id. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id.

An order for closure must be in writing, shall articulate the interest protected and specify the court’s findings underlying the order. Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2)  the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Id.

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B. Pre-trial proceedings

Prior to trial, if the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. NMRA R. 1-104. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id. Further, “[m]edia organizations, persons, and entities that have requested to receive notice of proposed courtroom closures shall be given timely notice of the date, time, and place of any hearing under this paragraph. Any member of the public shall be permitted a reasonable opportunity to be heard at the hearing.” Id.

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C. Trials

Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625. An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id.

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D. Post-trial proceedings

Rule 1-104 NMRA mandates that all courtroom proceedings be open to the public, unless the courtroom is closed automatically for: (1) adoption hearings as set forth in NMSA 1978, Section 32A-58(C); (2) proceedings to detain a person with a threatening communicable disease as set forth in NMSA 1978, Section 24-1-15(J); proceedings for testing as set forth in NMSA 1978, Section 24-2B-5.1(B); and pretrial proceedings under the New Mexico Uniform Parentage Act, as set forth in NMSA 1978, Section 40-11A-625. An agreement of the parties to close the courtroom will not suffice to overcome the presumption of openness. Rule 1-104. Rather, the motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id.

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E. Appellate proceedings

Pursuant to Rule 12-322 NMRA,

“All courtroom proceedings shall be open to the public unless the courtroom is closed by an order of the appellate court entered under this rule. An agreement of the parties to close the courtroom shall not constitute a sufficient basis for the issuance of an order for courtroom closure. Unless otherwise ordered by the court, the following persons may be present during a closed courtroom proceeding: the parties and their attorneys, court employees and security personnel, and victims and victims representatives as defined in the Victims of Crime Act, Section 31-26-3 NMSA 1978. This rule does not affect the court's inherent authority to impose reasonable time, place, and manner limitations on public access to the courtroom, including reasonable limitations on broadcasting, televising, photographing, and recording of court proceedings as set forth in Rule 23-107 NMRA.”

Like a trial court proceeding, a motion for courtroom closure must advance an interest that overrides the public’s interest in attending the proceeding. Id. If the court determines, on its own initiative, that a proceeding should be closed, the court will file and serve on each party an order to show cause why the proceeding should not be. Id. If, by contrast, a party or any other person or entity with a sufficient interest moves to exclude the public from any portion of the courtroom proceeding, a written motion must be filed and served at least forty-five days prior to the commencement of the proceeding. Opposing parties will be allowed fifteen days after service of the motion to respond, and any member of the public may file a written response at any time before the hearing. Movants will be allowed fifteen days to reply to a written response by a party. Id.

An order for closure must be in writing, shall articulate the interest protected and specify the court’s findings underlying the order. Ultimately, the court may exclude the public to the extent that it finds: (1) such order is necessary to preserve an overriding interest that is likely to be prejudiced if the courtroom is not closed; (2)  the order for courtroom closure is narrowly tailored to protect the overriding interest; and (3) the court has considered reasonable alternatives to courtroom closure. Id.

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VI. Access to civil records

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A. In general

Pursuant to Rule 1-079 NMRA, “court records are subject to public access unless sealed by order of the court.” The following court records shall be automatically sealed without motion or order of the court:

“(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Subsection A of Section 32A-5-8 NMSA 1978;

(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;

(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;

(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-31 NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;

(5) proceedings commenced under the Mental Health and Developmental Disabilities Code, Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;

(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been submitted to informal or formal probate proceedings. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;

(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged incapacitated person under Chapter 45, Article 5, Part 3 NMSA 1978, as provided in Rule 1-079.1 NMRA;

(8) proceedings commenced for the appointment of a conservator under Chapter 45, Article 5, Part 4 NMSA 1978, as provided in Rule 1-079.1 NMRA;

(9) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978; and

(10) proceedings commenced under the Assisted Outpatient Treatment Act, Chapter 43, Article 1B NMSA 1978, subject to the disclosure requirements in Section 43-1B-14 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”

Rule 1-079(C) NMRA. A court order must establish that:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079(D) NMRA. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

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B. Dockets

For purposes of Rule 1-079 NMRA, “‘court record’ means all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case.” (emphasis added). As such, no portion of the docket shall be sealed except by court order. Id. Even where statutory carve-outs to the presumption exist, “the docket number and case type for the categories of cases listed in this paragraph shall not be sealed without a court order.” Id.

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C. Discovery materials

In Spadaro v. Univ. of N.M. Bd. of Regents, 1988-NMSC-064, ¶ 8, 107 N.M. 402, 404, 759 P.2d 189, 191, the New Mexico Supreme Court held that only discovery materials deemed public records are subject to discovery under the Inspection of Public Records Act. In this case the court found that as student complaints were not public records, they were therefore not subject to discovery. In order for the public to access discovery material in New Mexico, it is likely that the material will have to be introduced or utilized in open court during a criminal or civil proceeding. See State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 14, 98 N.M. 109, 111, 645 P.2d 982, 984 (finding that under the Abuse of Privacy Act, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions).

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D. Pre-trial motions and records

The New Mexico courts have not directly addressed the presumption of access to pretrial motions and records in civil cases. However, as a general matter, “court records are subject to public access unless sealed by order of the court.” Rule 1-079 NMRA. The following court records shall be automatically sealed without motion or order of the court:

“(1) proceedings commenced under the Adoption Act, Chapter 32A, Article 5 NMSA 1978. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Subsection A of Section 32A-5-8 NMSA 1978;

(2) proceedings to detain a person commenced under Section 24-1-15 NMSA 1978;

(3) proceedings for testing commenced under Section 24-2B-5.1 NMSA 1978;

(4) proceedings commenced under the Adult Protective Services Act, Sections 27-7-14 to 27-7-31 NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;

(5) proceedings commenced under the Mental Health and Developmental Disabilities Code, Chapter 43, Article 1 NMSA 1978, subject to the disclosure requirements in Section 43-1-19 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978;

(6) wills deposited with the court pursuant to Section 45-2-515 NMSA 1978 that have not been submitted to informal or formal probate proceedings. The automatic sealing provisions of this subparagraph shall not apply to persons and entities listed in Section 45-2-515 NMSA 1978;

(7) proceedings commenced for the appointment of a person to serve as guardian for an alleged incapacitated person under Chapter 45, Article 5, Part 3 NMSA 1978, as provided in Rule 1-079.1 NMRA;

(8) proceedings commenced for the appointment of a conservator under Chapter 45, Article 5, Part 4 NMSA 1978, as provided in Rule 1-079.1 NMRA;

(9) proceedings commenced to remove a firearm-related disability under Section 34-9-19(D) NMSA 1978, subject to the firearm-related reporting requirements in Section 34-9-19 NMSA 1978; and

(10) proceedings commenced under the Assisted Outpatient Treatment Act, Chapter 43, Article 1B NMSA 1978, subject to the disclosure requirements in Section 43-1B-14 NMSA 1978 and the firearm-related reporting requirements in Section 34-9-19 NMSA 1978.”

Id.

It follows that pretrial motions and records in civil cases require the same court determination regarding the presence of an overriding interest in order to effect closure:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079 (D) NMRA. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

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E. Trial records

Rule 1-079 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that trial records are allowed the same presumption to public access. As such, trial records shall be open to the public absent statutory exclusion, see NMSA 1978 § 32A-58(C); NMSA 1978 § 24-1-15(J); NMSA 1978 § 24-2B-5.1(B); NMSA 1978 § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079. The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

The district court is given broad discretion in determining whether good cause has been shown, and reversal is permitted only for an abuse of discretion. Id. An abuse of discretion occurs only if the decision goes against the logic and effect of the facts and circumstances of the case. Id. “A district court's denial of a motion to seal is reviewed for an abuse of discretion.” Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534.

In Fred Loya Ins. Co., the New Mexico Court of Appeals found an abuse of discretion by the trial court in that court’s denial of the appellants’ motion to seal the appellee’s motion for sanctions. 2018-NMCA-022, ¶ 25. There, the sanctions motion included confidential communications pertaining to an earlier settlement conference. The appellate court’s analysis hinged on the New Mexico Mediation Procedures Act, which bars disclosure of all mediation communications. Id. Because the appellee presented no evidence below of any exception to the Act that might encompass the motion for sanctions, the district court abused its discretion in denying the motion to seal. Id.

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F. Settlement records

With respect to settlements that resolve claims against New Mexico agencies, the agreements can be obtained only following the expiration of a confidentiality period and upon request under the Inspection of Public Records Act. As of June 20, 2019, however, Governor Michelle Lujan Grisham’s administration announced an intention to publish settlements online as soon as allowable by law: either 180 days after the settlement is reached or the department closes the claim administratively. Dan McKay, NM to Start Posting Legal Settlements Online, Albuquerque Journal (June 20, 2019, 10:47 PM), https://www.abqjournal.com/1331040/nm-to-start-posting-legal-settlements-online.html. Otherwise, the New Mexico Mediation Procedures Act, NMSA 1978, Section 44-7B-4, sets forth that “all mediation communications are confidential, and not subject to disclosure and shall not be used as evidence in any proceeding.” A district court's denial of a motion to seal is reviewed for an abuse of discretion. Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534.​

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G. Post-trial records

Rule 1-079 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that post-trial records are allowed the same presumption to public access. As such, post-trial records shall be open to the public absent statutory exclusion, see NMSA 1978, § 32A-58(C); NMSA 1978, § 24-1-15(J); NMSA 1978, § 24-2B-5.1(B); and NMSA 1978, § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record;

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 1-079.

The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

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H. Appellate records

Rule 12-314 NMRA dictates that “court records are subject to public access unless sealed by order of the court or otherwise protected from disclosure under the provisions of this rule.” Because “court record” is defined as “all or any portion of a document, paper, exhibit, transcript, or other material filed or lodged with the court, and the register of actions and docket entries used by the court to document the activity in a case,” it follows that appellate records are allowed the same presumption to public access. As such, appellate records shall be open to the public absent statutory exclusion, see NMSA 1978, § 32A-58(C); NMSA 1978, § 24-1-15(J); NMSA 1978, § 24-2B-5.1(B); and NMSA 1978, § 40-11A-625, or a court order to the contrary. The order must set forth the court’s findings that:

“(a) the existence of an overriding interest that overcomes the right of public access to the court record:

(b) the overriding interest supports sealing the court record;

(c) a substantial probability exists that the overriding interest will be prejudiced if the court record is not sealed;

(d) the proposed sealing is narrowly tailored; and

(e) no less restrictive means exist to achieve the overriding interest.”

Rule 12-314.

The order shall require the sealing of the record only to the extent necessary. Id. The order shall further specify who is authorized to have access to the sealed court record and a date or event upon which it expires or shall explicitly state that the order remains in effect until further order of the court. The order shall specify any person or entity entitled to notice of any future motion to unseal the court record or modify the sealing order. Id.

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I. Other civil court records issues

If a private entity acts on behalf of a government entity, the records of that private entity will be subject to the same disclosure requirements under the Inspection of Public Records Act (“IPRA”) as the government entity. Factors to be considered in the inquiry include: (1) the level of public funding; (2) whether funds were commingled; (3) whether the activity was conducted on publicly owned property; (4) whether the services contracted for are an integral part of the public agency's chosen decision-making process; (5) whether the private entity is performing a governmental function or a function which the public agency otherwise would perform; (6) the extent of the public agency's involvement with, regulation of, or control over the private entity; (7) whether the private entity was created by the public agency; (8) whether the public agency has a substantial financial interest in the private entity; and (9) for whose benefit the private entity is functioning. State ex rel. Toomey v. City of Truth or Consequences, 2012-NMCA-104, ¶ 22, 287 P.3d 364, 370 (holding private company’s meeting recordings to be subject to disclosure requirements of IPRA pursuant to these factors).

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VII. Jury and grand jury access

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A. Access to voir dire

Neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed.  Rule 23-107 NMRA. New Mexico has ruled that prior restraint on publication concerning the names of jurors selected in criminal case must be based upon imperative circumstances supported by the record that clearly demonstrates that defendant's right to fair trial will be jeopardized. It must further demonstrate that there are no other reasonable alternatives to protect that right. The mere speculation that publishing names of jurors selected in criminal cases might expose them to intimidation during trial is insufficient reason to justify a prior restraint on the media. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 35, 98 N.M. 261, 267, 648 P.2d 300, 306 (holding that the trial court erred in restricting the publication of names of jurors selected in the case where the names were announced in open court and filed as public record).

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B. Juror identities, questionnaires and other records

In New Mexico, the judge or the judge's designee certifies a numbered list of the jury panel members' names when qualified. The certified list of jurors and the questionnaires obtained from jurors are available for inspection and copying by a party to a pending proceeding or their attorney or to any person having good cause for access to the list and the questionnaires. NMSA 1978, § 38-5-11. However, neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed.  Rule 23-107 NMRA.

New Mexico has ruled that prior restraint on publication concerning the names of jurors selected in criminal case must be based upon imperative circumstances supported by the record that clearly demonstrates that defendant's right to fair trial will be jeopardized. It must further demonstrate that there are no other reasonable alternatives to protect that right. The mere speculation that publishing names of jurors selected in criminal cases might expose them to intimidation during trial is insufficient reason to justify prior restraint on media. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 35, 98 N.M. 261, 267, 648 P.2d 300, 306 (holding that the trial court erred in restricting the publication of names of jurors selected in the case where the names were announced in open court and filed as public record).

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C. Grand jury proceedings and records

In New Mexico, all deliberations of the grand jury are to be conducted in a private room outside the hearing or presence of any person other than grand jury members.  Rule 5-114 NMRA. To this end, the presence of an unauthorized person before a grand jury requires dismissal of the indictment without any requisite showing of prejudice, so as to protect the secrecy of the proceedings and to prevent the possibility of undue influence on witnesses and jurors. Davis v. Traub, 1977-NMSC-049, ¶ 4, 90 N.M. 498, 500, 565 P.2d 1015, 1017. New Mexico courts “presume prejudice in such cases because the structural protections of the grand jury statutes preserve the integrity of the grand jury system and because, as a practical matter, evaluating actual prejudice would require a speculative inquiry and impose a difficult burden on the target and the courts.” Herrera v. Sanchez, 2014-NMSC-018, ¶ 17, 328 P.3d 1176, 1182.

Proceedings of the grand jury, other than its deliberations, are to be recorded and made available to indicted defendants. NMSA 1978, § 31-6-8; State v. Ulibarri, 1999-NMCA-142, ¶ 11, 128 N.M. 546, 550, 994 P.2d 1164, 1168, aff'd, 2000-NMSC-007, ¶ 11, 128 N.M. 686, 997 P.2d 818. Further, “[c]opies of documentary evidence or a summary thereof if directed by the district court exhibited to the grand jury shall be made a part of the record.” NMSA 1978, § 31-6-8. In cases where an indictment is not returned, however, “the notes or transcriptions shall be destroyed unless ordered by the district judge to be preserved for good cause shown, including but not limited to the prosecution of a witness for perjury.” Id.

Otherwise, and pursuant to the New Mexico Local Rules of the First Judicial District Court, grand jury records are confidential, and shall not be transcribed, made public or released by the clerk to any person, except upon written order of the court where law or the interests of justice so require. Local Rule (“LR”) 1-303(A). The audio tapes of the court reporter attending any grand jury are deposited with the clerk of the court within fifteen days after attendance. LR1-303(C). These notes or tapes remain confidential and in the custody of the clerk and are subject to rules relating to records in the custody of the clerk. Id. The Supreme Court of New Mexico has identified the public policy interests in maintaining confidentiality around the proceedings:

“(1) That the grand jurors themselves be secure in freedom from apprehension that their opinions and votes will not be subsequently disclosed; (2) that complainants and witnesses will be encouraged to appear before the grand jury and speak freely without fear that their testimony will be made public, subjecting them to possible discomfort or retaliation; (3) that those persons who are indicted will be prevented from escaping prior to arrest or from tampering with witnesses against them; and (4) to prevent disclosure of derogatory information against persons who have not been indicted.”

State v. Morgan, 1960-NMSC-087, ¶ 4, 67 N.M. 287, 289, 354 P.2d 1002, 1004.​

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D. Interviewing jurors

Although New Mexico courts have not spoken directly to the issues of interviewing petit and grand jurors, the Tenth Circuit has addressed both.  In Journal Pub. Co. v. Mechem, the court held that “the threat to justice caused by news media contact with jurors is much lower after trial than it is during trial.” 801 F.2d 1233, 1236 (10th Cir. 1986). There, the Tenth Circuit determined that the trial court could permissibly tell “jurors not to discuss the specific votes and opinions of noninterviewed jurors in order to encourage free deliberation in the jury room.” Id. New Mexico courts have not spoken directly on the permissibility nor outlined the contours of interviewing on courthouse grounds. In state court, jurors are regularly approached for interviews following a trial, although judges regularly inform them that they have no obligation to discuss the trial with the media. Per New Mexico Court Rules, neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed. Rule 23-107(A)(3) NMRA.​

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VIII. Proceedings involving minors

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A. Delinquency

New Mexico Court Rules require the automatic sealing of records when a petition for delinquency has been filed that does not result in an adjudication of delinquency and when a juvenile is released from legal custody and supervision. Rule 10-262(E)(1) NMRA. Further, records of a juvenile delinquent offender may be sealed pursuant to a motion filed with the court when (1) two years have elapsed since the final release of the person from legal custody and supervision; or two years have elapsed since the entry of any other judgment not involving legal custody or supervision; and (2) the person has not, within the two years immediately prior to the filing of the motion, been convicted of a felony or of a misdemeanor involving moral turpitude or been found delinquent by a court and no proceeding is pending seeking such a conviction or finding. NMSA 1978, § 32A-2-26(A).

A district court's denial of a motion to seal is reviewed for an abuse of discretion. Fred Loya Ins. Co. v. Swiech, 2018-NMCA-022, ¶ 16, 413 P.3d 530, 534. If two years have elapsed since a person was released from legal custody and supervision and the department has not received any new allegations of delinquency regarding the person, that person’s file and records automatically seal. NMSA 1978, § 32A-2-26(H); see State v. Doe, 1981-NMCA-097, ¶ 13, 96 N.M. 648, 650, 633 P.2d 1246, 1248 (“A movant for a sealing order may not obtain the benefit of the mandatory provisions of s 32-1-45(A), supra, by showing two ‘clean’ years, then committing felonies, and then seeking a sealing order more than two years after his felony convictions. In such a situation, sealing is discretionary, not mandatory.”).

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B. Dependency

In New Mexico, all abuse and neglect hearings are closed to the general public. NMSA 1978, § 32A-4-20. Accredited representatives of the news media may be present at closed hearings, conditioned on them refraining from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child. Id. This confidentiality duty survives despite extensive pre-hearing media coverage; thus, if the representatives cannot avoid divulging information that would identify the child, parent, guardian, or custodian, they enjoy no statutory right of access. Albuquerque Journal v. Jewell, 2001-NMSC-005, ¶ 4, 130 N.M. 64, 66, 17 P.3d 437, 439.

A child subject to an abuse and neglect proceeding that is present at a hearing may object to the presence of the media. NMSA 1978, § 32A-4-20. Further, the court may exclude the media if it finds that the presence of the media is contrary to the best interests of the child. Id. Absent a statutory right of access to the courtroom, it is within the trial court’s discretion under Section 32A-4-20(D) to decide whether to allow the media to attend proceedings. Albuquerque Journal, 2001-NMSC-005, ¶ 5, 130 N.M. at 65. The trial court judge exercises great discretion in this matter. See id.

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C. Other proceedings involving minors

In New Mexico, all hearings in adoption proceedings are confidential and are held in closed court without admittance of any person other than parties to the case and their counsel. NMSA 1978, § 32A-5-8. In Normand By & Through Normand v. Ray, 1990-NMSC-006, ¶ 14, 109 N.M. 403, 407, 785 P.2d 743, 747, the court found that the New Mexico statute providing that courts shall hold private hearing in chambers when testimony is taken from a minor in a custody case is not mandatory but evinces a legislative directive that children are not to be subject to adversarial proceedings in open court.

All hearings regarding a family in need of court-ordered services shall be closed to the general public, save for those the court finds to have a “proper interest in the case” or those “accredited representatives of the news media,” both of whom must “refrain from divulging any information that would identify the child or family involved in the proceedings.” NMSA 1978, § 32A-3B-13. All records developed thereby “shall be confidential and closed to the public.” NMSA 1978, § 32A-3B-22. Likewise, “[a]ll records or information concerning a party to a neglect or abuse proceeding” are confidential and closed to the public. NMSA 1978 § 32A-4-33.

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D. Prohibitions on photographing or identifying juveniles

In New Mexico, accredited representatives of the news media may be present at closed hearings, conditioned on them refraining from divulging information that would identify any child involved in the proceedings or the parent, guardian or custodian of that child. NMSA 1978, § 32A-4-20. Media parties granted admission to a closed hearing who intentionally divulge information can be found guilty of a petty misdemeanor. Id.

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E. Minor testimony in non-juvenile courts

In New Mexico there appears to be no automatic right to all minor testimony. Whenever testimony is taken from the minor concerning his choice of custodian, the court shall hold a private hearing in his chambers. The judge shall have a court reporter in his chambers who shall transcribe the hearing; however, the court reporter shall not file a transcript unless an appeal is taken. NMSA 1978, § 40-4-9(C).

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IX. Special proceedings

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A. Tribal Courts in the jurisdiction

In addition to the municipal and state courts, New Mexico has tribal courts that are under the jurisdiction of the reservations. The state and municipal courts generally do not have jurisdiction over these courts, as the Indian tribes and pueblos retain aspects of the inherent sovereignty they possessed prior to becoming subject to the authority of the federal government. See generally Felix S. Cohen, Cohen's Handbook of Federal Indian Law § 6.03 (Nell Jessup Newton ed. 2005). There are currently no reported state law decisions concerning public access in tribal courts.

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B. Probate

Each of New Mexico's 33 counties has a Probate Court, with one judge sitting in each court. The probate clerks of the different counties are required to keep a record book for the sole purpose of keeping an exact account, showing all the money received and specifying the object for which it was received. The same book contains a list of all warrants issued against the county treasury, and for what purpose. NMSA 1978, § 34-7-17. Within the book resides a copy of the accounts for the current year, which is open to the inspection of any citizen who may wish to examine it. NMSA 1978, § 34-7-18. Finally, the New Mexico probate courts are deemed to be always open and a complete record of its proceedings shall be kept as in other cases. See NMSA 1978, § 63-2-3.

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C. Competency and commitment proceedings

Pursuant to Rule 5-123 NMRA, the following records shall be sealed automatically without order of the court:

“(a) A motion for competency evaluation and responsive pleading;

(b) Any court record that contains the details of a competency, forensic, psychiatric, medical, or psychological assessment or evaluation;

(c) Any court record that includes the details of a treatment plan; and

(d) Any court record that includes an assessment of the defendant's dangerousness under Section 31-9-1.2 NMSA 1978 or an assessment of the defendant's risk under Section 31-9-1.6 NMSA 1978.”

In New Mexico, whenever it appears that there is a question as to the defendant's competency to proceed in a criminal case, any further proceeding in the case shall be suspended until the issue is determined. NMSA 1978, § 31-9-1. The civil commitment process, though technically a civil proceeding, has elements of both criminal and civil proceedings, a hybrid procedure. Therefore, compliance with the due process requirements, as far as burden of proof in commitment proceedings for the mentally ill is concerned, is mandated. In re Valdez, 1975-NMSC-050, ¶ 14, 88 N.M. 338, 341, 540 P.2d 818, 821.

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D. Attorney and judicial discipline

Pursuant to Rule 17-304 NMRA, “[f]ormal proceedings conducted before a hearing committee or the Disciplinary Board shall be open to the public,” and “[a]ny person may publicly comment thereon.” In Guttman v. Widman, the Tenth Circuit held that the confidentiality provisions of New Mexico Supreme Court's attorney disciplinary rules did not require the complainant to keep his own complaints about his former attorney confidential. 188 F. App'x 691, 697 (10th Cir. 2006). However, the Disciplinary Board or a hearing committee may—upon request of the disciplinary counsel, upon request of the respondent, or, on its own initiative—place under seal (1) documents, pleadings and testimony relating to the physical or mental condition or treatment of the respondent; (2) matters regarding allegations of substance abuse by the respondent; or (3) matters resulting in private discipline or dismissal pursuant to a consent to discipline agreement, the recommendation of a hearing committee, or the decision of the Disciplinary Board. Rule 17-304(C) (1–3) NMRA.

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E. Immigration proceedings

New Mexico courts have not spoken on whether immigration proceedings are presumptively open. Due to the New Mexico statute that deems all courts of New Mexico open to the public and that only excludes courts specified in the New Mexico Children’s Code and other similar laws that bar the public, however, it is likely that immigration proceedings are considered open. See NMSA 1978, § 34-1-1.

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F. Other proceedings

Pursuant to New Mexico law and effective January 1, 2020, each of the following documents is a public record open to public inspection during regular office hours in the office which the document was filed or from which it was issued:

“(1) a statement of no activity;

(2) a report of expenditures and contributions;

(3) an advisory opinion issued by the state ethics commission; except for the name of the person who requested the opinion;

(4) a document specified as a public record in the Campaign Reporting Act; and

(5) an arbitration decision issued by an arbitration panel and filed with the secretary of state or state ethics commission.”

NMSA 1978, § 1-19-32.

New Mexico courts have not addressed whether suits brought pursuant to the False Claims Act will eventually become public. As of 2007, however, “upon motion of the attorney general or political subdivision, a court may, in its discretion, dismiss an action brought pursuant to Section 44-9-5 NMSA 1978 if the elements of the alleged false or fraudulent claim have been publicly disclosed in the news media or in a publicly disseminated governmental report at the time the complaint is filed.” NMSA 1978, § 44-9-9.

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X. Restrictions on participants in litigation

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A. Media standing to challenge third-party gag orders

New Mexico has found that the press has standing to contest closure of the proceedings if closure would invade a legally protected interest of the press. See Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 1, 122 N.M. 307, 924 P.2d 27; see also State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“Cases from many jurisdictions make it clear that the news media has standing to question the validity of an order impairing its ability to report the news, even though it is not a party to the litigation below.”).​

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B. Gag orders on the press

Gag orders are not common in New Mexico. To this end, speculation that publication of juror names might expose them to intimidation during the trial is insufficient to justify prior restraint. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 264, 648 P.2d 300, 303 (“There is no question that the jury list is a public record and that the Media was entitled to inspect and publish it.”). In determining the constitutionality of the gag order, New Mexico courts must make their own inquiry into the imminence and magnitude of danger said to flow from particular utterances and then balance the character of the evil, as well as its likelihood, against the need for free and unfettered expression. Twohig v. Blackmer, 1996-NMSC-023, ¶ 13, 121 N.M. 746, 749, 918 P.2d 332, 335 (recognizing that a “prior restraint requires special judicial attention” because of a “heavy presumption against its constitutional validity.”).

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C. Gag orders on participants

In New Mexico, parties seeking gag orders must demonstrate a substantial likelihood of prejudice or clear and present danger to a fair and impartial trial. A court issuing a gag order also must first consider alternatives to less restrictive speech prohibitions than an outright ban on all communications with the media. Twohig v. Blackmer, 1996-NMSC-023, ¶ 17, 121 N.M. 746, 749, 918 P.2d 332, 335 (citing N.M. Const. art. II § 17; N.M. R. Prof’l Conduct 16-306). The court “may not use a gag order to silence a willing speaker unless it makes detailed factual findings supporting the existence of a compelling state interest and concludes that less restrictive alternatives would not advance that interest.” Albuquerque Journal v. Jewell, 2001-NMSC-005, ¶ 7, 130 N.M. 64, 67, 17 P.3d 437, 440.

Rule 1-026(C) NMRA specifically contemplates protective orders for the purpose of “limiting the discovery of a trade secret or other confidential research, development or commercial information” for “good cause.” Rule 1-026(C)(8).  Likewise, Rule 1-045 authorizes the court to quash or modify a subpoena which “requires disclosure of a trade secret or other confidential research, development or commercial information.”  Rule 1-045(C)(3)(b)(i). The New Mexico Supreme Court has specifically stated that the trial court has discretion to decline to order the production of trade secret information, even with a protective order, in instances where a recipient has previously made unauthorized disclosures of trade secrets in other cases. Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 68.

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D. Interviewing judges

There are no reported New Mexico cases regarding interviews of judges.

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XI. Other issues

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A. Interests often cited in opposing a presumption of access

Pursuant to Rule 23-107(A)(2) NMRA, the presiding district judge has sole and plenary discretion to exclude coverage of certain witnesses, including but not limited to the victims of sex crimes and their families, police informants, undercover agents, relocated witnesses and juveniles.

New Mexico provides persons the privilege of refusing to disclose and preventing others from disclosing a trade secret owned by them. Rule 11-508 NMRA. When determining whether or not to issue a protective order for alleged trade secrets, the trial court should consider the value of the information, the age of the information, and the extent of the public’s knowledge with regard to the information. Pincheira v. Allstate Ins. Co., 2008-NMSC-049, ¶ 52, 144 N.M. 601, 613, 190 P.3d 322, 334. Even when the trial court determines in its discretion that a privileged trade secret exists, the trial court may still order that it be disclosed. Id. (interpreting Rule 11-508 to allow the trial court in its discretion to order disclosure of a trade secret notwithstanding its determination that the holder has a bona fide trade secret).

The trial court’s exercise of this discretion is guided by three factors: (1) the interests of the holder of the privilege; (2) the interests of the parties to the litigation before the court; and (3) the furtherance of justice. Id. (“Thus, the trade secret privilege may, in appropriate circumstances, yield to other competing public policy values, such as requiring the courts to operate in the open and not behind a shroud of secrecy, and the right of litigants to full discovery and the subsequent full use of that discovery at trial.”). If a party resisting discovery establishes that the disputed documents are trade secrets subject to the trade secret privilege, mere relevance is inadequate to require disclosure. Id. Instead, the party requesting production must make a particularized showing that the information sought is relevant and necessary to the proof of a material element of at least one cause of action presented and that it is reasonable to conclude that the information sought is essential to a fair resolution of the lawsuit. Id.

New Mexico courts have not directly spoken to holding closed proceedings in the interest of national security. In New Mexico, sex crime trials are common examples of proper uses of discretion by the trial judge in barring the public from the courtroom. State v. Padilla, 1978-NMCA-066, ¶ 9, 91 N.M. 800, 802, 581 P.2d 1295, 1297. But see Does I through III v. Roman Catholic Church of Archdiocese of Santa Fe, Inc., 1996-NMCA-094, ¶ 1, 122 N.M. 307, 924 P.2d 273 (holding that the district court had authority to permit disclosure of the archbishop’s deposition testimony in a sexual abuse case to media parties when the archbishop and the archdiocese failed to show good cause to continue the protective order). Further, in any prosecution for criminal sexual penetration or criminal sexual contact of a minor, upon motion of the district attorney and after notice to the opposing counsel, the district court may, for good cause shown, order the taking of a videotaped deposition of any alleged victim under the age of sixteen years. NMSA 1978, § 30-9-17. The videotaped deposition shall be taken before the judge in chambers in the presence of the district attorney, the defendant and his attorneys. Id.

On several occasions, New Mexico has found that privacy interests overcome a presumption of access. Under the Abuse of Privacy Act, for example, to protect the privacy of innocent parties, recordings of court ordered wiretaps are not public records unless such recordings are played or utilized in open court in criminal or civil actions. State ex rel. Bingaman v. Brennan, 1982-NMSC-059, ¶ 10, 98 N.M. 109, 111, 645 P.2d 982, 984. Further, in the case of videotapes used to present testimony of children in cases involving charges of sexual abuse, the legislature has expressly provided that the tapes are subject to protective orders of the court to protect the victim's privacy. NMSA 1978, § 30-9-17(E).

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B. Cameras and other technology in the courtroom

New Mexico Court Rules provide that the broadcasting, televising, photographing and recording of court proceedings in the Supreme Court, Court of Appeals, district and metropolitan courts of the State of New Mexico are authorized in accordance with the guidelines which contain safeguards to ensure that this type of media coverage shall not detract from the dignity of the court proceedings or otherwise interfere with the achievement of a fair and impartial hearing. Rule 23-107 NMRA.

New Mexico has stated that the common-law right to inspect and copy judicial records encompasses not only documentary and written records but also videotapes, tape recordings and other electronic evidence. Live coverage of proceedings shall not be limited by the objection of counsel or parties, except that the court reserves to the individual courts the right to limit or deny coverage for good cause.

Pursuant to Rule 23-107 NMRA, (1) media coverage in the courts is subject at all times to the authority of the judge or judges to: (a) control the conduct of the proceedings before the court, (b) ensure decorum and prevent distractions, and (c) ensure fair administration of justice in the pending cause; (2) the presiding district judge has sole and plenary discretion to exclude coverage of certain witnesses, including but not limited to the victims of sex crimes and their families, police informants, undercover agents, relocated witnesses and juveniles; and (3) neither the jury nor any member of the jury may be filmed in or near the courtroom, nor shall the jury selection process be filmed.

In New Mexico, any party may request, or object to, cameras in the courtroom by written motion, which may be supported by affidavits, filed not later than fifteen days prior to trial. Rule 23-107 NMRA. In determining that cameras should not be allowed in the courtroom, a showing of prejudice is required. State v. Hovey, 1987-NMSC-080, ¶ 6, 106 N.M. 300, 303, 742 P.2d 512, 515. Thus, when restrictions on media coverage are sought in criminal cases, evidence must demonstrate that there is substantial likelihood that the presence of cameras will deny defendants a fair trial. If limitation is sought to protect other interests which involve important constitutional rights, a higher test should be required and the proponent of the ban should prove that a serious and imminent threat to some other important interest exists. State, ex rel. N.M. Press Ass'n v. Kaufman, 1982-NMSC-060, ¶ 13, 98 N.M. 261, 265, 648 P.2d 300, 305 (citing N.M. Const. art. II, § 17; U.S. Const. amends. I, VI).

When still cameras are permitted—and unless otherwise agreed upon by the court—equipment and personnel shall be limited to not more than two still photographers utilizing not more than one still camera. Rule. 23-107 NMRA.

New Mexico courts have not yet spoken directly on the webcasting of trials.

New Mexico courts have not yet spoken directly on the liveblogging and tweeting of trials. Discrete district court rules banning cell phones and laptops in court effectively foreclose such broadcasting. However, the Supreme Court of New Mexico has discussed the propriety of judicial use of social media, ultimately cautioning that “[w]hile we make no bright-line ban prohibiting judicial use of social media . . . ‘friending,’ online postings, and other activity can easily be misconstrued and create an appearance of impropriety.” State v. Thomas, 2016-NMSC-024, ¶ 49, 376 P.3d 184, 198 (noting that judges must adhere to the Code of Judicial Conduct and avoid any appearance of impropriety when using electronic social media). The New Mexico Code of Judicial Conduct sets forth that “[j]udges and judicial candidates are also encouraged to pay extra attention to issues surrounding emerging technology, including those regarding social media, and are urged to exercise extreme caution in its use so as not to violate the Code.” Rule 21-001 NMRA. The Thomas opinion does not address other forms or uses of social media.  ​

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C. Tips for covering courts in the jurisdiction

The New Mexico court system is structured as follows:

(1) Probate court:        comprises thirty-three judges for each of the thirty-three counties and possess limited jurisdiction to hear uncontested informal probate and estate cases. In probate court there are no jury trials, and any contested cases go to the district court.

(2) Municipal Court:   comprises eighty-three judges for eighty-one municipal courts, which are courts of limited jurisdiction. Municipal courts will hear petty misdemeanors, DWI/DUI CASES, traffic violations, and other municipal ordinance violations. There are no jury trials.

(3) Bernalillo County Metropolitan Court: comprises nineteen judges who hear cases involving torts, contracts, landlord/tenant rights ($0-10,000), felony first appearances, misdemeanors, DWI/DUIs, domestic violence, and other traffic violations. Jury trials are heard.

(4) Magistrate Court:  Sixty-seven judges preside over fifty-four magistrate courts. These are courts of limited jurisdiction in which jury trials are heard. Magistrate courts hear cases sounding in torts, contracts, landlord/tenant rights ($0-10,000), felony preliminary hearings, misdemeanors, DWI/DUIs and other traffic violations.

(5) District Court:       Ninety-four judges preside over thirteen districts. These are courts of general jurisdiction which hold jury trials for torts, contracts, real property rights, estates, and misdemeanors. The court possesses exclusive jurisdiction over domestic relations, mental health, appeals for administrative agencies and lower courts in addition to criminal appeals and juvenile matters.

(6) Court of Appeals: Ten judges preside, sitting in panels of three. The court has offices in Santa Fe and Albuquerque. The court has mandatory jurisdiction in civil, non-capital criminal, and juvenile cases and discretionary jurisdiction in interlocutory decision cases and administrative agency appeals.

(7) Supreme Court: comprises five Justices and is located in Santa Fe. This is the court of last resort and has superintending control over all inferior courts and attorneys licensed in the state. The Supreme Court exercises mandatory appellate jurisdiction over criminal matters in which the sentence imposed is life in prison or the death penalty, appeals from the Public Regulation Commission, appeals from the granting of writs of habeas corpus, appeals in actions challenging nominations, and removal of public officials. The court exercises discretionary jurisdiction over denials of petitions for writ of habeas corpus, petitions for writ of certiorari to the Court of Appeals, other extraordinary writ matters, and certified questions either from the Court of Appeals or federal courts.

Contact information for the courts in this jurisdiction is as follows:

New Mexico Administrative Office of the Courts

The State of New Mexico

237 Don Gaspar, Santa Fe, NM 87501

To obtain a transcript of a court proceeding, arrangements should be made with the court reporter present at the hearing. To obtain a transcript of an audio recorded hearing, contact a certified transcriber/transcription service or court reporter and provide the following information: case number, case caption, hearing judge, hearing date, type of hearing, courtroom, and deadline. Requesters may contact any certified transcription service or court reporter for this purpose. To obtain a copy of a digital file for a purpose other than creation of the official transcript, contact the Clerk's Office at 505-348-2020. The cost is $26 regardless of the medium. CJA attorneys and government agencies may obtain tapes or CDs at no cost. Information regarding transcripts of hearing transcribed by a court reporter can be obtained by calling the court reporter directly, or by calling the Court Reporter Coordinator, at 505-348-2056. Information regarding the digital audio recorded transcripts or the court file can be obtained by calling the Clerk's Office at 505-348-2020.

On February 20, 2017, the New Mexico Supreme Court adopted rules governing access to digitized court records. The SOPA (Secured Odyssey Public Access) system addresses who may access court records, how to access court records, and documents and proceedings that are not public. The new rules and procedures raise a number of First Amendment and open records issues, but they have not been tested. New Mexico Supreme Court Rule 17-8500-001, February 20, 2017.

Caution should be exercised in the coverage of high-profile cases within the jurisdiction. Too much press coverage could lead to a change in venue if a New Mexico court is led to believe that it is impossible to select a constitutionally impartial jury. State v. McGuire, 1990-NMSC-067, ¶ 22, 110 N.M. 304, 311, 795 P.2d 996, 1003. Compare Times-Picayune Pub. Corp. v. Schulingkamp, 419 U.S. 1301 (1974) (finding that although there was a heavy presumption against the restriction of media coverage’s constitutional validity, reporters’ rights must be balanced against a defendant's right to a fair trial before an impartial jury.), with State v. Barrera, 2001-NMSC-014, ¶ 18, 130 N.M. 227, 233, 22 P.3d 1177, 1183 (holding that “[e]xposure of venire members to publicity about case, by itself, does not establish prejudice or create a presumption of prejudice for purposes of determining whether change of venue is required.”). Ultimately, however, “[t]here may be prejudice as a result of media coverage, but only in extreme cases such as when a community is saturated with inflammatory and biased information near the time of trial.” State v. Courtney, No. 28,300, 2009 WL 6670339, at *1 (N.M. Ct. App. May 28, 2009) (citing State v. House, 1999–NMSC–014, ¶ 58, 127 N.M. 151, 978 P.2d 967) (upholding lower court’s finding of no prejudice when jury panel had been questioned regarding media coverage and defendant failed to provide concrete details of alleged prejudice).

In determining whether mid-trial publicity is inherently prejudicial to a criminal defendant, the trial court should determine the likelihood of juror exposure by looking at (1) prominence of publicity, including frequency of coverage, conspicuousness of story in newspaper, and profile of media source in local community, and (2) nature and likely effectiveness of trial judge's previous instructions on matter, including frequency of instruction to avoid outside materials, and time lapse between trial court's last instruction and publication of prejudicial material. State v. Holly, 2009-NMSC-004, ¶ 20, 145 N.M. 513, 518, 201 P.3d 844, 849.

The purpose of judicial proceedings is to ascertain the truth. Such proceedings should be conducted with fitting dignity and decorum, in a manner conducive to undisturbed deliberation, indicative of their importance to the people and to the litigants, and in an atmosphere that bespeaks the responsibilities of those who are charged with the administration of justice.  Rule 1-090 NMRA. Courtroom and Courthouse Decorum requires that no cameras, cellular telephones with cameras, transmitters, receivers or recording equipment may be brought into or used in any courtroom or court environs. Environs include: the entire floor where a courtroom is located, the entire floor where the grand jury meets, and the entire floor where a chamber of any Magistrate Judge or District Judge is located. The prohibitions of this rule do not apply to a stenographic or recording device used by an official court reporter or other authorized court personnel, equipment brought into court during investiture, ceremonial or naturalization proceedings, a telephone or pager turned off while Court is in session, a lap-top computer as long as it does not make noise or interfere with court proceedings and is not used to record or transmit court proceedings, a note-taking or other device required because of a person's disability, a device to be used solely for the presentation of evidence, or attorneys and jurors with cellular telephones with cameras.

Pursuant to Rule 23-108 NMRA, “the supreme court and the district court libraries of the State of New Mexico shall be open to the public on regular court business days. Individual courts may by rule limit public access to their libraries, provided such rules adequately ensure that the public is not denied access to the law.” Id.

One of the best law libraries in the state is located at the University of New Mexico School of Law, 1117 Stanford, NE., Albuquerque, NM. It is open to the public. Resource librarians at law libraries can direct you to the books and publications you need to consult for your particular case. The Local Rules of the United States District Court, District of New Mexico are supplemental to the Federal Rules of Civil Procedure. A copy is available upon request from the Clerk's office and through the court's website. Although supplemental to the Federal Rules, the Local Rules are nonetheless very important. The Internet is also a vast resource of information. The District Court's home page's Legal Links lists a sample of legal sites that might be useful.

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