No lawmaker has signed up to sponsor NM Gov’s panhandling bill

A narrow median in Nob Hill in Albuquerque, pictured May 2023. Gov. Michelle Lujan Grisham is pushing for a bill at the upcoming special session that would ban loitering on medians less than 3 feet wide where the speed limit is 30 mph or higher. So far, no state legislator has agreed to sponsor the bill. (Photo by Patrick Lohmann / Source NM)

With less than a week until a special legislative session focused on public safety, no lawmaker has yet signed up to sponsor a bill pushed by Gov. Michelle Lujan Grisham related to pedestrian safety and panhandling.

Lawmakers will gather in Santa Fe on July 18 to address a handful of proposals related to public safety and criminal justice, including bills related to civil confinement, criminal competency and pedestrian safety.

A draft version of the governor’s proposal would make it illegal to linger on medians less than 3 feet wide in roads where the speed limit is 30 mph or greater. The bill would make it a misdemeanor to “access, use, occupy, congregate or assemble” on those medians, with some exceptions, including for people crossing the street or using public transit.

Lawmakers have referred to the bill as “the median safety bill” and “the panhandling bill,” noting that many of those affected would be people who stand in medians asking for donations from passing drivers.

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The governor’s office called its draft bill the “Unsafe Use of Highways and Medians Act” and cited the high rates of pedestrian deaths in the state in its preamble. Her office has also stressed that the bill does not target panhandlers in particular, but instead aims to reduce pedestrian deaths across the board.

The governor called for a special session after many related bills did not pass in the 30-day session this January, including one related to panhandling introduced by Sen. Leo Jaramillo (D-Española) that died in committee. Ahead of the session, she released draft bills she is hoping lawmakers will introduce and is working to find sponsors for them.

According to spokespersons for House and Senate Democrats, none of their members has agreed to carry the governor’s bill, as of Thursday afternoon.

Also, some lawmakers, speaking at an interim committee meeting last month, seemed skeptical that the bill would withstand legal scrutiny. The joint Courts, Corrections and Justice Committee met June 27 and 28 and listened to a legal presentation on the case law behind similar ordinances to the draft proposal. They also discussed the way federal courts have interpreted – and sometimes struck down – similar legislation.

Rep. Christine Chandler (D-Los Alamos), chair of the committee, told Source New Mexico that it’s possible “people are not rushing to volunteer”  to shepherd the proposal through the Legislature.

“I haven’t been through many special sessions, but I am surprised that there has not been a sponsor identified yet,” Chandler said of the governor’s pedestrian safety bill.

Jodi McGinnis Porter, spokesperson for the governor, said Thursday afternoon that no sponsor had yet been identified for the bill but that it was “still under discussion.”

In defense of the bill, Porter cited New Mexico’s repeated designation as the country’s most dangerous for pedestrians, including pedestrian fatalities.

Chandler, who also chairs the House Judiciary Committee, said that lawmakers are far from reaching a consensus on multiple pieces of legislation as the clock ticks toward the session.

Lujan Grisham’s preferred legislation, as written, would likely be referred to judiciary committees in both chambers. They’d need to clear that hurdle before going to the full chambers for approval and eventual passage.

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She couldn’t predict whether any legislation would pass, she said.

“We’re still at a place where it’s gonna be a heavy lift in getting these bills over the finish line, including the median safety bill,” she said.

Where’s the data?

At the committee meeting in late July, lawmakers publicly questioned whether they had enough information to determine whether the governor’s draft bill on pedestrian safety was well-suited to reduce pedestrian deaths without unnecessarily restricting Constitutional rights, including the First Amendment.

The Supreme Court has ruled that “soliciting charitable donations” amounts to protected speech. And courts have regularly upheld medians as traditional spaces where speech is protected and allowed, including protests, covering news, panhandling and personal conversations, according to Simon Suzuki, a staff attorney with the Legislative Council Service.

He was invited to give an independent, expert analysis of what types of median safety laws could be upheld in court.

Over the years in New Mexico and across the country, cities have passed local ordinances restricting loitering on medians, Suzuki said. That happened in 2017 in Albuquerque, for example.

Often, those cities are sued for violating First Amendment rights, where judges require cities to demonstrate that they arrived at their panhandling ordinances by considering local conditions and crafting a policy narrowly tailored to protect pedestrians while also ensuring it doesn’t overly curb free speech rights.

To justify their ordinances, cities often need to present data showing how many people were struck by cars on medians and describe how the ordinance they enacted is targeted to preventing those collisions and reducing deaths.

In the Albuquerque case, a court struck down the ordinance, and the city later amended its ordinance to apply only to a handful specific medians that they described as particularly unsafe for panhandlers or other pedestrians.

The cases Suzuki cited all related to local ordinances, not statewide statutes.

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At the committee meeting June 27, Rep. Andrea Reeb (R-Clovis) asked Suzuki whether a statewide ban would be harder to justify, given that it could be harder to tailor it to local conditions and therefore withstand a lawsuit and judicial scrutiny. Other lawmakers said they shared her concern.

Suzuki agreed that any judge would likely pose the question to a state official defending a statewide ban.

“What is narrowly tailored for one community is not going to be narrowly tailored for another community,” he said, based on his view of the case law.

Chandler, in the interview Thursday with Source NM , said she agrees the state has a problem with pedestrian safety.

But she will be looking for data that will help settle the question as to how the governor’s proposed law could apply to the whole state but also be narrowly tailored such that it would avoid or win a lawsuit. She’s raised the issue with the governor’s office, she said.

“It’s a constitutional issue, a First Amendment issue, wherein there’s heightened scrutiny,” she said.

She’s also not convinced the state has a problem specifically with panhandlers being struck by cars; instead, she said, the data she’s seen related to pedestrian collisions is of people being struck while crossing.

“My understanding is that data relates to people crossing the streets, in crossing both sidewalks and jaywalking, and that’s a different situation than standing in the median,” Chandler said.

Porter, the governor’s spokesperson, did not address in questions from Source NM whether the office intends to compile or present data to demonstrate to lawmakers how the bill was crafted to balance public safety without impinging on free speech rights for New Mexicans across the state. Instead, she cited the statistics about New Mexico’s high rate of pedestrian fatalities.

However, she did say the bill was “narrowly-tailored,” noting that it only limits loitering on medians fewer than 36 inches wide in areas with speeds at 30 mph or above.

And she noted that it applies to all manner of speech on medians, not targeting panhandlers or protesters or any particular group for punishment.

“For example, it does not allow vendors to sell newspapers” or distribute political flyers, she said. “It applies evenly, across-the-board to everyone.”

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