(specially concurring).
(42) I agree that an injury in fact must be an injury to an interest that is arguably entitled to some legal protection. I interpret De Vargas Savings & Loan Ass’n v. Campbell, 87 N.M. 469, 535 P.2d 1320 (1975) to mean no less, and I believe that De Vargas, taken in context, offers ample support for affirmance in this ease. Our Supreme Court’s recent opinion in Key v. Chrysler Motors Corp., 121 N.M. 764, 918 P.2d 350 (1996) is fully consistent with this conclusion. There, the Court narrowly interpreted a state statute (as opposed to the First Amendment) to confer standing upon only a certain class of litigants. We do not have that situation here. I am persuaded that Key intended no deviation from the broad standing principles articulated in De Vargas and I do not understand the majority opinion to imply anything to the contrary.
(43) Although I would agree with the analysis of the majority opinion conferring standing upon the media to assert the rights of third persons in this case, I see no need to reach that issue. I would recognize media standing to claim a First Amendment interest in the subject matter of this litigation on its own behalf and on behalf of the public. I would stop there, seeing no need to proceed further. The standing of the New Mexico media to raise First Amendment issues based on access to court-sponsored information could not, in my mind, be clearer and has been blessed more than once by our Supreme Court. See, e.g., State ex rel. New Mexico Press Ass’n v. Kaufman, 98 N.M. 261, 264-65, 648 P.2d 300, 303-04 (1982); State ex rel. Bingaman v. Brennan, 98 N.M. 109, 111, 645 P.2d 982, 984 (1982). This is not to say the media will always win — only that they have the right to come into court and make their ease, much as they did here. This is also not to say that persons other than the media may or may not demonstrate that they fall within that class of litigants who are properly entitled to seek judicial protection for an alleged breach of First Amendment rights.
(44) Given the historical breadth of the First Amendment, we need not reach so far to resolve the present dispute. I do not believe this case compels us to introduce the notion of “prudential considerations” into New Mexico jurisprudence. These are federally inspired concepts, interpreting “case or controversy” within Article III of the United States Constitution and creating judge-made law for the “prudential” management of the federal courts. Why do we need them to resolve this dispute? These latest federal pronouncements — which themselves are subject to change from forces outside our courts — bring with them a considerable body of criticism from the intellectual community; moreover, they arguably may not even be relevant to the limited issue before us of standing to claim injury under the First Amendment, as opposed to the more complex issue of standing under federal statutes. See generally William A. Fletcher, The Structure of Standing, 98 Yale L.J. 221 (1988).
(45) New Mexico is a government of reserved, plenary powers as opposed to the limited, enumerated powers of the federal government. Unlike federal courts, our judiciary is one of general jurisdiction. Problems unique to the federal structure ought not be imported into our judge-made law, unless there is a proven need. Seeing none, I would affirm without the analysis of “prudential considerations” and based primarily on De Vargas.