Copyright © 2020 Albuquerque Journal
SANTA FE – The state Supreme Court ruled unanimously Tuesday that Gov. Michelle Lujan Grisham’s administration is empowered to impose hefty fines when businesses violate New Mexico’s public health orders.
But the court left undecided whether companies are entitled to compensation from the state if they are forced to close or operate at limited capacity – an issue that can be pursued in separate litigation.
The decision, nonetheless, upholds a key enforcement power that state health officials say is critical to limiting the transmission of COVID-19: the ability to impose civil penalties of up to $5,000 a day for violating health orders.
“The state shouldn’t have to fine anybody,” Lujan Grisham said on Twitter after the court decision. “Doing the right thing in a crisis shouldn’t be something we have to argue about. But anyone endangering the lives of New Mexicans will face the consequences.”
The lawsuit – filed in May and backed by the state Republican Party – comes as New Mexico health officials prohibit indoor dining at restaurants and impose other business restrictions intended to slow the spread of COVID-19. The disease has killed 658 state residents since March.
Republican leaders have lashed out at Lujan Grisham, a Democrat, describing her orders as heavy-handed regulations that stifle business activity.
New Mexico’s five Supreme Court justices heard oral arguments and announced their decision from the bench Tuesday after deliberating behind closed doors for about 90 minutes. Each justice concurred with the ruling.
Chief Justice Michael Vigil said it’s clear the state may issue civil administrative penalties – such as the proposed fines – for violations of the emergency orders.
“The Legislature has clearly given the governor that authority,” Vigil said.
But the justices, he added, declined to rule on a separate question – whether businesses are entitled to compensation for being forced to close or operate at limited capacity.
Other lawsuits are pending on that issue, and the justices questioned whether Tuesday’s case was the appropriate time to take up the matter.
The case began May 20 with a lawsuit filed by K-Bob’s Steakhouse in Clovis, Frontier Auto Inc., Body & Sol Fitness LLC, the Colfax Tavern & Diner, J. Jones Massage and others.
They said the state’s health orders dramatically reduced their revenue and made it difficult to survive – all while they faced “potentially ruinous financial penalties” if they violated the rules.
In Tuesday’s hearing, Carter Harrison IV, who represented the businesses, urged the court to find that Lujan Grisham’s administration had overstepped its authority by threatening massive fines. Instead, he said, the administration is limited by law to $100 citations, not the larger $5,000 penalty.
More broadly, Harrison said, the executive branch had gone too far in determining how businesses may operate without offering procedural protections to safeguard people’s rights.
“Fundamentally,” he said, “it’s the Legislature’s role to do this. It’s the Legislature that makes policy.”
House Minority Leader James Townsend, R-Artesia, said after the hearing that the court had undermined the authority of the legislative branch.
“The court has just given the Governor unfettered power to create law during a health crisis,” he said in a written statement.
During Tuesday’s hearing, Lujan Grisham attorney Matthew Garcia said the larger fines were critical to enforcing the public health orders and ensuring immediate compliance. Only 16 businesses, he said, had faced the $5,000 penalty.
“It’s really only for the most egregious offenders,” Garcia said.
The state Department of Health has issued a host of orders since March, including a ban on mass gatherings and a mask mandate.
Most businesses are permitted to operate at partial capacity, though bars remain closed entirely and restaurants are limited to takeout, delivery and limited outdoor seating.
Tuesday’s court hearing was held through a videoconferencing program. Four justices – all wearing masks – were present in the courtroom.
The fifth justice and both attorneys participated through a video link.
Courts have generally upheld the state’s authority to impose restrictions during the public health emergency. In July, for example, U.S. District Judge James O. Browning ruled in favor of the state’s right to limit the operating capacity of churches and other houses of worship, finding that it didn’t violate religious freedoms.
But other legal challenges are still pending, including a lawsuit filed by the New Mexico Restaurant Association, which is seeking to block the state’s ban on indoor dining at restaurants and breweries.
