NM Supreme Court mulls pandemic compensation

New Mexico Supreme Court Justice Shannon Bacon, shown on a video screen in the court’s chambers, asks a question during a Wednesday hearing on business compensation during the COVID-19 pandemic. The hearing was conducted entirely remotely and broadcast live online. (Eddie Moore/Journal)

Copyright © 2021 Albuquerque Journal

SANTA FE – The New Mexico Supreme Court did not issue an immediate ruling Wednesday on whether businesses affected by pandemic-related closures and restrictions imposed by Gov. Michelle Lujan Grisham’s administration can recoup their losses.

After hearing arguments during an unprecedented entirely virtual hearing, the state’s highest court deliberated for more than an hour before its clerk announced no same-day opinion would be issued.

The case in question involves more than a dozen lawsuits that were filed in lower courts around New Mexico against the governor and top state health officials last year.

The plaintiffs, which include a Roswell musician, a Clovis liquor store and a Santa Fe oxygen bar, specifically claim the Lujan Grisham administration’s business restrictions imposed in response to the COVID-19 pandemic have had a significant financial impact.

The Governor’s Office had sought to have the lawsuits dismissed and requested the Supreme Court address the underlying legal issue.

Nicholas Sydow, who is Attorney General Hector Balderas’ civil appellate chief, represented the state in the case and argued Wednesday that public health orders are not grounds for compensation claims under New Mexico law and the state’s Constitution.

In addition, he said any such financial relief should be provided by the Legislature – not the courts.

“When the state regulates public health and safety, it’s not taking away existing property rights,” Sydow said. “It’s exercising the inherent authority to ensure that property is not used in a fashion that endangers the public.”

In contrast, the plaintiffs in the lawsuits have argued the state’s Public Health Emergency Response Act calls for state government to provide compensation for health facilities and other businesses it takes over during an emergency.

Attorney Blair Dunn, who’s representing the various plaintiffs, called the state’s response to the COVID-19 pandemic “draconian.”

He also said the science underpinning Lujan Grisham’s actions is debatable and should not be accepted as undisputed fact.

“The right to have property and have it not taken away by the government is a fundamental right in our Bill of Rights,” Dunn said Wednesday.

Lujan Grisham has acknowledged the economic damage inflicted by the pandemic, including a state unemployment rate that has been among the nation’s highest in recent months. But she has said the business restrictions are necessary to keep the virus from spreading rapidly and overwhelming New Mexico’s health care system.

The Supreme Court hearing occurred, for the first time in state history, with all justices and attorneys participating remotely via online technology.

Recently-appointed Supreme Court Justice Julie Vargas did not take part in the hearing, as retired Court of Appeals Judge Michael Bustamante joined the Supreme Court’s other four judges in hearing the case.

A ruling in the case could be released in the coming days.

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