High court OKs public health fines
Justices’ ruling is victory for governor in Republican-backed case brought by businesses
The state Supreme Court ruled Tuesday that Gov. Michelle Lujan Grisham has the authority to impose fines for violations of emergency public health orders that limit mass gatherings and require business closures.
“The Legislature has clearly given the governor that authority,” said Chief Justice Michael E. Vigil.
The court announced its unanimous ruling following about an hour of arguments and an hour of deliberations.
Lujan Grisham welcomed the ruling on Twitter.
“The state shouldn’t have to fine anybody,” she wrote. “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.”
Several New Mexico businesses had filed a lawsuit against the governor and two state Cabinet secretaries, arguing the threat of civil penalties of up to $5,000 per day for violations of emergency health orders is not authorized by the New Mexico Public Health Emergency Response Act — except perhaps as sanctions against people who are court-ordered to quarantine or self-isolate.
The state Republican Party had helped organize the complaint, initially filed in the 9th Judicial District in Curry County.
“We are deeply disappointed in today’s Supreme Court decision,” Republican Party Chairman Steve Pearce said in a statement following the court’s announcement. “This ruling demonstrates the need to seek change at the polls this November by electing conservative judicial candidates who will help protect our freedoms and basic rights. What happens at the polls impacts what happens in our lives in New Mexico, and we must make a stand this fall on Election Day.”
The governor and businesses that oppose her stance on public health orders may be back in court soon in a similar case that has received plenty of notoriety.
The New Mexico Restaurant Association filed a lawsuit in state District Court in Carlsbad last month challenging the state’s authority to order establishments to close indoor dining again after briefly allowing the businesses to reopen at 50 percent capacity.
District Judge Raymond Romero issued a restraining order that temporarily stopped Lujan Grisham from enforcing her renewed ban on indoor dining, but lawyers for the governor quickly filed an emergency petition asking the state Supreme Court to suspend the judge’s order and keep the ban in place.
The high court granted the governor’s request within hours, putting indoor dining off-limits once again and ordering the parties to file arguments in the case by July 30.
The legal briefs are in, but the state Supreme Court has yet to indicate whether it will hear the case. Vigil has recused himself from hearing that case and will be replaced by state District Judge Thomas F. Stewart of Grant County.
The restaurant association declined to comment Tuesday.
The plaintiffs in Tuesday’s decision included K-Bob’s Steakhouse in Clovis; Frontier Auto Inc. and Body & Sol Fitness in Lovington; Kemp’s Investments and Colfax Tavern & Diner in Colfax County; J.Jones Massage in Hobbs; the owners of the businesses; and several individuals.
The high court on Tuesday declined to issue a ruling on the second part of the lawsuit, which had asked the court to declare the closures a “taking” — when a government seizes property for public use — and determine the plaintiffs were owed damages for lost revenues from the governor’s business restrictions.
According to the state Department of Health, 13 New Mexico businesses — including hotels and restaurants in Grants, Albuquerque, Silver City,
Ruidoso, Roswell, Hobbs, Carlsbad and Eunice — have been fined $5,000 or more for violating orders. Some were fined $5,000 for every day they were found to be in violation of the orders.
Brian Bargsten, managing partner of Arroyo Vino, a wine shop and restaurant near Las Campanas and the only Santa Fe-area business fined, said his business was ordered to pay $145,000 for allowing patrons who were picking up takeout food to purchase wine as well after indoor dining was banned.
“It’s like if you went to an Albertsons or Whole Foods to buy a rib-eye [steak] and you bought wine while you were there,” he said.
Bargsten said a portion of the fine is related to alleged violations that occurred before the Department of Health even notified the business’s partners the state believed they were in violation.
Bargsten said he and his partner have had to retain legal counsel to help them fight the penalty through an administrative process, adding that paying the fine could cripple the business. Arroyo Vino employs 15 people.
“The important thing for people to know is we’ve always been deemed an essential businesses and always operated within the confines of the public health orders, and the state has failed to understand our business,” he said. “It’s really important to me that the public know we were not operating in a dangerous manner outside of the health order.”