N.M. Supreme Court publishes legal findings on dining ban

The state Supreme Court published the detailed legal reasoning Monday behind an August ruling that said the governor and the state Department of Health have the authority to impose restrictions on businesses via emergency order.

Recently retired Supreme Court Justice Judith Nakamura wrote the opinion, concluding the emergency health orders were not “arbitrary and capricious” as the businesses that challenged them had claimed, and the Department of Health should not be obligated to hold a lengthy rule-making process and gather public input before imposing such orders.

The written opinion reflected the court’s oral ruling last summer.

The court also rejected the argument that it should declare an “end date” to the authority of the governor and Department of Health secretary to issue emergency orders, so as to allow the Legislature to address pandemic-related laws, according to a statement from the Administrative Office of the Courts.

A group of businesses had filed a lawsuit after the state banned indoor dining in July as result of the spread of COVID-19.

“The argument that special sessions of the Legislature should be used in lieu of ... emergency orders is so unworkable that it only reinforces the conclusion that it was appropriate for the Legislature to grant the executive branch ample authority to immediately and flexibly respond to a public health emergency,” Nakamura wrote.

The court’s ruling was unanimous, but Chief Justice Michael Vigil did not participate in the case because his brother is a retired chef.

Justice David Thomson wrote a “specially concurring” opinion in which he cautioned against giving the state carte blanche to issue emergency orders going forward.

“I therefore write separately to express my concern that the broad and vague statutes that grant emergency powers to the Governor combined with the deference given to the executive to act in times of emergency may pose potential long-term consequences to our system of checks and balances,” Thomson wrote.

“The majority’s holding should not communicate that executive or legislative responses to the pandemic will always receive the same level of judicial deference as when the crisis first emerged,” Thomson wrote. “In addition, I believe we must be wary of the precedent we set beyond the scope of the COVID-19 crisis.”

A bill addressing the governor’s emergency powers is being heard during the 2021 session of the Legislature.