Court explains August decision on public health penalties

SANTA FE — The New Mexico Supreme Court issued its opinion Thursday on its August decision that upheld the authority of Gov. Michelle Lujan Grisham on Thursday and other state officials to impose civil administrative penalties to enforce public health emergency orders restricting business operations.

The unanimous written opinion provided the legal reasoning for its decision on Grisham v. Reeb. The Court concluded that the Legislature empowered the governor and other state officials to enforce public health order restrictions on businesses through a provision in the Public Health Emergency Response Act, which provides for a fine of $5,000 a day for violations.

The law offers due process to those facing potential civil penalties, the justices noted, because the Department of Health must conduct an administrative hearing before a fine can be imposed.

The original civil suit, filed in Curry County, included Clovis’ K-Bob’s Steakhouse and other New Mexico businesses challenging emergency health orders. The governor petitioned the Supreme Court to resolve the legal dispute.

“The spirit and intent of the Act suggests that the penalty provision is applicable to all violations of orders and other measures lawfully exercising the powers conveyed thereunder,” the Court held in an opinion written by Justice Judith K. Nakamura.

In addition to restricting businesses through powers granted under the PHERA, the court stated, the secretary of the Department of Health has authority under the Public Health Act to respond to a public health emergency.

“We conclude that, the Governor having declared a public health emergency and having empowered the Secretary of Health to coordinate a response to the COVID-19 crisis, the Secretary was authorized (under the PHERA and the PHA, concurrently) to issue emergency orders forbidding gatherings of people to ‘control and abate’ the transmission of COVID-19 in locales such as restaurants. Arguments that the PHERA does not so authorize the Secretary are ultimately unpersuasive.”

The court did not address a question as to whether businesses were owed state compensation because public health order restrictions represented the government taking private property. Justices said records and filings in the case provided “insufficient facts” to resolve that question.

District Judge David Reeb is listed as the respondent because he was the presiding judge when the original civil case was filed in Curry County. Reeb, who recused himself from the case, had no other role in the proceeding.