Grisham v. Reeb, 110520 NMSC, S-1-SC-38336

Docket NºS-1-SC-38336
Opinion JudgeJUDITH K. NAKAMURA, JUSTICE
Party NameMICHELLE LUJAN GRISHAM, Governor of New Mexico; MARK R. SHEA, Secretary of the New Mexico Department of Public Safety; KATHYLEEN KUNKEL, Secretary of the New Mexico Department of Health, Petitioners, v. HONORABLE DAVID PETER REEB, District Court Judge, Ninth Judicial District Court, Respondent and SID STREBECK; SSET LLC d/b/a K-BOB'S STEAKHOUSE...
AttorneyOffice of the Governor Matthew L. Garcia, Chief General Counsel Jonathan Jacob Guss, Deputy General Counsel Santa Fe, NM for Petitioners Office of the Attorney General Hector H. Balderas, Attorney General Santa Fe, NM for Respondent Harrison & Hart, LLC Carter B. Harrison, IV Albuquerque, NM for ...
Judge PanelWE CONCUR: MICHAEL E. VIGIL, Chief Justice BARBARA J. VIGIL, Justice C. SHANNON BACON, Justice DAVID K. THOMSON, Justice
Case DateNovember 05, 2020
CourtSupreme Court of New Mexico

MICHELLE LUJAN GRISHAM, Governor of New Mexico; MARK R. SHEA, Secretary of the New Mexico Department of Public Safety; KATHYLEEN KUNKEL, Secretary of the New Mexico Department of Health, Petitioners,

v.

HONORABLE DAVID PETER REEB, District Court Judge, Ninth Judicial District Court, Respondent

and

SID STREBECK; SSET LLC d/b/a K-BOB'S STEAKHOUSE; JIM BURLESON; TERRI CHRISMAN; FRONTIER AUTO, INC.; KATHY DIAZ; CHRISTOPHER AND MICHELLE KEMP; BODY & SOL FITNESS, LLC; KEMP'S INVESTMENTS, LLC; SHELLY QUARTIERI; COLFAX TAVERN & DINER, LLC; JOY THOMPSON; and J. JONES MASSAGE, Parties in Interest.

No. S-1-SC-38336

Supreme Court of New Mexico

November 5, 2020

ORIGINAL PROCEEDING

Office of the Governor Matthew L. Garcia, Chief General Counsel Jonathan Jacob Guss, Deputy General Counsel Santa Fe, NM for Petitioners

Office of the Attorney General Hector H. Balderas, Attorney General Santa Fe, NM for Respondent

Harrison & Hart, LLC Carter B. Harrison, IV Albuquerque, NM for Real Parties in Interest

Zach Cook, LLC Zachary J. Cook Ruidoso, NM for Amici Curiae Anaheim Jacks, LLC, Papa's Pawn, LLC, Jerri Diane Rowe

Law Office of Angelo J. Artuso Angelo J. Artuso Albuquerque, NM

Patrick J. Rogers, LLC Patrick J. Rogers Albuquerque, NM

for Amici Curiae Representative James G. Townsend, Representative Rod Montoya, New Mexico Cattle Growers Association, and New Mexico Business Coalition

OPINION

JUDITH K. NAKAMURA, JUSTICE

{¶1} Although this case involves numerous parties, intersecting statutes, and intricate arguments, the key question raised is rather straightforward: Did New Mexico's Legislature empower Petitioners to enforce public health emergency orders restricting business operations through the civil penalty provision contained in Section 12-10A-19 of the Public Health Emergency Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through 2015)? As we explain below, the answer is "yes."

I.

BACKGROUND

{¶2} On March 11, 2020, Governor Michelle Lujan Grisham issued an executive order that a public health emergency exists in New Mexico due to the spread of COVID-19, invoked her powers under the All Hazard Emergency Management Act (AHEMA), NMSA 1978, §§ 12-10-1 to -10 (2007), and declared a public health emergency under the PHERA, pursuant to Section 12-10A-5. See State of N.M., Executive Order 2020-004 (March 11, 2020) (hereinafter "EO 2020-004").1 This executive order was most recently extended on October 16, 2020. State of N.M., Executive Order 2020-072 (October 16, 2020) (hereinafter "EO 2020-072").2

{¶3} Then-Secretary of the New Mexico Department of Health (DOH), Kathyleen Kunkel, citing the Governor's executive orders; the PHERA; the Public Health Act (PHA), NMSA 1978, §§ 24-1-1 to -41 (1973, as amended through 2019); the Department of Health (DOH) Act, NMSA 1978, §§ 9-7-1 to -18 (1977, as amended through 2019); and "inherent constitutional police powers," issued a series of public health emergency orders (collectively, emergency orders) which, beginning on March 16, 2020, restricted mass gatherings and the operations of certain businesses, requiring some to close entirely. These emergency orders have been modified, but significant restrictions remain. See, e.g., N.M. Dep't of Health, Public Health Order at 6 (October 16, 2020) (allowing food and drink establishments to operate at only twenty-five percent of fire code capacity for indoor service).3

{¶4} On May 20, 2020, approximately fourteen small businesses and business owners4-real parties in interest (Real Parties) in this proceeding-filed suit against Petitioners (Governor Grisham, Secretary Kunkel, and Secretary Mark R. Shea of the New Mexico Department of Public Safety) in the Ninth Judicial District. They seek declaratory relief to the effect that the Secretary of Health's emergency orders during the COVID-19 crisis are not authorized by the PHERA, and therefore the PHERA's penalty provision (§ 12-10A-19) is inapplicable. The Real Parties also seek an order enjoining Petitioners from "threatening" business owners and operators with penalties under the PHERA. The complaint and attachments indicate that noncompliant businesses have been served with cease and desist orders and/or notices of violation. These warn of the possibility of a criminal citation (under the PHA, § 24-1-21), followed by referral to the DOH pursuant to the PHERA, for a civil administrative penalty of up to $5, 000 for each violation of the emergency orders. Though some of the Real Parties have been criminally cited and/or served with a Notice of Contemplated Action (NCA) under the PHERA, there is no allegation that any of the businesses have yet paid a penalty assessed under the PHERA. Finally, the Real Parties seek alternative declaratory relief: if penalties may be levied under the PHERA, then affected business owners are also entitled to compensation under the PHERA, pursuant to Section 12-10A-15, and under "the Takings Clause for the value lost by business owners as a result of the mandated closures."

{¶5} Shortly after the Real Parties filed the foregoing complaint, Petitioners asked this Court for a writ of superintending control and stay to resolve (1) whether the emergency orders temporarily restricting business operations in response to the COVID-19 pandemic are authorized by and enforceable under the PHERA (§ 12-10A-19), and (2) whether the emergency orders' business restrictions effect a taking under the PHERA's compensation provision (§ 12-10A-15) and/or the takings clauses of the United States and New Mexico Constitutions. U.S. Const. amend. V; N.M. Const. art. II, § 20. In response, the Real Parties agreed that we should address the first issue, but contended that we should decline to take jurisdiction on the takings issue, which is only an alternative and undeveloped claim in the underlying litigation. The Real Parties' response attached copies of NCAs under the PHERA that were issued to three businesses: Jalisco Café, Arroyo Vino Fine Wines, LLC, and Papa's Pawn, LLC (one of the amici curiae, listed below). According to the NCAs, the DOH intends to fine each business $5, 000 per day for every day each business remained open in violation of an applicable emergency order, totaling $20, 000 for Jalisco Café, $135, 000 for Arroyo Vino, and $60, 000 for Papa's Pawn. The NCAs also indicate that each business was either warned or given cease and desist orders and was then criminally cited, prior to the issuance of the NCAs.

{¶6} A number of parties also moved to participate as amici curiae and filed conditional briefs in support of the motions: New Mexico State Representatives James G. Townsend and Rod Montoya, the New Mexico Cattle Grower's Association, and the New Mexico Business Coalition (collectively, Townsend Amici); Anaheim Jacks, LLC (Amicus Anaheim Jacks); and Papa's Pawn, LLC and Jerri Diane Rowe (collectively, Papa's Pawn Amici). This Court granted the motions of all amici on July 8, 2020.5 The amici's briefs raise various further arguments in support of the Real Parties' contention that the PHERA does not authorize Petitioners to penalize businesses for failing to comply with the emergency orders' business restrictions.

{¶7} On August 4, 2020, following oral argument, we issued an order on the writ petition. With respect to the first issue, we granted a writ of superintending control, concluding that the Legislature, through the PHERA, authorized Petitioners to respond to a public health emergency, through measures including the Secretary of Health's emergency orders temporarily restricting business operations. Petitioners may therefore utilize the PHERA's civil administrative penalty provision to enforce the Secretary of Health's emergency orders restricting business operations. On the second issue, we declined to issue a writ. In this opinion we explain in greater detail the basis for our order.

II.

DISCUSSION

A.

This Court's Power of Superintending Control

{¶8} The New Mexico Constitution grants this Court superintending control over inferior courts. Art. VI, § 3. As discussed in Kerr v. Parsons, 2016-NMSC-028, ¶ 16, 378 P.3d 1, this power enables the Court to control the course of litigation in inferior courts, and "to correct any specie of error." Id. (citing Dist. Court of Second Judicial Dist. v. McKenna, 1994-NMSC-102, ¶ 4, 118 N.M. 402, 881 P.2d 1387); Albuquerque Gas & Elec. Co. v. Curtis, 1939-NMSC-024, ¶ 12 43 N.M. 234, 89 P.2d 615 (explaining that this Court's superintending control "is authorized by the Constitution . . . to prevent a failure of justice by supplying a means for the correction of manifest error committed by the trial court . . . where there is no other adequate remedy and gross injustice is threatened"). This Court may make such corrections via extraordinary writs, but it employs them only in exceptional circumstances: where the remedy by appeal seems wholly inadequate; where necessary to prevent irreparable mischief, great, extraordinary, or exceptional hardship, or costly delays and unusual burdens of expense. McKenna, 1994-NMSC-102, ¶ 4. We may also exercise the power of superintending control "where it is deemed to be in the public interest to settle the question involved at the earliest moment." Griego v. Oliver, 2014-NMSC-003, ¶¶ 11-14, 316 P.3d 865 (internal quotation marks and citation omitted) (issuing a writ of superintending control on the constitutionality of New Mexico marriage laws, noting, in part, the immediate need to resolve uncertainty regarding the issuance of marriage certificates to same-gender couples); see McKenna, 1994-NMSC-102, ¶¶ 4-5. As Petitioners point out, we have expressly acknowledged the appropriateness of exercising the power of superintending control on an...

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