Grisham v. Romero

• Decision Date: 15 February 2021
• Docket Number: No. S-1-SC-38396,S-1-SC-38396
• Citation: 483 P.3d 545
• Parties: Michelle Lujan GRISHAM, Governor of New Mexico; Kathyleen Kunkel, Secretary of the New Mexico Department of Health, Petitioners, v. Honorable Raymond L. ROMERO, District Court Judge, Fifth Judicial District Court, Respondent, and Outlaw Meats, LLC, a New Mexico Limited Liability Company; F-2 Enterprises, Inc., d/b/a Texas Club Grill & Bar, a New Mexico Corporation; K-Bobs of Raton, Inc., a New Mexico Corporation; K-Bobs of Las Vegas, Inc., a New Mexico Corporation; B.M.B. Financial, LLC, d/b/a Trinity Hotel, a New Mexico Limited Liability Company; Red River Brewing Company, LLC, a New Mexico Limited Liability Company; and New Mexico Restaurant Association, Real Parties in Interest.
• Court: New Mexico Supreme Court

483 P.3d 545

Michelle Lujan GRISHAM, Governor of New Mexico; Kathyleen Kunkel, Secretary of the New Mexico Department of Health, Petitioners,

v. Honorable Raymond L. ROMERO, District Court Judge, Fifth Judicial District Court, Respondent,andOutlaw Meats, LLC, a New Mexico Limited Liability Company; F-2 Enterprises, Inc., d/b/a Texas Club Grill & Bar, a New Mexico Corporation; K-Bobs of Raton, Inc., a New Mexico Corporation; K-Bobs of Las Vegas, Inc., a New Mexico Corporation; B.M.B. Financial, LLC, d/b/a Trinity Hotel, a New Mexico Limited Liability Company; Red River Brewing Company, LLC, a New Mexico Limited Liability Company; and New Mexico Restaurant Association, Real Parties in Interest.

No. S-1-SC-38396

Supreme Court of New Mexico.

Filing Date: February 15, 2021

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

Honorable Raymond L. Romero, District Court Judge, Fifth Judicial District, Carlsbad, NM, for Respondent

Law Office of Angelo J. Artuso, Angelo J. Artuso, Albuquerque, NM, Patrick J. Rogers, LLC, Patrick J. Rogers, Albuquerque, NM, Roybal-Mack & Cordova Law, P.C., Antonia Roybal-Mack, Amelia P. Nelson, Darren Lee Cordova, Albuquerque, NM, for Real Parties in Interest

Tabor & Byers, L.L.P., Justin Stewart Raines, Cas F. Tabor, Carlsbad, NM, for Amicus Curiae Eddy County

Jonathan M. Diener, Mule Creek, NM, for Amicus Curiae Jalisco Café

Harrison & Hart, LLC, Carter B. Harrison, IV, Albuquerque, NM, for Amici Curiae Republican Party of New Mexico, House Minority Leader Jim Townsend, and Senate Minority Leader Stuart Ingle

NAKAMURA, Justice.

{1} This case presents the Court with yet another opportunity to address the difficult questions surrounding the executive branch's authority to impose business restrictions during a pandemic. Here, we answer two questions: (1) whether Petitioners are authorized to restrict or close businesses when necessary for the protection of public health and (2) whether the renewed temporary closure of indoor dining at restaurants and breweries, mandated by the July 13, 2020, emergency public health order (July Order), see N.M. Dep't of Health, Public Health Order at 5 (July 13, 2020),¹ was arbitrary and capricious. With respect to the first question we hold, consistent with our opinion in Grisham v. Reeb , 2020-NMSC-006, ¶¶ 25-33, 480 P.3d 852 (S-1-SC-38336, Nov. 5, 2020), that Petitioners are so authorized. With respect to the second question, we hold that the July Order's temporary closure of indoor dining was not arbitrary and capricious.

I. BACKGROUND

A. The COVID-19 Pandemic and Petitioners’ Orders

{2} COVID-19, the disease caused by the contagious coronavirus SARS-CoV-2, continues to spread across the United States; as of early February 2021, over 26 million cases of COVID-19 have been diagnosed in the United States, and more than 450,000 Americans have died from the disease. See Centers for Disease Control and Prevention, U.S. Cases & Deaths .² New Mexico's share of that case total is 176,211, and 3,355 New Mexicans have died of COVID-19-related causes. See N.M. Dep't of Health, COVID-19 in New Mexico .³ Because there is presently no cure or readily available vaccine for the disease, compliance with social distancing requirements and other precautionary measures remains the only effective means of averting infection. N.M. Dep't of Health, State of New Mexico COVID-19 Vaccine Allocation Plan (updated January 28, 2021)⁴ ; Mayo Clinic, Coronavirus disease 2019 (COVID-19): Diagnosis & treatment ;⁵ U.S. Food and Drug Administration, COVID-19 Frequently Asked Questions (updated February 4, 2021).⁶

{3} 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 Public Health Emergency Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through 2015), pursuant to Section 12-10A-5. See State of N.M. Executive Order 2020-004 (March 11, 2020) (hereinafter "EO 2020-004").⁷ This executive order was extended through March 5, 2021. State of N.M. Executive Order 2021-004 (February 5, 2021) (hereinafter "EO 2021-004").⁸

{4} The Secretary of the Department of Health (DOH), Kathyleen Kunkel⁹ —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 Act (DOH Act), NMSA 1978, §§ 9-7-1 to -18 (1977, as amended through 2019); and "inherent constitutional police powers"—issued a series of emergency public health orders (emergency orders) which, beginning on March 16, 2020, restricted mass gatherings and the operations of certain businesses, requiring some to close entirely. See N.M. Dep't of Health, Public Health Order at 3 (March 16, 2020).¹⁰ Indoor and outdoor dining at restaurants was banned effective March 24, 2020. See N.M. Dep't of Health, Public Health Order at 4 (March 23, 2020).¹¹ The restrictions imposed in the initial emergency orders were gradually relaxed as New Mexico's daily rate of new infections declined, with outdoor dining permitted at 50% capacity under the fire code as of May 27, 2020 (see N.M. Dep't of Health, Public Health Order at 5 (May 27, 2020)¹² ), and indoor dining permitted at 50% capacity as of June 1, 2020 (see N.M. Dep't of Health, Public Health Order at 5 (June 1, 2020)¹³ ).

{5} However, in response to a subsequent rise in the rate of new COVID-19 cases in New Mexico and surrounding states, and increasing infections associated with restaurant dining, the Secretary of Health reinstated the ban on indoor dining on July 13, 2020. See July Order, supra , at 5. The July Order was amended several times in accordance with changing COVID-19 conditions and, as of early November 2020, the applicable emergency order permitted, among other things, indoor dining at 25% capacity and outdoor dining at 75% capacity. See N.M. Dep't of Health, Public Health Order at 5-6 (October 22, 2020).¹⁴

{6} The restrictions set out in the July (and follow-up) Order(s) continue to be modified based on changing COVID-19 conditions, albeit now in accordance with a "county-by-county" approach specified in New Mexico's subsequently adopted, three-level "reopening" framework. See N.M. Dep't of Health, Public Health Order at 6-10 (November 30, 2020).¹⁵ Under this framework, it is anticipated that individual counties—and the businesses operating within their borders—will move from the "Red Level" ("very high risk") to the "Yellow Level" ("high risk’) to the "Green Level" ("medium risk") based on demonstrated health metrics bearing on virus spread and test positivity rates, with a corresponding easing of restrictions at each successive stage. See N.M. Dep't of Health, Red to Green Framework.¹⁶ At present, twenty-five of the thirty-three counties in New Mexico remain at the Red Level and thus are subject to a ban on indoor dining and 25% capacity restrictions on outdoor dining. See N.M. Dep't of Health, Public Health Order at 9-11 (January 29, 2021)¹⁷ ; N.M. Dep't of Health, COVID-19 in New Mexico , supra.

{7} This Court may, on its own, "judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within the court's territorial jurisdiction, [or] (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Rule 11-201(B), (C) NMRA. Therefore, as we did in Reeb , 2020-NMSC-006, ¶ 23, 480 P.3d 852, we take judicial notice of (1) the serious health risks posed by COVID-19, a "highly contagious and potentially fatal" disease, (2) the disease's transmission within New Mexico, and (3) the emergency orders issued by Governor Grisham and the Secretary. Legacy Church, Inc. v. Kunkel , 472 F. Supp. 3d 926, 1066-67 (D.N.M. 2020) (collecting cases and noting that "[c]ourts presiding over similar cases have taken judicial notice of Public Health Orders and scientific consensus regarding the coronavirus").

B. Procedural History

{8} On July 14, 2020, six food and drink establishments from various locations in the State of New Mexico¹⁸ and the New Mexico Restaurant Association (the Association)—real parties in interest (Real Parties) in this action—filed an application in the Fifth Judicial District Court, seeking a temporary restraining order (TRO) and a preliminary and permanent injunction against Governor Grisham and the Secretary, "prohibiting [them] from enforcing their recently ordered quarantine of all indoor dine-in service spaces for all restaurants and brewery businesses in New Mexico." The application argues that the July Order's indoor dining ban is "[u]ltra [v]ires and [n]ot [e]nforceable" and is "[u]nreasonable, [a]rbitrary, and [c]apricious." The application attaches affidavits from the various businesses and from Carol Wight, CEO of the Association, detailing the loss of income and employment caused by the emergency orders’ restrictions on restaurants and, in particular, the prospective consequences of the July Order's ban on indoor dining. The application also attaches an excerpt of Governor Grisham's July 9, 2020, press conference and an undated chart apparently published by the DOH (but accompanied by no affidavit or other competent explanation of its source), titled "Coronavirus Risk Levels By Activity," in which churches, gyms, and salons are all categorized as having risks similar to or greater than the risks of indoor dining.

{9} On July 15, 2020, Governor Grisham and the Secretary were served with a summons, issued by the district court, notifying them that they had thirty days to file a written response to the Real Parties’ application. On July 17, 2020, Governor Grisham and the Secretary entered an appearance and moved for a page limit...