State v. Wilson
Decision Date | 07 June 2021 |
Docket Number | No. S-1-SC-38510,S-1-SC-38510 |
Citation | 489 P.3d 925 |
Parties | STATE of New Mexico, Kathyleen Kunkel, in her official capacity as the Secretary of the Department of Health, and Michelle Lujan Grisham, in her official Capacity as the Governor of New Mexico, Petitioners, v. Hon. Matthew WILSON, First Judicial District Court Judge, Hon. Erin B. O'Connell, Second Judicial District Court Judge, Hon. Beatrice J. Brickhouse, Second Judicial District Court Judge, Hon. Marci Beyer, Third Judicial District Court Judge, Hon. Jared G. Kallunki, Fifth Judicial District Court Judge, Hon. Thomas E. Lilley, Fifth Judicial District Court Judge, Hon. Matthew G. Reynolds, Seventh Judicial District Court Judge, Hon. Matthew E. Chandler, Ninth Judicial District Court Judge, Hon. David P. Reeb, Ninth Judicial District Court Judge, Hon. Curtis R. Gurley, Eleventh Judicial District Court Judge, and Hon. Ellen R. Jessen, Twelfth Judicial District Court Judge, Respondents, and Perez Enterprises, LLC, Elite Fitness & Tanning, LLC, Cowboy Cafe, LLC, Mad Mac, LLC, HM Properties, LLC, Campe2, LLC, Eli's Bistro, Inc., David Hett, Sports Adventure, KRK Properties, LLC, Allstar Auction Co., LLC, Oops a Daisy Floral Ltd., Bedonie Casket Ltd., Co., Lone Tree, Inc., Mauger Estates B&B, Grand Avenue Enterprises, LLC, Hinkle Family Fun Center, LLC, Santa Fe Oxygen & Healing Bar, LLC, and Apothecary Restaurant, LLC, Real Parties in Interest. |
Court | New Mexico Supreme Court |
Hector H. Balderas, Attorney General, Nicholas M. Sydow, Civil Appellate Chief, Neil R. Bell, Assistant Attorney General, Erin Elizabeth Lecocq, Assistant Attorney General, Santa Fe, NM, Office of the Governor, Matthew L. Garcia, Chief General Counsel, Holly Agajanian, Chief General Counsel, Kyle P. Duffy, Associate General Counsel, Maria S, Dudley, Associate General Counsel, Santa Fe, NM, for Petitioners
Western Agriculture Resource and Business Advocates, LLP, A. Blair Dunn, Jared Robert Vander Dussen, Albuquerque, NM, for Real Parties in Interest
{1} The petition before the Court presents another case challenging the extent of the executive branch's actions in relation to the ongoing COVID-19 pandemic. Here, we must determine as a matter of law whether the State's public health orders (PHOs) may support a claim for just compensation under either Article II, Section 20 of the New Mexico Constitution or Section 12-10A-15 of the Public Health Emergency Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through 2015). With respect to the constitutional question, we hold that the PHOs cannot support a claim for a regulatory taking requiring compensation. With respect to the statutory question, we hold that the PHOs’ restrictions on business operations regarding occupancy limits and closures cannot support a claim for just compensation. We further hold that claimants for just compensation under the PHERA must exhaust the administrative remedies set forth in Section 12-10A-15(B), (C) before seeking judicial relief.
{2} As we said in Lujan Grisham v. Romero , this Court may take judicial notice of "a fact that is not subject to reasonable dispute because it (1) is generally known within the [C]ourt's territorial jurisdiction, [or] (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." 2021-NMSC-009, ¶ 7, 483 P.3d 545 ( )(internal quotation marks omitted) (quoting Rule 11-201(B) NMRA ); see Fry v. Lopez , 2019-NMSC-013, ¶ 28, 447 P.3d 1086 ( . Therefore, we take judicial notice of legislative facts relevant to this case regarding COVID-19 and the PHOs.
{3} In Grisham v. Reeb , we took notice that COVID-19, the disease caused by the coronavirus SARS-CoV-2, had been responsible nationally for 7.96 million diagnosed cases and 216,917 deaths, as of October 16, 2020. 2021-NMSC-006, ¶ 22, 480 P.3d 852. We also took notice that in New Mexico 34,958 cases had been diagnosed and 922 people had died as of October 9, 2020. Id. ¶ 22. As of May 3, 2021, the Centers for Disease Control records 32.2 million diagnosed cases and 573,780 deaths nationally.1 As of May 3, 2021, the New Mexico Department of Health records that 197,733 cases have been diagnosed and 4,067 New Mexicans have died.2
{4} Since Reeb , multiple vaccines have been developed, and New Mexico has an active program of vaccine distribution. New Mexico Dep't of Health, COVID-19 Vaccine ;3 New Mexico Dep't of Health, State of New Mexico COVID-19 Vaccine Allocation Plan (updated January 28, 2021).4 During the same time, however, multiple variants have been detected in the United States that seem to spread more easily and quickly than the original strain, and research as to the available vaccines’ efficacy against these variants has not been finalized. Mayo Clinic, COVID-19 variants: What's the concern? (updated March 23, 2021).5 No cure is available for COVID-19, and the best way to avoid the illness remains to avoid exposure. Mayo Clinic, Coronavirus disease 2019 (COVID-19): Diagnosis & treatment (updated April 30, 2021)6 ; U.S. Food and Drug Administration, COVID-19 Frequently Asked Questions (updated April 16, 2021).7
{5} As we recognized in Reeb , 2021-NMSC-006, ¶¶ 1-2, 480 P.3d 852, the Governor's executive order of March 11, 2020, pursuant to the PHERA, declared that a public health emergency exists in New Mexico due to the spread of COVID-19. See State of N.M., Executive Order 2020-004 (Mar. 11, 2020).8 This executive order was most recently extended on February 5, 2021. State of N.M., Executive Order 2021-004 (Feb. 5, 2021).9
{6} Beginning on March 16, 2020, a series of PHOs has restricted mass gatherings and the operations of certain businesses, requiring some to close entirely.10 See , e.g. , N.M. Dep't of Health, Public Health Emergency Order Limiting Mass Gatherings and Implementing Other Restrictions Due to COVID-19 at 3 (Mar. 16, 2020) ( ).11 Subsequent PHOs have defined categories of affected businesses and established a framework of differentiated restrictions on those defined categories, "based on a county's ability to satisfy specified metrics." See, e.g. , N.M. Dep't of Health, Public Health Emergency Order ... Providing Additional Restrictions on Mass Gatherings Due to COVID-19 at 6 (July 30, 2020) ( )12 ; N.M. Dep't of Health, Public Health Emergency Order ... to Impose County-by-County Restrictions Due to COVID-19 at 6-11 (Nov. 30, 2020) ( ).13
{7} While the defined COVID-19 metrics and the framework for the restrictions have changed over time, the restrictions themselves have consistently manifested as operational limitations on occupancy to the extent of closure of some categories of businesses. See , e.g. , N.M. Dep't of Health, Public Health Emergency Order ... Amending ... County-by-County Restrictions Due to COVID-19 at 6-13 (Feb. 24, 2021) ( ).14 The PHOs have consistently included public health information relating the orders to the COVID-19 pandemic. See, e.g. , N.M. Dep't of Health, Public Health Emergency Order Limiting Mass Gatherings and Implementing Other Restrictions Due to COVID-19 at 1 (Mar. 16, 2020) ( )15 ; N.M. Dep't of Health, Public Health Emergency Order ... Amending ... County-by-County Restrictions Due to COVID-19 at 2 (Feb. 24, 2021) ( ).16
{8} On October 5, 2020, Petitioners State of New Mexico, Secretary of the Department of Health Kathyleen Kunkel, and Governor Michelle Lujan Grisham filed their verified petition for writ of superintending control and emergency request for stay in this Court. Their petition describes fourteen relevant lawsuits brought against them by small businesses and business owners17 —real parties in interest (Real Parties) in this proceeding—then "pending before eleven district court judges in eight judicial districts across New Mexico." Petitioners’ notice to this Court of October 22, 2020, identifies six additional cases alleging similar claims or counterclaims. The just compensation issue now before this Court is the "share[d] ... threshold legal question" in the twenty pending cases.
{9} Based on substantially identical allegations, the plaintiffs (Real Parties here) in these lawsuits seek just compensation under Art. II, Section 20 and Section 12-10A-15 "as a result of [Petitioners’] total or partial takings of, and damages caused to [the Real Parties’] private property." The Real Parties allege therein...
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