State v. Wilson

• Court: Supreme Court of New Mexico
• 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.
• Docket Number: NO. S-1-SC-38510,S-1-SC-38510
• Decision Date: 07 June 2021

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.

NO. S-1-SC-38510

SUPREME COURT OF THE STATE OF NEW MEXICO

June 7, 2021

The slip opinion is the first version of an opinion released by the Chief Clerk of the Supreme Court. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Chief Clerk for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion.

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ORIGINAL PROCEEDING

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

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Western Agriculture Resource and Business Advocates, LLP
A. Blair Dunn
Jared Robert Vander Dussen
Albuquerque, NM

for Real Parties in Interest

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OPINION

BACON, Justice.

{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.

I. BACKGROUND

A. Legislative Facts Regarding COVID-19 and the PHOs

{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

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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 (second alteration in original) (internal quotation marks omitted) (quoting Rule 11-201(B) NMRA); see Fry v. Lopez, 2019-NMSC-013, ¶ 28, 447 P.3d 1086 ("[T]his Court . . . may take judicial notice of legislative facts by resorting to whatever materials it may have at its disposal establishing or tending to establish those facts. Legislative facts are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take." (internal quotation marks and citations omitted)). Therefore, we take judicial notice of legislative facts relevant to this case regarding COVID-19 and the PHOs.

1. COVID-19

{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

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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

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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

2. The PHOs

{5} As we recognized in Reeb, 2021-NMSC-006, ¶¶ 1-2, 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.,

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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) (restricting operation of all "restaurants, bars, breweries, eateries, and other food service establishments" to no greater than fifty percent of maximum occupancy and of seating capacity; prohibiting all nontribal casinos and horse racing facilities and their attendant restaurants and bars from operating).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) (restricting operation of "close contact businesses" at up to twenty-five percent of maximum occupancy; prohibiting operation of "close-contact recreational facilities")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) (establishing the "Red to Green" reopening framework;

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establishing underlying metrics of new COVID-19 incidence rate and average percent of positive COVID-19 test results).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) (adding "Turquoise" to the "Red to Green" framework).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) (describing the World Health Organization's announcement of the "novel Coronavirus Disease 2019" including the disease having "adapted to humans such that it is contagious and easily spread from one person to another")¹⁵; N.M. Dep't of

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Health, Public Health Emergency Order . . . Amending . . . County-by-County Restrictions Due to COVID-19 at 2 (Feb. 24, 2021) (providing that confirmed cases exceed 28 million nationally and 183,000 in New Mexico; providing that related deaths exceed 500,000 nationally and 3,600 in New Mexico).¹⁶

B. Procedural History

{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

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counterclaims. The just compensation issue now before this Court is the "share[d] ....