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Law360 (August 27, 2020, 8:58 PM EDT) -- The New Mexico Supreme Court has ruled that the state can close businesses or impose restrictions, such as banning indoor restaurant dining, during the COVID-19 pandemic, granting Democratic Gov. Michelle Lujan Grisham and her health secretary's bid to make emergency decisions that protect the public's health.
The high court in a unanimous 4-0 decision ruled Wednesday during a live-streamed proceeding that New Mexico Department of Health Secretary Kathyleen Kunkel and the governor have the authority under the Public Health Emergency Response Act to shutter businesses and stop public gatherings and to issue fines for violations of the act.
"The court has concluded that the Legislature has clearly given the governor that authority," according to the court's decision read out at the end of the proceeding.
In addition to granting the governor's petition, the high court also ordered a state district court to vacate its July 20 temporary restraining order that had favored the New Mexico Restaurant Association and local eateries in their separate suit against the state over forced closures due to the coronavirus.
The Supreme Court also slapped down a second question raised by the restaurants about whether temporary closures and restrictions as a public health measure constitute a "taking" requiring monetary payments to business owners, rejecting the eateries' claims that a July 13 ban on indoor dining service was "arbitrary and capricious."
While Lujan Grisham suspended the reopening of the New Mexico economy in mid-July over her concerns about transmission of the virus, she has since announced plans to partly lift the ban on indoor dining in a revised emergency public health order that will take effect Saturday after the previous order expires Friday. The new order will allow food and drink establishments such as restaurants, breweries, wineries, distilleries, cafes and coffee shops to serve customers indoors — but only at 25% of maximum occupancy.
A lawyer representing the restaurants, Angelo J. Artuso of the Law Office of Angelo J. Artuso, told Law360 on Thursday that his clients are disappointed with the Supreme Court's unanimous ruling.
According to Artuso, the restaurants argued that under the New Mexico Public Health Act, the orders prohibiting indoor dining are a quarantine and that also under the act, there are numerous due process protections for anyone subjected to a quarantine. But the department has never filed a petition or obtained a court order to establish a quarantine, Artuso said.
"The Department of Health must file a petition and present clear and convincing evidence to obtain a court order establishing the quarantine," Artuso said. "The persons subjected to the quarantine are entitled to a hearing within five days following entry of the order. The department must file a petition to renew the order every 30 days, and again present clear and convincing evidence to the court as to why quarantine should be continued."
But the Supreme Court ruled in error on Wednesday that the restaurants can't develop a full record on whether the closures were arbitrary and capricious, Artuso asserted. As a result, if the department offers up "any plausible reason" for its action, the court will defer to its decision, he said.
"In sum, the New Mexico Department of Health, unelected and unaccountable to the citizens, now has virtually unlimited power to close businesses, so long as they can articulate a public health reason for the closure," Artuso said. "And is there any human activity that cannot in some way be tied to public health?"
Justices Barbara J. Vigil, Judith K. Nakamura, C. Shannon Bacon and David K. Thomson concurred in the decision.
Counsel for the state government did not respond immediately to a request for comment Thursday.
New Mexico is represented by Matthew L. Garcia of the office of the governor and Joseph M. Dworak, director of the state attorney general's Litigation Division.
The restaurants are represented by Angelo J. Artuso of the Law Office of Angelo J. Artuso, Patrick J. Rogers of Patrick J. Rogers LLC and Antonia Roybal-Mack, and Amelia P. Nelson and Darren L. Cordova of Roybal-Mack & Cordova Law PC.
The case is New Mexico Gov. Michelle Lujan Grisham et al. v. Romero, New Mexico Restaurant Association et al., S-1-SC-38396, in the Supreme Court of the State of New Mexico.
--Editing by Gemma Horowitz.
For a reprint of this article, please contact reprints@law360.com.
