Grisham v Romero


I have been putting off blogging about this case for a while now since it was so closely related to Grisham v. Reeb, the first case about the public health orders. Several weeks ago the Court decided case Grisham v. Romero. In this second case about the Governor’s authority to respond to the pandemic, the Court looked at whether the Governor could restrict or close business to protect public health and whether an order closing indoor dining was arbitrary and capricious.


This is the second time the Court has decided a case related to the Governor’s powers during the COVID-19 pandemic. In particular, this case relates to a July public health order banning indoor dining. This order has been repeatedly modified since July; as of the time of the opinion, the order allowed outdoor dining at 75% of capacity and indoor dining at 25% of capacity. Obviously, a ban on dining has a negative impact on restaurants.

A group of restaurants filed suit to block the public health order, arguing that the state lacked the power to pass the order and that the order was arbitrary and capricious. The district court issued a temporary restraining order (“TRO”) preventing the state from enforcing the restrictions on indoor dining. The Governor quickly filed a petition for writ of superintending control at the Supreme Court, and the Court immediately granted a stay of the TRO. In this opinion, it holds that the order was lawful.

The Opinion

The TRO and the Stay

The Court began with a brief discussion of writs of superintending control. The power of superintending control allows the Court to correct the errors of lower courts when there is no other remedy or gross injustice is threatened. It is used sparingly. But the Court has stated that it is appropriate in cases of first impression concerning constitutional questions with public safety implications.

The Court also briefly discussed its stay of the TRO. A TRO is meant to maintain the status quo for a brief period of time. To obtain a TRO, a party must show (1) it will suffer irreparable injury unless the injunction is granted; (2) the threatened injury outweighs any damage the injunction might cause the adversary; (3) issuance of the injunction will not be adverse to the public’s interest; and (4) there is a substantial likelihood [movant] will prevail on the merits. Where, as here, the party seeks injunctive relief, TROs are disfavored and the movant must satisfy a heightened burden of proof.

The Court did not believe that the TRO in this case maintained the status quo. The public health order was already in place before the lawsuit was filed. Furthermore, the TRO granted the restaurants all of the relief they could achieve at trial. But more importantly, the restaurants had failed to prove the four factors necessary to obtain a TRO. To be sure, the order harmed the restaurants. But they had not shown they could satisfy the other three prongs. The Court had already rejected most of the restaurants’ arguments in Reeb. And, most importantly, the restaurants had ignored the harm the public health order attempted to prevent: the continued transmission of COVID-19.

Despite the lack of evidence to support the petition, and without a hearing, the district court issued the TRO. The TRO contained no findings to support it, and was statewide in scope. The Court explained that under those circumstances it “did not hesitate” to stay the district court’s order.

The State Had the Power to Issue the Public Health Order

On the merits, the Court noted that it had already rejected the restaurants’ arguments in Reeb. However, several groups had filed amicus briefs. One of them, the New Mexico Republican Party, raised additional arguments that the Court had not previously addressed. In particular, it argued that the governor and secretary lacked the authority to issue the order because the order needed to go through the administrative rulemaking process.

The Court rejected the argument that the Governor or Secretary were required to use the rulemaking process to ban indoor dining. Although the public health order arguably was a rule, the Legislature is empowered to create exceptions where the rulemaking process was not required, and it had done so here. This was consistent with a long history in the United States of delegating substantial authority to the executive branch to respond to health emergencies. In fact, requiring the executive to follow the time-consuming rulemaking process would defeat the purposes of the public health laws at issue by preventing the government from timely responding to “the swiftly changing dynamics of a novel, dangerous, and highly communicable disease.” The Court appeared to see this as especially true given that in New Mexico the Legislature is out of session most of the time.

The Public Health Order Was Not Arbitrary and Capricious

Next, the Court addressed the argument that the public health order was arbitrary and capricious. In the context of rulemaking, a rule cannot stand if it is arbitrary and capricious. Because the Court determined that the order was not subject to the rulemaking process, this was not the correct legal standard to apply. The Court concluded that the correct standard was whether the order had any “real or substantial relation” to the object of preventing transmission of COVID-19. The State’s evidence showed that there was, and the fact that reasonable parties might disagree was not enough to render the order unlawful.

Justice Thomson’s Concurrence

Justice Thomson wrote separately to express his concern that the broad and vague statutes that grant emergency powers to the Governor combined with the deference given to the executive to act in times of emergency may pose potential long-term consequences to our system of checks and balances. He seemed to express an opinion that at some point a state of emergency is no longer an immediate crisis but a managed and regulated one, and potentially subject to higher scrutiny (either from the legislature or the judiciary). This is an interesting question but one that he and the Court left for a later day.

COVID continues to rapidly evolve. Hopefully, Justice Thomson is correct, and it is becoming less of a crisis as time passes. Vaccination rates, deaths, and hospitalization all seem to suggest this. Until then, however, the Executive will continue to have the significant power delegated to it by the legislature, and lawsuits such as this one will be difficult to win.

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