NMSC: State Can Enforce Public Health Orders

The New Mexico Supreme Court last week issued what is probably one of the more important cases of the year, Grisham v. Reeb. This case was brought as a challenge to the State’s public health orders, which closed or limited certain businesses and imposed penalties of up to $5,000 per day for violations. Writing for a unanimous court, Justice Nakamura concluded that the Sate can enforce the public health orders.

Background

By now everyone is familiar with the COVID-19 pandemic. As of this writing, New Mexico is reporting over a thousand new cases per day, and over 1000 New Mexicans have died of the disease. But the story of this case begins back in March, when the seriousness of the pandemic was only starting to be appreciated.

On March 11, 2020, the Governor issued an executive order declaring a public health emergency and invoking her powers under the Public Health Emergency Response Act (“PHERA”) and the All Hazard Emergency Management Act (“AHEMA”). This executive order has been extended multiple times and is still in force today.

Shortly thereafter, the secretary of the New Mexico Department of Health issued a series of public emergency health orders which, beginning on March 16, 2020, restricted mass gatherings and the operations of certain businesses, requiring some to close entirely. Although these restrictions have changed over time, significant restrictions remain.

The emergency orders imposed serious burdens on many businesses. In mid-May, several of these businesses sued the state, arguing that it lacked the authority to issue the emergency orders and seeking to have their enforcement enjoined. Each of the businesses had received “cease and desist” orders warning of criminal citation and/or fines of up to $5,000 per day for non-compliance. The lawsuit also sought payment for lost business, which the plaintiffs argued was a “taking.”

The state petitioned the Court for a writ of superintending control, which the it granted. In August, the Court orally ruled that the emergency orders were a valid exercise of powers authorized by the legislature. This opinion is the written explanation of that ruling.

Analysis

To answer whether the orders were lawful, the Courts needed to interpret the legislature’s intent in passing the AHEMA and PHERA. But they did not do so in a vacuum. The statutes needed to be read in light of the fact that the legislature “possesses the police power, the ‘broadest power possessed by governments,’ to protect public health and welfare.” Though laws are always subject to the constitution, the state’s power is at its strongest when health and safety is at issue.

As the Court somewhat wryly observed, a complementary and concurrent set of laws governed the State’s ability to manage public health emergencies.

First, there is PHERA. PHERA allows the Governor to proclaim a public health emergency, and to authorize various agencies to direct a response to the emergency. For example, the Secretary of Health has the special powers to commandeer health care facilities or regulate health care supplies. It also authorizes fines of up to $5,000 per violation. But PHERA also provides procedural protections for persons who are fined or otherwise bear the brunt of these actions.

Second, AHEMA essentially allows the governor to control and direct all of the states resources in responding to an emergency. In particular, she is allowed to issue rules, orders, and procedures, which local government is required to comply with.

Finally, the Public Health Act (“PHA”) and Department of Health Act (“DHA”) set forth the powers and duties of the Department of Health. As one would expect, those powers are broad. They include, among other things, the power to establish, maintain and enforce isolation and quarantine; close any public place and forbid gatherings of people when necessary for the protection of the public health; to bring action in court for the enforcement of health laws and rules and orders issued by the department; to maintain and enforce rules for the control of conditions of public health importance; and to do all other things necessary to carry out its duties. The PHA also makes it a misdemeanor to fail to comply with a Department of Health order.

Given the extensive powers provided under the statutes, , it is clear that the legislature intended that the state should have broad power to respond to public health emergencies such as COVID-19. So it is perhaps not surprising that the Court concluded that the emergency orders were authorized under the various statutes. Given the breadth of both the laws and the police power itself, this conclusion was difficult to escape. The opinion reaches this result via a much longer analysis, but to my mind this has more to do with the Court’s desire to address all of the plaintiffs’ arguments than any real difficulty or doubt as to what the correct answer should be.

At the end of some complicated analysis, the Court reaches a simple conclusion: PHERA’s civil penalty provision may be applied to enforce the business restrictions or closures required under the Secretary of Health’s emergency orders. One hopes that, whether it be due to state action, science, or just plain luck, we will get a handle on the pandemic soon.

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