February 15, 2021

NM Supreme Court issues official opinion on validity of state emergency health orders

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New Mexico State Supreme Court

The New Mexico Supreme Court on Monday issued a written opinion that explained its reasoning behind a bench ruling regarding state emergency public health orders. The high court ruled last summer that the state and the governor are legally allowed to issue emergency health orders without a formal rulemaking process. 

The court unanimously ruled that the state Department of Health and Gov. Michelle Lujan Grisham are granted, by the Legislature, the ability to issue orders limiting certain business activities. In this case, businesses were ordered to cease indoor dining during the COVID-19 pandemic. 

Last year a group of business owners challenged those orders, arguing that they were arbitrary and capricious and that the normal rulemaking process should be followed to implement such emergency orders. 

In her, likely final, written opinion, former Chief Justice Judith Nakamura said the emergency public health orders like the ones that were issued last year and have been updated since, provide the state with the ability to respond to “the swiftly changing dynamics of a novel, dangerous, and highly communicable disease.”

Justice David Thomson issued a special concurring opinion with a caveat to the unanimous decision. Thomson said he agreed that the state’s executive branch should have the flexibility to issue emergency orders, but that the governor’s office is not above scrutiny and questions regarding those decisions. 

“The majority’s holding should not communicate that executive or legislative responses to the pandemic will always receive the same level of judicial deference as when the crisis first emerged,” Thomson wrote. “In addition, I believe we must be wary of the precedent we set beyond the scope of the COVID-19 crisis.”

Monday’s written opinion is the latest in a series of decisions from the court that validated Lujan Grisham’s response to the COVID-19 pandemic. 

The state Supreme Court has yet to issue an opinion on whether ordering businesses close to the public is the same as the state taking property, which would require the state to compensate those businesses.