NM Supreme Court issues split ruling on governor’s emergency orders targeting gun violence, drug abuse

By Matthew Reichbach

The New Mexico Supreme Court issued a split ruling on the legality of emergency orders related to gun violence and drug use.

The court ruled that Gov. Michelle Lujan’s executive order banning guns in parks and playgrounds within the City of Albuquerque and Bernalillo County, did not violate the separation of powers between the executive and the legislative branches. A previous version of the order banned the public possession of firearms, but was blocked by a federal court, leading the governor to tighten the restrictions.

The state high court however ruled that an executive order to suspend a program originally aimed at lowering the number of children in detention centers exceeded “the limits of police power.”

Lujan Grisham used the Public Health Emergency Response Act to issue the orders in September 2023. It’s the same law that justified COVID-19 executive actions, something Republicans opposed and sought to overturn, including in this lawsuit.

The court ruled that the legislative intent of the Public Health Emergency Response Act was to “delegate considerable authority and discretion to the executive branch to declare a public health emergency.”

The ruling continued, “the Legislature presumably intended to grant a governor the authority to determine when an occurring or imminent event gives rise to an imminent threat of substantial harm that warrants declaration of a public health emergency.”

The court also ruled that a public health emergency does not need to be “sudden” or “unforeseen” under the law, or under the common meaning of the word “emergency.”

“Petitioners offer no argument that the Legislature intended for a governor not to be able to declare and address a public health emergency when a proper crisis arises gradually and foreseeably, such as substantial harm to the public from persistent drought or flu,” the ruling states.

One area the state Supreme Court said the executive branch overstepped its bounds: Seeking to suspend the Juvenile Detention Alternatives Initiative program within the state Children, Youth and Families Department which seeks to reduce the population of children within detention facilities.

The court ruled that it was not clear “which declared public health emergency — gun violence or drug abuse — is meant to be addressed by the suspension of JDAI or CYFD’s evaluation of juvenile probation protocols” and that the order did not give an expected outcome from doing so.

All of the orders expired in October of 2024, but the state Supreme Court said they would decide the case, brought by Republican members of the state legislature and others, because of “substantial public interest” as well as the likelihood that similar questions would come in front of the court in the future.

The ruling was not unanimous. Justice Shannon Bacon wrote the opinion, with Chief Justice David Thomson and Justice Julie Vargas concurring. Justices Michael Vigil and Briana Zamora each wrote dissenting opinions.

“I am guided by my apprehension that the unconstrained exercise of emergency executive powers the majority has approved in this instance could readily be misused,” Zamora wrote. “While the Governor’s desire to combat gun violence and drug abuse appears to be well-intended, there is nothing in the majority’s opinion that would restrict a future governor from taking actions that would be substantively more troubling.”