Two NM lawmakers ask state suprme court to give federal funding discretion to legislature

In a move, not likely surprising to political insiders, a Democratic New Mexico state senator who has been a vocal critic of the governor joined one of his Republican colleagues in an attempt to block further spending of federal relief money. 

Sen. Jacob Candelaria, D-Albuquerque, along with Senate Minority Leader Greg Baca, R-Belen, filed a petition over the weekend with the New Mexico Supreme Court in an attempt to stop Gov. Michelle Lujan Grisham from further spending federal money without legislative input. 

In a statement, Candelaria said no one person should have the authority to handle federal funds sent to New Mexico. 

“When I became a senator almost a decade ago, I took an oath to defend the Constitution and laws of the state of New Mexico. We have filed this petition to halt the Governor’s unconstitutional efforts to usurp the Legislature’s appropriations power by claiming that she, and she alone, has the power to decide how billions of dollars in federal grant funds are spent,” Candelaria said. “In our country, no one is above the law and no one person should ever have the power to decide, unilaterally, how much people are taxed or how public money is spent.”

At issue is $1.75 billion of federal funds New Mexico received as part of the federal American Rescue Plan Act (ARPA). Some state lawmakers have repeatedly called for legislative control of federal stimulus money and during the regular 2021 legislative session, lawmakers attempted to appropriate money from ARPA in the state budget. Lujan Grisham issued a partial veto of that budget bill and cited a 1974 New Mexico Supreme Court case in her explanation for not giving the Legislature oversight in ARPA funds.  

“The Supreme Court of New Mexico has concluded that federal contributions are not a proper subject of the Legislature’s appropriative power, and the Legislature’s attempt to control the use of such funds infringes ‘the executive function of administration,’” Lujan Grisham wrote in her veto message. 

Part of that case, which was filed by then-Republican state Sen. William Sago, also involved federal appropriations.

Federal judge denies injunction for NM public health order

A federal judge ruled earlier this week that two women who filed a lawsuit against Gov. Michelle Lujan Grisham did not adequately show how a state emergency public health order requiring vaccines for certain activities violated their rights. 

U.S District Court Judge Martha Vásquez denied a motion filed by the two women, which asked the court to issue a temporary restraining order and a preliminary injunction to stop one of the state’s public health orders that require New Mexico State Fair attendees and public health workers to get a COVID-19 vaccine.  

Vásquez wrote that the two plaintiffs failed to show how they would face irreparable harm if the court did not issue an injunction. 

“To obtain preliminary injunctive relief, Plaintiffs are required to prove that they are substantially likely to succeed on the merits of their claims, that they will suffer irreparable injury if the Court denies the requested injunction, that the balance of harms weighs in their favor, and that the injunction would not be adverse to the public interest,” Vásquez wrote. “Plaintiffs fail to satisfy their burden as to any, let alone all, of these factors.”

One plaintiff works as a nurse for Presbyterian Hospital in Albuquerque and the other is a mother of children who were set to show livestock at the New Mexico State Fair. Both women claimed that the public health order violated their state and federal constitutional rights. Both women also maintained that they should not be forced to get a COVID-19 vaccine that is approved under an emergency use authorization by the Food and Drug Administration. Shortly after the suit was filed, the FDA fully authorized the Pfizer vaccine for COVID-19. 

“Accordingly, the provisions of the [Federal Food, Drug, and Cosmetic Act] quoted by Plaintiff, which are applicable only to medical products under an [Emergency Use Authorization], are not applicable to the administration of the Pfizer vaccine to individuals 16 years of age and older,” Vásquez wrote.

NM Cannabis Control Division employees sue agency over assigned work location

As the New Mexico Regulation and Licensing Department prepares to issue licenses to cannabis businesses, court records show they are also facing a lawsuit by some of the employees tasked with daily operations. 

In July, about a month after the state’s Cannabis Regulation Act went into effect, four RLD employees filed a civil complaint against the department, alleging that the employees were forced to start working in Santa Fe instead of Albuquerque, where the lawsuit says they have worked for years. 

The four employees were among a larger group of staff that were moved from the Department of Health’s Medical Cannabis Program to the RLD’s Cannabis Control Division as part of the new law that legalized adult-use cannabis. 

According to state records, Matilde Colomo and Jude Vigil are both listed as compliance officers, Matthew Peralta is listed as an environmental science specialist and Martinik Gonzales is listed as an administrative operations manager. 

According to the complaint, the four employees are “being forced to transfer their daily work operation from Albuquerque to Santa Fe and are being forced to do so against their will.”

“All Plaintiffs have experienced mental distress and anguish over being forced to commute to Santa Fe against their wishes and against their job terms,” the complaint reads. 

A spokesperson for RLD said the Cannabis Control Division does not comment on pending litigation, but reiterated that both the department and the division are working towards setting up a cannabis industry.  

“The CCD’s mission is to stand up and support a thriving medical cannabis program and adult-use cannabis industry in New Mexico,” RLD spokesperson Heather Brewer said. “The CCD staff is working hard to provide quality customer service and timely technical assistance to maximize the economic opportunities the cannabis industry will create for businesses, communities and our state.”

All four employees, according to the complaint, had already been working in Albuquerque under DOH, but were informed in June that the Albuquerque workspace was “inadequate to house the new Cannabis Control Division,” and that it was “determined” that the new division staff would need to be in one location. 

The suit claims that in moving staff from Albuquerque, RLD violated a State Personnel Office rule regarding intra-agency transfers. 

The rule in question states that employees are allowed to be transferred “without the employee’s consent to a position in the same classification within the same geographic location, which is 35 miles from the boundaries of the community in which the employee is employed or if the established requirements state that willingness to accept a change of geographic location is a condition of employment.”

Santa Fe is about 60 miles north of Albuquerque. 

According to the complaint, the four employees objected to the move and requested to work remotely from their respective homes, but were still “forced to report to the Santa Fe Office.”

The complaint asks a state district court judge to issue an injunction or temporary restraining order to halt the move until the issue can be resolved in court. RLD has until late next week to formally respond to the complaint.

NM medical cannabis producers warn of cannabis shortage ‘crisis’

As New Mexico prepares for its new recreational-use cannabis industry, two cannabis producers are warning of an impending crisis if state regulators do not lift a moratorium on expanding existing medical cannabis production. 

After the New Mexico Regulation and Licensing Department and its Cannabis Control Division announced a halt on approval of new facilities until further rules are finalized, two legacy producers, who rarely see eye to eye on regulations, said they are both worried about supply when adult-use sales begin next year. 

Earlier this year, Nicole Bazzano, the acting deputy director of business operations for the Cannabis Control Division, sent a letter to medical cannabis producers informing them that any new production facilities would have to wait until after September. 

“The [Cannabis Regulation Act] prohibits the [Cannabis Control Division] from accepting any new applications on or after June 29, 2021, for additional premises until related rules have been finalized,” Bazzano wrote. “As such, the [Cannabis Control Division] will not be processing applications for additional premises submitted June 29, 2021 or later, until rules for the corresponding license types are finalized.”

Duke Rodriguez, who is the president and CEO of prominent cannabis company Ultra Health, said that a pause on increasing production facilities will only worsen shortages he has been warning of for years.  

“We’re going to have a crisis,” Rodriguez said. “Mathematically we cannot avoid it.”

Rodriguez has long said that New Mexico, particularly in rural areas, was already experiencing cannabis supply shortages because of rules and regulations that cap the number of plants for cultivators. 

Rodriguez said the data his company has compiled shows that New Mexico could run out of cannabis completely just several days after recreational-use sales begin. He said allowing medical cannabis producers to expand operations as a way of bolstering supply is only part of the solution and that it may be too late to completely avoid a crisis. That’s partly, he said, because the New Mexico Department of Health’s Medical Cannabis Program capped production to 450 plants per producer for years.

NM starts accepting cannabis cultivation license applications

Nearly 400 companies started the process of applying for a license to grow cannabis in the first several hours the New Mexico Regulation and Licensing Department started accepting applications. 

According to an RLD representative, of the 344 applications that were started, 226 of them were for a microbusiness license, which is a type of production license to grow no more than 200 plants. 

According to RLD, five applications were submitted as complete, but had not been verified as complete. One of those completed applications, according to RLD, was a test application submitted by an existing medical cannabis producer. Existing medical cannabis producers went through the application process earlier this summer.  

In a statement RLD Superintendent Linda Trujillo said the department is committed to setting up a program “in ways that support businesses, consumers and communities.”

“The Cannabis Control Division is committed to making the licensing process as easy as possible while upholding the law and ensuring the integrity of New Mexico’s cannabis industry,” Trujillo said. “We look forward to working with licensees to stand up an industry we can all be proud of.”

The application is currently only open for cultivation, but the department and the Cannabis Control Division has to come up with rules and regulations for manufacturers, curriers, retailers and cannabis testing by January 1, 2022. 

According to a press release from RLD, integrated businesses, or those that include multiple aspects of cannabis business, will need to apply for each part of their business separately, but any fees paid for individual licenses will be applied to the total fee that would normally be applied to an integrated license application. 

The Cannabis Control Act, which legalized non-medical cannabis use in New Mexico requires that cultivation licenses be issued no later than January 1, 2022 and that retail sales begin no later than April 1, 2022. 

More information on requirements and the application process can be found here. 

Judge denies restraining order in lawsuit against vaccine requirement

A federal lawsuit against New Mexico Gov. Michelle Lujan Grisham, over one of her public health orders, is moving forward. But the judge in the case dismissed a request to issue a temporary restraining order to block vaccine requirements for health care workers and state fair attendees. 

U.S. District Court Judge Martha Vázquez, through an order on Monday, fast-tracked the lawsuit against Lujan Grisham, but said there was not enough justification to warrant a restraining order. The suit was filed by two New Mexico residents who argued that a recent public health order requiring vaccines for certain activities violates both the New Mexico and U.S. Constitution. 

In her order, Vázquez wrote that the two plaintiffs, Jennifer Blackford of Rio Rancho and Talisha Valdez of Union County, still have options under the public health order. 

“While alleging that the [public health order] would prevent Blackford from retaining her employment and Valdez from entering the State Fair, the Complaint ignores the existence of the exemptions to the PHO’s vaccination requirements,” Vázquez wrote. “As noted above, the PHO allows for three exemptions to the vaccination requirements for hospital workers and State Fair attendees, including an exemption that can be supported by a mere statement as to the manner in which the administration of a vaccination conflicts with the beliefs of the individual.”

The public health order, in part, requires proof of vaccination to attend the New Mexico State Fair. It also requires healthcare workers to provide proof of vaccination. 

But the order also provides exemptions and an alternative to getting vaccinated.

Bernalillo County commission chooses Bounkeua to fill vacant legislative seat

With a unanimous vote, the Bernalillo County Commission appointed the first Asian American woman to the New Mexico Legislature. 

Viengkeo Kay Bounkeua, who goes by Kay, was sworn into office Tuesday evening by Bernalillo County Clerk Linda Stover after commissioners voted 4-0 to appoint Bounkeua to fill the House District 19 seat. The House seat was left vacant after former Democratic Representative Sheryl Williams Stapleton resigned amid embezzlement charges. 

Bounkeua is the New Mexico Deputy Director of The Wilderness Society, a national environment advocacy organization, and the former director of the New Mexico Asian Family Center. 

In a phone interview with NM Political Report just after her appointment, Bounkeua said she had a mix of emotions. 

“I feel a bit overwhelmed, I feel a bit scared, I feel so content and peaceful,” she said. “And also, I feel that I have the love and guidance of so many people who do this work and do it well, and of all the ancestors that carried us to this moment. I feel that power and I’m so grateful for it.”

Bounkeua was nominated by County Commissioner Adriann Barboa, who said she had seen Bounkeua’s qualifications first hand. 

“I’ve seen her be gentle enough to work with the care needed to serve people in domestic violence situations, and the strength and power to fight for the visibility and the rights of refugee and immigrant families,” Barboa said. 

Bounkeua’s parents were refugees of the Vietnam War and moved to Albuquerque’s International District in 1974. In her application to commissioners, Bounkeua wrote that her family experienced discrimination after her parents became naturalized citizens in 1986 and saved enough money to buy a house in Albuquerque’s Northeast Heights. 

“As we were planning for our future, the neighborhood was petitioning to ban us from buying a home, saying people who looked like us would drive down property values and bring in crime,” Bounkeua wrote. 

After the vote, Bounkeua told commissioners that her appointment is an “opportunity to kick open doors so we’ll never again be the only or the first.”

She told NM Political Report that she plans to carve out a path for others as well. 

“It’s not going to end with me,” Bounkeua said.”It’s about who we can bring with us, who will come after us, how we set the stage for the next generation of leaders who come through, that’s what this is all about.”

Bounkeua said her immediate legislative focuses will be redistricting and education reform. 

“I’m still focused, and will be focused, on redistricting.

NM cannabis regulators set to accept applications for growers

New Mexico cannabis regulators are one step closer to opening the proverbial floodgates for those who plan to apply for a cannabis cultivation license. 

The state’s Regulation and Licensing Department and its Cannabis Control Division announced on Tuesday that the department finalized rules and regulations for cannabis cultivation as well as a social and economic equity plan and plans for addressing possible cannabis shortages. 

The department also announced that it would start accepting cultivation applications several days ahead of the statutory deadline of Sept. 1. 

In a statement on Tuesday, RLD Superintendent Linda Trujillo said the rules “reflect the unique needs and perspectives of New Mexico residents, businesses, entrepreneurs and communities.”

“We are ready for business,” Trujillo said. “The Cannabis Control Division is committed to supporting licensees to maximize the economic opportunities that adult-use cannabis sales offer our state.”

The new rules create four different levels of cultivation licenses, based on the number of plants that a producer plans on growing. At the highest level, producers can have up to 8,000 flowering plants, but an unlimited number of immature plants. The rules seem to create a path for exceptions to the 8,000 plant rule, but also state that no cultivator may have more than 10,000 plants. 

The finalized rules also set a goal for the Cannabis Control Division to ensure that “at least 50 percent of applicants for licensure, licenses, and cannabis industry employees” represent groups and communities that have historically been negatively impacted by previous drug laws.  

For years, medical cannabis patient advocacy groups have raised concerns about the state’s Medical Cannabis Program taking a back seat to the new adult-use program.

NM judge calls for increased purchase limit for medical cannabis patients

As New Mexico’s Regulation and Licensing Department works toward finalizing rules for non-medical cannabis sales, some unfinished business remains when it comes to the state’s medical cannabis program. 

A state district judge last week ordered RLD, the New Mexico Department of Health and the governor’s office to either change their policy for medical cannabis patient purchase amounts or present a compelling argument for not doing so. 

“Respondents’ purchase limitations violate equal protection principles because they will subject New Mexicans with debilitating medical conditions who are dependent on medical cannabis to lower purchase limitations than persons who purchase cannabis from the recreational (and taxed) market,” read the writ of mandamus signed by Second Judicial District Judge Benjamin Chavez. “Respondents’ unlawful rules also attempt to impose an illegal tax on any medical cannabis purchases in violation of the Cannabis Regulation Act.”

The Cannabis Regulation Act, which went into effect on June 29 and is the framework for sales expected to start next spring, allows purchasers to buy up to two ounces of cannabis at a time. But the state’s Department of Health, which is RLD’s medical cannabis counterpart, has maintained that a DOH policy limiting medical cannabis purchases to roughly eight ounces in a 90-day period takes precedence over the new law. 

For years, New Mexico cannabis patients have been limited to 230 “units” in a rolling 90-day period. DOH rules define a unit as one gram of dried cannabis “flower” or 200 milligrams of cannabis extract or concentrate. Under the new law, however, non-medical cannabis purchases are limited to two ounces for each transaction.

New lawsuit claims NM public health order violates rights

The governor of New Mexico and one of her cabinet secretaries is again facing a lawsuit after issuing a COVID-19 public health order requiring healthcare workers, among other professions like teachers or school staff, to be vaccinated unless they qualify for an exemption. The order, which was issued on Aug. 18, also requires that anyone attending the upcoming New Mexico State Fair be fully vaccinated against COVID-19. 

The day after the order was issued, two women filed a class action suit against the state, arguing that the order violated their right to refuse a vaccine that has not been fully approved by the U.S. Federal Drug Administration. 

Rio Rancho resident Jennifer Blackford, is a registered nurse with Presbyterian Hospital in Albuquerque who has not been vaccinated for COVID-19. According to a signed affidavit, Blackford said that based on her medical training and her own independent research, she has decided not to get a COVID-19 vaccination. 

“It is my right to choose not to be vaccinated for COVID-19 and it violates my right to bodily integrity under the Fourth Amendment to the United States Constitution and Article II, Section 10 of the New Mexico Constitution to require that in order to keep my job I must inject an experimental [Emergency Use Authorization] vaccine into my body,” Blackford’s affidavit reads. 

Emergency Use Authorization is an expedited process, but is not described as “experimental” and is still made after clinical trials with “rigorous standards” according to the Federal Drug Administration. Even without the public health order in question, Presbyterian recently announced it would require all of its staff to be vaccinated. 

Talisha Valdez is a resident of Union County and the mother of two daughters who had planned on showing livestock in a 4-H competition at the state fair.