Despite a special congressional election well underway, with many absentee ballots already returned and early in-person votes cast, the New Mexico Supreme Court may consider a case that challenges the validity of one of the candidates whose name is on the ballot.
In April, a state district judge dismissed a claim that Chris Manning, the Libertarian candidate for First Congressional District, should not be on the ballot. Petitioners Ginger Grider and James Clayton, who are both members of the Libertarian Party of New Mexico, argued that the Libertarian Party should not have been granted major party status in the special election and that the party went against its own rules when nominating Manning. Grider and Clayton, through their attorney Blair Dunn, asked in April for the state supreme court to overturn the lower court’s decision. Dunn argued in the petition that the Libertarian Party should not be granted major party status since no gubernatorial or presidential candidate received at least five percent of the vote in the 2020 general election.
It’s unclear when the high court may make a determination or whether it will call for oral arguments, but the New Mexico Secretary of State’s office filed a response on Tuesday that argues the Libertarian Party of New Mexico rightfully holds major party status. In the response, General Counsel for the Secretary of State’s office Dylan Lange cited a 1996 opinion from then-New Mexico Attorney General Tom Udall that states major political parties can maintain their status if any candidate from the party gets at least 5 percent of the vote on a presidential or gubernatorial election ballot.
When Gov. Michelle Lujan’s lawyer spoke to the state Supreme Court earlier this month, he made it clear that he expected to be in front of the justices to argue the merits of almost a dozen lawsuits against the state.
In his opening argument, Matt Garcia, the governor’s legal counsel, reminded justices that he has been in and out of their courtroom numerous times since the COVID-19 pandemic hit New Mexico.
“The COVID-19 pandemic has given rise to a number of nominal and significant legal issues for this court’s consideration, ranging from everything to elections to prison conditions,” Garcia said.
On that specific day though, Garcia was arguing the state’s case for issuing fines and misdemeanor charges against businesses that do not comply with the state’s public health order. Just as they had in nearly every case related to COVID-19 before, the justices sided with the governor’s office.
But several times during the hearing, justices asked Garcia about the idea that the state may owe businesses money for ordering them to shut down.
Justice Judith Nakamura asked Garcia about a request in his petition that the high court make a ruling on whether or not the state has to pay businesses that were forced to close.
Garcia said he asked the justices to consider the issue as a way to save time and resources and referenced the ten cases pending in district court, all filed by Albuquerque-based attorney Blair Dunn.
“Undoubtedly, the court will have to address this issue again, at some point, and so it makes sense now to do it when it’s been presented directly to the court,” Garcia said.
The justices ultimately decided not to weigh-in on the issue, but there is little doubt that the issue of compensation for closed businesses will eventually end up back at the state Supreme Court.
The main question justices will likely have to answer is whether businesses that were ordered to close are due compensation from the state for the impact of the closures.
Garcia argued briefly in court that the difference between a categorical taking and a regulatory taking is key.
The state’s Public Health Emergency Response Act (PHERA) contains a provision that outlines compensation for businesses that were taken over by the state.
In the case of the state’s public health order, Garcia said, the directive to close businesses should be considered regulatory. Garcia added that previous case law holds that ordering businesses to close does not constitute a regulatory taking and that the provision in PHERA specifically addresses categorical taking. But Dunn, who is representing about a dozen business owners in various judicial districts, said he thinks it could be considered both.
“Our argument is that any of those where it required 100 percent shutdown, was the government taking 100 percent control of the business and is therefore 100 percent of the taking, which goes both to this idea of a regulatory taking versus categorical taking,” Dunn said.
Former state Senator Dede Feldman helped draft the bill in 2003 that would ultimately become PHERA. She said the impetus for the bill was the anthrax scare that was happening at the time and that she and other lawmakers intended the compensation section of PHERA for hospitals or medical companies.
“What we talked about were hospitals that were taken over and used for quarantine,” Feldman said.
The New Mexico Supreme Court ruled Tuesday in a 3-2 decision that the state Legislature can hold a special session without allowing in-person attendance from the public.
The decision was a result of a petition filed on behalf of a long list of state lawmakers by Albuquerque-based attorney Blair Dunn. The petitioners argued that this week’s special legislative session should be physically open to the public, not just online. With the backdrop of the current COVID-19 pandemic, legislative leadership announced earlier this month that the state capitol building would be closed to the public, with some exceptions for members of the press.
The high court issued a written order, but no written opinion. Chief Justice Judith Nakamura, the only Republican on the court sided with Justices Barbara Vigil and Michael Vigil. Justices Shannon Bacon and David Thomson dissented.
A Bernalillo County man filed a lawsuit Wednesday against the state after his scheduled surgery was cancelled in order to comply with one of the state’s COVID-19 public health orders.
Edward Tsyitee, through his lawyer Blair Dunn, said he was scheduled for surgery to remove his gallbladder on April 13, but was denied by two different medical facilities because the state’s current public health order includes “Temporary Restrictions on Non-Essential Health Care Services, Procedures, and and Surgeries.”
In a sworn affidavit, Tsyitee recounted that in December 2018, during a visit to the emergency room, he was told he had gallstones and that a doctor advised him to schedule a surgery to remove his gallbladder. But days before his surgery, Tsyitee said his doctor called to tell him the surgery was postponed because of the state’s public health order.
“Gallbladder surgery, while listed as an elective surgery, has become necessary for me to maintain my life and health,” Tsyitee wrote. “I am in pain, and suffering other medical issues due to the fact that I cannot have my gallbladder removed at this time.”
According to his affidavit, Tsyitee went to a second emergency medical center because he was suffering from “rectal bleeding” about 10 days after his surgery was cancelled.
“I was concerned that I was suffering internal bleeding due to the gallbladder issues,” Tsyitee wrote.
But testing showed there was no internal bleeding and doctors again sent him home.
Along with the lawsuit seeking damages, Tsyitee also filed a request for a temporary restraining order to allow him to go in for surgery.
A Department of Health spokesperson told NM Political Report that he department does not comment on pending litigation.
A March 24 update to the state’s public health order specified that “non-essential” meant procedures that could be postponed for three months without putting a person in danger of further complications.
The state’s public health order was amended on May 1 to allow for some non-essential procedures with the condition that medical centers follow current guidelines for limiting the spread of COVID-19.
Current state restrictions, and more looming, due to the emergence of COVID-19 in New Mexico raises the question for some people: Is this legal? Since Gov. Michelle Lujan Grisham declared an emergency earlier this month, she has ordered purchasing restrictions, limited group gatherings and ordered restaurants to limit service to take-out only.
While at least one New Mexico scholar and the New Mexico American Civil Liberties Union agree that the governor’s actions can be justified, an Albuquerque attorney does not and has said he is working towards challenging the order in court.
Matthew Simpson, who teaches political theory at the University of New Mexico, said there’s a balance in U.S. government between public safety and personal freedoms, and in times of crisis, safety usually wins.
“The measures that might be best for promoting people’s well being isn’t really compatible with maximizing their liberties and so government officials have to try to balance those two and have to weigh them against each other,” Simpson said. “I think at the end of the day protection of life has to take precedence, and usually does take precedence, over the protections of liberty, just because you can’t have liberty if you’re not alive.”
Simpson added that even though New Mexicans are currently restricted from physically gathering in groups of more than ten, their right to assemble is arguably not being violated. “The government isn’t saying you can’t talk to people about your common concerns, they’re just saying you can’t engage in these behaviors that are going to be vectors for this deadly disease,” Simpson said.
But that doesn’t mean putting public safety above rights always works out, he said. The Supreme Court sided with President Franklin Delano Roosevelt when faced with whether U.S. Japanese internment camps during World War II violated personal rights.
“I think with the benefit of hindsight, almost everybody thinks that that was just a fundamental violation of rights,” Simpson said.
A group of New Mexicans filed a lawsuit Thursday afternoon against two state officials who rejected numerous attempts to start the process to overturn laws passed in this year’s legislative session.
The lawsuit, filed by former Libertarian attorney general candidate Blair Dunn on behalf of a group called the New Mexico Patriot Advocacy Coalition, asks a state district court judge in Curry County to deem actions taken by the two elected officials as unconstitutional. The lawsuit claims New Mexico Secretary of State Maggie Toulouse Oliver, in consultation with state Attorney General Hector Balderas, violated the rights of New Mexicans by denying 10 attempts to overturn recently passed laws. The state constitution allows for a referendum process in which petition signatures are gathered to overturn laws, though the process is rarely used and has only been successful once in state history.
Previous attempts by House Minority Leader Jim Townsend, R-Artesia, to overturn gun restriction laws were also rejected. Townsend’s three attempts were denied by Toulouse Oliver for what she called technical errors and on the grounds that the state’s process for referendums to reverse laws does not apply to laws “providing for the public peace, health and safety.” One of Townsend’s attempts to overturn a gun background check law is among the ten instances the coalition says Toulouse wrongfully denied. The other petition attempts, filed by the coalition, aimed to overturn laws ranging from the recent minimum wage increase, election changes and a law that shot down the ability for local governments to enact right-to-work laws.
Democrats swept statewide races on Election Day, and will control not just the governor’s office and all of the executive agencies, but also independent state agencies that oversee everything from state funds to state lands. Democratic incumbent Tim Eichenberg easily won the race for State Treasurer over Republican Arthur Castillo and Democrat Brian Colón defeated Republican Wayne Johnson for State Auditor. In the three-way race for Attorney General, Democratic incumbent Hector Balderas beat Republican Michael Hendricks and Libertarian Blair Dunn. And another Democratic incumbent, Maggie Toulouse Oliver defeated Republican Gavin Clarkson and Libertarian Ginger Grider to hold on to the Secretary of State seat. The closest statewide race on Election Day was for State Land Commissioner.
The New Mexico Supreme Court unanimously struck down a controversial proposal to add a straight-party option to November’s ballot. Secretary of State Maggie Toulouse Oliver announced last month that she would reinstate an option on November’s ballot to allow people to vote for all candidates of a given party with one mark on the ballot. That decision was challenged by the Libertarian and Republican parties of New Mexico, along with a Utah-based political action committee, a non-profit advocate group for independent candidates and one Democratic write-in candidate. On Wednesday, Chief Justice Judith Nakamura called it a tough decision, but said only state lawmakers can add add straight-party voting to the ballot. “Until the legislature makes a decision one way or the other, the Secretary of State cannot,” Nakamura said.
Campaign finance reports filed Monday showed positives for both gubernatorial candidates, with the Republican showing a lead with money left, but the Democrat raised, and spent, more money. Republican nominee Steve Pearce finished the campaign finance period—which lasted from July 1 to Sept. 3—with nearly $1.9 million cash-on-hand for the final two months of the race. This was well ahead of the $1.2 million cash-on-hand for his opponent, Democrat Michelle Lujan Grisham. Lujan Grisham, however, raised $1.9 million in the period and spent almost $1.5 million.