Businesses that were ordered to close during the early months of the COVID-19 pandemic do not have a claim for government compensation, the New Mexico Supreme Court ruled.
The unanimous opinion, written by Justice Shannon Bacon, states that public health orders from Gov. Michelle Lujan Grisham and the state Department of Health did not constitute either a physical or regulatory “taking” of property that would warrant compensation from the state.
“Occupancy limits and closure of certain categories of businesses, while certainly harsh in their economic effects, are directly tied to the reasonable purpose of limiting the public’s exposure to the potentially life-threatening and communicable disease, and thus can be deemed ‘reasonably necessary,”’ Bacon wrote.
Before Lujan Grisham’s office asked the high court to take the case, business owners who sought compensation after emergency public health orders forced them to close their doors to the public filed a number of suits around the state in lower courts. Lujan Grisham’s office asked the state supreme court to decide whether a public health order to close businesses constitutes a regulatory taking.
Another question posed to the court was whether a portion of state law that specifically mentions compensation in public health emergencies applied to all types of businesses or just medical companies. The group of businesses seeking compensation argued that the state Public Health Emergency Response Act’s provision on compensation includes non-medical businesses with the words “any other property.” But the state supreme court seemed to agree with the governor’s office argument that ejusdem generis, or a Latin term meaning of the same kind, applied to the words “any other property,” essentially meaning any other medical or medically related company taken by the state to help fight a public health emergency.
“Because a public health emergency can affect the entire population, anyone and everyone could be a potential claimant under the Real Parties’ interpretation, even under far less restrictive measures than the [public health orders],” Bacon wrote. “It is simply not credible that the Legislature in enacting the PHERA intended for such a potential raid on the public wealth while simultaneously granting broad powers to protect the public health.” Further, the high court also ruled that anyone seeking compensation under PHERA has to first follow the law’s procedure for a claim, which means the claim has to first go through the state Attorney General’s Office.
Every county in New Mexico is now at the turquoise level, the least restrictive level of restrictions. “Given the state’s vaccination progress and continued positive outlook with respect to new virus cases, counties will remain at the turquoise level barring exceptional circumstances,” Department of Health Secretary Dr. Tracie Collins said. Those exceptional circumstances could include an unforeseen mass outbreak of COVID-19 infections. Human Services Department Secretary Dr. David Scrase said this was because of not only improvements, but also changes to the way the state’s color-coded county-level restriction system works. Without the changes put in place by the governor, according to Scrase, five largely rural counties would have been at the yellow level.
New Mexicans who are vaccinated and part of the state’s vaccinenm.org registration system will be entered in a sweepstakes with a chance to win part of a $10 million prize pool—including a $5 million grand prize. The Vax 2 the Max Sweepstakes is New Mexico’s version of an effort by states across the country to encourage vaccinations. Those who wish to be entered for the prizes must opt in at the state website. Those who enter must be 18 years of age or older. “Getting vaccinated is the right thing to do — for yourself, for your family and for your state,” Gov. Michelle Lujan Grisham said.
Those who are fully vaccinated can now go without masks in most situations in New Mexico—indoors or outdoors. The state Department of Health followed federal Centers for Disease Control and Prevention guidance in making sweeping changes to its suggested mask use. Getting vaccinated is the ticket to a safe and healthy COVID-free future,” Gov. Michelle Lujan Grisham said in a statement. “We are close and getting closer. But that all depends on New Mexicans continuing to protect themselves and their community by getting vaccinated – please find vaccines near you at vaccineNM.org and get your shot!”
The guidance does provide for some situations where those who are vaccinated will still need to wear masks, like on buses, trains or airplanes or other mass transit as well as health care settings and congregate settings like homeless shelters or correctional facilities.
If all goes according to plan, the state will fully reopen by the end of June—and in the meantime, much of the state will be on the least restrictive, turquoise level after newly announced changes. “We are conquering COVID,” Gov. Michelle Lujan Grisham said in a press conference on Wednesday in which she and top state health officials announced sweeping changes to the state’s COVID-19 rules, citing the state’s high number of COVID-19 vaccinations. The state will lift most restrictions, including capacity restrictions, when it hits 60 percent of those age 16 or older who are vaccinated, which the state projects will happen by the end of June. Beginning this Friday, the state will use less strict numbers for positivity rates and cases per capita in each county as well as including vaccination data by county. Lujan Grisham made the announcement Wednesday and said she overruled the medical team for the first time since the beginning of the pandemic to move it forward to Friday instead of Wednesday, May 4 when the county-by-county, color-coded update was scheduled to take place.
Gov. Michelle Lujan Grisham and health officials held a press conference on the state’s COVID-19 response on Wednesday. The remote press conference was webcast on the governor’s Facebook page. The video below is from the page.
A top state health official said he believed all counties in New Mexico could be at the green or turquoise level by the end of May. “Maybe I shouldn’t even say that, but my way of thinking, we will be an almost completely green and turquoise state by the end of May at the latest,” Human Services Department Secretary Dr. David Scrase said. This all comes as Scrase said the state is finalizing a new red-to-green tier system, which he said could be ready as early as in two weeks, for the next red-to-green update. With New Mexico’s new red-to-green status, 14 counties are in the turquoise level, including Santa Fe County, three are in green, 15 counties are in yellow, including the other four large population counties, and Colfax county is in the red level. Counties at the turquoise level have the least restrictions related to COVID-19, while the county in red is in the most restrictive.
The state of New Mexico paused its distribution of the Johnson & Johnson COVID-19 vaccine after reports of possibly related, very rare blood clots. The state made the announcement on Tuesday after recommendations by the U.S. Centers for Disease Control and Prevention and the federal Food and Drug Administration citing reports of six “rare and severe” blood clots out of the 6.8 million doses of the vaccine nationwide, a rate of less than one in a million. “New Mexico – like the federal government – is acting out of an abundance of caution,” New Mexico Department of Health Secretary Dr. Tracie Collins said in a statement. “As we learn more, we will share that information.”
The DOH Twitter account noted that the cases represent a tiny fraction of the Johnson & Johnson doses. “This move shows that the federal oversight process of vaccine safety and effectiveness is working,” according to DOH.
New Mexico has now given at least one shot of a COVID-19 vaccine to half of its population age 16 or older, according to the state’s Health Secretary. Dr. Tracie Collins, the secretary of the state Department of Health, said that in addition to the nearly 50 percent of people who have received at least one shot, 31 percent of New Mexicans are fully vaccinated, either through two shots of the Moderna or Pfizer vaccines or one shot of the Johnson & Johnson vaccine. The state’s numbers show 49.4 percent of New Mexicans aged 16 or older with at least one dose and 31.7 percent fully vaccinated. As of Wednesday’s update, 829,765 New Mexicans had received at least one dose and 533,288 were fully vaccinated. This includes 114,211 doses administered in the last seven days from the state.
This morning recap of COVID-19 news from New Mexico is available in a free email every Friday. Sign up here. See all of our COVID-19 coverage here. As of Thursday, the state Department of Health reported 191,945 total cases of COVID-19 and 3,942 deaths related to the disease. As of Thursday, 96 individuals were hospitalized for COVID-19, the fewest since Oct. 5.However, DOH reported 297 cases on Thursday and 277 cases on Wednesday, the first two days with more than 250 cases since March 10.