First Judicial District Court

NM judge invalidates medical cannabis rules

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A New Mexico state district court judge ruled on Thursday that rules adopted by the state’s Medical Cannabis Program last year are effectively invalid. 

In his ruling, First Judicial District Court Judge Bryan Biedscheid repeatedly wrote that rule amendments promulgated by the Medical Cannabis Program last year lacked “substantial evidence” to support claims made by the program and the New Mexico Department of Health, which oversees the program. 

Biedscheid also wrote that the rule changes are invalid because the department and the program failed to consult with the state’s Medical Cannabis Advisory Board before making the changes. 

The suit was originally filed by a group of medical cannabis companies and one patient who is qualified to grow his own medical cannabis. The group did not initially seek to overturn the entire list of rule changes, but Biedscheid overturned the rule changes in their entirety. 

“The Court hopes that its additional findings and conclusions provide some guidance to the Department on remand and avoid additional remands due to lack of substantial evidence,” Biedscheid wrote. 

Some of the changes the group of petitioners sought to overturn included increased plant testing standards for things like heavy metals and pesticides as well as a requirement for cannabis producers to amend their license when physical changes are made to their facilities. 

The group of petitioners claimed some of the rules were “arbitrary and capricious” and that increased testing standards, without sound science to back them up, would ultimately increase prices and negatively impact cannabis patients. 

While Biedscheid ruled that the department did not follow the proper procedure, he did not comment on the merits or deficiencies of the rule changes. 

Prior to the rule changes last year, the Medical Cannabis Program and DOH already had testing standards in place, so Thursday’s ruling does not eliminate testing and labeling requirements completely. 

But, last year’s changes also included an allowance for a temporary supplemental plant increase for producers, under certain circumstances as well as rules for consumption areas. In 2019, the New Mexico Legislature passed a bill that allows for medical cannabis consumption areas, but left much of the specifics to department rules. So far, no medical cannabis producer in the state has opened a consumption area. Those rules were promulgated along with the increased testing standards and labeling requirements. 

It is unclear whether the department will appeal the court’s ruling or start the rulemaking process over again. 

A DOH spokesman said the department is “aware of the ruling” and is “evaluating options.”

The ruling came during the second week of the state’s legislative session, a busy time for state officials and at a time when many lawmakers are hoping to see recreational-use cannabis legalized.

Alisa Diehl

Yazzie-Martinez plaintiffs want court to order state to address remote learning issues

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The plaintiffs in a lawsuit over educational resources in New Mexico filed a request with the First Judicial District Court on Wednesday to order the state to provide computers and high-speed internet access to thousands of at risk students who lack tools for remote learning during the COVID-19 pandemic. An estimated 23 percent of the New Mexico population lacks broadband internet service, according to the New Mexico Center on Law and Poverty (NMCLP). The nonprofit, which is providing legal counsel to the plaintiffs of the Yazzie-Martinez lawsuit, estimated that 80 percent of Native Americans living on tribal lands do not have internet services at all. Florena Valencia, of the San Felipe Pueblo, and her three daughters are one Native American family who lack internet at home. Valencia sat with her three daughters in her hot car in the warmer months while her children tried to learn remotely, she said.

First Judicial District Court

DOH and Medical Cannabis Program ordered back to court over reciprocity issue

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The New Mexico Department of Health and its Medical Cannabis Program have two weeks to convince a state district court judge that the department and program should not be sanctioned for violating a court order. 

The order is the latest in a legal battle between medical cannabis producer Ultra Health and the state over who qualifies as a reciprocal medical cannabis patient. 

This summer, the Department of Health finalized rules allowing patients who are authorized to use medical cannabis in another state or jurisdiction to also buy, use and possess cannabis in New Mexico. Shortly after the rule was made final, some New Mexicans reportedly started getting certified to use medical cannabis in other states that don’t have as stringent qualifications as New Mexico. 

By September, the department and the Medical Cannabis Program issued a mandate that dispensaries only sign up would-be reciprocal patients whose identification cards match their authorization to use medical cannabis. The department and program also issued an emergency rule change, specifying that New Mexicans cannot be reciprocal patients in New Mexico. 

Ultra Health, through its attorney Jacob Candelaria, who is also a state senator, days later filed a petition asking First Judicial District Court Judge Matthew Wilson to compel the state to “stop taking actions that are beyond and contrary to their statutory authority.”

By October, Wilson ordered the state to rescind its emergency rule change and mandate barring New Mexicans from registering as a medical cannabis patient in another state and becoming reciprocal patients in the New Mexico program. 

The department and medical program immediately abided by the order and again allowed New Mexico residents to register as reciprocal patients. 

But by the end of October, the Medical Cannabis Program published a notification of a proposed rule change similar to the emergency change. Then, earlier this month, the state notified the court of its plan to appeal Wilson’s decision. Two days later, Candelaria filed a motion asking Wilson to call the state back to court and explain why they should not be sanctioned for violating the judge’s order.

2020 Absentee Voting

State district court judge dismisses NM GOP suit against Secretary of State, two county clerks

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A Santa Fe state district court judge dismissed a lawsuit filed by the Republican Party of New Mexico against the New Mexico Secretary of State and two county clerks on Thursday. 

The suit alleged that both the Taos and Guadalupe County clerks’ offices were not adequately monitoring absentee ballot drop boxes and requested that a judge issue a temporary restraining order, followed by a permanent injunction to “either immediately discontinue the use of drop boxes or ensure that they are made inaccessible to the public during non-polling hours and kept continuously, directly monitored by at least two bipartisan election officials during polling hours.”

Education

Lawmaker says public schools need more funding

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If state Sen. Bill Soules had his way, New Mexico would invest an extra $375 million in public schools right now. Where the cash-strapped state would find that money is another matter altogether. Soules, a Las Cruces Democrat, has once again introduced legislation calling for the state to follow the recommendation of a decadeold study and funnel hundreds of millions of dollars more into its public education system — one that generally ranks at or near the bottom in most national reports. But Soules’ bill doesn’t have a chance in the upcoming legislative session. And he knows it.

News

Legislature sues governor, says ten vetoes are invalid

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The Legislature asked a state district court Monday to invalidate 10 vetoes by Gov. Susana Martinez of bills state lawmakers passed during this year’s regular session. The petition filed with the First Judicial District Court in Santa Fe came after the Legislative Council voted to approve it earlier this year. A spokesman for the governor said the legal challenge is “another example of out-of-touch Santa Fe trial lawyers wasting time and taxpayer money going to court when they don’t get what they want.”

Democrats say Martinez violated the state constitution by not explaining why she vetoed the 10 bills. The complaint describes the two categories of vetoes:  Half of the bills were vetoed within three days after being presented to the governor. But the governor did not include her “objections” as required  by the state constitution.

Angela Medrow

State faces suit over absences hurting teachers’ evaluations

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A teacher from a rural New Mexico school district is suing the state over its policy on teacher absences. The teacher says the Public Education Department’s policy of punishing teachers on evaluations after their third absence should be changed. PED has since amended that punishment to six school absences per school year. PED Secretary Hanna Skandera responded to the lawsuit with a very short prepared statement. “We received the lawsuit,” she said.

Medical Cannabis Program

DOH and cannabis producer have their day in court

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A New Mexico state agency and a medical cannabis company argued in a state district court Monday morning whether the state’s punishment of the company was warranted. Santa Fe District Court Judge David Thompson heard from both the state’s Department of Health (DOH) and a lawyer representing medical cannabis producer New Mexico Top Organics-Ultra Health about whether the company will have to shut down retail operations for five days later this month. The department claims Ultra Health violated the state’s medical cannabis program rules by moving a plant out of their approved growing and retail facilities and into the public. The pending sanction is a result of a cannabis plant Ultra Health used in an exhibit at the New Mexico State Fair last September. The plant Ultra Health brought to the State Fair was non-flowering, meaning it was not mature enough to be used for consumption..

Phil Griego

Legislative staff must turn over docs in corruption case

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A district judge ruled Tuesday that New Mexico legislative staff must turn over some documents to the Attorney General Hector Balderas’ office. The AG’s office sought documents related to a criminal case against former Senator Phil Griego. Second Judicial District Judge Brett Loveless ruled that some documents and information requested by the AG’s office through subpoenas are susceptible to inspection after Legislative Council Service argued against it. Loveless ruled that “LCS has no constitutional privilege to refuse to produce the materials.”

This comes after the AG’s office and LCS sparred over whether legislators and legislative staff should be subject to subpoenas requiring their testimony. These documents include many documents related to the Interim Legislative Ethics Committee, which itself investigated Phil Griego for the violations of Senate Rules and the state constitution that led to his resignation from the state senate in 2015.

News

Legislators join battle over immigrant tax returns

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Legislators joined the dispute between an immigrant rights group and the state Taxation and Revenue Department. State Rep. Miguel Garcia and State Sens. Jerry Ortiz y Pino and Richard Martinez, all Democrats, sided with the immigrant rights group Somos un Pueblo Unido and MALDEF. The groups say that TRD is illegally withholding tax returns from immigrants who are in the country illegally. The TRD secretary says that the efforts are legal and necessary to root out fraud in tax returns.