Question of eminent domain during COVID-19 likely headed to the state supreme court

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.

Lawsuit claims public health order prevented important surgery

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.

Legal costs, impact on women often overlooked in lawsuits

When a state agency settles a lawsuit, often times the public’s focus is on how much money the state settled for. But an often overlooked portion of legal battles with state agencies is how much the state paid for legal representation. 

Since former Gov. Susana Martinez left office nine months ago, there have been a number of news reports about settlement payouts to a handful of former state employees for alleged workplace discrimination. Often, public scrutiny is aimed at the plaintiffs. In a high profile settlement involving former Department of Public Safety employees, New Mexico’s former State Police Chief, who was accused of sexual harassment, called the claims from his former employees baseless and accused them of extorting money from tax payers. But lawyers from two different lawsuits covered extensively by NM Political Report argue that there should be more focus on how much the state pays for long, drawn-out legal defenses to ultimately settle for hundreds of thousands of dollars, specifically when women are the accusers. 

 ‘It’s going to be like a proctology exam’

In December 2017, less than a month after the University of New Mexico Health Sciences Center agreed to cut a jury trial short and settle with a former medical resident, Anesthesiology Chair Hugh Martin broke some bad news to his faculty—they would not be getting bonuses that year. 

“I regret to inform the faculty that due to the recent legal settlement with the former dismissed problem resident, Cyndi Herald, that the Department had to reallocate the monies I had planned to use for a retention bonus to pay the settlement legal costs to Ms. Herald/Attorney Lisa Curtis,” Martin wrote. 

The “problem resident” Martin referred to, Cynthia Herald, had spent years in a legal battle with her former employer.

NM group files suit against Sec. of State and AG over referendum process

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.

NM GOP calls out former administration for secret payouts

New Mexico’s Republican Party condemned the Gov. Susana Martinez administration Thursday for reportedly paying out $1.7 million in confidential settlements to former state officials. “We are deeply troubled by the recent breaking news about secret payouts to state employees that appear to have violated state procedures which are supposed to protect taxpayers from paying out frivolous claims,” a press release from the party said. The party’s announcement came after KRQE-TV reported that not only did the state settle with a handful of former state employees, but that the specifics of the settlement are confidential for almost five years. Normally, New Mexico statute requires all settlements that go through the state’s Risk Management Division be kept confidential for 180 days. It’s still unclear why both the former state employees and Risk Management agreed to an unusually long confidentiality period.

Labor union: Jail firings were unjustified, retaliation

Three Bernalillo County detention officers, one former officer and a local public sector labor union filed suit against the county, half a dozen jail supervisors, the Bernalillo County Sheriff and two other county law enforcement officers.  

The suit alleges top officials at the Bernalillo County Metropolitan Detention Center (MDC) along with the county Sheriff’s office and upper county administrators actively prevented union members from associating with the American Federation of State County and Municipal Employees (AFSCME), New Mexico Council 18, Local 2499. According to the lawsuit, in 2015 county officials were “caught red-handed” trying to “engage in an actual conspiracy” to hire staff who would work against union leaders. Then, the lawsuit says, county jail leaders continued to retaliate against vocal union leaders like Eric Allen, a corrections officer who was fired from MDC for two instances of use of force, and Stephen Perkins, an MDC corrections officer who is currently on administrative leave and is currently facing false imprisonment charges. Both Allen and Perkins were already in the news this year.

UNM to reevaluate IPRA policy after NM Political Report complaint

The University of New Mexico is reevaluating its policy of charging for electronic copies of public records on a per-page basis in response to a reprimand from the New Mexico Attorney General’s Office. In an email to NM Political Report, the school’s Office of University Counsel said the UNM public records custodian is “evaluating the fee structure” for fulfilling requests of electronic records. Associate University Counsel Patrick Hart also wrote that the public records department will suspend the policy and practice of charging $0.38 a page for electronic records through the end of September. The change comes after the state Attorney General’s office issued a determination letter in response to a complaint filed by NM Political Report. NM Political Report filed the complaint after the UNM’s Custodian of Public Records billed $0.38 a page for an electronic file that contained more than 1,600 pages.

Former ABQ city council candidate suing current councilor for releasing personal information

Update: Added a response from Don Harris

Almost a year after the Albuquerque municipal election, a former city council candidate is suing his former opponent, who won the council seat. Byron Powdrell, who owns and operates a local, non-profit radio station, filed a lawsuit against City Councilor Don Harris and a private investigator hired by Harris during the 2017 mayoral and city council election season. Powdrell alleges Harris and private investigator Joe Fanseca published the radio station owner’s private information, including his Social Security number, to a campaign website aimed at disparaging Powdrell. The website, which was registered to an email address for Harris’ law firm, has since been taken down. Harris told NM Political Report he had no comment as he had not been served with the lawsuit at the time of publication.

State tries to keep $2.5 million Corrections Dept. settlement under wrap

After almost two years of legal battles, the State of New Mexico agreed to settle a lawsuit filed against its Corrections Department. In 2015, six female employees at the state prison in Los Lunas sued the department, saying some of their male supervisors assaulted and sexually harassed them. The six women collectively received $2.5 million according to the settlement agreement signed in January. Their attorney, Laura Schauer Ives, said the women sued the Central New Mexico Correctional Facility to shed light on what they called a culture of demeaning female corrections officers. The 140-page lawsuit alleged a history of aggressively sexual comments and crass words directed at female officers.

State law encourages secret payouts

Before Cynthia Herald left the Bernalillo County courthouse last November she told reporters that she was relieved to finally gain closure on an ordeal with the University of New Mexico that lasted more than half a decade. Herald sued the university’s medical school, claiming she was wrongfully dismissed from a residency program and settled before closing arguments. The terms of the settlement were, by state law, temporarily shielded from public scrutiny. That meant the public couldn’t see the total amount UNM agreed to pay, including how much money was to come from the medical school’s anesthesiology department and how much from the state’s Risk Management Division. Seven months later, the University still won’t release that information and cites the same law.