With the New Mexico Supreme Court’s pandemic-era inspired moratorium on evictions about to end, the court announced it will phase-in a statewide program to help tenants access money starting in April. But family advocates have said that approximately 80,000 renter households are at risk in the state for eviction. Divya Shiv, a research and policy analyst for New Mexico Voices for Children, told NM Political Report that the 43 percent of residents in the state reporting a high likelihood of eviction or foreclosure because they are not current on their rent or mortgage is higher than the national average, which is 35 percent. With the moratorium ending on evictions for tenants with unpaid rent, this could lead to a crisis of unhoused families in New Mexico, Shiv said. “Evictions are really harmful and it’s incredibly destabilizing for families and children,” she said.
The New Mexico Supreme Court ruled on Monday that a handful of citizen-initiated grand jury petitions filed against Gov. Michelle Lujan Grisham in response to her public emergency orders are “facially invalid.”
In the order directing several lower courts to dismiss the citizen-initiated grand jury petitions, Chief Justice Michael Vigil wrote that the state’s mechanism that allows citizens to call for a grand jury for public officials who violate state law does not apply to the governor’s COVID-19 public health orders.
“This Court previously has held that [Lujan Grisham] acted lawfully and within the scope of her executive authority when she declared a public health emergency due to the COVID-19 pandemic and delegated power to the Secretary of Health to issue further emergency orders to protect public health and safety,” Vigil wrote.
The order instructed lower courts to deny such grand jury petitions as they “only describe lawful, noncriminal activity.”
The New Mexico Constitution allows citizens to file petitions asking a state district court to convene a grand jury to look into possible criminal activity of an elected official. In the order, the state supreme court also asked a judicial committee to consider rule changes that would make the citizen grand jury process more transparent as the current process involves sealed and confidential proceedings. Lujan Grisham’s office filed the supreme court petition last fall, asking justices to weigh in on the validity of the handful of grand jury petitions filed in state district courts aiming to investigate alleged criminal actions in issuing the public health orders. Since Lujan Grisham started issuing emergency public health orders in response to the COVID-19 pandemic, several state supreme court petitions have been filed challenging those orders. The New Mexico Supreme Court has ruled in favor of the governor in all of the cases they have issued opinions on.
The New Mexico Supreme Court ruled unanimously on Tuesday in favor of recreation groups who sued over access to waterways running through private property. In 2020, a trio of groups including Adobe Whitewater Club, Backcountry Hunters and Anglers and the New Mexico Wildlife Federation challenged the New Mexico Game Commission’s non-navigable waters rule in an effort to get a clear ruling about stream access.
The Stream Access Law that passed in 2015 led to the game commission promulgating rules allowing landowners to seek certificates deeming the water flowing through their property as non-navigable, effectively closing off access to that section of water to wading and walking. Tuesday’s ruling found that the non-navigable waters rule violates the state’s constitution. The certificates that have been issued will be voided.
The plaintiffs argued that the state constitution gives rights for the public to wade in streams that cross private property, as long as they remain in the waterway. But some private property owners said this was trespassing and argued that the constitution only gave people the right to use the waterways if they did not touch the bottom.
The New Mexico Supreme Court effectively ended a years-long legal battle over medical cannabis and taxes.
In an order filed on Wednesday morning, the court wrote that a previous decision from the New Mexico Court of Appeals that medical cannabis was exempt from gross receipts taxes prior to June 2021 should be upheld.
“Having considered the petition, response, and briefs of the parties, the judgment of the Court is that the writ shall be quashed as improvidently granted,” the court wrote.
In other words, the high court should have never accepted the case.
The lawyer for Sacred Garden, the medical cannabis company that sparked the legal battle, did not respond to a request for comment.
Duke Rodriguez, whose cannabis company Ultra Health joined the case last year, told NM Political Report on Wednesday that he was “thrilled” with the high court’s decision.
“I think it’s a recognition that the state never had the legal authority to collect gross receipts tax on the sale of [medical] cannabis,” Rodriguez said. “This finally rights that wrong.”
The issue of gross receipts tax, which is often incorrectly referred to as a sales tax, and cannabis goes back several years, and spans two gubernatorial administrations, when medical cannabis producer Sacred Garden requested a refund for the gross receipts taxes it paid to the state. Sacred Garden’s reasoning was that medical cannabis was essentially the equivalent to other prescription drugs, which are exempt from gross receipts tax. Through an administrative hearing, the state’s Taxation and Revenue Department, under then-Gov. Susana Martinez, denied the request. Sacred Garden took the issue to the New Mexico Court of Appeals, which ultimately ruled that a recommendation for medical cannabis by a qualified medical professional was the same as a prescription for other types of medication.
In early 2020, the department, which was by then under current Gov. Michelle Lujan Grisham, challenged the court of appeals decision and filed a petition with the state supreme court.
The New Mexico Supreme Court this week scheduled oral arguments for a case regarding medical cannabis sales and gross receipts taxes.
Lawyers for the New Mexico Attorney General’s Office and two medical cannabis businesses will have an opportunity to make their respective arguments on Feb. 28 as to whether or not medical cannabis sales should have been exempt from gross receipts taxes prior to the state’s Cannabis Regulation Act that went into effect last June.
The issue goes back several years to when medical cannabis producer Sacred Garden asked the state’s Taxation and Revenue Department for a refund of multiple years worth of gross receipts taxes the company paid. Initially, a hearing officer ruled in favor of the state, but that ruling was eventually reversed by the New Mexico Court of Appeals. In February 2020, the state took the issue to the state supreme court, where it has been pending since. In June 2021, medical cannabis company Ultra Health joined the case as an amicus curiae, or friend of the court.
In previous court filings, Sacred Garden and Ultra Health argued that like prescription drugs, medical cannabis should have always been exempt from the state’s gross receipts tax, which is sometimes incorrectly referred to as a sales tax.
As utilities race to meet renewable energy targets set forth in the Energy Transition Act, two of the state’s investor-owned utilities have asked the New Mexico Supreme Court to review decisions the New Mexico Public Regulation Commission has made in cases that they say will impact their transition. The Public Service Company of New Mexico appealed the final orders in both the Four Corners Power Plant ownership transfer and the Avangrid merger. Southwestern Public Service Company appealed the final order in its renewable portfolio standard case in which the PRC rejected its request for a financial incentive to retire renewable energy certificates early so that it could reach renewable energy targets early. PNM filed the appeal on the Four Corners Power Plant transfer on Dec. 22.
The New Mexico Supreme Court, in a ruling from the bench, ordered Gov. Michelle Lujan Grisham to stop using any unspent federal COVID-19 stimulus money without approval from the state Legislature.
New Mexico Supreme Court Justice Michael Vigil, after a brief deliberation by the justices, read the ruling.
“The court grants standing to the petitioners on the basis of great public importance,” Vigil said. “One, the court determines that a writ is appropriate in this case, and the court will order that a writ of prohibition and mandamus, prohibiting the governor and the state treasurer and all other state officials subject to their authority from transferring, encumbering, committing or appropriating any additional funds out of the state [American Rescue Plan Act] account in the state treasury absent legislative appropriation.”
The court’s decision was the culmination of weeks of court filings in a case filed by two state senators. Democratic State Sen. Jacob Candelaria of Albuquerque and Republican Sen. Greg Baca of Belen jointly filed a petition with the state’s high court, arguing that the governor overstepped her constitutional authority by appropriating federal funds without legislative oversight.
Candelaria told NM Political Report that the state supreme court “Ultimately did the right thing,” by placing the responsibility with the Legislature instead of one person. “As a citizen of this state, it gives me great comfort to know that decisions about this money are going to be made through a transparent open and public appropriations process and not behind closed doors where the governor gets to consult with her political favorites on how to dole out these funds in her political interests,” Candelaria said. “That would have been a really dangerous precedent for New Mexico.”
Four other Democratic state senators joined the case as intervenors, echoing the argument that federal funds, such as the COVID-19 stimulus money, should be controlled by the Legislature.
The New Mexico Supreme Court will hear oral arguments in a case over who has the authority to distribute federal pandemic aid funds in November. The case, which will have oral arguments on Nov. 17, is brought by legislators who say the governor’s veto of language that directed the use of federal COVID-19 pandemic aid is illegal and that the Legislature should have the authority to direct where the money goes.
Sen. Jacob Candelaria, a Democrat from Albuquerque, and Senate Minority Leader Greg Baca, a Republican from Belen, filed the petition in September.
At the time, the two said the governor’s action was unconstitutional. The Lujan Grisham administration said that previous state supreme court precedent allowed the governor to direct federal 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 regarding the funds.
When asked about the dispute when State Treasurer Tim Eichenberg, a Democrat, said he believed the money should be handled by the Legislature, a spokeswoman for the governor said she believed the Legislature had the authority to dispense state, not federal funds.
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.
Renters in New Mexico who have been financially impacted by the COVID-19 pandemic are still protected under the New Mexico Supreme Court’s stay on evictions, said a court official. Barry Massey, public information officer for the Administrative Office of the Courts, told NM Political Report that the state supreme court’s stay has no set time limit to it and will continue until the justices decide to end it. The U.S. Centers for Disease Control and Prevention (CDC) issued a new order Tuesday that would stay evictions for most renters impacted financially by the COVID-19 pandemic until Oct. 3. Maria Griego, economic equity director for the New Mexico Center on Law and Poverty, said through email that the CDC eviction moratorium would cover areas heavily impacted by the virus, which amounts to about 90 percent of the U.S. population.