Conflicting views on medical cannabis as a prescription

Amid a pending New Mexico Supreme Court case concerning medical cannabis taxes, one state cabinet official seems to have a different view on whether medical cannabis recommendations from medical professionals are the same as traditional prescriptions, at least when it comes to COVID-19 vaccine priority. 

According to an email from January of this year, obtained by NM Political Report through a public records request, New Mexico Department of Health Secretary Tracie Collins believed that medical cannabis dispensary workers should be viewed similarly to pharmacists and that medical providers “prescribe medical cannabis” when it came to priority for COVID-19 vaccinations. 

This view differs greatly from an argument the state’s Taxation and Revenue Department has put forward in an ongoing legal case regarding gross receipts taxes and whether they should be allowed to be deducted from medical cannabis sales. 

Collins’ apparent view that medical cannabis recommendations are essentially the same as prescriptions came up in a series of emails between Gov. Michelle Lujan Grisham’s staff and Department of Health officials regarding where medical cannabis dispensary workers fall in terms of COVID-19 vaccination priority. The department’s deputy secretary Laura Parajon  replied to the email chain with Collins’ take. 

“Hi, sorry for yet another weighing in opinion. I consulted with Secretary Collins, and she also believes they are like pharmacists because providers do prescribe medical cannabis,” Parajon wrote. “I am adding her to the conversation.”

While the seemingly innocuous reply was in the context of vaccine priority, Collins’ reported opinion that medical professionals “prescribe” medical cannabis goes against the argument TRD has repeatedly put forth in a still pending legal case as a reason medical cannabis producers should not be allowed to deduct gross receipts taxes they paid to the state. DOH spokesman Jim Walton told NM Political Report that the context of the email conversation is important. 

“The question Deputy Secretary Parajon and Secretary Collins was asked was whether people who worked in a medical cannabis dispensary are considered to be within COVID-19 vaccination phase 1A,” Walton said.

NM Supreme Court issues official opinion on validity of state emergency health orders

The New Mexico Supreme Court on Monday issued a written opinion that explained its reasoning behind a bench ruling regarding state emergency public health orders. The high court ruled last summer that the state and the governor are legally allowed to issue emergency health orders without a formal rulemaking process. 

The court unanimously ruled that the state Department of Health and Gov. Michelle Lujan Grisham are granted, by the Legislature, the ability to issue orders limiting certain business activities. In this case, businesses were ordered to cease indoor dining during the COVID-19 pandemic. 

Last year a group of business owners challenged those orders, arguing that they were arbitrary and capricious and that the normal rulemaking process should be followed to implement such emergency orders. 

In her, likely final, written opinion, former Chief Justice Judith Nakamura said the emergency public health orders like the ones that were issued last year and have been updated since, provide the state with the ability to respond to “the swiftly changing dynamics of a novel, dangerous, and highly communicable disease.”

Justice David Thomson issued a special concurring opinion with a caveat to the unanimous decision. Thomson said he agreed that the state’s executive branch should have the flexibility to issue emergency orders, but that the governor’s office is not above scrutiny and questions regarding those decisions. 

“The majority’s holding should not communicate that executive or legislative responses to the pandemic will always receive the same level of judicial deference as when the crisis first emerged,” Thomson wrote. “In addition, I believe we must be wary of the precedent we set beyond the scope of the COVID-19 crisis.”

Monday’s written opinion is the latest in a series of decisions from the court that validated Lujan Grisham’s response to the COVID-19 pandemic. 

The state Supreme Court has yet to issue an opinion on whether ordering businesses close to the public is the same as the state taking property, which would require the state to compensate those businesses.

Lawyer for businesses ordered to close amid pandemic responds to state

A lawyer representing a group of businesses looking for compensation from the state after being ordered to shut down amid the COVID-19 pandemic, filed on Tuesday a response to a brief from the New Mexico Attorney General’s Office, filed earlier this month. 

The brief, filed by Albuquerque-based attorney Blair Dunn, is just one piece of a pending New Mexico Supreme Court Case filed by state Attorney General Hector Balderas on behalf of the state. The question facing the high court is whether businesses that were forced to close under emergency public health orders are due compensation by the state for lost business. 

Commission chooses four potential choices for state Supreme Court slot

The New Mexico Judicial Nomination Commission recommended a list of four names from which Gov. Michelle Lujan Grisham can choose a replacement for Justice Judith Nakamura, who announced she retire, effective Dec. 1. The commission chose the four applicants after interviews with each candidate on Thursday and closed-door discussion between members. The names are former 12th Judicial District Court Judge James Waylon Counts, Sixth Judicial District Court Chief Judge Jennifer Ellen DeLaney, Court of Appeals Judge Julie J. Vargas and Court of Appeals Judge Briana Hope Zamora. Lujan Grisham will choose one of the four names, and has 30 days to make her decision.

NM Supreme Court issues written opinion on state public health orders

The New Mexico Supreme Court issued a full opinion regarding a ruling they issued from the bench in August that affirmed the governor’s authority stemming from the state’s COVID-19 public health orders. 

The case was filed by a group of New Mexico business owners who argued Gov. Michelle Lujan Grisham and the state Department of Health overstepped their authority in ordering restaurants to close and, in some cases, issuing penalties to those that did not. 

NM GOP files two legal actions a week before election, state Supreme Court rejects one

A week before Election Day and days before the end of early in-person voting, the Republican Party of New Mexico filed two different legal actions against the New Mexico Secretary of State and two separate county clerk’s offices, regarding poll watching and ballot drop-boxes. 

On Monday, the Republican Party of New Mexico filed a petition with the New Mexico Supreme Court asking for an emergency hearing for clarification on what personal identifiers poll watchers are allowed to review, compared to county clerk employees. That petition was denied by the high court Tuesday afternoon. 

And on Tuesday morning, the state’s Republican Party filed a lawsuit against Secretary of State Maggie Toulouse Oliver and the Taos and Guadalupe County Clerks’ offices, claiming that absentee ballot dropboxes in those two counties are not being monitored according to state election law.    

The two legal challenges are the latest in a series of lawsuits filed by the Republican Party across the U.S., many involving absentee voting. Absentee Ballot clarification denied

The petition filed with the New Mexico Supreme Court sought clarification from the high court and to challenge practices the state GOP said some counties were taking part in. 

The petition alleges that at least some county clerks’ offices were not allowing volunteer poll watchers to adequately verify voter identifiers, in this case the voters’ last four digits of their respective Social Security number and their signatures. 

According to the petition, volunteer poll watchers were only being allowed to verify ballots that were missing those two personal identifiers and not verify those identifiers “against a database for accuracy.” 

Without naming them, the petition cites two “large counties” that initially allowed poll challengers to take part in the initial identification verification, but recently stopped “presumably in response to [Toulouse Oliver’s] directives.”

“In order to give effect to all these provisions without creating conflicts or nullities, presiding and election judges and challengers must be permitted to compare ballots with a roster containing the correct SSN digits, and they must be allowed to reject ballots and interpose challenges on the basis of incorrect voter identification information — not merely the complete absence of any numbers in the appropriate field,” the petition argued. The petition argued that the issue is “compounded” partially because of a new wave of younger poll workers, which was encouraged by Gov. Lujan Grisham and other elected officials in order to protect older poll workers who might be at higher risk of contracting COVID-19. 

After the petition was filed, New Mexico Republican Party Chairman Steve Pearce released a statement hinting that county clerks who have not been allowing poll challengers to cross check Social Security numbers may be hiding something. 

“County Clerks are elected by the people to work for the people – and now some are working in the shadows, denying the public access to ensuring we have an honest election,” Pearce said in a statement. 

On Tuesday afternoon the New Mexico Supreme Court issued an order denying the Republican Party’s petition, with three of the five justices concurring, including the lone Republican justice Judith Nakamura. The denial did not offer any explanation for denying the petition.

Reactions from New Mexico officials to U.S. Supreme Court Justice Ruth Bader Ginsburg’s death

U.S. Supreme Court Justice Ruth Bader Ginsburg died Friday. She was 87. The vacancy her seat creates will now give Republicans the opportunity to try to place another conservative justice to the bench. President Donald Trump, reacting to two Supreme Court decisions in June that he didn’t like, tweeted that he would have a new list of conservatives to appoint to the bench by September 1. Within just a few hours of the announcement of Ginsburg’s death, U.S. Senate Majority Leader Mitch McConnell said he would not wait to bring to a vote for a Trump appointee this election year, according to multiple media sources.

NM Supreme Court: State has authority to limit indoor dining

Once again, the state Supreme Court ruled unanimously in favor of the state when it came to upholding and enforcing the state public health order, this time saying not only does the state Department of Health have the authority to close or restrict indoor dining at restaurants, but that their decision to do so was not arbitrary and capricious, as argued by some restaurants. “It is the policy of courts to uphold regulations intended to protect public health unless it is plain they have no real relation to the object to which they were enacted,” Justice Judith Nakamura said in announcing the decision. Citing a 1939 decision, State v. Old Abe, Nakamura said, “Only agency action that is willful and unreasoning and done without consideration and in disregard to the facts and circumstances can be deemed arbitrary and capricious.”

The court will issue a written order at a later date. Chief Justice Michael Vigil recused himself from the case. Nakamura also said the court ordered the lower court that issued a temporary restraining order that allowed indoor dining to resume—which itself was stayed by the Supreme Court to allow the ban on indoor dining to continue—to vacate that order.

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.

NM Supreme Court rules state can impose fines, other punishments for businesses who violate state health orders

The New Mexico Supreme Court decided Tuesday that Gov. Michelle Lujan Grisham’s office has the power to implement fines against businesses that do not follow the state’s emergency health orders. 

“The court has concluded that the Legislature has clearly given the governor that authority,” New Mexico Supreme Court Chief Justice Michael Vigil said. 

Vigil added that the court will issue a written opinion “as quickly as [the court] can get it out.”

The state’s high court heard oral arguments Tuesday morning from the governor’s attorney Matthew Garcia and from Carter Harrison IV, who argued on behalf of about a dozen businesses and business owners.