State supreme court sets date for arguments on pandemic aid case

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.

Two NM lawmakers ask state supreme court to give federal funding discretion to legislature

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.

New Mexico renters protected under state supreme court eviction stay

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.

New Mexico Supreme Court: State not required to compensate businesses for public health closures

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.

NM Tax and Revenue: Lawmakers didn’t intend for cannabis tax breaks

The issue of whether taxes on medical cannabis sales in New Mexico should have been deductible prior to this year is one step closer to being heard by the state’s supreme court. 

The state Attorney General’s office filed a brief on Monday with the New Mexico Supreme Court on behalf of the New Mexico Taxation and Revenue Department that argued state lawmakers did not intend to allow gross receipts tax deductions on medical cannabis sales until this year. 

The issue stems from a request by medical cannabis producer Sacred Garden to deduct gross receipts taxes from its sales. The department denied the claim on the basis that medical cannabis is not prescribed like other medication. In New Mexico gross receipts taxes are deductible from prescription drugs and medical cannabis is not prescribed by a doctor, but instead recommended. A New Mexico Court of Appeals panel ruled in favor of Sacred Garden last January, writing that in terms of medical cannabis, the difference between a recommendation and prescription is negligible. TRD took the case to the state supreme court where it has been pending since last year.

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.