Courts start planning to restart jury trials by mid-June

The state Supreme Court said that courts can once again begin jury trials in criminal and civil trials on June 15 after taking precautions. The state Supreme Court had suspended jury trials due to COVID-19 in March because of the COVID-19 pandemic. 

Now, as the state appears poised to further ease restrictions to slow the spread of the disease, the courts will follow suit. Gov. Michelle Lujan Grisham is expected to give an update on easing restrictions during a Thursday afternoon press conference.  “As our state gradually reopens, courts can safely resume jury trials as local conditions permit,” Chief Justice Judith K. Nakamura said in a statement when announcing the news. “Throughout the COVID-19 pandemic, New Mexico courts have worked diligently to protect the health of people entering a courthouse.

Supreme Court asked to weigh in on stream access dispute that no one can agree on

A stream access dispute that has been brewing for years between public access advocates and landowners could be resolved once and for all, now that litigation has brought the matter to the New Mexico Supreme Court. In March, three conservation and public access organizations, the New Mexico Wildlife Federation, Backcountry Hunters and Anglers (BHA), and Adobe Whitewater Club, filed a lawsuit against the governor and the state Game Commission. While it’s hard to boil the issue down into a few lines, balancing the rights of landowners with those of the public is an integral component of the lawsuit, which asks the Supreme Court to strike down a 2017 state Department of Game and Fish rule that enabled landowners to restrict access to streambeds and banks that line waterways located on private property. 

That rule was the result of a 2015 bill that became law, codifying thirty years of Game and Fish regulations that considered members of the public from walking onto private property from public waterways as trespassing. 

RELATED: Heinrich defends stream access as issue heads to NM Supreme Court

The state Supreme Court took up the case at the end of March, and by mid-April, a contingent of landowners and other groups, including the New Mexico Council of Outfitters and Guides (NMCOG), requested to intervene in the case in support of the 2017 Game and Fish rule, arguing that they would be negatively impacted by a potential Supreme Court ruling striking it down. 

Groups on both sides of the dispute all have different ideas about what’s at issue, and what’s at stake, but all parties are quick to point out the dispute is incredibly complicated. And while there’s no shortage of opinions on the topic, stakeholders on both sides of the fence seem to agree on one thing: it was a 2014 opinion issued by then-Attorney General Gary King that started the whole thing. 

Private property and public waters

The New Mexico constitution states that “unappropriated water of every natural stream, perennial or torrential,” within the state of New Mexico, is “declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state.” 

Everyone agrees that the waters of New Mexico are public, Kerrie Romero, executive director of NMCOG, told NM Political Report. What’s in dispute is how the public can access those waters.

NM Supreme Court denies request to expand inmate release

The New Mexico Supreme Court ruled Monday that Gov. Michelle Lujan Grisham’s office did not willfully ignore the health and safety of state prison populations by releasing inmates in a limited manner during the COVID-19 pandemic. 

The high court’s decision was in response to a petition filed by the American Civil Liberties Union of New Mexico and the state’s Law Offices of the Public Defender, alleging that Lujan Grisham’s office subjected inmates in state-run detention centers to cruel and unusual punishment by not broadening the scope of who is released. 

Chief Justice Judith Nakamura, ruling from the bench, said since the court did not find that Lujan Grisham’s office was “deliberately indifferent” to a possible COVID-19 outbreak in state detention centers there was no need to consider whether inmates’ rights were violated.  

“It’s a two prong analysis,” Nakamura said. “The court is not addressing prong one. We’re basing our decision on prong two. And that’s the prong which specifically focuses on whether or not [Lujan Grisham’s office] are deliberately indifferent to the health and safety of inmates. On this record the court unanimously finds that the answer is ‘no.’

Chief Public Defender Bennet Baur told NM Political Report that regardless of the court’s decision, his office will keep pushing for more releases.

NAACP officials keep wary eye on New Mexico data

A local advocacy group is keeping a watchful eye on equitable health care for African Americans during the pandemic. Pamelya Herndon, the first vice chair of the National Association for the Advancement of Colored People (NAACP) Albuquerque chapter, said the NAACP is not aware of discrimination against African-Americans during the pandemic in this state. But, the NAACP encouraged African-Americans to reach out to their local NAACP chapter if they experience prejudice during the public health emergency. One reason to worry is because African-Americans tend to have higher rates of high blood pressure and diabetes, which could put them at greater risk for mortality from COVID-19 related illness than whites. Herndon said she would like to see a plan put into place to better protect the African-American community, especially given the already present health disparities.

It could be awhile before the NM Supreme Court decides to rule on cannabis tax case, if at all

Medical cannabis producers in New Mexico will be on the hook for gross receipts taxes for the foreseeable future, or at least until the state Supreme Court decides whether it will weigh-in on the issue. 

Last week, a response filed by New Mexico cannabis producer Sacred Garden was the latest in a pending case between the producer and the state’s Taxation and Revenue Department (TRD). Earlier this month, the TRD filed a petition asking the high court to consider the case, with the hopes that it might overturn a previous state Court of Appeals decision. 

Santa Fe attorney Joe Lennihan, on behalf of Sacred Garden, argued that a review by the Supreme Court was unnecessary since the Court of Appeals already determined that medical cannabis should be viewed in a similar light as prescription drugs, which are exempt from gross receipts taxes. 

“Sales of medical marijuana are restricted to patients approved to use it and must do so under the care and supervision of a physician,” Lennihan wrote. 

Both TRD and Sacred Garden have repeatedly made their respective arguments in previous court filings and now both must wait to see if the state Supreme Court decides to weigh-in. 

For the most part, TRD has argued that since medical cannabis use is recommended, not prescribed, by a doctor, medical cannabis sales are subject to gross receipts taxes. Sacred Garden’s view on the matter is that because a 2019 update to the state medical cannabis law states that medical cannabis should be viewed in a similar light as any other prescription drug, medical cannabis producers should be exempt from the tax. The Court of Appeals ruled in favor of Sacred Garden, citing a lack of expected tax revenue in legislative financial impact reports. 

But in its request for the Supreme Court to consider the case, the TRD turned the legislative intent argument around and said that if the Legislature wanted to exempt medical cannabis from gross receipts taxes, it could have specified this by amending state tax laws. 

Gross receipts taxes, sometimes incorrectly referred to as sales taxes, are charged by the state and local municipalities for goods and services. Businesses often pass the tax along to the consumer, although they are not required to.

Governor’s office says no need for mass release of inmates

Ahead of oral arguments scheduled next month, Gov. Michelle Lujan Grisham’s office submitted written arguments to the New Mexico Supreme Court this week, asking the court to compel the governor to increase the number of inmate releases amid the COVID-19 pandemic. 

Medical cannabis producers still on the hook for GRT, pending a state Supreme Court ruling

Despite a decision by the New Mexico Court of Appeals, medical cannabis producers are still required to pay gross receipts taxes—at least for now. 

Last month the New Mexico Supreme Court filed notice that it received a petition from the state Taxation and Revenue Department asking for the high court to overturn a court of appeals ruling. That opinion, filed in January, stated that medical cannabis is exempt from gross receipt taxes. The notice from the high court that it received the petition from the state also included instructions to hold off on enforcing its decision. 

Days after the January decision, medical cannabis producers began notifying patients that they would not charge gross receipts taxes, which are often erroneously referred to as sales tax. State law requires many businesses to pay gross receipt taxes for goods produced or services provided. Those businesses often pass the tax on to consumers. 

The issue goes back to an attempt by medical cannabis producer Sacred Garden to get a refund from the gross receipt taxes it paid from 2011 through 2016.

State Supreme Court rejects petition for all-mail primary election

In a ruling that will impact the quickly approaching primary elections, the state Supreme Court denied a petition to move to primarily mail-in voting in light of the COVID-19 pandemic and the state’s public health emergency. Instead, the high court ordered that the county clerks and the Secretary of State send absentee ballot applications to all registered voters. In-person voting will also remain open, though it “must proceed and comply with the governor’s executive orders and the New Mexico Department of Health’s public health emergency order.”

Currently, the public health emergency order only allows gatherings of five people in most instances. Grocery stores and other retail operations that remain open after being deemed ‘essential’ can only have 20 percent of their maximum capacity. 

The order came after about two hours of deliberations. The oral arguments took nearly two and a half hours.

Briefs filed in case over whether NM will move to vote-by-mail primaries during coronavirus emergency

Parties involved in the dispute over a petition asking the state Supreme Court to allow election administrators to conduct this June’s elections by primarily mail-in voting filed their responses ahead of next week’s oral arguments. The Supreme Court had set Wednesday as the deadline for the briefs. At its heart, the state Supreme Court must decide whether it is practicable for the state Legislature to meet to make changes to the state’s election code in the midst of the COVID-19 pandemic and, if not, whether the court could legally order an all-mail election under the circumstances. Many states have delayed their primaries because of the pandemic. And after the state and federal Supreme Courts denied attempts to ease absentee voting rules in Wisconsin, critics called the elections “disturbing” and a “travesty” after in-person voting continued.

State Supreme Court orders eviction moratorium during coronavirus emergency

The New Mexico Supreme Court ordered a temporary moratorium on evictions for those who are unable to pay rent during the public health emergency over the spread of COVID-19. A number of cities and states across the country have put such moratoriums into place over the past few weeks. “New Mexicans are struggling financially as workplaces close because of the public health emergency,” Chief Justice Judith K. Nakamura said in a statement while announcing the order. “The Court’s order will provide temporary relief for families and individuals facing the possibility of losing their housing at a time when the governor and public health officials have ordered New Mexicans to remain at home to prevent the spread of COVID-19.”

The court says that the order is another precautionary measure to protect public health. In cases where the tenant can prove inability to pay, judges are ordered to stay the execution of writs of restitution property owners obtain from courts and give to law enforcement to force the removal of a tenant.