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.
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.
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.
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.
New Mexico state Representatives Andrea Romero and Angelica Rubio are proposing a $77 million bill to provide rent relief through the end of the year. Romero, D-Santa Fe, and Rubio, D-Las Cruces, held an online town hall Wednesday evening to discuss the proposed bill, which they said they expect to file Thursday morning at the start of the special session. Gov. Michelle Lujan Grisham did not announce that rent relief would be on the call for the special session when announcing her priorities for the special session. Lujan Grisham’s press secretary Nora Meyers Sackett said through email late Wednesday that “legislators may file additional proposals such as (rent relief fund) and the legislative process will either see those through or not.”
But Rubio said that she has been hearing this week that Lujan Grisham would not put something on her call that wasn’t likely to “succeed,” and that legislators would only be able to debate the bills on Lujan Grisham’s call. Romero outlined the three main points of what will be on the bill.
The New Mexico Supreme Court ruled Tuesday in a 3-2 decision that the state Legislature can hold a special session without allowing in-person attendance from the public.
The decision was a result of a petition filed on behalf of a long list of state lawmakers by Albuquerque-based attorney Blair Dunn. The petitioners argued that this week’s special legislative session should be physically open to the public, not just online. With the backdrop of the current COVID-19 pandemic, legislative leadership announced earlier this month that the state capitol building would be closed to the public, with some exceptions for members of the press.
The high court issued a written order, but no written opinion. Chief Justice Judith Nakamura, the only Republican on the court sided with Justices Barbara Vigil and Michael Vigil. Justices Shannon Bacon and David Thomson dissented.
Albuquerque single mom Allyssa Garcia said she faces homelessness if the state doesn’t create a rent relief fund program to help residents like her during the pandemic. Garcia is not alone, said Lindsay Cutler, attorney for the nonprofit the New Mexico Center for Law and Poverty. Related: Legislators push to get bill heard on rent relief, thousands will be affected
Garcia works as a home health aid and with three young children, ages 7, 10 and 14, she struggled before the pandemic began. Her rent is $725 a month, utilities included. According to the U.S. Bureau of Labor Statistics, the average home health worker earns $24,940 a year.
New Mexico Supreme Court Chief Justice Judith Nakamura will retire in August, according to an announcement from the Administrative Office of the Courts.
Nakamura became the first Republican woman elected to the high court in 2016 and became the court’s chief justice in 2017. She is currently the sole Republican on the bench. “In my years on the bench, I’ve always strived to not only make the best legal decisions possible but to improve people’s lives and advance the administration of justice,” Nakamura said in a statement.
The announcement did not say why she was retiring, but said Nakamura’s last day as Chief Justice will be August 1. Nakamura was first appointed to the state Supreme Court by then-Gov. Susana Martinez in 2015. In an email to members of the State Bar of New Mexico, the Administrative Office of the Courts also announced that the Supreme Court Judicial Nominating Commission will meet next month to discuss nominations for Nakamura’s replacement.
Public health orders restricting some businesses and public gatherings are slowly being lifted, but the New Mexico Supreme Court’s restrictions on eviction proceedings and limitations on civil cases in general are still in place. State Supreme Court Justice Shannon Bacon said she expects an increase of civil cases once courts are fully functioning.
“What we’re anticipating with the health pandemic and the downturn of the economy and a really high unemployment rate are issues that really raise their head in the same way they did in 2008 and 2009 with the recession,” Bacon said. “So we’re reaching back in time to our experience then and trying to anticipate better what’s going to happen now.”
Bacon, the Supreme Court liaison to the New Mexico Commission on Access to Justice, wants the public to know that even with limited financial resources, people can find legal help for civil cases. Unlike criminal cases, defendants in civil suits are not automatically afforded a lawyer.
While she said she doesn’t know when the Supreme Court will lift the stay on eviction proceedings, she is encouraging tenants anticipating or worried about the future of their housing to be proactive. She said she hopes tenants and landlords can come up with a “creative” solution to work out rent payment problems. But, Bacon said, if tenants are taken to court over rent issues, they may want to consider legal help.
“I think it is a reasonable thing for folks, that if they believe that they’re going to be in a position to fight to keep their residence, that talking to a lawyer is a good idea,” Bacon said.
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.