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. 

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.

Q&A with Santa Fe inmate

NM Political Report first wrote about Stanley Ingram in June when we looked at what he and another inmate had to say about conditions inside the Penitentiary of New Mexico in Santa Fe. At that time he said he was worried that if he told prison staff that he wasn’t feeling well, he would be quarantined with COVID-19 positive inmates before he was tested himself.  

We later heard from him in July when he told us about his trouble getting credit for an educational certificate he earned while serving time. His story is nothing new to many who have family in prison, or those who have been incarcerated. 

But his story did highlight the sometimes confusing path inmates often have to navigate in order to shave time off their sentences, even after earning what is commonly referred to as “good time.”

Ingram said prison doctors told him that he is prediabetic and so he takes a tube of glucose when needed. He also said he has a heart condition. Gov. Michelle Lujan Grisham issued an executive order earlier this month that allows certain inmates to leave prison a month earlier than their original sentence, as a way to limit the number of inmates in prisons, and therefore decrease the spread of COVID-19.

State adjusts quarantine requirements for out-of-state travel for medical, family needs

On Thursday, Gov. Michelle Lujan Grisham signed an adjusted executive order regarding quarantine for those who leave the state for medical or family needs. The adjusted order says that the quarantine requirement no longer applies to New Mexico residents who left the state to access medical care or those who left for less than 24 hours for parenting duties. A statement, attributed only to the state of New Mexico, said, “Traveling for anything other than business that is absolutely essential to safety and well-being during a global pandemic is an extraordinary risk to yourself, your family, your community and your state. Help stop the spread of COVID-19 by reducing travel outside of the home and outside of the state.”

The governor said during last week’s press conference on the COVID-19 response that an update would be forthcoming to the self-quarantine requirement. The previous order required all those traveling to New Mexico from other states to self-quarantine for 14 days to help slow the spread of COVID-19.

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. 

Guv’s public health order extended another month

Gov. Michelle Lujan Grisham announced on Tuesday that she is extending the state’s public health order to stay at home until the end of April to continue social distancing. New Mexico has not peaked yet for COVID-19, a disease caused by a coronavirus. Lujan Grisham and other state officials spoke Tuesday on a  press conference streamed on Facebook about the state’s need to continue social distancing to flatten the curve so COVID-19 positive patients will not overwhelm hospitals in the state. That would cause more deaths, she said. So far, residents in New Mexico are not staying at home.

State announces new public health orders to protect PPE supply

Gov. Michelle Lujan Grisham announced two new public health orders from the state Department of Health Wednesday to protect the supply of personal protective equipment for health care workers in the state. The orders are necessary to try to slow the spread COVID-19, a type of coronavirus, according to the state. There has been a shortage of personal protective equipment (PPE) for health care workers across the nation and many have taken to Twitter to plead for more. On Monday nurses held up signs in front of an Oakland hospital to protest the need for more personal protective equipment. #mc_embed_signup{background:#fff; clear:left; font:14px Helvetica,Arial,sans-serif; }
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