480 P.3d 852
N.M.2020Background
- On March 11, 2020 the Governor declared a public health emergency for COVID‑19; the Secretary of Health then issued emergency public‑health orders (beginning March 16) restricting mass gatherings and many business operations.
- Several New Mexico small businesses (Real Parties) sued, seeking a declaration that the PHERA (§ 12‑10A‑1 to ‑19) does not authorize the Secretary’s business‑restriction orders and an injunction against enforcement and penalties.
- The Department of Health had issued cease‑and‑desist notices, criminal citations under the PHA, and Notices of Contemplated Action threatening civil administrative fines up to $5,000 per violation under PHERA § 12‑10A‑19.
- Petitioners sought a writ of superintending control asking this Court to decide: (1) whether PHERA authorizes the emergency business‑restriction orders and the use of § 12‑10A‑19 to enforce them, and (2) whether the orders effect a taking requiring compensation.
- The Court granted the writ on issue (1): PHERA (construed with the PHA and in light of the declared emergency) authorizes business‑restriction orders and permits enforcement via the PHERA civil‑penalty provision. The Court declined to resolve the takings question for lack of developed factual record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PHERA authorizes emergency orders restricting business operations | PHERA’s enumerated powers are exhaustive; it does not authorize open‑ended business closures and requires rulemaking/due‑process protections | PHERA (and PHA) authorize a coordinated substantive emergency response; statutes should be liberally construed to permit measures reasonably necessary to protect public health | Held: Yes. PHERA (together with the PHA and Governor’s declaration) authorizes the Secretary to issue business‑restriction orders in a public‑health emergency |
| Whether PHERA’s civil penalty (§ 12‑10A‑19) applies to violations of business‑restriction orders | Penalty applies only to violations of explicit PHERA provisions; rule of lenity and notice require narrow construction | The penalty enforces measures lawfully taken under PHERA; § 12‑10A‑19 is expressly "in addition to" other remedies and includes an administrative‑hearing process | Held: Yes. § 12‑10A‑19 may be used to enforce business‑restriction orders; administrative hearing procedures provide process and notice |
| Whether business restrictions are de facto quarantines requiring PHERA/PHA quarantine procedures | Restrictions functionally quarantine businesses/people, so quarantine/isolation procedural safeguards must apply | Business restrictions limit gatherings to reduce transmission and are distinct from individual quarantine/isolation of persons | Held: No. Business restrictions are not quarantines and need not follow individual isolation/quarantine procedures |
| Whether the takings/compensation claims should be resolved now | Business closures effect a taking; PHERA § 12‑10A‑15 and constitutional takings doctrine require compensation | Takings claims are fact‑intensive and the record is undeveloped; court should not decide categorically | Held: Denied. Court declined to resolve takings claims because factual record is insufficient |
Key Cases Cited
- Kerr v. Parsons, 378 P.3d 1 (N.M. 2016) (describing the Court’s power of superintending control to correct lower‑court errors)
- Griego v. Oliver, 316 P.3d 865 (N.M. 2014) (exercising superintending control to promptly resolve urgent constitutional questions)
- Tahoe‑Sierra Preservation Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302 (U.S. 2002) (regulatory‑takings analysis requires a fact‑specific, ad‑hoc inquiry)
- Penn Central Transp. Co. v. City of New York, 438 U.S. 104 (U.S. 1978) (establishing factors for regulatory‑takings inquiries: economic impact, investment‑backed expectations, and character of government action)
- Zucht v. King, 260 U.S. 174 (U.S. 1922) (upholding broad public‑health regulation under state police power)
- Chicago, Burlington & Quincy Ry. Co. v. People of State of Illinois, 200 U.S. 561 (U.S. 1906) (recognizing police power includes regulation to protect public health)