MICHELLE LUJAN GRISHAM, Gоvernor of New Mexico; MARK R. SHEA, Secretary of the New Mexico Department of Public Safety; KATHYLEEN KUNKEL, Secretary of the New Mexico Department of Health, Petitioners, v. HONORABLE DAVID PETER REEB, District Court Judge, Ninth Judicial District Court, Respondent, and SID STREBECK; SSET LLC d/b/a K-BOB‘S STEAKHOUSE; JIM BURLESON; TERRI CHRISMAN; FRONTIER AUTO, INC.; KATHY DIAZ; CHRISTOPHER AND MICHELLE KEMP; BODY & SOL FITNESS, LLC; KEMP‘S INVESTMENTS, LLC; SHELLY QUARTIERI; COLFAX TAVERN & DINER, LLC; JOY THOMPSON; and J. JONES MASSAGE, Real Parties in Interest.
No. S-1-SC-38336
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
November 5, 2020
Opinion Number: 2021-NMSC-006
Released for Publication March 2, 2021.
ORIGINAL PROCEEDING
Office of the Governor
Matthew L. Garcia, Chief General Counsel
Jonathan Jacob Guss, Deputy General CounselSanta Fe, NM
for Petitioners
Office of the Attorney General
Hector H. Balderas, Attorney General
Santa Fe, NM
for Respondent
Harrison & Hart, LLC
Carter B. Harrison, IV
Albuquerque, NM
for Real Parties in Interest
Zach Cook, LLC
Zachary J. Cook
Ruidoso, NM
for Amici Curiae
Anaheim Jacks, LLC, Papa‘s Pawn, LLC, Jerri Diane Rowe
Law Office of Angelo J. Artuso
Angelo J. Artuso
Albuquerque, NM
Patrick J. Rogers, LLC
Patrick J. Rogers
Albuquerque, NM
for Amici Curiae
Representative James G. Townsend, Representative Rod Montoya, New Mexico Cattle Growers Association, and New Mexico Business Coalition
NAKAMURA, Justice.
{1} Although this case involves numerous parties, intersecting statutes, and intricate arguments, the key question raised is rather straightforward: Did New Mexico‘s Legislature empower Petitioners to enforce public health emergency orders restricting business operations through the civil penalty provision contained in
I. BACKGROUND
{2} On March 11, 2020, Governor Michelle Lujan Grisham issued an executive order that a public health emergency exists in New Mexico due to the spread of COVID-19, invoked her powers under the All Hazard Emergency Management Act (AHEMA),
{3} Then-Secretary of the New Mexico Department of Health (DOH), Kathyleen Kunkel, citing the Governor‘s executive orders; the PHERA; the Public Health Act (PHA),
{4} On May 20, 2020, approximately fourteen small businesses and business owners4—real parties in interest (Real Parties) in this proceeding—filed suit against Petitioners (Governor Grisham, Secretary Kunkel,
{5} Shortly after the Real Parties filed the foregoing complaint, Petitioners asked this Court for a writ of superintending control and stay to resolve (1) whether the emergency orders temporarily restricting business operations in response to the COVID-19 pandemic are authorized by and enforceable under the PHERA (
{6} A number of parties also moved to participate as amici curiae and filed conditional briefs in support of the motions: New Mexico State Representatives James G. Townsend and Rod Montoya, the New Mexico Cattle Grower‘s Association, and the New Mexico Business Coalition (collectively, Townsend Amici); Anaheim Jacks, LLC (Amicus Anaheim Jacks); and Papa‘s Pawn, LLC and Jerri Diane Rowe (collectively, Papa‘s Pawn Amici). This Court granted the motions of all amici on July 8, 2020.5 The amici‘s briefs raise various further arguments in support of the Real Parties’ contention that the PHERA does not authorize Petitioners to penalize businesses for failing to comply with the emergency orders’ business restrictions.
{7} On August 4, 2020, following oral argument, we issued an order on the writ petition. With respect to the first issue, we granted a writ of superintending control, concluding that the Legislature, through the PHERA, authorized Petitioners to respond to a public health emergency, through measures including the Secretary of Health‘s emergency orders temporarily restricting business operations. Petitioners may therefore utilize the PHERA‘s civil administrative penalty provision to enforce the Secretary of Health‘s emergency orders restricting business operations. On thе secondissue, we
II. DISCUSSION
A. This Court‘s Power of Superintending Control
{8} The New Mexico Constitution grants this Court superintending control over inferior courts.
{9} The first issue raised by Petitioners presents exceptional circumstances justifying this Court‘s issuance of a writ of superintending control. The lawfulness of Petitioners’ attempted imposition of administrative penalties upon the Real Parties for failure to comply with emergency orders during a public health emergency raises a question of public importance and public safety which would benefit from prompt resolution. There is an obvious public interest in ensuring fair and consistent enforcement of any lawful public health measures. Whether and how these measures may be enforced is an urgent and statewide issue, both from the perspective of Petitioners, charged with managing a public health emergency, and the Real Parties, businesses critically affеcted by the emergency orders. Moreover, since the effects of the COVID-19 pandemic continue to impact New Mexico and the states surrounding it, the issue is not a passing one. Accordingly, it is “in the public interest to settle the question” now. Griego, 2014-NMSC-003, ¶ 11 (internal quotation marks and citation omitted).
{10} The second issue raised by Petitioners is not similarly suited for resolution by this Court. In the district court proceeding, the Real Parties make an alternative claim under the PHERA‘s provision requiring compensation for “the owner of health care supplies, a health facility or any other property that is lawfully taken or appropriated by the secretary of health, the secretary of public safety or the director for temporary or permanent use during a public health emergency.”
{11} We agree that the factual allegations in support of the Real Parties’ takings claims are undeveloped; it appears that some businesses were closed entirely by the emergency orders, while others have been operating on a limited basis, but the complaint offers virtually no details. We are loath to interpret the PHERA‘s somewhat unusual statutory takings provision in the abstract. We further note that constitutional regulatory takings claims generally “entail[] complex factual assessments of the purposes and economic effects of government actions.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 323-34 (2002); see also Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978) (holding that, when engaging in the “essentially ad hoc, factual” examination of a regulatory takings claim, “the [United States Supreme] Court‘s decisions have identified several factors that have particular significance[,]” including the economic impact on the claimant and the claimant‘s investment-backed expectations, and the “character of the governmental action“). Because the record here furnishes insufficient facts for us to resolve the Real Parties’ takings claims, we decline to issue a writ on Petitioners’ second issue.
B. Standаrd of Review and General Principles of Statutory Interpretation
{12} We review questions of statutory interpretation de novo. State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489. In construing the language of a statute, our goal and guiding principle is to give effect to the intent of the Legislature. Baker v. Hedstrom, 2013-NMSC-043, ¶ 11, 309 P.3d 1047; see In re Portal, 2002-NMSC-011, ¶ 5, 132 N.M. 171, 45 P.3d 891 (“Statutes are to be read in a way that facilitates their operation and the achievement of their goals.” (internal quotation marks and citation omitted)). “[I]n determining intent we look to the language used.” Key v. Chrysler Motors Corp., 1996-NMSC-038, ¶ 13, 121 N.M. 764, 918 P.2d 350. We generally give the statutory language its “ordinary and plain meaning unless the Legislature indicates a different interpretation is necessary.” Cooper v. Chevron U.S.A., Inc., 2002-NMSC-020, ¶ 16, 132 N.M. 382, 49 P.3d 61. However, we “will not be bound by a literal interpretation of the words if such strict interpretation would defeat the intended object of the legislature.” State ex rel. Helman v. Gallegos, 1994-NMSC-023, ¶ 20, 117 N.M.346, 871 P.2d 1352 (internal quotation marks and citation omitted). Thus, where statutory language is “doubtful, ambiguous, or an adherence to the literal use of the words would lead to injustice, absurdity or contradiction,” we construe a statute “according to its obvious spirit or reason.” State v. Davis, 2003-NMSC-022, ¶ 6, 134 N.M. 172, 74 P.3d 1064; Bd. of Educ. for the Carlsbad Mun. Sch. v. State Dep‘t of Pub. Educ., 1999-NMCA-156, ¶ 18, 128 N.M. 398, 993 P.2d 112 (explaining that “[a] statute is ambiguous if reasonably informed persons can understand the statute as having two or more meanings“). In ascertaining a statute‘s spirit or reаson, we consider its history and background and read the provisions at issue “in the context of the statute as a whole,” including its purposes and consequences. Baker, 2013-NMSC-043, ¶ 15; see Key, 1996-NMSC-038, ¶ 14 (“[A]ll parts of a statute must be read together to ascertain legislative intent[,]” and “[w]e are to read the statute in its entirety and construe each part in connection with every other part to produce a harmonious whole.“).
C. The Scope of the PHERA‘s Civil Penalty Provision
{13} Petitioners contend that the violations of the business restrictions set forth in the Secretary of Health‘s emergency orders are punishable under the PHERA‘s civil penalty provision (
1. Public safety and emergency powers legislation
{14} As a threshold matter, the New Mexico Legislature possesses the police power, the “broadest power possessed by governments,” to protect public health and welfare. State ex rel. City of Albuquerque v. Lavender, 1961-NMSC-096, ¶ 24, 69 N.M. 220, 365 P.2d 652 (“Laws providing for preservation of the public peace, health and safety are essentially police measures and represent an exercise of this inherent power.” (internal quotation marks and citation omitted)); see also Chicago, Burlington, & Quincy Ry. Co. v. People of State of Illinois, 200 U.S. 561, 592 (1906) (holding that “the police power of a state embraces regulations designed . . . to promote the public health, the public morals, or the public safety“). These powers must, of course, be delegated or enforced consistent with other constitutional requirements. See State v. Brooken, 1914-NMSC-075, ¶ 12, 19 N.M. 404, 143 P. 479 (holding that pursuant to the police power the Legislature “may enact all needful laws for the benefit of society at large, within constitutional limitations“); City of Santa Fe v. Gamble-Skogmo, Inc., 1964-NMSC-016, ¶¶ 19-22, 73 N.M. 410, 389 P.2d 13 (holding that the State Legislature‘s delegation of zoning requirements to the city of Santa Fe and its planning commission was a valid and constitutional exercise of the police power, where delegation contained reasonably adequate policy standards to guide the commission); Am. Home Fire Assur. Co. of N.Y. v. Mid-W. Enter. Co., 189 F.2d 528, 531 (10th Cir. 1951) (deciding the constitutionality of a statute delegating to an administrative agency power to protect against the hazards of fire, noting that “[t]he legislature cannot delegate to an administrative tribunal or official arbitrary authority in the administration of a statute“).
{15} Here, Petitioners enforce and administer New Mexico‘s legislation concerning public health emergencies under what are best described as concurrent and complementary statutes. Let us begin with the PHERA, compiled within a suite of statutes known as the Emergency Powers Code.
- provide the state of New Mexico with the ability to manage public health emergencies in a manner that protects civil rights and the liberties of individual persons;
- prepare for a public health emergency; and
- provide access to appropriate care, if needed, for an indefinite number of infected, exposed or endangered people in the event of a public health emergency.
{16} The Act‘s subsequent provisions implement the PHERA‘s goals in a number of relevant ways. First, the Governor may, after consultation with the Secretary of Health, declare a public health emergency.
{17} The PHERA then contains provisions balancing the State‘s need to implement broad measures to contain a public health crisis with the preservation of individual liberties. For instance, the PHERA provides emergency-specific measures and procedures for isolation and quarantine, medical examination, and vaccination.
{18} The Secretary of Health, in consultation with the Director and affected state agencies, “shall promulgate and implement rules that are reasonable and necessary to implement and effectuate the [PHERA].”
- The [S]ecretary of [H]ealth, the [S]ecretary of [P]ublic [S]afety or the [D]irector may enforce the provisions of the [PHERA] by imposing a civil administrative penalty of up to five thousand dollars ($5,000) for each violation of that act. A civil administrative penalty may be imposed pursuant to a written order issued by the [S]ecretary of [H]ealth, the [S]ecretary of [P]ublic [S]afety or the [D]irector after a hearing is held in accordance with the rules promulgated pursuant to the provisions of
Section 12-10A-17 NMSA 1978 . - The provisions of the [PHERA] shall not be construed to limit specific enforcement powers enumerated in that act.
- The enforcement authority provided рursuant to the provisions of the [PHERA] is in addition to other remedies available against the same conduct under the common law or other statutes of this state.
{19} The Emergency Powers Code also contains the AHEMA, which equips the Governor to direct and control the entire State of New Mexico‘s response to “any manmade or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requiring the resources of the state.”
{20} Turning to relevant statutes outside of the Emergency Powers Code, the PHA and DOH Act contain many of the underlying duties and powers of the DOH and the Secretary of Health during a response to a public health emergency. For instance (as relevant here), the DOH has authority to
- investigate, control and abate the causes of disease, especially epidemics, sources of mortality and other conditions of public health;
- establish, maintain and enforce isolation and quarantine;
- close any public place and forbid gatherings of people when necessary for the protection of the public health;
- respond to public health emergencies and assist communities in recovery;
. . .
- bring action in court for the enforcement of health laws and rules and orders issued by the department;
. . .
- maintain and enforce rules for the control of conditions of public health importance;
- maintain and enforce rules for immunization against conditions of public health importance;
. . . [and]
- do all other things necessary to carry out its duties.
Any person violating any of the provisions of the [PHA] or any order, rule or regulation adopted pursuant to the provisions of the [PHA] is guilty of a petty misdemeanor and shall be punished by a fine not to exceed one hundred dollars ($100) or imprisonment in the county jail for a definite term not to exceed six months or both such fine and imprisonment in the discretion of the court. Each day of a continuing violation of Subsection A of
Section 24-1-5 NMSA 1978 after conviction shall be considered a separate offense. The department also may enforce its rules and orders by any appropriate civil action. . . .
{21} With respect to the Secretary of Health‘s authority, specifically, the DOH enabling statute provides that the Secretary, “has every power expressly enumerated in the laws, whether granted to the [S]ecretary or the [DOH] or any division of the [DOH] except where authority conferred upon any division is explicitly exempted from the [S]ecretary‘s authority by statute.”
2. COVID-19
{22} COVID-19, the disease caused by the coronavirus SARS-CoV-2, continues to spread across the United States. As of this writing, in spite of containment measures implemented here and in most other states since March 2020, 7.96 million cases of COVID-19 have been diagnosed in the United States, and 216,917 Americans have died. See Centers for Disease Control and Prevention, United States COVID-19 Cases and Deaths by State (October 16, 2020).8 New Mexico had
{23} This Court may, on its own, “judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within the [C]ourt‘s territorial jurisdiction, [or] (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Rule 11-201(B), (C) NMRA. Therefore, as other courts have done, we take judicial notice of (1) the serious health risks posed by COVID-19, a “highly contagious and potentially fatal” disease, (2) the disease‘s transmission within New Mexico, and (3) the emergency orders issued by the Governor and Secretary of Health. Legacy Church, Inc. v. Kunkel, ____ F. Supp. 3d ____ (No. CV 20-0327 JB\SCY), 2020 WL 3963764, at *102 (D.N.M. July 13, 2020) (noting that “[c]ourts presiding over similar cases have taken judicial notice of Public Health Orders and scientific consensus regarding the coronavirus” and collecting cases).
3. Whether the PHERA‘s civil penalty provision applies to businesses violating the Secretary of Health‘s emergency orders
{24} Petitioners contend that the PHERA‘s civil penalty provision is designed to ensure compliance with emergency measures taken in response to a public health emergency—including, here, the emergency orders restricting business activity in response to the COVID-19 crisis. They assert that, although the PHERA “does not contain specific provisions contemplating business closures and restrictions as part of the State‘s emergency response, the PHERA[,] and by extension [its penalty provision,] was intended to encompass all measures necessary to coordinate, implement and effectuate a statewide response to a public health emergency like COVID-19.” The Real Parties counter that the PHERA‘s language and history do not permit so liberal an interpretation. Moreover, they assert that the penalty provision should—like all penalty provisions—be narrowly construed to apply only where there is a violation of an express provision of the Act. The parties’ arguments really pose two questions: whether the PHERA authorizes the Secretary of Health
a. Whether the PHERA authorizes the Secretary of Health‘s emergency orders restricting business operations
{25} The PHERA‘s initial empowering provision is stated in imperative, comprehensive terms: in a public health emergency, the governor shall authorize the Secretaries and Director to “coordinate a response,”
{26} The PHERA is intended to enable New Mexico to prepare for and manage a public health emergency, while protecting individual liberties, and to ensure appropriate care for an indefinite number of infected or endangered people.
{27} Are the enumerated measures and “[s]pecial” powers the only tools available to Petitioners under the PHERA? We think not. Less intrusive means than those enumerated in the statute are available and necessary uses of the express power to coordinate a response to a public health crisis. See 3 Norman J. Singer and J.D. Shambie Singer, Sutherland Statutes & Statutory Construction, § 65:3 at 541 (7th ed.) (“The grant of an express power carries with it the authority to exercise all other activities reasonably necessary to carry it into effect, and this has been employed with great liberality in interpreting statutes granting administrative powers.“). Indeed, the Legislature‘s inclusion of the word special suggests that the powers enumerated are in addition to the general powers of the offices of Governor, Secretary of Health, Secretary of Public Safety, and Director of Homeland Security. This interpretation is consistent with the liberal construction given to statutes enacted for the protection of public health during an emergency. Srader v. Pecos Constr. Co., 1963-NMSC-010, ¶¶ 12, 71 N.M. 320, 325, 378 P.2d 364 (holding that “ordinances enacted under the police power of amunicipality for the protection of the public health and safety . . . should be liberally construed“); see 3A Singer, supra, § 73:6 at 909 (“Legislation enacted to alleviate grave conditions which result from . . . public calamity deserves a generous interpretation so its remedial purposes may be accomplished. Courts may [take judicial notice that] an emergency does in fact exist, and . . . that a statute was enacted for emergency purposes.“) (footnotes omitted); id. § 73:2 at 856 (“Courts have been committed for over a century to giving statutes enacted for the protection and preservation of public health an extremely liberal construction to accomplish and maximize their beneficent objectives.“). We have taken judicial notice that the COVID-19 pandemic was an emergency as of March 11, 2020, and continues to be so, not only in New Mexico,
{28} The next question, then, is whether business restrictions, in particular, are within the scope of the Secretary of Health‘s authority under the PHERA. Business restrictions designed to slow and reduce the transmission of COVID-19 further the PHERA‘s purposes of ensuring a coordinated response to a public health emergency and providing access to healthcare for an indefinite number of people, given that “flattening” the infection curve is intended, in part, to prevent the numbers of infected and ill people from exceeding the State‘s healthcare capacity. See, e.g., Ferguson, Neil M., et al., Report 9: Impact of Non-Pharmaceutical Interventions (NPIs) to Reduce COVID-19 Mortality and Healthcare Demand, Imperial College COVID-19 Response Team (March 16, 2020);14 N.M. Dep‘t of Health, Press Release, State Re-enacts Certain Public Health Restrictions, (July 13, 2020)15 (discussing the importance of controlling the transmission of COVID-19 in New Mexico, in order to “flatten the curve” and avoid the rising hospitalization rates confronting neighboring states).
{29} The Real Parties complain that, even if the business restrictions are arguably consistent with the purposes of the PHERA, the emergency orders containing those restrictions were not lawfully issued, as they were not promulgated pursuant to the State Rules Act,
{30} We conclude that, the Governor having declared a public health emergency and having empowered the Secretary of Health to coordinаte a response to the COVID-19 crisis (see EO 2020-004, supra, ¶¶ 2-3), the Secretary was authorized (under the PHERA and the PHA, concurrently) to issue emergency orders forbidding gatherings of people to “control and abate” the transmission of COVID-19 in locales such as restaurants. Arguments that the PHERA does not so authorize the Secretary are ultimately unpersuasive.
{31} The Real Parties argue that the plain language of the PHERA and its history demonstrate no legislative intent to give the DOH “open-ended” authority in its response to a public health emergency. The Real Parties point to the Fiscal Impact Report for the House Bill eventually enacted (with amendments) as the PHERA. See Fiscal Impact Report for H.B. 231, 46th Leg., 1st Sess. (N.M. 2003) [hereinafter “FIR“].16 According to the Real Parties, the FIR lists the specific powers under the Act in a manner suggesting that such powers are “exhaustive” and emphasizes the due process protections included throughout the Act. See id. at 2-4. The Real Parties also note that the PHERA contains more due process safeguards than the model legislation upon which it was based (the Model State Emergency Health Powers Act, or the MSEHPA), and that the PHERA omitted the MSEHPA‘s provision that “the public health authority shall use every available means to prevent the transmission of infectious disease and to ensure that all cases of infectious disease are subject to proper control and treatment.” See Centers for Disease Control and Prevention (Draft), Model State Emergency HealthPowers Act, § 501 (October 23, 2001).17 The Real Parties imply that the Legislature intended the PHERA to empower Petitioners only to undertake the measures specifically enumerated in the Act, as these are accompanied by due process protections.
{32} As an initial matter, it would be absurd to interpret the PHERA as not empowering the Secretary of Health to undertake measures less intrusive or restrictive than the “[s]pecial powers” and isolation and quarantine measures described in the Act. Furthermore, while a liberal construction of public health statutes is “tempered by the mandates of equal protection and due process[,]” 3A Singer, supra, § 73:2 at 857 (noting that rules promulgated by public health agencies must bear a rational relationship to the purposes of the underlying legislation), the “public and social purposes served by such legislation greatly exceed the inconvenience and hardship imposed upon an individual, and therefore the former is given greater emphasis in the problem of interpretation.” Id. Here, the most intrusive meаsures (e.g., isolation, quarantine, and seizure of goods or property) are given explicit due process protections within the PHERA itself, see
{33} Furthermore, the FIR was authored by the Legislative Finance Committee; it is not an authoritative source of legislative history, but only a forecast of the fiscal impact of the proposed bill.18 Comparison between the PHERA and the MSEHPA also fails to alter our analysis because the Acts have countless differences; no intelligent inferences can be drawn from the provisions absent in the PHERA but present in the MSEHPA. Compare
b. Whether the PHERA‘s civil penalty provision applies to violations of the emergency orders restricting business operations
{34} The next question is whether the PHERA‘s civil penalty provision,
{35} The Real Parties begin by arguing, from the plain language of the phrase “for each violation of that Act,” that the penalty provision can only be applicable to violations of the PHERA‘s express requirements. But no provision in the PHERA directs individuals to do, or refrain from doing, anything, and the PHERA declares nothing unlawful—it only conveys (as we have discussed) both broad and enumerated powers, to the Secretary of Health and others, and due process protections for the most intrusive measures.
{36} The Real Parties then raise the alternative argument that the rule of lenity requires a strict construction of the penalty provision. Generally, a penal provision such as the one at issue is construed in favor of the person being penalized, although a number of courts have recognized an exception to this rule in the public health context. See 3 Singer, supra, § 59:5 at 208-09 (noting that “laws pertaining to public health and public safety, though penal in nature, are given substantial effect” (footnotes omitted)); 3A Singer supra, § 73:2 at 858 (“Courts are inclined to give health statutеs a liberal interpretation despite the fact that such statutes may be penal in nature and frequently may impose criminal penalties.“); see also Martin v. Herzog, 126 N.E. 815, 816 (N.Y. 1920) (“A statute designed for the protection of human life is not to be brushed aside as a form of words, its commands reduced to the level of cautions, and the duty to obey attenuated into an option to conform.“)).19 Regardless, the rule applies only if there is ambiguity as to the penal provision‘s meaning “after reviewing all sources of legislative intent.” 3 Singer, supra, § 59:4 at 191; see also State v. Ogden, 1994-NMSC-029, ¶ 26, 118 N.M. 234, 880 P.2d 845 (holding that “lenity is reserved for those situations in which a reasonable doubt persists about a statute‘s intended scope even after resort to the language and structure, legislative history, and motivating policies of the statute” (internal quotation
language of penal statutes should be given a reasonable or common sense construction consonant with the objects of the legislation, and the evils sought to be overcome should be given special attention“).
{37} As we have concluded, the legislative intent is to permit enforcement of all measures lawfully taken under the PHERA—not only those taken under the “[s]pecial powers” or isolation/quarantine provisions outlined. Moreover, the penalty provision itself states that the PHERA “shall not be construed to limit specific enforcement powers enumerated in that act[,]” and that its remedy ”is in addition to other” existing remedies.
{38} The Real Parties reply that a strict construction is nevertheless necessary because principles of separation of powers and due process require it. They argue that, eight months ago, the average person would not likely have understood that violation of public health emergency orders were punishable/enforceable under the PHERA. Thus, they contend that anything other than a strict/literal construction of the penalty provision would not supply adequate notice of the conduct subject to punishment, and would allow Petitioners to avoid the due process protections attending the PHERA‘s isolation and quarantine measures.21
{39} Constitutional notice requirements are satisfied if persons of reasonable intelligence would comprehend the law at issue. N.M. Mining Assn. v. Water Quality Control Comm’n, 2007-NMCA-084, ¶ 26, 142 N.M. 200, 164 P.3d 81 (also holding that “a governmental agency attempting to give notice may assume a hypothetical recipient desirous of actually being informed” (internal quotation marks and citation omitted)). Similarly, under a void-for-vagueness analysis, courts ask whether persons of average intelligence would have to guess at the meaning of a penal provision and would differ as to its application. Bokum Res. Corp. v. N.M. Water Quality Control Comm‘n, 1979-NMSC-090, ¶ 14, 93 N.M. 546, 603 P.2d 285. Here, we also consider, in the context of a public health emergency, that the Legislature conveyed powers under the PHERA to be used when prompt action is critical. Cf., Colorado State Bd. of Med. Exam’rs, Inquiry Panel v. Dist. Court of Seventh Judicial Dist., in Montrose Cty., 551 P.2d 194, 196 (Colo. 1976) (holding that suspension of a physician‘s license, before a hearing washeld, was appropriate because there was “adequate support for the Board‘s conclusion” that emergency circumstances justified an immediate suspension, followed by a hearing); Miller v. Campbell Cty., 945 F.2d 348, 353 (10th Cir. 1991) (hоlding that “where the state is confronted with an emergency, it may deprive an individual of his or her property without first providing a hearing“). The interest in providing more specific notice of the conduct subject to penalty must be balanced
{40} The Real Parties do not contest the Secretary of Health‘s existing authority under the PHA to impose business restrictions to contain the transmission of a life-threatening communicable disease such as COVID-19, and to enforce those restrictions with criminal penalties. See
{41} The Real Parties’ complaint that Petitioners have been “bypassing” the PHERA‘s “extensive procedural protections” to impose fines under the penalty provision overlooks the administrative hearing required by the penalty provision (
{42} We disagree for several reasons. Preventing gatherings of people and quarantining people are complementary but discrete methods of containing the spread of an infectious disease. Businesses have been ordered to restrict operations due to the general risk of transmission of COVID-19, an infectious and serious—in somecases, deadly—disease, in circumstances where large groups of people are in close proximity to one another. See, e.g., N.M. Dep‘t. of Health, Public Health Order at 3 (March 16, 2020)22 (directing restaurants and bars to operate at fifty percent capacity, and advising New Mexicans to avoid crowded spaces, as “[y]our risk of exposure to respiratory viruses like COVID-19 may increase in crowded, closed-in settings with little air circulation if there are people in the crowd who are sick“); N.M. Dep‘t of Health, Public Health Order (July 13, 2020)23 (prohibiting restaurants from providing dine-in service, but permitting delivery or carry-out service); see also Centers for Disease Control and Prevention, Considerations for Restaurants and Bars (updated September 6, 2020)24 (discussing the highest-risk and lowest-risk settings for the spread of COVID-19
{43} Moreover, an area of isolation or quarantine is defined as the “physical environs that the [DOH] designates as the area within which to restrict access as required to prevent transmission of a threatening communicable disease[,]”
{44} Relatedly, while the economic consequences of the business restrictions are serious, the restrictions do not compromise a person‘s individual freedoms in the manner of a quarantine order; therefore, the due process protections required for business restrictions are not comparable to those required for quarantine orders. We further note that the emergency restrictions do not single out a business for “quarantine“—they classify types of restricted businesses. See, e.g., N.M. Dep‘t ofHealth, Public Health Order at 3-6 (April 11, 2020)25 (listing all essential businesses according to type, and allowing essential retail businesses such as grocery stores to operate at twenty percent capacity under the fire code); see Zucht v. King, 260 U.S. 174, 176-77 (1922) (noting that “in the exercise of the police power reasonable classification may be freely applied, and [a] regulation is not violative of the equal protection clause merely because it is not all-embracing“).26 Finally, we reject the notion that the Legislature intended Petitioners to undertake the procedures necessary to obtain quarantine orders to restrict the operations of businesses during a pandemic. Petitioners would face an insurmountable burden if it was necessary to obtain individual orders for each New Mexico business deemed a public health risk, and the benefits of restricting gatherings of people in order to control a pandemic would be defeated. We read statutes to effectuate, not defeat, their purposes. Portal, 2002-NMSC-011, ¶ 5 (“Statutes are to be read in a way that
III. CONCLUSION
{45} For the foregoing reasons, we have granted a writ of superintending control ordering the district court to comply with the holding of this opinion, namely, that the PHERA‘s civil penalty provision may be applied to enforce the business restrictions or closures required under the Secretary of Health‘s emergency orders. As explained hereinabove, we deny the request for a writ as to the takings question presented. We have vacated our previously issued stay, and therefore the underlying litigation may proceed, as appropriate, before the district court in the Ninth Judicial District.
{46} IT IS SO ORDERED.
JUDITH K. NAKAMURA, Justice
WE CONCUR:
MICHAEL E. VIGIL, Chief Justice
BARBARA J. VIGIL, Justice
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice