Grisham v. Reeb , 2021 NMSC 006 ( 2020 )

Office of the
Director New Mexico
Compilation
08:27:27 2021.02.25 Commission
'00'07-
IN THE SUPREME COURT OF THE STATE OF NEW MEXICO
Opinion Number: 2021-NMSC-006Filing Date: November 5, 2020
No. S-1-SC-38336
MICHELLE LUJAN GRISHAM,
Governor 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.
ORIGINAL PROCEEDING
Released for Publication March 2, 2021.
Office of the Governor
Matthew L. Garcia, Chief General Counsel
Jonathan Jacob Guss, Deputy General Counsel
Santa 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
OPINION
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 Section 12-10A-19
of the Public Health Emergency Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -
19 (2003, as amended through 2015)? As we explain below, the answer is “yes.”
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),
NMSA 1978, §§ 12-10-1 to -10 (2007), and declared a public health emergency under
the PHERA, pursuant to Section 12-10A-5. See State of N.M., Executive Order 2020-
004 (March 11, 2020) (hereinafter “EO 2020-004”). 1 This executive order was most
recently extended on October 16, 2020. State of N.M., Executive Order 2020-072
(October 16, 2020) (hereinafter “EO 2020-072”). 2
{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), NMSA 1978, §§ 24-1-1 to -41 (1973, as amended through 2019); the
Department of Health (DOH) Act, NMSA 1978, §§ 9-7-1 to -18 (1977, as amended
through 2019); and “inherent constitutional police powers,” issued a series of public
health emergency orders (collectively, emergency orders) which, beginning on March
16, 2020, restricted mass gatherings and the operations of certain businesses, requiring
some to close entirely. These emergency orders have been modified, but significant
restrictions remain. See, e.g., N.M. Dep’t of Health, Public Health Order at 6 (October
16, 2020) (allowing food and drink establishments to operate at only twenty-five percent
of fire code capacity for indoor service). 3
{4} On May 20, 2020, approximately fourteen small businesses and business
owners 4—real parties in interest (Real Parties) in this proceeding—filed suit against
Petitioners (Governor Grisham, Secretary Kunkel, and Secretary Mark R. Shea of the
New Mexico Department of Public Safety) in the Ninth Judicial District. They seek
declaratory relief to the effect that the Secretary of Health’s emergency orders during
the COVID-19 crisis are not authorized by the PHERA, and therefore the PHERA’s
penalty provision (§ 12-10A-19) is inapplicable. The Real Parties also seek an order
enjoining Petitioners from “threatening” business owners and operators with penalties
under the PHERA. The complaint and attachments indicate that noncompliant
businesses have been served with cease and desist orders and/or notices of violation.
These warn of the possibility of a criminal citation (under the PHA, § 24-1-21), followed
by referral to the DOH pursuant to the PHERA, for a civil administrative penalty of up to
$5,000 for each violation of the emergency orders. Though some of the Real Parties
have been criminally cited and/or served with a Notice of Contemplated Action (NCA)
under the PHERA, there is no allegation that any of the businesses have yet paid a
1Available at https://www.governor.state.nm.us/wp-content/uploads/2020/03/Executive-Order-2020-
004.pdf (last visited Oct. 16, 2020).
2Available at https://cv.nmhealth.org/wp-content/uploads/2020/10/Executive-Order-2020-072.pdf (last
visited Oct. 16, 2020).
3Available at https://cv.nmhealth.org/wp-content/uploads/2020/10/101620-PHO.pdf (last visited Oct. 16,
2020). This emergency order was the first entered by Acting Secretary of Health Billy J. Jimenez; all prior
COVID-19-related emergency orders were entered by then-Secretary of Health Kunkel.
4These are 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.
penalty assessed under the PHERA. Finally, the Real Parties seek alternative
declaratory relief: if penalties may be levied under the PHERA, then affected business
owners are also entitled to compensation under the PHERA, pursuant to Section 12-
10A-15, and under “the Takings Clause for the value lost by business owners as a
result of the mandated closures.”
{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 (§ 12-10A-19), and (2)
whether the emergency orders’ business restrictions effect a taking under the PHERA’s
compensation provision (§ 12-10A-15) and/or the takings clauses of the United States
and New Mexico Constitutions. U.S. Const. amend. V; N.M. Const. art. II, § 20. In
response, the Real Parties agreed that we should address the first issue, but contended
that we should decline to take jurisdiction on the takings issue, which is only an
alternative and undeveloped claim in the underlying litigation. The Real Parties’
response attached copies of NCAs under the PHERA that were issued to three
businesses: Jalisco Café, Arroyo Vino Fine Wines, LLC, and Papa’s Pawn, LLC (one of
the amici curiae, listed below). According to the NCAs, the DOH intends to fine each
business $5,000 per day for every day each business remained open in violation of an
applicable emergency order, totaling $20,000 for Jalisco Café, $135,000 for Arroyo
Vino, and $60,000 for Papa’s Pawn. The NCAs also indicate that each business was
either warned or given cease and desist orders and was then criminally cited, prior to
the issuance of the NCAs.
{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 the second
5Amicus Anaheim Jacks and Papa’s Pawn Amici sought to intervene in these proceedings but
alternatively sought participation as amici curiae. As noted, the Court granted the latter relief.
issue, we declined to issue a writ. In this opinion we explain in greater detail the basis
for our order.
II. DISCUSSION
A. This Court’s Power of Superintending Control
{8} The New Mexico Constitution grants this Court superintending control over
inferior courts. Art. VI, § 3. As discussed in Kerr v. Parsons, 2016-NMSC-028, ¶ 16,
378 P.3d 1, this power enables the Court to control the course of litigation in inferior
courts, and “to correct any specie of error.” Id. (citing Dist. Court of Second Judicial
Dist. v. McKenna, 1994-NMSC-102, ¶ 4, 118 N.M. 402, 881 P.2d 1387); Albuquerque
Gas & Elec. Co. v. Curtis, 1939-NMSC-024, ¶ 12 43 N.M. 234, 89 P.2d 615 (explaining
that this Court’s superintending control “is authorized by the Constitution . . . to prevent
a failure of justice by supplying a means for the correction of manifest error committed
by the trial court . . . where there is no other adequate remedy and gross injustice is
threatened”). This Court may make such corrections via extraordinary writs, but it
employs them only in exceptional circumstances: where the remedy by appeal seems
wholly inadequate; where necessary to prevent irreparable mischief, great,
extraordinary, or exceptional hardship, or costly delays and unusual burdens of
expense. McKenna, 1994-NMSC-102, ¶ 4. We may also exercise the power of
superintending control “where it is deemed to be in the public interest to settle the
question involved at the earliest moment.” Griego v. Oliver, 2014-NMSC-003, ¶¶ 11-14,
316 P.3d 865 (internal quotation marks and citation omitted) (issuing a writ of
superintending control on the constitutionality of New Mexico marriage laws, noting, in
part, the immediate need to resolve uncertainty regarding the issuance of marriage
certificates to same-gender couples); see McKenna, 1994-NMSC-102, ¶¶ 4-5. As
Petitioners point out, we have expressly acknowledged the appropriateness of
exercising the power of superintending control on an issue of first impression
concerning “constitutional provisions with serious public safety implications.” State ex
rel. Torrez v. Whitaker, 2018-NMSC-005, ¶ 31, 410 P.3d 201.
{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
affected 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.” Section 12-10A-15(A). The Real
Parties also make a constitutional argument that the business restrictions amount to a
regulatory or even physical taking. Nevertheless, both the Real Parties and the
Townsend Amici contend that this Court should not reach the takings claims, which lack
factual development. 6 Petitioners reply that this Court should resolve the question
categorically, because under no circumstances does a temporary business closure
pursuant to an emergency order effect a taking.
{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. Standard 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.
6By contrast, Amicus Anaheim Jacks and Papa’s Pawn Amici argue that this Court should reach the
takings claim under Section 12-10A-15(A).
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 reason, 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 (§ 12-10A-19) whereas the Real Parties and all amici contend that the
business restrictions are not authorized by the PHERA, and not enforceable thereunder.
We therefore examine the relevant statutes and regulations, and the context of the
orders at issue, and then turn to the parties’ arguments regarding the proper
interpretation of the PHERA.
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. NMSA 1978, § 12-9B-1 (2005). The
PHERA’s purpose is to:
A. 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;
B. prepare for a public health emergency; and
C. 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.
Section 12-10A-2. A public health emergency is defined as “the occurrence or imminent
threat of exposure to an extremely dangerous condition or a highly infectious or toxic
agent, including a threatening communicable disease, that poses an imminent threat of
substantial harm to the population of New Mexico or any portion thereof.” Section 12-
10A-3(G). A threatening communicable disease is, in turn, defined as a “disease that
causes death or great bodily harm that passes from one person to another and for
which there are no means by which the public can reasonably avoid the risk of
contracting the disease.” Section 12-10A-3(L).
{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. Section 12-10A-5(A). A public health emergency is
to be declared via executive order listing critical information (e.g., the nature of the
public health emergency, the conditions that caused it, and the affected areas of the
State, etc.). Section 12-10A-5(B). 7 Upon the Governor’s declaration of a public health
emergency, the Governor “shall” authorize the Secretary of Health, the Secretary of
Public Safety, and the Director of Homeland Security and Emergency Management
(Director) to “coordinate a response.” Sections 12-10A-3(C), -5(A). To that end, the
Secretary of Health (in coordination with the Secretary of Public Safety, the Director,
and the State medical investigator) is granted “[s]pecial powers” in order “to protect the
health, safety and welfare of the people in the state during a public health emergency.”
Section 12-10A-6(A), (C). Specifically, the Secretary of Health may commandeer health
care facilities and/or comprehensively regulate health care supplies as necessary.
Section 12-10A-6(A), (B). The State medical investigator may also coordinate with the
Secretaries and Director to “implement and enforce measures to provide for the safe
disposal of human remains.” Section 12-10A-6(C).
7The Governor’s order declaring a public health emergency expires after thirty days unless renewed
(after consulting with the Secretary of Health). Section 12-10A-5(D)(2).
{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. Sections
12-10A-2, -7 to -13. These provisions detail both the powers of the Secretary of Health
(e.g., the Secretary of Health may impose quarantine without a court order if delay
would jeopardize the Secretary’s ability to prevent the transmission of disease; she
must then seek an ex parte order within twenty-four hours, § 12-10A-9) and the
procedural protections for persons affected (e.g., the right to a hearing contesting a
quarantine order within three days of a request by the quarantined person, § 12-10A-
10(A)). Similarly, the PHERA both grants immunity under the Tort Claims Act to State
officials who are liable for torts resulting from the officials’ compliance with the PHERA,
§ 12-10A-14, and provides that the “state shall pay just compensation to the owner of
health care supplies, a health facility or any other property that is lawfully taken or
appropriated by the [S]ecretary of [H]ealth, the [S]ecretary of [P]ublic [S]afety or the
[D]irector for temporary or permanent use during a public health emergency,” § 12-10A-
15(A).
{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].” Section 12-10A-17. Finally, the PHERA
contains the following penalty provision (at issue in this litigation):
A. 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.
B. The provisions of the [PHERA] shall not be construed to limit
specific enforcement powers enumerated in that act.
C. The enforcement authority provided pursuant 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.
Section 12-10A-19.
{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 man-
made or natural disaster causing or threatening widespread physical or economic harm
that is beyond local control and requiring the resources of the state.” Section 12-10-
4(A). This statute explicitly authorizes the Governor to “control . . . the activities of the
homeland security and emergency management department,” and “exercise direction
and control over any and all state forces and resources engaged in emergency
operations or related all hazard emergency management functions within the state.” Id.
The Governor is authorized “to issue, amend or rescind the necessary orders, rules and
procedures to carry out the provisions of the [AHEMA]” Section 12-10-4(B)(2).
Moreover, political subdivisions (i.e., local, county, and municipal governments) are
required “to comply with and enforce all executive orders and rules made by the
governor or under the governor’s authority pursuant to law.” Section 12-10-10(A).
{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
C. investigate, control and abate the causes of disease,
especially epidemics, sources of mortality and other conditions of public
health;
D. establish, maintain and enforce isolation and quarantine;
E. close any public place and forbid gatherings of people when
necessary for the protection of the public health;
F. respond to public health emergencies and assist
communities in recovery;
...
M. bring action in court for the enforcement of health laws and
rules and orders issued by the department;
...
Q. maintain and enforce rules for the control of conditions of
public health importance;
R. maintain and enforce rules for immunization against
conditions of public health importance;
. . . [and]
Z. do all other things necessary to carry out its duties.
Section 24-1-3. A condition of public health importance is defined as “an infection, a
disease, a syndrome, a symptom, an injury or other threat that is identifiable on an
individual or community level and can reasonably be expected to lead to adverse health
effects in the community.” Section 24-1-2(A). The PHA also contains its own
quarantine and isolation procedures, which are similar to the PHERA’s procedures, but
more broadly applicable. See §§ 24-1-3(D), -15. The PHA has its own enforcement
provision:
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. . . .
Section 24-1-21.
{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.” Section 9-7-6(B). It further provides that the Secretary shall
(among other things) “take administrative action by issuing orders and instructions, not
inconsistent with the law, to assure implementation of and compliance with the
provisions of law for which administration or execution the [S]ecretary is responsible
and to enforce those orders and instructions by appropriate administrative action in the
courts[.]” Section 9-7-6(B)(5).
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 its first reported cases of
COVID-19 on March 11, 2020, when Governor Grisham declared an emergency. See
EO 2020-004, supra, at 2. By the time the Real Parties filed their complaint in district
court on May 20, 2020, approximately 1.76 million cases of COVID-19 had been
diagnosed in the United States, and approximately 103,700 Americans had died of the
disease. See Centers for Disease Control, Coronavirus Disease 2019 Case
Surveillance – United States, January 22-May 30, 2020 (June 19, 2020). 9 At that time,
6,317 cases of COVID-19 had been diagnosed in New Mexico, and 283 people had
8Available at https://covid.cdc.gov/covid-data-tracker/#cases_casesinlast7days (last visited Oct. 16,
2020).
9Available at https://www.cdc.gov/mmwr/volumes/69/wr/mm6924e2.htm (last visited Oct. 16, 2020).
died of the disease. See N.M. Dep’t of Health, Updated New Mexico COVID-19 cases:
now at 6,317 (May 20, 2020). 10 As of this writing, COVID-19 cases diagnosed in New
Mexico have increased to 34,958, and 922 people have died. See id.; see N.M. Dep’t of
Health, COVID-19 in New Mexico (October 9, 2020). 11 As noted hereinabove, on
October 16, 2020, Governor Grisham entered the latest executive order continuing the
public health emergency declared in New Mexico. See EO 2020-072, supra. There is
no vaccine or cure for COVID-19, and preventing transmission of the disease is, to date,
the only available means of averting infection. Mayo Clinic, Coronavirus disease 2019
(COVID-19): Diagnosis & treatment (updated October 16, 2020); 12 U.S. Food and Drug
Administration, COVID-19 Frequently Asked Questions (updated October 2, 2020). 13
{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 to impose orders such as the business
10Available at https://cv.nmhealth.org/2020/05/20/updated-new-mexico-covid-19-cases-now-at-6317/
(last visited Oct. 16, 2020).
11Available at https://cvprovider.nmhealth.org/public-dashboard.html (last visited Oct. 16, 2020).
12Available at https://www.mayoclinic.org/diseases-conditions/coronavirus/diagnosis-treatment/drc-
20479976 (last visited October 15, 2020).
13Available at https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-
covid-19/covid-19-frequently-asked-questions (last visited October 15, 2020).
restrictions at issue and, secondarily, whether the civil penalty provision may be used to
enforce those orders. We address these questions in turn.
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,” § 12-10A-5(A). Although this
language suggests a broad grant of authority from the Legislature, we acknowledge that
“reasonably informed persons” may understand it to have “two or more meanings.” Bd.
of Educ. for the Carlsbad Mun. Sch., 1999-NMCA-156, ¶ 18. Namely, is this Section
merely requiring a certain procedure (e.g., authorization and coordination among the
named parties), or is it empowering a substantive, coordinated response to a public
health crisis? We must examine the remainder of the statute to answer this question.
{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. Section 12-10A-2. To
this end, the PHERA gives the Secretary of Health so-called “[s]pecial powers” focused
on ensuring the availability of health supplies and facilities. Section 12-10A-6. The
PHERA also tailors the DOH’s existing authority under the PHA to address the spread
of an infectious disease through vaccination, isolation and quarantine of persons (§§ 24-
1-3(D), (R), -15), including measures and procedures to be used during a public health
emergency, and creates due process protections for the public. See §§ 12-10A-7 to -
16. The Secretary of Health, in consultation with the Director and affected state
agencies, is directed to “promulgate and implement rules that are reasonable and
necessary to implement and effectuate the [PHERA],” § 12-10A-17, and the Secretary is
authorized to enforce the PHERA, § 12-10A-19. Taken together, these provisions
indicate that the PHERA authorizes the Secretary of Health to coordinate (with the
Governor, the Secretary of Public Safety, and the Director) a substantive response to a
public health crisis. Section 12-10A-6(A)-(C).
{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 a
municipality 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, but
in the United States generally, and we liberally construe Petitioners’ authority under the
PHERA to enable the Secretary of Health and others to manage and coordinate a
response to a public health emergency such as the COVID-19 pandemic. See State v.
Mountjoy, 257 Kan. 163, 177, 891 P.2d 376 (1995) (“It is fundamental that where a
statute is designed to protect the public, the language of that statute must be construed
in the light of the legislative intent and purpose and is entitled to a broad interpretation
so that its public purpose may be fully carried out.”); see also United States v.
Antikamnia Chem. Co., 231 U.S. 654, 666 (1914) (noting that “[t]he fact that a council of
three Secretaries of governmental departments was given power to make the rules and
regulations for the execution of the law shows how complex the matters dealt with were
considered to be, and the care that was necessary to be taken to guard against their
defeat or perversion”).
{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, NMSA 1978, §§ 14-4-1 to -11 (1967, as amended 2017), which generally
governs rulemaking and requires procedures such as a public hearing (§ 14-4-5.3).
14Available at https://www.imperial.ac.uk/media/imperial-college/medicine/sph/ide/gida-
fellowships/Imperial-College-COVID19-NPI-modelling-16-03-2020.pdf (last visited Oct. 16, 2020).
15Available at https://cv.nmhealth.org/2020/07/13/state-re-enacts-certain-public-health-restrictions/ (last
visited Oct. 16, 2020).
But, as we have said, the Secretary of Health may deploy both the special powers
contained in the PHERA and the general powers of her office in response to a public
health emergency. The PHA expressly authorizes the Secretary of Health to “take
administrative action by issuing orders and instructions, not inconsistent with the law, to
assure implementation of and compliance with the provisions of law for which
administration or execution the secretary is responsible,” § 9-7-6(B)(5) (emphasis
added), and this power is distinct from, for instance, her power to promulgate procedural
rules for the DOH pursuant to the ordinary rulemaking process, § 9-7-6(E). The
Secretary of Health “has every power expressly enumerated in the laws, whether
granted to the Secretary or the [DOH,]” § 9-7-6(B), and she may therefore “control and
abate the causes of disease, especially epidemics,” § 24-1-3(C), and “close any public
place and forbid gatherings of people when necessary for the protection of the public
health,” § 24-1-3(E). Notably, in the PHA, these powers are listed in addition to the
DOH’s power to “maintain and enforce rules for the control of conditions of public health
importance[.]” Section 24-1-3(Q). We therefore cannot conclude that the Legislature
intended to limit the Secretary and the DOH to rulemaking in order to close public
places or forbid gatherings of people; otherwise, there would be no reason to list those
powers separately from the power to make rules. See State v. Javier M., 2001-NMSC-
030, ¶ 32, 131 N.M. 1, 33 P.3d 1 (“A statute must be construed so that no part of the
statute is rendered surplusage or superfluous.” (internal quotation marks and citation
omitted)).
{30} We conclude that, the Governor having declared a public health emergency and
having empowered the Secretary of Health to coordinate 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 Health
16Available at https://www.nmlegis.gov/Sessions/03%20Regular/firs/hb0231.pdf (last visited Oct. 16,
2020).
Powers 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 measures (e.g., isolation,
quarantine, and seizure of goods or property) are given explicit due process protections
within the PHERA itself, see §§ 12-10A-7 to -16; even the general civil enforcement
provision (discussed below) requires an administrative hearing before a fine may be
imposed, §§ 12-10A-19(A); see also § 12-10A-17; 7.1.30 NMAC. The Real Parties do
not explain why such protections are constitutionally inadequate.
{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 MSEPHA 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 MSEPHA.
Compare §§ 12-10A-1 to -19, with the MSEHPA, supra. Nothing in the PHERA or its
purposes indicates why any given MSEHPA provision was excluded. The PHERA’s
exclusion of the MSEHPA’s sweeping mandate that the public health authority use
“every available means” to contain an infectious disease is therefore almost impossible
to interpret. See Zuber v. Allen, 396 U.S. 168, 185 (1969) (“Legislative silence is a poor
beacon to follow in discerning the proper statutory route.”). As Petitioners point out, the
Legislature may simply have deemed the MSEHPA provision either redundant or vague.
United States v. Craft, 535 U.S. 274, 287 (2002) (noting that legislative silence/rejection
of a proposed provision “lacks persuasive significance because several equally tenable
inferences may be drawn from such inaction, including the inference that the existing
legislation already incorporated the offered change” (internal quotation marks and
citations omitted)).
17Available at https://www.aapsonline.org/legis/msehpa.pdf (last visited Oct. 16, 2020).
18We need not address the broader issue (raised by the Real Parties) whether the Legislature intended
to give Petitioners “open-ended” powers to respond to a public health emergency, since the business
restriction orders at issue are within the powers explicitly granted to the Secretary of Health in the PHA,
and since the PHERA makes mandatory the Governor’s empowerment of the Secretary of Health to
participate in responding to a public health emergency.
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, § 12-10A-
19(A), is applicable to violations of measures other than those taken under the “[s]pecial
powers” and quarantine/isolation procedures set forth in the Act. The Secretary of
Health and others may “enforce the provisions of the [PHERA] by imposing” a fine of up
to $5,000 “for each violation of that Act.” Section 12-10A-19(A).
{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. Sections 12-10A-1 to -19. In other words, under the Real Parties’
proposed literal interpretation, there could be no violation of the PHERA. This absurd
result suggests we should instead read the provision in light of its purpose to enforce
the power and authority conveyed by the PHERA. The spirit and intent of the Act
suggests that the penalty provision is applicable to all violations of orders and other
measures lawfully exercising the powers conveyed thereunder. Davis, 2003-NMSC-
022, ¶ 6.
{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 statutes 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 marks and citation omitted)). Moreover, “strict construction is only
one factor influencing interpretation of punitive legislation, and it should not be used to
defeat the policy and purposes of a statute.” Id. ¶ 27 (explaining that, “[i]nstead, the
19Notably, Section 74:5 of 3A Singer, supra, cited by the Real Parties for the proposition that the rule of
lenity applies even to penal statutes within a public health enactment such as the PHERA, is from the
section discussing health legislation generally, not the sections discussing legislation for the protection of
public health (§ 73:2) and emergency legislation (§ 73:6).
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.
Section 12-10A-19(B), -(C) (emphases added). 20 These provisions weigh against the
limiting construction of the penalty provision suggested by the Real Parties, and in favor
of the approach advanced by Petitioners. Furthermore, the latter provision indicates the
Legislature’s understanding and intention that the PHERA’s authorizing/empowering
provisions are concurrent with other applicable laws, including the PHA.
{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 was
20Subsections (B) and (C) are the answer to the Real Parties’ argument that the PHA makes available a
“perfectly adequate penalty” (referring to Section 24-1-21) to enforce the Secretary of Health’s emergency
orders. For all the reasons discussed hereinabove, the Legislature was aware of the DOH’s existing
powers under the PHA and intended the Secretary of Health to deploy them in responding to a public
health emergency under the PHERA; it plainly intended the PHERA’s penalty provision to be in addition
to the remedy under the PHA.
21The Real Parties suggest that the civil penalty provision is unconstitutional as implemented by
Petitioners However, they do not develop this line of argument—presumably because Petitioners have,
in practice, provided notice and a hearing to alleged violators and because no penalty has apparently yet
been assessed to any of the Real Parties. We therefore do not consider it. State v. Guerra, 2012-NMSC-
014, ¶ 21, 278 P.3d 1031 (declining to address an argument with no principled analysis or development).
held, 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) (holding 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 against the interest in
conveying sufficiently flexible enforcement authority to the Secretary of Health and
others to manage a public health emergency.
{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 §§ 24-1-3(E), (F),-15, -21. The PHERA conveys broad and
concurrent authority to coordinate a response to a public health emergency, and its
penalty provision is explicitly “in addition to” remedies available under other statutes or
the common law. Section 12-10A-19(B), (C). Therefore, we conclude that Petitioners’
proposed construction of the PHERA gives adequate notice under the circumstances of
a public health emergency, to a reasonably intelligent person desirous of being
informed, that its penalty provision may permit enforcement of orders issued by the
Secretary of Health, consistent with her established authority to respond to public health
emergencies—including through orders restricting the operation of businesses.
{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 (§ 12-10A-19(A)), the
process for which is set forth in 7.1.30 NMAC. In fact, it seems the Legislature did
address the need for due process protections through requiring an administrative
hearing before the imposition of any fine under the PHERA. Again, the Real Parties
make no argument that this hearing process is constitutionally insufficient. Instead, they
suggest, and the Townsend Amici more vigorously argue, that the business restrictions
amount to “quarantine orders” that can only be imposed (if at all) through the
procedures for isolation and quarantine of persons, set forth in the PHERA, §§ 12-10A-7
to -11 (requiring, for instance, the Secretary of Health to obtain an ex parte court order
to quarantine a person), and/or the PHA, § 24-1-15. The Townsend Amici reason that
the emergency orders restricting business operations are de facto quarantine orders,
because they entail the separation of the owners and employees of businesses from
their customers, and because they establish the physical place of a business as a
restricted area (citing the PHA, § 24-1-15(P)(1)). The Townsend Amici contend that this
reading is appropriate because the provisions of the PHA authorizing the Secretary of
Health to close public areas and prohibit gatherings, and to control the transmission of
communicable diseases, must be read in conjunction with quarantine and isolation
provisions/requirements.
{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 some
cases, 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 in restaurants and bars, the lowest risk being drive-through and delivery/pick-up only,
and the highest risk being indoor and outdoor dining with no social distancing).
Quarantine, by contrast, is a strategy to address infection or likelihood of infection in
particular persons; the statutory language of the quarantine and isolation provisions in
both the PHA and the PHERA reflects this. See § 24-1-15(A) (providing that the
Secretary of Health is to petition the court to isolate or quarantine a person, where the
Secretary has knowledge that the person is infected with or was exposed to a
threatening communicable disease, and the person has refused voluntary measures); §
12-10A-7(B) (stating under “[p]rocedures for isolation or quarantine of persons” that the
ex parte quarantine order shall “state the persons, group or class of persons affected by
the ex parte order”); § 12-10A-8(E) (“A household or family member of a person isolated
or quarantined has a right to choose to enter an isolation or quarantine area.”); § 12-
10A-11(A) (“A person who is isolated or quarantined may request a hearing in court[.]”).
{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[,]” § 24-1-15(P)(1), and
quarantine is defined as “the precautionary physical separation of a person who has or
may have been exposed to a threatening communicable disease . . . from persons who
are not quarantined to protect against the transmission of the disease to persons who
are not quarantined[,]” § 24-1-15(P)(5). Owners and employees of businesses have not
been involuntarily physically separated from the public on the basis of suspected
infection or exposure, nor are they confined to a certain physical area or prevented from
moving about freely or interacting with others.
{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 of
22Available at https://cv.nmhealth.org/wp-content/uploads/2020/03/031620-DOH-PHO-r.pdf (last visited
Oct. 16, 2020).
23Available at https://cv.nmhealth.org/wp-content/uploads/2020/07/7.13.20-PHO-1.pdf (last visited Oct.
16, 2020).
24Available at https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/business-
employers/bars-restaurants.html (last visited Oct. 16, 2020).
Health, 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 facilitates their operation and the achievement of
their goals.” (internal quotation marks and citation omitted)).
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
25Available at https://cv.nmhealth.org/wp-content/uploads/2020/04/04_11_20_PHO_Amended.pdf (last
visited Oct. 16, 2020).
26To the extent the Townsend Amici argue that the business restriction orders are void/unconstitutional
because they are arbitrary and capricious applications of the Secretary of Health’s authority under the
PHA, they reference no law or evidence whatsoever in support of such an assertion, despite the fact that
one challenging the constitutionality of administrative action bears the burden of showing that the action is
arbitrary or capricious. The Counseling Ctr., Inc. v. N.M. Human Servs. Dep’t, 2018-NMCA-063, ¶ 32,
429 P.3d 326, 334, cert. denied (S-1-SC-37126, Aug. 9, 2018) (“To successfully challenge the validity of
a rule adopted by an administrative agency, the party challenging the rule has the burden of showing that
the rule is arbitrary or capricious by demonstrating that the rule’s requirements are not reasonably related
to the legislative purpose.” (internal quotation marks and citation omitted)). We therefore, again, do not
consider this line of argument. Guerra, 2012-NMSC-014, ¶ 21.
C. SHANNON BACON, Justice
DAVID K. THOMSON, Justice