New Mexico high court upholds health orders over businesses

SANTA FE, N.M. (AP) — The New Mexico Supreme Court upheld the authority of the state health secretary to restrict or close businesses because of the coronavirus pandemic, in a unanimous 4-0 decision Wednesday spurred by restrictions on indoor dining at restaurants.

In the decision announced by Justice Judith Nakamura, the court also rejected assertions by the restaurant industry that a July 13 ban on indoor dining service was arbitrary and capricious.

“Bottom line, it is well established that differing opinions do not make an action arbitrary and capricious,” Nakamura said. She invoked recent statements by U.S Chief Justice John Roberts that the judiciary should not normally second-guess decisions regarding health emergencies.

The decision bolsters the emergency powers of Gov. Michelle Lujan Grisham and her Cabinet, even as the first-term Democrat announced plans to lift a ban on indoor dining as part of a revised public health order that will take effect Saturday. Among other things, the new order will clear the way for restaurants, breweries, wineries, distillers, cafes and coffee shops to serve customers indoors in limited capacities.

The state Supreme Court also recently upheld the administration’s authority to levy hefty $5,000 daily fines against businesses that flout health orders linked to the coronavirus.

Restaurants have been whipsawed as Lujan Grisham’s administration suspended its reopening of the economy in mid-July — and put a halt to indoor dining — in response to a wave of COVID-19 infections and deaths that has relented in recent weeks.

A handful of states, including California and New Jersey, currently prohibit indoor dining as a temporary safeguard against the spread of COVID-19.

An attorney for the New Mexico restaurant industry told justices Wednesday the state is effectively placing restaurant workers and customers under quarantine, without providing any process for public comment or redress.

“It’s fully possible that a month from now orders will be issued again to completely close indoor dining,” said Angelo Artuso, an attorney representing several restaurants and the New Mexico Restaurant Association.

He also called the scientific basis of the orders “far from conclusive.”

But attorney Matthew Garcia, representing the governor and state Health Department, said ongoing emergency restrictions are warranted in the context of a once-in-a-lifetime pandemic and state statutes governing health emergencies.

The law’s intent “is to recognize that the interests of business sometimes are outweighed by the interest in saving people’s lives,” he said.

The court case began as a standoff between state environmental regulators and Jalisco Cafe in Silver City over its alleged refusal to cease indoor dining service despite sanctions and a permit suspension.

Other businesses entered the fray: K-Bob’s Steakhouse restaurants in Raton and Las Vegas, Trinity Hotel in Carlsbad, the Red River Brewing Co. in Red River — as well as the New Mexico Restaurant Association.

State Republican Party Chairman Steve Pearce condemned the ruling as a setback for equal protection under the law and said it highlights “the important need for change at the polls this November, including the judiciary.”

New Mexico is faring better against virus infections than neighboring Arizona and Texas.

As of Tuesday, it had the lowest average rate of positive tests in the western U.S., according to an analysis by The Associated Press of data collected by the Johns Hopkins University Center for Systems Science and Engineering. The number of average daily deaths is hovering between four and five statewide.

Separately, a bevy of lawsuits have been filed by small businesses that are seeking compensation from the state for financial losses linked to pandemic health orders.

Aside from the burdens for the businesses and their workers, Tupper Schoen, general manager of The Pantry restaurant in Santa Fe, said he expects customers will continue to be wary of indoor dining.

“I do believe that there are many, many people who would not choose to go indoors still, but they would go out on the patio to eat,” he said.

For most people, the new coronavirus causes mild or moderate symptoms, such as fever and cough. For some, especially older adults and people with existing health problems, it can cause more severe illness, including pneumonia, and death.