NM health orders face legal challenge

Plaintiffs: Gov. lacks authority to impose $5,000-a-day fines

SANTA FE — About a dozen business owners and companies are challenging Gov. Michelle Lujan Grisham’s authority to levy $5,000-a-day fines for violating New Mexico’s public health orders.

In a lawsuit filed Wednesday in state District Court, they argue that the Lujan Grisham administration has improperly threatened businesses with hefty fines if they violate the health orders and reopen their businesses.

The plaintiffs argue that the state Public Health Act authorizes much smaller fines — $100 or less — not the larger $5,000

penalty cited by state officials.

The lawsuit comes after the state Department of Health ordered the closure of nonessential businesses and banned public gatherings as part of a broader strategy intended to limit the transmission of COVID-19, which has contributed to 283 deaths in New Mexico and infected more than 6,000 people.

Lujan Grisham declared a public health emergency March 11 and later imposed a series of business restrictions, including limiting restaurants to takeout and delivery. She has since started to relax many of the restrictions, saying that New Mexicans have succeeded in slowing the spread of the virus.

The governor has said the state is on sound legal footing, noting that it has won initial court challenges.

The new lawsuit, filed in the state’s 9th Judicial District, seeks a permanent injunction barring the state from threatening imposition of the larger $5,000 fines.

The Republican Party of New Mexico helped organize the litigation, filed by Albuquerque attorney Carter Harrison IV on behalf of the businesses and their owners.

Lujan Grisham’s “actions are devastating our economy and killing locally owned businesses in our state,” GOP Chairman Steve Pearce said in a written statement Wednesday. “There’s been no common sense and no equity in the governor’s order, and innocent business owners are being threatened, feeling the financial pain and losing their livelihoods.”

Named as defendants are Lujan Grisham, Public Safety Secretary Mark Shea and Health Secretary Kathy Kunkel.

The plaintiffs include the owners of Monroe’s Restaurants in Albuquerque, Colfax Tavern and Diner, K-Bob’s Steakhouse in Clovis, Frontier Auto Inc. and other companies.

They say the state orders have dramatically reduced their revenue and made it difficult for them to survive. Some have been threatened with fines.

“This has placed the Plaintiffs in fear that, should they slightly or accidentally violate one of the orders — which is entirely possible, given their constantly changing nature and the fact that no court decisions have resolved, and no easily readable government guidance has been written to clarify, ambiguity in their text — they will be subject to the potentially ruinous financial penalties imposed and adjudicated by the Department of Health itself,” the plaintiffs argue in their lawsuit.

The owner of a pawn and gun shop in Grants, for example, has said that she faces a fine totaling $60,000 for opening in defiance of the orders. She is not part of the lawsuit, however.

Lujan Grisham has cited her authority under the Public Health Emergency Response Act and a variety of other laws as New Mexico has battled the coronavirus.

She has repeatedly said she understands the frustration of business owners. But the restrictions, she said, have been a vital part of the state’s success at limiting transmission of the disease.

States throughout the country have imposed similar restrictions, Lujan Grisham has said.

In a recent letter to Republican state senators, she noted that more than 90,000 people in the United States had died during the pandemic.