Several New Mexico businesses have filed a lawsuit against Gov. Michelle Lujan Grisham and two Cabinet secretaries, claiming threatened civil penalties for violations of emergency health orders are not authorized by the state’s Public Health Emergency Response Act.

The state Republican Party helped organize the lawsuit — which was filed in the 9th Judicial District in Curry County — and is paying the legal costs associated with filing it, a spokesman for the party said.

“This is unconstitutional,” Republican Party of New Mexico Chairman Steve Pearce said in a news release. “Gov. Lujan Grisham doesn’t have the executive power to threaten and fine establishments under the law. Her actions are devastating our economy and killing locally owned businesses in our state. 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.”

K-Bob’s Steakhouse in Clovis; Frontier Auto Inc. and Body & Sol Fitness in Lovington; Monroe’s Restaurants in Albuquerque; Kemp’s Investments and Colfax Tavern & Diner in Colfax County; J.Jones Massage in Hobbs; the owners of the businesses; and several individuals filed the lawsuit against Lujan Grisham, Department of Public Safety Secretary Mark R. Shea and Department of Health Secretary Kathy Kunkel, who are named as defendants.

In the lawsuit, they claim threatened civil penalties up to $5,000 per day for violations of the emergency orders are not authorized by the Emergency Response Act except perhaps as sanctions against people who are the subject of public health orders to quarantine or self-isolate.



The plaintiffs are asking a state District Court judge to declare the threatened civil penalties don’t apply to businesses or individuals that violate the emergency orders and forbid the state from imposing or threatening to impose them.

The lawsuit also asks for legal costs and any other relief the court finds appropriate.

In the alternative, the plaintiffs ask the court to declare the plaintiffs are owed damages for lost revenues as called for in the “just compensation” clause of Emergency Response Act.

The Governor’s Office did not respond to an email seeking comment Thursday.

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(14) comments

Emma Spring

ABSOLUTELY WONDERFUL !! Looks like Michelle may just get a chance to learn the LAW and how that works for the people. Education is a wonderful thing.

Jim Klukkert

Emma Spring~ Education is a wonderful thing, and Gov. Lujan Grisham got her legal education at UNM (J.D. 1987) Though the law is subject to interpretation, ( after all the U.S. Constitution is a ‘living document’) MLG probably draws on the following foundations and precedents for her lawful Public Health Orders.

The States’ authority flows from the Amendment X of the Constitution: ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’

Going back many years, there is ample Constitutional Case Law to draw upon. This perhaps is no surprise, as epidemics have devastated human populations relatively frequently over our history. Some of the NM statutes were inspired by the influenza epidemic of 1919-1920.

I have selected a few cases below. I found these on a UNM site. I am not a lawyer.

Constitutional Case Law

Gibbons v. Ogden, 22 U.S. 1 (1824)

The polic e powers of a state “form a portion of that immense mass of legislation which embraces everything within the territory of a state, not surrendered to the general government: all of which can advantageously exercised by the States themselves. Inspection laws, quarantine laws, and health laws of every description . . . are component parts of this mass.”

Holmes v. Jennison, 39 U.S. 540 (1840)

“Every state has acknowledged power to pass, and enforce quarantine, health, and inspection laws, to prevent the introduction of disease, pestilence, or unwholesome provisions; such laws interfere with no powers of Congress or treaty stipulations; they relate to internal police, and are subjects of domestic regulation within each state, over which no authority can be exercised by any power under the Constitution, save by requiring the consent of Congress to the imposition of duties on exports and imports, and their payment into the treasury of the United States.” 39 U.S. at 616.

Jacobson v. Massachusetts, 197 U.S. 11 (1905)

Police powers of the State are not unlimited but mandatory smallpox vaccination

ordinance upheld.

“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”

State Non-Emergency Public Health Powers

Public Health Act, Sections 24-1-1, et seq., NMSA 1978 (Laws 1973, Chapter 359, as amended). Administered and enforced by the NM Department of Health.

• Section 24-1-3.C., NMSA 1978 – Authority to investigate, control and abate causes of disease, especially, epidemics, sources of mortality and other conditions of public health.

• Section 24-1-3.D., NMSA 1978 – Authority to establish, maintain and enforce isolation and quarantine.

• Section 24-1-3.E., NMSA 1978 – Authority to close any public place and forbid gatherings of people when necessary for the protection of public health.

The above three sections of the Public Health Act were first enacted by Laws 1919, Chapter 85, Section 10. This law also established the first state NM Department of Health during the world-wide outbreak of the 1918-1919 Spanish Influenza.

State Emergency Public Health Control Measures

Public Health Emergency Response Act (PHERA), Sections 12-10A-1, et seq., NMSA 1978 (Laws 2003, Chapter 218).

• Governor must declare a state of “Public Health Emergency” (PHE) by issuing an Executive Order after consultation with the Secretary of Health and in coordination with the Secretary of Public Safety and the Director of the NM Office of Homeland Security. (Section 12-10A-5, NMSA 1978)

• “PHE” is defined as “the occurrence or imminent threat of exposure to an extremely dangerous conditions or a highly infectious or toxic agent, including a threatening communicable disease, that poses an imminent threat of substantial harm to the population of the state of New Mexico or any portion thereof;” (Section 12-10A-3.L., NMSA 1978).

kyle renfro

All that supposed knowledge she got and she is dumb as dirt, vindictive, and purely favoritism oriented

kyle renfro

completely self centered

Stefanie Beninato

The party of death (GOP) seems to be forum shopping. And I appreciate the list of businesses that sued--ones I would avoid if I lived or visited Curry County because you can be sure they do not follow other health directives either. The GOP is only pro life until you are born and then it is all about money for the one percent. Ask Steve Pierce.

Robert Bartlett

But you are for the unrestricted killing of babies, right? Just so we know.

Jim Klukkert

Robert Bartlett- " unrestricted killing of babies" is over the top snarky talk.

Lighten up please. A discussion of Women's Rights v. Right to Life is fine, but such insults are not good.

Thanks.

Robert Bartlett

You know abortion means killing a baby, right?

Jim Klukkert

Robert Bartlett- This article is not about the debate on Women's Right to Choose v. Right to Life, nor do I have time today to engage that topic.

Please stick to the topic at hand, lest you be accused of having nothing to sat on this issue.

Thanks, cordially and civily.

Robert Bartlett

Mind your own business. I was responding to Stefanie.

Jim Klukkert

Robert Bartlett- When you post to a public forum, you make your comments everybody's business. So I am minding my business, using civil and rational language on this forum to make the world a better place.

Using comments as Stefanie did in calling the GOP the party of death is probably not the most civil, nor persuasive choice of language. Accusing someone of being "for the unrestricted killing of babies” is clearly over the top.

I wish for the day when we do not use extreme language to engage in our civic duty to calmly discus issues.

Thank you.

Robert Bartlett

Buzz off.

Jim Klukkert

Robert Bartlett- The Democratic Party, and the overwhelming number of folks worldwide, is opposed to the unrestricted killing of babies.

Connie Lopez

Like this lawsuit(s) going anywhere. MLG, you keep going girl! Nothing but GOP rhetoric here. Put New Mexicans first, not the republican (MAGA) party. Keep on spending. And when you tire, spend some more, please! If you find funds are a bit low, talk to your colleagues in D.C. for an influx Federal dollars. Money is not for hoarding. Connie Lopez-Lucero

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