The state is not required to compensate businesses that lost money as a result of COVID-19 public health orders, according to a state Supreme Court opinion issued Monday.

In a unanimous opinion, written by Justice C. Shannon Bacon, the court found the state orders “are a reasonable exercise of the police power to protect the public health” and directed district judges to follow its legal conclusions in resolving the cases.

“Occupancy limits and closure of certain categories of businesses, while certainly harsh in their economic effects, are directly tied to the reasonable purpose of limiting the public’s exposure to the potentially life-threatening and communicable disease, and thus can be deemed ‘reasonably necessary,’ ” the court concluded in the opinion published Monday.

Albuquerque attorney A. Blair Dunn — who represented all but one of the approximately 20 business owners who filed lawsuits seeking compensation — said he wasn’t surprised by the ruling and intends to appeal.

“It’s no great shock,” he said. “The court itself has been engaging in judicial takings relative to evictions and consumer debt collections, so it doesn’t surprise me at all the court that can’t follow the constitution wouldn’t require the [Gov. Michelle Lujan Grisham] to follow the constitution,” he said.

According to Dunn’s argument, the public health orders — which necessitated the closure or reduction in hours for some businesses — were tantamount to the taking of private property by the government.

The court found the Public Health Emergency Response Act — one of the statues used as the basis for the issuance of the public health orders — provides compensation for the owners of “health care supplies, a health facility or any other property that is lawfully taken or appropriated” by the state during a public health emergency. But it rejected a broader of interpretation of the phrase “any other property” that would have extended beyond physical property directly taken by the state, Administrative Office of the Court spokesman Barry Massey wrote in a news release.

The court found the broader interpretation favored by the business owners “would lead to an absurdity: unlimited liability authorized by the Legislature.”

A spokesman for the Governor’s Office welcomed the ruling.

“We know the pain that businesses have felt over the last year-plus,” Gov. Lujan Grisham spokesman Tripp Stelnicki wrote in an email Monday. “… The state’s first priority over the course of the pandemic has been to save lives, and as a consequence of the economic impact of the pandemic we have worked our tails off to get a variety of business relief programs and a literal ton of relief money out the door.”

Stelnicki pointed to state programs offering recovery grants and tax breaks and resources the state has made available for business owners who suffered losses as a result of the pandemic.

Hinkle Family Fun Center and Mauger Estates B&B in Albuquerque, and Eli’s Bistro Inc., Elite Fitness & Tanning LLC and Cowboy Café in Roswell where among the businesses seeking compensation for losses related to state-ordered closures or hours and capacity reductions.

The Santa Fe Oxygen and Healing Bar and Apothecary Restaurant — two adjacent downtown businesses that share the same owner — were originally listed as parties to the case. Owner Kadimah Levanah filed a motion in state District Court seeking to dismiss her complaint in November, but the case hasn’t been closed yet, because like the other cases, hers had been put on holding pending the state Supreme Court’s ruling.

Dunn said he has 180 days to appeal.

(16) comments

Bill Becher

The only person who will get money out of this stupid lawsuit is Mr Dunn.

Barry Rabkin

This judgement by the NM Supreme Court does not, in any way, mean that the court 'is in MLG's pocket.' It does mean that the court knows the laws (and the constitution) of NM better than all of us making comments and that MLG knows the laws (and the constitution) of NM better than all of us making comments.

Very similar to the idiotic belief that if a candidate running for office that you like loses then the election must be rigged in some manner.

David Ford

Perfect Barry. Thank you![cool]

Lee Vigil

Ironic that those who are complaining about a 'nanny state' also want the state to compensate and support them??

Mike Johnson

This case should and will end up at SCOTUS. The NM Supreme court is completely incapable of impartial, unbiased, nonpartisan justice. Just another political tool of the Governor's, they would never rule against her, SCOTUS will.

John Cook

It's pretty funny to complain that the NM Supreme Court is 'political' while putting one's faith in SCOTUS. The former has no recorded case that can fairly be called political while the latter is rife with such decisions. cf. Bush v. Gore, Citizens United, Shelby County vs. Holder and many others.

rodney carswell

[thumbup][thumbup]

Barry Rabkin

Nope, not a political tool of MLG. The court ruling was based on the laws of New Mexico. And this ruling will be either ignored (that is to say, accepted by the SCOTUS) or agreed to by the SCOTUS. MLG's priority of saving life was - and is - more important than allowing businesses to be open. Allowing businesses during the time of a highly infectious and deadly virus to be open is equivalent to condoning homicide.

David Gunter

Your ignorance of the law is equal to your ignorance of how courts works. There's no way this will make it to the SCOTUS.

Mike Johnson

OK, I will bookmark this one and get back to you......

Stefanie Beninato

Really no surprise given the frivilious nature of the lawsuit.

Jason Evans

If the very same tyrannical governor who issued the draconian edicts that caused so many to suffer such severe economic pain and mental anguish then allows a 'non-essential' jewelry store to open so that the tyrant herself might make a purchase while no other citizen may do the same and no other 'non-essential' business may engage in commerce, then there never actually was any genuine legitimate public health threat.

Humanity wishes plaintiffs well in their appeal.

Barry Rabkin

I wish the plaintiffs nothing but failure in their appeals. Almost all businesses had to be closed to the public to minimize the likelihood of infection, hospitalization, and death of the COVID-19 highly infectious and deadly virus.

mark Coble

Can PCR tests be manipulated? How, exactly? Died from covid or with covid? Of the deaths how many already had fatal diseases? Grossly obese? Heart disease? Cancer? What is survival rate for healthy people under 75 with no co morbidities? I dare you to ask these questions...you will be censored or ignored by our nanny STATE. You need to just obey and comply like good sheep. Business ruined? Well we kept you safe from disease that has over 99% survival rate...but don't ask!

rodney carswell

[pirate][alien][sleeping]

Paul Davis

> I dare you to ask these questions...you will be censored or ignored by our nanny STATE.

Apparently you just asked them. And yet here's your comment, free for all to read.

Oh wait, you said "ignored". Is your claim now that the "nanny STATE" is required to NOT IGNORE you under any circumstances? Good luck with that.

> Well we kept you safe from disease that has over 99% survival rate.

The dilemma with COVID19 wasn't the fatality rate, which you've also badly misquoted. It's massively more complex than a statistic like "99% survival rate" can convey. This has lots (lots!) more detail:

https://ourworldindata.org/mortality-risk-covid#what-do-we-know-about-the-risk-of-dying-from-covid-19

The real risk was that a highly transmittable disease could trigger enough cases requiring hospitalization that our health care systems would be overwhelmed. People would end up dying of things other than COVID19 simply because the hospitals and staff would be overwhelmed. That's what the measures taken around the world were trying to prevent. In the USA, they were not completely successful at doing so - some parts of the country did see overloaded ICUs etc., but we didn't do too badly overall.

COVID19 was never about the risk of you dying of the disease, though 600k people in the USA did in fact die, which for them and their friends and families was a tragedy. It was about avoiding an even greater catastrophe from health care system overload, which has nothing to do with the survival rate, and everything to do with the ease of transmission.

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