Lujan Grisham v. Romero

Office of the Director New Mexico
11:32:18 2022.07.26 Compilation
'00'06- Commission

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2021-NMSC-009

Filing Date: February 15, 2021

No. S-1-SC-38396

MICHELLE LUJAN GRISHAM, Governor
of New Mexico; KATHYLEEN KUNKEL,
Secretary of the New Mexico Department of Health,

Petitioners,

v.

HONORABLE RAYMOND L. ROMERO,
District Court Judge, Fifth Judicial District Court,

Respondent,

and

OUTLAW MEATS, LLC,
a New Mexico Limited Liability Company;
F-2 ENTERPRISES, INC., d/b/a TEXAS CLUB
GRILL & BAR, a New Mexico Corporation;
K-BOBS OF RATON, INC., a New Mexico Corporation;
K-BOBS OF LAS VEGAS, INC., a New Mexico Corporation;
B.M.B. FINANCIAL, LLC, d/b/a TRINITY HOTEL,
a New Mexico Limited Liability Company;
RED RIVER BREWING COMPANY, LLC,
a New Mexico Limited Liability Company; and
NEW MEXICO RESTAURANT ASSOCIATION,

Real Parties in Interest.

ORIGINAL PROCEEDING

Released for Publication April 6, 2021.

Office of the Governor
Matthew L. Garcia, Chief General Counsel
Jonathan Jacob Guss, Deputy General Counsel
Santa Fe, NM

for Petitioners
Honorable Raymond L. Romero
District Court Judge, Fifth Judicial District
Carlsbad, NM

for Respondent

Law Office of Angelo J. Artuso
Angelo J. Artuso
Albuquerque, NM

Patrick J. Rogers, LLC
Patrick J. Rogers
Albuquerque, NM

Roybal-Mack & Cordova Law, P.C.
Antonia Roybal-Mack
Amelia P. Nelson
Darren Lee Cordova
Albuquerque, NM

for Real Parties in Interest

Tabor & Byers, L.L.P.
Justin Stewart Raines
Cas F. Tabor
Carlsbad, NM

for Amicus Curiae
Eddy County

Jonathan M. Diener
Mule Creek, NM

for Amicus Curiae
Jalisco Café

Harrison & Hart, LLC
Carter B. Harrison, IV
Albuquerque, NM

for Amici Curiae
Republican Party of New Mexico, House Minority Leader Jim Townsend, and Senate
Minority Leader Stuart Ingle

OPINION

NAKAMURA, Justice.
{1} This case presents the Court with yet another opportunity to address the difficult
questions surrounding the executive branch’s authority to impose business restrictions
during a pandemic. Here, we answer two questions: (1) whether Petitioners are
authorized to restrict or close businesses when necessary for the protection of public
health and (2) whether the renewed temporary closure of indoor dining at restaurants
and breweries, mandated by the July 13, 2020, emergency public health order (July
Order), see N.M. Dep’t of Health, Public Health Order at 5 (July 13, 2020), 1 was
arbitrary and capricious. With respect to the first question we hold, consistent with our
opinion in Grisham v. Reeb, 2021-NMSC-006, ¶¶ 25-33, 480 P.3d 852, that Petitioners
are so authorized. With respect to the second question, we hold that the July Order’s
temporary closure of indoor dining was not arbitrary and capricious.

I. BACKGROUND

A. The COVID-19 Pandemic and Petitioners’ Orders

{2} COVID-19, the disease caused by the contagious coronavirus SARS-CoV-2,
continues to spread across the United States; as of early February 2021, over 26 million
cases of COVID-19 have been diagnosed in the United States, and more than 450,000
Americans have died from the disease. See Centers for Disease Control and
Prevention, U.S. Cases & Deaths. 2 New Mexico’s share of that case total is 176,211,
and 3,355 New Mexicans have died of COVID-19-related causes. See N.M. Dep’t of
Health, COVID-19 in New Mexico. 3 Because there is presently no cure or readily
available vaccine for the disease, compliance with social distancing requirements and
other precautionary measures remains the only effective means of averting infection.
N.M. Dep’t of Health, State of New Mexico COVID-19 Vaccine Allocation Plan (updated
January 28, 2021)4; Mayo Clinic, Coronavirus disease 2019 (COVID-19): Diagnosis &
treatment; 5 U.S. Food and Drug Administration, COVID-19 Frequently Asked Questions
(updated February 4, 2021). 6

{3} 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 Public Health Emergency Response Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19
(2003, as amended through 2015), pursuant to Section 12-10A-5. See State of N.M.

1Available at https://cv.nmhealth.org/wp-content/uploads/2020/07/7.13.20-PHO-1.pdf (last visited Feb. 4,
2021).
2Available at https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/
cases-in-us.html (last visited Feb. 4, 2021).
3Available at https://cvprovider.nmhealth.org/public-dashboard.html (last visited Feb. 4, 2021).
4Available at https://cv.nmhealth.org/wp-content/uploads/2021/01/2021.1.8-DOH-Phase-Guidance.pdf
(last visited Feb. 4, 2021)
5Available at https://www.mayoclinic.org/diseases-conditions/coronavirus/
diagnosis-treatment/drc-20479976 (last visited Feb. 4, 2021).
6Available at https://www.fda.gov/emergency-preparedness-and-response/
coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions (last visited Feb. 4, 2021).
Executive Order 2020-004 (March 11, 2020) (hereinafter “EO 2020-004”). 7 This
executive order was extended through March 5, 2021. State of N.M. Executive Order
2021-004 (February 5, 2021) (hereinafter “EO 2021-004”). 8

{4} The Secretary of the Department of Health (DOH), Kathyleen Kunkel 9⸻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 Act (DOH
Act), NMSA 1978, §§ 9-7-1 to -18 (1977, as amended through 2019); and “inherent
constitutional police powers”⸻issued a series of emergency public health orders
(emergency orders) which, beginning on March 16, 2020, restricted mass gatherings
and the operations of certain businesses, requiring some to close entirely. See N.M.
Dep’t of Health, Public Health Order at 3 (March 16, 2020). 10 Indoor and outdoor dining
at restaurants was banned effective March 24, 2020. See N.M. Dep’t of Health, Public
Health Order at 4 (March 23, 2020). 11 The restrictions imposed in the initial emergency
orders were gradually relaxed as New Mexico’s daily rate of new infections declined,
with outdoor dining permitted at 50% capacity under the fire code as of May 27, 2020
(see N.M. Dep’t of Health, Public Health Order at 5 (May 27, 2020) 12), and indoor dining
permitted at 50% capacity as of June 1, 2020 (see N.M. Dep’t of Health, Public Health
Order at 5 (June 1, 2020) 13).

{5} However, in response to a subsequent rise in the rate of new COVID-19 cases in
New Mexico and surrounding states, and increasing infections associated with
restaurant dining, the Secretary of Health reinstated the ban on indoor dining on July
13, 2020. See July Order, supra, at 5. The July Order was amended several times in
accordance with changing COVID-19 conditions and, as of early November 2020, the
applicable emergency order permitted, among other things, indoor dining at 25%
capacity and outdoor dining at 75% capacity. See N.M. Dep’t of Health, Public Health
Order at 5-6 (October 22, 2020). 14

{6} The restrictions set out in the July (and follow-up) Order(s) continue to be
modified based on changing COVID-19 conditions, albeit now in accordance with a
“county-by-county” approach specified in New Mexico’s subsequently adopted, three-

7Available at https://www.governor.state.nm.us/wp-content/uploads/
2020/03/Executive-Order-2020-004.pdf (last visited Feb. 4, 2021).
8Available at https://cv.nmhealth.org/wp-content/uploads/2021/02/ Executive-Order-2021-004.pdf (last
visited Feb. 8, 2021).
9Petitioner Kunkel retired from her post as Secretary of Health during the pendency of this proceeding.
For the sake of simplicity, we will use the term “Secretary” generically to include her successors, Acting
Secretary Billy J. Jimenez and Secretary Designate Tracie C. Collins, M.D.
10Available at https://cv.nmhealth.org/wp-content/uploads/2020/03/031620-DOH-PHO-r.pdf (last visited
Feb. 4, 2021)
11Available at https://cv.nmhealth.org/wp-content/uploads/2020/03/
SignedPHO03-24-2019.pdf (last visited Feb. 4, 2021).
12Available at https://cv.nmhealth.org/wp-content/uploads/2020/05/PHO-5-26-2020.pdf (last visited Feb.
4, 2021).
13Available at https://cv.nmhealth.org/wp-content/uploads/2020/06/060120-PHO.pdf (last visited Feb. 4,
2021).
14Available at https://cv.nmhealth.org/wp-content/uploads/2020/10/102220-PHO.pdf (last visited Feb. 4,
2021).
level “reopening” framework. See N.M. Dep’t of Health, Public Health Order at 6-10
(November 30, 2020). 15 Under this framework, it is anticipated that individual counties—
and the businesses operating within their borders—will move from the “Red Level”
(“very high risk”) to the “Yellow Level” (“high risk’) to the “Green Level” (“medium risk”)
based on demonstrated health metrics bearing on virus spread and test positivity rates,
with a corresponding easing of restrictions at each successive stage. See N.M. Dep’t of
Health, Red to Green Framework. 16 At present, twenty-five of the thirty-three counties in
New Mexico remain at the Red Level and thus are subject to a ban on indoor dining and
25% capacity restrictions on outdoor dining. See N.M. Dep’t of Health, Public Health
Order at 9-11 (January 29, 2021) 17; N.M. Dep’t of Health, COVID-19 in New Mexico,
supra.

{7} 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 court’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
we did in Reeb, 2021-NMSC-006, ¶ 23, 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
Governor Grisham and the Secretary. Legacy Church, Inc. v. Kunkel, 472 F. Supp. 3d
926, 1066-67 (D.N.M. 2020) (collecting cases and noting that “[c]ourts presiding over
similar cases have taken judicial notice of Public Health Orders and scientific consensus
regarding the coronavirus”).

B. Procedural History

{8} On July 14, 2020, six food and drink establishments from various locations in the
State of New Mexico 18 and the New Mexico Restaurant Association (the Association)—
real parties in interest (Real Parties) in this action—filed an application in the Fifth
Judicial District Court, seeking a temporary restraining order (TRO) and a preliminary
and permanent injunction against Governor Grisham and the Secretary, “prohibiting
[them] from enforcing their recently ordered quarantine of all indoor dine-in service
spaces for all restaurants and brewery businesses in New Mexico.” The application
argues that the July Order’s indoor dining ban is “[u]ltra [v]ires and [n]ot [e]nforceable”
and is “[u]nreasonable, [a]rbitrary, and [c]apricious.” The application attaches affidavits
from the various businesses and from Carol Wight, CEO of the Association, detailing
the loss of income and employment caused by the emergency orders’ restrictions on
restaurants and, in particular, the prospective consequences of the July Order’s ban on
indoor dining. The application also attaches an excerpt of Governor Grisham’s July 9,

15Available at https://cv.nmhealth.org/wp-content/uploads/2020/11/113020-PHO.pdf (last visited Feb. 4,
2021).
16Available at https://cv.nmhealth.org/public-health-orders-and-executive-orders/red-to-green/ (last
visited Feb. 4, 2021).
17Available at https://cv.nmhealth.org/wp-content/uploads/2021/01/
GovernorsOffice@state.nm_.us_20210129_161525.pdf (last visited Feb. 4, 2021).
18Red River Brewing voluntarily dismissed its case against Governor Grisham and the Secretary on July
16, 2020, so it is no longer a plaintiff in the district court action nor a real party in interest in this action.
2020, press conference and an undated chart apparently published by the DOH (but
accompanied by no affidavit or other competent explanation of its source), titled
“Coronavirus Risk Levels By Activity,” in which churches, gyms, and salons are all
categorized as having risks similar to or greater than the risks of indoor dining.

{9} On July 15, 2020, Governor Grisham and the Secretary were served with a
summons, issued by the district court, notifying them that they had thirty days to file a
written response to the Real Parties’ application. On July 17, 2020, Governor Grisham
and the Secretary entered an appearance and moved for a page limit extension for
purposes of responding to the application. Apparently, the district court clerk for
presiding Judge Romero indicated to counsel, via email on July 17, 2020, that the
request would be granted, but no order was entered until July 21, 2020.

{10} Nevertheless, on July 20, 2020, without any notification that the district court
intended to issue the TRO prior to receiving a response, the district court did so, finding
that Governor Grisham and the Secretary had actual notice of the complaint/application
as of July 15, 2020, and had not filed “any responsive pleading . . . as of July 20, 2020
at 11:00 a.m.” The district court further found that immediate irreparable injury—
namely, “permanent loss of revenue, permanent business closure, and/or bankruptcy”—
would result if the TRO did not issue immediately. Accordingly, the TRO restrained
Governor Grisham and the Secretary from enforcing the restrictions imposed upon
restaurants and breweries in the July Order. The district court further ordered that the
Secretary’s June 30, 2020, emergency order would remain in force until expiration of
the TRO (in ten days), or until issuance of a preliminary injunction.

{11} After the district court’s entry of the TRO and on the same day, Petitioners filed
an emergency petition in this Court for a writ of superintending control and stay of the
TRO, asking us to address the two issues identified herein (whether Petitioners had the
authority to issue the July Order and whether the July Order is arbitrary and capricious).
Attached to the petition are the affidavits of David R. Scrase, M.D., and Robert
Genoway, Bureau Chief of New Mexico’s Occupational Health and Safety Bureau
(within the New Mexico Environment Department, or NMED). This Court immediately
granted the stay, setting short deadlines for a response and reply. Petitioners served
counsel for the Real Parties a copy of the emergency petition at approximately 2:00
p.m. on July 20, 2020. The Real Parties responded, restating their arguments as set
forth in the district court application and contending that this Court should not issue a
writ of superintending control because the second issue raised (whether the July Order
is arbitrary and capricious) can only be resolved by determining whether the order lacks
a rational basis “when viewed in light of the whole record,” whereas here, no record has
yet been developed. Several Amici Curiae—Eddy County, Jalisco Café, and the
Republican Party of New Mexico together with House Minority Leader Jim Townsend
and Senate Minority Leader Stuart Ingle—were granted leave to file three separate
briefs in support of the Real Parties’ arguments. District court Judge Raymond Romero
also filed a response to the writ petition, arguing that this Court should not exercise its
power of superintending control because Petitioners have sought this remedy “as a
means of appealing the entry of the TRO.”
{12} On July 22, 2020, the Real Parties filed a motion to lift this Court’s stay of the
TRO, contending that Petitioners failed to show that irreparable harm would result
absent the entry of a stay. Judge Romero similarly argued that this Court’s stay should
be lifted and the matter remanded; he volunteered that “[t]o expedite the matter, the
District Court would issue a notice, pursuant to Rule 1-066 NMRA, ordering trial of the
action on the merits be advanced and consolidated with the hearing on the application
for preliminary injunction.” Petitioners responded that this Court properly found that
irreparable harm would be caused in the absence of a stay, given the demonstrated link
between indoor dining and increased COVID-19 infections in the United States and New
Mexico. On August 12, 2020, we denied the Real Parties’ motion to lift our previously
issued stay.

{13} Finally, on August 20, 2020, after this matter was scheduled for oral argument on
August 26, 2020, the Real Parties filed a motion for leave to supplement the record with
the affidavit of biostatistician Hubert A. Allen, Jr., attaching for reference additional
documents obtained in connection with recent IPRA requests to the DOH in separate
litigation. Petitioners filed a response in opposition to the motion on August 22, 2020,
arguing that the proffered affidavit and referenced documents cannot rebut Petitioners’
showing that the temporary closure of indoor dining has a real relation to reducing the
spread of COVID-19, which suffices to uphold the lawfulness and constitutionality of the
restriction. We granted the motion, and considered the supplemental affidavit and
exhibits.

{14} Following oral argument on August 26, 2020, this Court granted the Petitioners’
requested writ, lifting the previously imposed stay, and directing the district court to
vacate the TRO and dismiss the Real Parties’ application. This opinion explains the
basis for that disposition.

II. DISCUSSION

A. The Power of Superintending Control

{15} As we recently discussed in Reeb, 2021-NMSC-006, ¶ 8, this Court has the
power of superintending control over inferior courts. N.M. Const. art. VI, § 3. This
power enables the Court to control the course of litigation in inferior courts and “to
correct any specie of error.” Kerr v. Parsons, 2016-NMSC-028, ¶ 16, 378 P.3d 1 (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 [district] court . . . where there is no other
adequate remedy and gross injustice is threatened” (internal quotation marks and
citation omitted)). 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 . . . or where otherwise necessary to prevent irreparable mischief,
great, extraordinary, or exceptional hardship[, or] costly delays and unusual burdens of
expense.” McKenna, 1994-NMSC-102, ¶ 4 (alteration and omission in original) (internal
quotation marks and citation omitted). 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.

1. Questions presented in the petition

{16} The Real Parties are correct that “matters entrusted to the [district] court’s
discretion ordinarily are not matters over which this Court should exercise its jurisdiction
to grant extraordinary relief” and that a writ of superintending control “should [not] be
used as a substitute for a decision on direct or interlocutory appeal.” Chappell v.
Cosgrove, 1996-NMSC-020, ¶ 6, 121 N.M. 636, 916 P.2d 836. But this writ petition
centers around questions of constitutional law and statutory construction—matters we
review de novo. State v. Lucero, 2007-NMSC-041, ¶ 8, 142 N.M. 102, 163 P.3d 489.
We have also noted that extraordinary writs may be appropriate even if there would be
a remedy by appeal, where the public interest implications of the question posed are
significant. State ex rel. Townsend v. Court of Appeals, 1967-NMSC-128, ¶ 10, 78 N.M.
71, 428 P.2d 473 (holding that “prohibition will lie even where there is a remedy by
appeal, where it is deemed to be in the public interest to settle the question involved at
the earliest moment”). Thus, “it is not absolutely essential that the inferior court have an
opportunity to pass upon the question involved.” Id. ¶ 11 (citing State ex rel. State
Corp. Comm’n v. Zinn, 1963-NMSC-048, ¶¶ 13-14, 18, 72 N.M. 29, 380 P.2d 182, in
which this Court granted a writ of prohibition against the district court prior to the court’s
hearing on a requested temporary injunction).

{17} The Real Parties have no serious dispute that the first issue presented—namely,
whether the Secretary had the legal authority to issue the July Order banning indoor
dining in restaurants and breweries—is appropriate for resolution through a writ of
superintending control. Indeed, we have already addressed the issue in Reeb, where
we concluded that the question of the Secretary’s authority under the PHERA was a
matter of great public interest warranting immediate resolution through the requested
writ. See 2021-NMSC-006, ¶ 9. However, the Real Parties contend that this Court
should decline to issue a writ here, where an evidentiary hearing will ostensibly be
required to address the second issue presented: namely, whether the July Order is
arbitrary and capricious and/or unconstitutional. Petitioners reply that the novelty of the
legal questions presented and the urgency of those questions as matters of public
safety warrant the issuance of the writ, and that the record is sufficient for this Court to
decide the question of the July Order’s constitutionality. We agree with Petitioners. In
the context of this case, the record is adequately developed for resolution of the second
issue, as further discussed below.
2. The district court’s TRO and this Court’s stay

{18} We reiterate that this Court’s power of superintending control includes the
authority to correct any error and control the course of the litigation. Kerr, 2016-NMSC-
028, ¶ 16. Here, the district court’s entry of the TRO restraining Petitioners from
enforcing the July Order’s restrictions was improvidently granted, and therefore our
initial stay of the TRO was, in effect, a correction of that intermediate error. Because
the Real Parties and the district court objected to this Court’s entry of a stay of the TRO
pending resolution of the petition, we address both the issuance of the stay and the
lawfulness of the district court’s entry of the TRO.

{19} A TRO is a species of injunctive relief, similar to a preliminary injunction but for
its expiration after a limited period of time and, under particular circumstances, its
issuance without notice to the adverse party. Compare Rule 1-066(B) (governing
temporary restraining orders), with Rule 1-066(A) (governing preliminary injunctions);
see, e.g., Hope v. Warden York Cnty. Prison, 956 F.3d 156, 160 (3d Cir. 2020)
(explaining the similarities and differences between TROs and preliminary injunctions).
A TRO “is designed to restrain the defendant for a brief period, pending a hearing on an
application for a preliminary injunction.” 42 Am. Jur. 2d Injunctions § 8 (2020). It is thus
an interim measure, intended to preserve the status quo and prevent irreparable harm;
it is also “an extraordinary and drastic remedy, which must be used sparingly and only
in cases where the need for extraordinary equitable relief is clear and plain.” Id.
(footnote omitted). This is because “our entire jurisprudence runs counter to the notion
of court action taken before reasonable notice and an opportunity to be heard has been
granted [to] both sides of a dispute.” Granny Goose Foods, Inc. v. Brotherhood of
Teamsters, 415 U.S. 423, 439 (1974).

{20} To obtain a TRO, a movant must therefore show that “(1) the [movant] will suffer
irreparable injury unless the injunction is granted; (2) the threatened injury outweighs
any damage the injunction might cause the [adversary]; (3) issuance of the injunction
will not be adverse to the public’s interest; and (4) there is a substantial likelihood
[movant] will prevail on the merits.” See LaBalbo v. Hymes, 1993-NMCA-010, ¶ 11, 115
N.M. 314, 850 P.2d 1017 (applying the four factors to review the grant of a preliminary
injunction); see, e.g., Romer v. Green Point Sav. Bank, 27 F.3d 12, 16 (2d Cir. 1994)
(applying the same four factors to review the grant of a TRO). Moreover, where
injunctive relief is the ultimate relief sought, or where such relief is affirmative—not
merely a maintenance of the status quo—the plaintiff “must satisfy a heightened
burden” of proof. O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d
973, 975 (10th Cir. 2004) (characterizing such injunctions as “historically disfavored”
and holding that the movant must show “that the four . . . factors . . . weigh heavily and
compellingly in movant’s favor before such an injunction may be issued”(second
omission in original) (internal quotation marks and citation omitted)), aff’d, 546 U.S. 418
(2006).

{21} Here, arguably, the injunctive relief sought by the Real Parties does not alter the
status quo because it seeks a return to the “last peaceable uncontested status” between
the parties—namely the state of things under the prior, June 30, 2020, emergency
order, which permitted indoor dining, with certain restrictions. 11A Charles Alan Wright,
Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2948, Grounds for
Granting or Denying a Preliminary Injunction (3d ed. 2013) (observing that some courts
“have awarded preliminary injunctions when it is necessary to compel defendant to
correct injury already inflicted by defining the status quo as ‘the last peaceable
uncontested status’ existing between the parties before the dispute developed”). We
note, however, the difficulty in “determin[ing] what date is appropriate for fixing the
status quo.” Id. Indeed the United States Supreme Court has suggested that a TRO
preventing the implementation of new regulations would alter the status quo. Office of
Pers. Mgmt. v. Am. Fed’n of Gov’t Emps., 473 U.S. 1301, 1304-05 (1985). We find this
approach compelling here, given that the district court’s order enjoined the enforcement
of a statewide emergency order that had already become effective. In any case, it is
also clear that the injunction sought by the Real Parties “would supply [them] with all the
relief [they] could hope to win from a full trial.” Legacy Church, Inc., 472 F. Supp.3d at
1023 (internal quotation marks and citation omitted). Thus, the district court here was
bound to “closely scrutinize” the application “to assure that the exigencies of the case
support the granting of a remedy that is extraordinary even in the normal course.” Id.
(internal quotation marks omitted) (quoting O Centro Espirita Beneficiente Uniao do
Vegetal, 389 F.3d at 975).

{22} The Real Parties’ application plainly fails to withstand heightened scrutiny. The
application alleges, and to some extent supports with affidavits, that the Real Parties will
suffer irreparable economic harm as a result of the July Order. However, it largely fails
to address the other required elements—even though it was the Real Parties’ burden to
show that all four elements weigh heavily and compellingly in their favor. O Centro
Espirita Beneficiente Uniao do Vegetal, 389 F.3d at 975 (citation omitted); Nat’l Tr. for
Historic Pres. v. City of Albuquerque, 1994-NMCA-057, ¶ 18, 117 N.M. 590, 874 P.2d
798 (holding that the “movant for injunction bears [the] burden of persuasion” (citation
omitted)). With respect to the likelihood of success of the merits, we rejected the Real
Parties’ first argument in Reeb, 2021-NMSC-006, ¶¶ 25-46, where we affirmed the
enforceability of the emergency orders; we explain in this opinion why their second
argument also lacks merit. 19 Most significantly, the Real Parties also ignore the harms
the July Order seeks to prevent—namely, the continued transmission, in a particularly
fraught environment, of a potentially life-threatening and communicable disease:
COVID-19. Not only did the application for a TRO lack factual support for the
contention that no harm would be posed by enjoining Petitioners’ enforcement of the
July Order, or that enjoining the July Order was in the public interest, but the district
court did not even hear from Petitioners on these issues, in spite of initial indications
that it would do so. Instead, the district court issued a TRO of statewide application,
with no findings other than those prescribed by Rule 1-066(B), which requires, we
emphasize, findings additional to the ordinary requirements for the grant of injunctive

19In fact, the nature of the Real Parties’ underlying claims is somewhat unclear, though we construe the
application for injunctive relief to raise the two issues posed in the petition for writ of superintending
control. See Kaywal, Inc. v. Avangrid Renewables, LLC, 2021-NMCA-037, ¶ 34, 495 P.3d 550 (noting
that injunctive relief is not an independent cause of action “but is only available where the underlying
claim is meritorious” (citation omitted)), cert. denied, S-1-SC-38096 (Mar. 5, 2020).
relief. Given the improvident granting of the TRO, and the likelihood of irreparable harm
posed by hindering Petitioners from implementing an order deemed necessary for the
protection of public health, we did not hesitate to stay the district court’s TRO during our
consideration of the writ petition. See also Rule 12-504(D) NMRA.

B. Standard of Review and Principles of Statutory Construction

{23} As noted previously in this opinion, we review questions of constitutional and
statutory interpretation de novo. Lucero, 2007-NMSC-041, ¶ 8. 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 [L]egislature indicates a different interpretation is necessary.” Cooper v. Chevron
USA, 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 [L]egislature.” State ex rel. Helman v. Gallegos, 1994-NMSC-
023, ¶ 20, 117 N.M. 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. Schs. v. State Dep’t of
Pub. Educ., 1999-NMCA-156, ¶ 18, 128 N.M. 398, 993 P.2d 112 (holding that “[a]
statute is ambiguous if reasonably informed persons can understand the statute as
having two or more meanings” (citations omitted)). In ascertaining a statute’s spirit or
reason, we consider its history and background, and we read the provisions at issue “in
the context of the statute as a whole,” including its purposes and consequences. Baker,
2013-NMSC-043, ¶ 15; 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.” (citation omitted)).

C. Whether the July Order Is Ultra Vires

{24} Petitioners first ask this Court to address whether the July Order was unlawfully
issued. The Real Parties argue that the July Order goes beyond the powers granted by
the Legislature (violating separation of powers principles) and usurps the procedural
requirements—including judicial review—attendant to quarantine orders. They further
contend that the July Order effectively quarantines restaurants by banning indoor
dining. They conclude that the Secretary failed to comply with the requirements for
obtaining quarantine orders and thus had no power to issue the July Order, rendering it
void. These arguments have been squarely considered and rejected. See Reeb, 2021-
NMSC-006, ¶¶ 25-46.
{25} Amici, New Mexico Republican Party, et al., however, raise new arguments—
primarily developing the more limited argument in Reeb, id. ¶ 30, that the Secretary had
no power to issue the business restrictions/closures through an order, rather than
through rulemaking procedures. Specifically, Eddy County argues that the Secretary
was required to comply with the State Rules Act, NMSA 1978, §§ 14-4-1 to -11 (1967,
as amended through 2017), which directs agencies, including the DOH, to promulgate
rules via the rulemaking procedures set forth therein. Eddy County further argues that
the emergency and public health legislation at issue likewise does not permit the
Governor to “create or change substantive law” through orders such as the July Order’s
business closure mandate and that it would be an unconstitutional exercise of the
powers reserved to the Legislature for her to issue such orders. Amici, New Mexico
Republican Party, et al., also advance this argument, contending that this Court should,
under nondelegation principles, declare an “end date” on Petitioners’ powers to issue
emergency orders, so that the Legislature may assume its proper
lawmaking/policymaking role to address the COVID-19 pandemic.

{26} On the first point, Eddy County contends that, because the PHA’s provision
permitting the DOH to “close any public place and forbid gatherings of people when
necessary for the protection of the public health,” § 24-1-3(E), is “non-self-executing,”
the Legislature intended further rulemaking (authorized repeatedly throughout the PHA,
see § 24-1-3(M), (Q), (R), (S), and the PHERA, § 12-10A-17) to carry out that grant of
authority. Furthermore, Eddy County asserts, the Secretary’s authorization in Section
9-7-6(B)(5) to issue “orders and instructions, not inconsistent with the law,” can only
apply to provisions granting the Secretary “self-executing” authority—which Section 24-
1-3(E) does not do. Eddy County cites Jaramillo v. City of Albuquerque, 1958-NMSC-
107, ¶¶ 8, 14, 64 N.M. 427, 329 P.2d 626, for the proposition that “a self-executing
provision is one which supplies the rule or means by which the right given may be
enforced or protected or by which a duty enjoined may be performed,” whereas non-
self-executing provisions merely declare a “principle or policy” which requires legislation
or rulemaking activity for its implementation. Id. (internal quotation marks and citation
omitted). Amici, New Mexico Republican Party, et al. similarly argue that Section 24-1-
3(E) arises in a general declaration of the powers of the DOH and should be read as
requiring additional legislation to operationalize the powers conveyed—otherwise, such
powers would be impermissibly broad and standardless.

{27} While we agree that Section 24-1-3(E) of the PHA does not expressly supply the
means by which public places should be closed, or gatherings prohibited, we are not
convinced that the provision is “non-self-executing.” The authorizing language implies
execution through an order that may be deployed when necessary to protect public
health. See Wisconsin Legislature v. Palm, 2020 WI 42, ¶ 147, 942 N.W.2d 900 (Dallet,
J., dissenting) (noting that, although a similar provision in Wisconsin’s public health law
“does not specify the method by which [the Department of Health Services] can close
schools and forbid public gatherings, th[e] subsection clearly envisions the issuance of
orders” as the means for its execution). Other provisions in the PHA authorize
rulemaking “for the control of conditions of public health importance,” implying that the
closure of public places and prohibition on gatherings is a separate, additional power.
Section 24-1-3(Q); 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)); Key, 1996-NMSC-038, ¶
14 (“[A]ll parts of a statute must be read together to ascertain legislative intent.”). And,
while the Legislature enacted further statutory provisions operationalizing certain
powers (such as isolation and quarantine, generally described in Section 24-1-3(D) and
made operational in Section 24-1-15), it declined to do so with respect to closing public
places and forbidding gatherings to protect public health, presumably because the
issuance of an order was indeed the contemplated method of implementation.

{28} Eddy County is correct that the State Rules Act, as a general matter, requires
executive bodies like the DOH to utilize rulemaking procedures (such as a public
hearing, preceded by notice and a comment period). See §§ 14-4-2(A), -3 to -11. The
State Rules Act defines a rule, subject to rulemaking requirements, as any

rule, regulation, or standard, including those that explicitly or implicitly
implement or interpret a federal or state legal mandate or other applicable
law and amendments thereto or repeals and renewals thereof, issued or
promulgated by any agency and purporting to affect one or more agencies
besides the agency issuing the rule or to affect persons not members or
employees of the issuing agency[.]

Section 14-4-2(F). As to the nature of an administrative rule generally, this Court has
also held that a rule is “a statement asserting a standard of conduct which has the force
of law; it affects the rights or obligations of those who fall within its ambit.” Livingston v.
Ewing, 1982-NMSC-110, ¶¶ 1-2, 9, 98 N.M. 685, 652 P.2d 235 (holding that the
Museum of New Mexico’s resolution limiting the space inside the Santa Fe Plaza’s
portal to Native American artisans was “a rule for the purposes of its promulgation”).

{29} The July Order arguably meets these criteria. It implements the PHA and the
PHERA, and it purports to have the force of law and to affect the rights and obligations
of all New Mexicans. However, the Legislature may create exceptions to the
applicability of rulemaking requirements—even for provisions that arguably meet the
definition of a rule in certain respects. It seems the Legislature did just that with respect
to the Secretary’s power to close public places and restrict gatherings. As we have
already discussed, this power is in addition to rule-making powers under the statute.
Section 9-7-6(B)(5), (E). The DOH Act also references the State Rules Act in
connection with the Secretary’s authority to adopt procedural rules, and not in
connection with her authority to issue orders and instructions. Id.

{30} Such a delegation of substantial discretion and authority to the executive branch
(including state or local health boards) to respond to health emergencies has a long
history in the United States. See, e.g., Jacobson v. Massachusetts, 197 U.S. 11, 25, 27
(1905) (holding that the Massachusetts legislature was permitted to entrust to local
boards of health the decision whether to require the inhabitants of a city or town to be
vaccinated against small pox as “necessary for the public health or the public safety,”
noting that “surely it was appropriate for the legislature to refer” such a question to the
local boards, appointed “presumably, because of their fitness to determine such
questions”); Palm, 2020 WI 42, ¶ 136 (Dallet, J., dissenting) (noting that the Wisconsin
Supreme Court recognized in 1904 the legislature’s rightful “grant to boards of health
authority to . . . act immediately and summarily in cases of . . . contagious and
malignant diseases, which are liable to spread and become epidemic, causing
destruction of human life” (second omission in original) (internal quotation marks and
citation omitted)); State v. Schreckengost, 30 Ohio St. 2d 30, 32-33, 282 N.E.2d 50
(1972) (holding that, when the discretion to be exercised by an executive officer or
board “relates to a police regulation for the protection of the public morals, health,
safety, or general welfare, and it is impossible or impracticable to provide [strict]
standards, and to do so would defeat the legislative object sought to be accomplished,
legislation conferring such discretion may be valid and constitutional without such
restrictions and limitations” (internal quotation marks and citation omitted)). As our
Court of Appeals stated in Old Abe Co. v. New Mexico Mining Commission, 1995-
NMCA-134, ¶ 27, 121 N.M. 83, 908 P.2d 776, “some situations require the vesting of
some discretion in public officials, as, for instance, where . . . the discretion relates to
the administration of a police regulation and is necessary to protect the public morals,
health, safety, and general welfare” (internal quotation marks and citation omitted).
Indeed, “[a]gencies and individuals with important responsibilities must have
considerable discretion in order to fulfill their responsibilities effectively. Inadequate
discretion probably is a larger problem than excessive discretion.” Id. ¶¶ 28-29
(emphasis added) (internal quotation marks and citation omitted) (holding that the
regulations at issue were not an unconstitutional delegation of discretion to a division
director in the New Mexico Energy, Minerals and Natural Resources Department to
implement environmental safety standards). In harmony with these observations, courts
have liberally construed grants of authority to public health agencies. See Reeb, 2021-
NMSC-006, ¶ 27.

{31} The notion that the Legislature did not intend to grant the Secretary of Health
discretion to implement Section 24-1-3(E) through orders is inconsistent with the
foregoing holdings and the underlying principles recognizing both the necessity and
constitutionality of orders exercised in the discretion of executive officials charged with
managing public health crises. Nor would the process or purpose of rulemaking be a
fitting tool for an executive agency managing a pandemic. Even emergency
rulemaking, which initially obviates time-consuming procedures such as a public hearing
and a period for notice and comment, does not “share the limited nature of an order,”
Palm, 2020 WI 42, ¶ 153 (Dallet, J., dissenting), but is intended to be an interim
measure pending promulgation of the permanent rule. See § 14-4-5.6(E) (“An
emergency rule shall remain in effect until a permanent rule takes effect under the
normal rulemaking process.”). Furthermore, detailed public findings must be entered
with respect to each emergency rule, and “[i]f no permanent rule is adopted within one
hundred eighty days from the effective date of the emergency rule, the emergency rule
shall expire and may not be readopted as an emergency rule.” Section 14-4-5.6(B), (E)
(emphasis added).

{32} The Secretary has to date issued amended or supplemental emergency orders
some thirty-seven times over a ten-month period, as might be expected in response to
the swiftly changing dynamics of a novel, dangerous, and highly communicable disease.
New Mexico is still in a state of emergency due to widespread community transmission
of COVID-19. See EO 2021-004, supra. But under the argument of Amici, the
Secretary would have had to promulgate permanent rules by mid-September 2020 or
else lose entirely the ability to implement emergency regulations to address the COVID-
19 pandemic. Interpreting the law to restrict the Secretary of Health in this manner
would surely defeat the purposes of the PHA and the PHERA.

{33} Furthermore, while the July Order may have some qualities meeting the definition
of a rule, its function is in many ways more similar to that of an executive order. As
noted by a dissenting justice on the Wisconsin Supreme Court (which addressed this
very same argument in the context of an emergency order issued in response to the
COVID-19 pandemic), a “rule applies to future circumstances and is enacted with the
purpose of guiding future conduct. [An emergency order] is an immediate response to
current circumstances and has an end-date. . . . It does not serve as guidance for
response to any future unique contagious disease, or even to the evolving
circumstances surrounding COVID-19.” Palm, 2020 WI 42, ¶ 153 (Dallet, J.,
dissenting). In other words, emergency orders do not create a standard so much as a
series of temporary requirements to meet a crisis. These observations are true of the
July Order here—one of many emergency orders issued since March 13, 2020, all of
which have been pursuant to Governor Grisham’s order that the Secretary of Health
respond to the COVID-19 crisis. See EO 2020-004, supra, ¶ 3, (directing the DOH and
the Department of Homeland Security and Emergency Management to “collaborate to
provide an effective and coordinated response to this public health emergency” and to
“consult with [the Governor’s] office regarding all matters germane to this order”). The
July Order is thus the reflection of a collaboration among executive officials, including
the Governor, to respond to the COVID-19 pandemic, as contemplated under the
PHERA. Sections 12-10A-3(C), -5(A). 20

{34} This is the answer to the Amici’s argument that the Governor and DOH have
“seized legislative authority on a massive scale—authority which the constitution vests
exclusively in the [l]egislative [b]ranch.” “While the Constitution diffuses power the
better to secure liberty, it also contemplates that practice will integrate the dispersed

20Amici argue that the Governor is “specifically limit[ed]” in her powers to respond to a public health
emergency; namely, she may only utilize the PHERA’s emergency declaration, “[s]pecial powers,” and
quarantine provisions (§§ 12-10A-6 to -11). We have already held that these powers are not limiting or
exclusive but are in addition to the existing powers of the Governor and others to respond to a public
health emergency. Reeb, 2021-NMSC-006, ¶¶ 25-30. For instance, the AHEMA empowers the
Governor to direct and control the 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). Its purpose is, in part, to “provide an emergency
operations plan for the protection of life and property adequate to cope with disasters resulting from . . .
natural or man-made causes other than acts of war.” Section 12-10-2(B), (C). The Governor may “issue,
amend or rescind the necessary orders, rules and procedures to carry out the provisions of the [AHEMA.]”
Section 12-10-4(B)(2). Neither the Amici nor the Real Parties raise any argument that the COVID-19
pandemic is not a natural disaster within the meaning of the AHEMA. Cf. Friends of Danny DeVito v.
Wolf, 227 A.3d 872, 889 (Pa. 2020) (interpreting a statute analogous to the AHEMA and concluding that
the “COVID-19 pandemic is, by all definitions, a natural disaster and a catastrophe of massive
proportions”), cert. denied, 141 S.Ct. 239 (2020).
powers into a workable government. It enjoins upon its branches separateness but
interdependence, autonomy but reciprocity.” Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 635 (1952) (Jackson, J., concurring) (describing the balance of powers
among the branches of the federal government); see also Bd. of Educ. of Carlsbad
Mun. Sch. v. Harrell, 1994-NMSC-096, ¶¶ 42-43, 118 N.M. 470, 882 P.2d 511
(observing that New Mexico’s separation of powers into a tripartite government mirrors
the federal structure, and emphasizing that the roles and powers of the respective
branches are separate but overlapping). The operative question is whether the July
Order “disrupts the proper balance between the executive and legislative branches” and
infringes on the legislative branch by, for instance, imposing through executive order
substantive policy changes in an area of law reserved to the Legislature. State ex rel.
Taylor v. Johnson, 1998-NMSC-015, ¶¶ 24-25, 125 N.M. 343, 961 P.2d 768 (internal
quotation marks and citation omitted) (holding that the Governor’s executive order
“substantially altered, modified, and extended existing law governing the structure and
provision of public assistance in New Mexico” and was therefore unconstitutional). For
the reasons discussed herein, we conclude that the July Order does not work a
fundamental disruption of the balance of powers between the branches of government
in the context of this public health crisis. New Mexico has not entered a “new normal,”
nor do the temporary emergency orders constitute “long-term policy” decisions. New
Mexico remains in a state of emergency. See EO 2021-004, supra. The argument that
special sessions of the Legislature should be used in lieu of Petitioners’ emergency
orders is so facially unworkable that it only reinforces the conclusion that it was
appropriate for the Legislature to grant the executive branch ample authority to
immediately and flexibly respond to a public health emergency. 21

{35} For all the foregoing reasons, we decline to alter Reeb’s conclusion that
Petitioners are empowered under the PHERA and the PHA to issue business
restrictions such as the indoor dining ban at issue in the July Order.

D. Whether the July Order Is Arbitrary and Capricious

{36} The second issue raised is whether the July Order is arbitrary and capricious.
The Real Parties apparently seek a declaration to this effect under the law applicable to
judicial review of administrative actions and under the law applicable to constitutional
due process/equal protection claims—both of which prohibit arbitrariness in agency
decision-making. Cf., e.g., Old Abe Co., 1995-NMCA-134, ¶¶ 10, 44-45 (reviewing
mining regulations under the applicable judicial review statute and stating that
“[a]rbitrary and capricious [agency] action has been defined as willful and unreasoning
action, without consideration and in disregard of facts and circumstances”; holding, as
to the plaintiff’s equal protection claim, that while “[t]he State retains the power to
classify and draw lines that treat different classes of persons differently[, it] may not . . .
exercise its power to classify arbitrarily” (first internal quotation marks and citation
omitted; then citation omitted)). The Real Parties would have the Court ask whether the

21Nor does the Governor have “unilateral authority” to call a special or extraordinary session of the
Legislature. Article IV, Section 6 of the New Mexico Constitution empowers the Legislature to convene
an extraordinary session where three-fifths of the Legislature deem such session necessary due to an
emergency.
ban on indoor dining is the “least restrictive means” to prevent the transmission of
COVID-19; whether there is adequate justification for singling out indoor dining for
greater restrictions; and whether the July Order was the rational product of an
administrative “winnowing and sifting process” (internal quotation marks and citation
omitted). They further assert that, because this inquiry is fact-dependent and requires
review of the whole record, this Court should remand the matter to the district court for
an evidentiary hearing. See Rio Grande Chapter of the Sierra Club v. N.M. Mining
Comm’n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 (holding that “[a] ruling by
an administrative agency is arbitrary and capricious if it is unreasonable or without a
rational basis, when viewed in light of the whole record”).

{37} Petitioners respond that whole record review is inapplicable here, where the July
Order was not the result of rulemaking or adjudication; they further assert that the Real
Parties have failed to make a prima facie case that Petitioners have acted arbitrarily.
They highlight that the “room” for differing opinions and the deference given to state
agencies is especially broad in the context of a health crisis, citing Old Abe Co., 1995-
NMCA-134, ¶ 10, State ex rel. Hughes v. Cleveland, 1943-NMSC-029, ¶ 18, 47 N.M.
230, 141 P.2d 192, and S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613,
1614, (2020) (mem.) (Roberts, C.J., concurring) (“The precise question of when
restrictions on particular social activities should be lifted during the pandemic is a
dynamic and fact-intensive matter subject to reasonable disagreement.”). Referencing
the increased risk of COVID-19 transmission associated with indoor dining—both
generally and in New Mexico—Petitioners argue that the policy choice to enact a
temporary statewide ban on indoor dining is reasonable, even if it is not the only
available policy choice. They assert that the Court should therefore grant the requested
writ because any showing by the Real Parties of “contrasting views as to the best
means for addressing the COVID-19 pandemic” would be immaterial.

{38} First, because we have concluded that it was within the Secretary of Health’s
statutory authority to issue the July Order, it is the Real Parties’ burden to show that the
July Order is arbitrary and capricious. See Morningstar Water Users Ass’n v. N.M. Pub.
Util. Comm’n, 1995-NMSC-062, ¶ 9, 120 N.M. 579, 904 P.2d 28 (holding that the party
challenging a commission decision bears the burden of showing that the decision is
unreasonable). Furthermore, as we have discussed previously in this opinion, the
typical rulemaking or adjudicatory process (entailing entering findings or formally
considering various opinions) was not the process for the making of the July Order, an
emergency provision in the nature of an executive order responding to immediate
conditions. Thus, while it is true that all agency action “must conform to some statutory
standard or intelligible principle,” Rivas v. Bd. of Cosmetologists, 1984-NMSC-076, ¶ 3,
101 N.M. 592, 686 P.2d 934 (citations omitted), in this case, that principle conveys
flexibility, discretion, and prompt action: the closure of public places or prohibition of
gatherings when necessary “for the protection of public health.” Section 24-1-3(E). We
heed our precedent’s admonishments to “uphold regulations intended to protect the
public health, unless it is plain that they have no real relation to the object for which
ostensibly they were enacted,” Cleveland, 1943-NMSC-029, ¶ 18 (internal quotation
marks and citation omitted), and to bear in mind that “[w]here there is room for two
opinions, [the] action is not arbitrary and capricious even though one may believe an
erroneous conclusion has been reached,” Old Abe Co., 1995-NMCA-134, ¶ 10 (second
alteration in original) (internal quotation marks and citation omitted).

{39} The foregoing administrative review standards are consistent with the deferential
standard of constitutional review applicable to laws or executive orders issued for the
protection of public health during a public health crisis. Rational basis review, typically
applicable where (as here) the claimant has not identified an allegedly arbitrary
classification as impairing a fundamental right or affecting a suspect class, requires a
classification to be upheld unless it “is so devoid of reason to support it, as to amount to
mere caprice.” Bd. of Trustees of Town of Las Vegas v. Montano, 1971-NMSC-025, ¶
14, 82 N.M. 340, 481 P.2d 702; Trump v. Hawaii, 138 S. Ct. 2392, 2420 (2018) (noting
that “the Court hardly ever strikes down a policy as illegitimate under rational basis
scrutiny. On the few occasions where we have done so, a common thread has been
that the laws at issue lack any purpose other than a bare . . . desire to harm a politically
unpopular group” or were “divorced from any factual context from which we could
discern a relationship to legitimate state interests”) (omission in original) (internal
quotation marks and citation omitted). 22

{40} The United States Supreme Court has also given deferential review to
Fourteenth Amendment claims regarding state action for the protection of public health,
asking whether the action has a “real or substantial relation to th[e] objects” of the
legislation or whether it is instead, “beyond all question, a plain, palpable invasion of
rights secured by the fundamental law.” Jacobson, 197 U.S. at 31. Undoubtedly, given
that Jacobson was decided well before the development of modern American
constitutional jurisprudence, some would give its holding a narrow application. See,
e.g., Calvary Chapel Dayton Valley v. Sisolak, ___ U.S. ___, 140 S. Ct. 2603, 2608
(2020) (Alito, J., dissenting) (opposing the denial of injunctive relief; deeming it “a
considerable stretch to read the [Jacobson] decision as establishing the test to be
applied when statewide measures of indefinite duration are challenged under the First
Amendment or other provisions not at issue in that case”). However, Jacobson is still
good law, as reflected by the heavy reliance placed on its deferential review standard by
many courts addressing challenges to state restrictions imposed during the COVID-19
pandemic. See In re Abbott, 954 F.3d 772, 783-86 (5th Cir. 2020) (characterizing the
Jacobson rule as the “framework governing emergency exercises of state authority
during a public health crisis [for] over a 100 years[,]” under which “all constitutional
rights may be reasonably restricted to combat a public health emergency”), cert.

22Amicus Jalisco Café argues that this Court should apply intermediate or strict scrutiny because the July
Order as a whole infringes upon fundamental rights (such as the right to travel, and the right to freedom of
assembly), or because it infringes upon the “occupational freedom” to run a business—a freedom this
Court should hold is fundamental. First, we decline to adopt a standard of review unrelated to the claims
raised by the Real Parties, which focus only on the July Order’s indoor dining prohibition. Second, the
law restricts occupational freedom in myriad ways, for instance, by imposing licensing requirements and
permit and regulatory requirements. Noticeably, Jalisco Café cites no cases applying heightened scrutiny
to such restrictions merely on the basis of an infringement upon occupational freedom; we therefore
assume that no such authority exists. See In re Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764,
676 P.2d 1329 (stating that we may assume no authority exists for an argument where a party does not
provide any). We decline to apply heightened scrutiny absent persuasive authority that such scrutiny is
warranted.
granted, judgment vacated on other grounds sub nom. Planned Parenthood v. Abbott,
___ S. Ct. ___, No. 20-305, 2021 WL 231539 (Jan. 25, 2021); Elkhorn Baptist Church v.
Brown, 466 P.3d 30, 34-35, 42-44 (Or. 2020) (relying extensively on Jacobson in
upholding Oregon’s COVID-19 executive orders); see also M. Rae, Inc. v. Wolf, ___F.
Supp. 3d ___, Civil Action No. 1:20-CV-2366, 2020 WL 7642596, at 6 (M.D. Pa., Dec.
23, 2020) (recognizing “that Jacobson is controlling precedent until the Supreme Court
. . . tell[s] us otherwise”). 23

{41} Here, in support of the July Order’s real or substantial relation to a public health
concern, Petitioners have submitted an affidavit from Dr. Scrase, a medical doctor
serving as the Cabinet Secretary for the New Mexico Human Services Department, who
has assisted with public policy determinations related to the State’s response to COVID-
19. Dr. Scrase describes the multidisciplinary data gathered and considered by the
Secretary and the Governor in determining restrictions on businesses and gatherings,
and he affirms having significant involvement in this process. He then explains the
growing scientific understanding that indoor dining presents a particularly risky setting
for transmission of the COVID-19 virus, given that indoor dining entails patrons sitting
for prolonged periods without masks, and given the known transmission of the virus via
droplets expelled when speaking (or even breathing). Petitioners have also submitted
the affidavit of Mr. Genoway, of the NMED, who heads New Mexico’s “rapid response”
effort—the process of immediately advising and assisting employers of individuals who
have tested positive for COVID-19. Mr. Genoway avers that his department collects
data and sorts those who have tested positive for COVID-19 by industry and
subindustry. Charts within Mr. Genoway’s affidavit indicate that instances of COVID-19
cases among restaurant staff increased significantly beginning approximately two
weeks after the resumption of indoor dining on June 1, 2020, and formed an increasing
share of the overall rapid responses to employers (from approximately 9% of rapid
responses on June 15, 2020, to approximately 15% of rapid responses by July 12,
2020).

{42} The Real Parties, in support of their argument, submit the affidavit of a
biostatistician, Hubert A. Allen, Jr., who argues that the temporary closure of indoor
dining has not been an effective strategy to prevent the transmission of COVID-19. For
instance, he contends that the prohibition did not result in decreased rapid response
calls to New Mexico restaurants over the five weeks following its initiation. He also
notes that no detailed contact tracing data is apparently available, rendering it unclear
whether any given restaurant employee contracted COVID-19 while in the workplace.
Apart from Mr. Allen’s affidavit, the Real Parties question the justification for various
aspects of the indoor dining ban, including the use of the fire code to assess occupancy
restrictions; the harsh economic impact of the restrictions; the requirement that patrons
be seated at a table limited to six people; and permitting gyms to operate in an indoor
setting at 25% capacity.

23We emphasize that this case does not require us to decide Jacobson’s outer limits. The Real Parties’
arguments are precisely those raised in Jacobson—that the public health order is arbitrary and
unreasonable. Therefore, Jacobson’s holding is directly on point. Moreover, as we have just discussed,
only rational basis scrutiny would apply to the Real Parties’ claims regardless of Jacobson’s holding.
{43} But the question is whether the temporary closure of indoor dining is arbitrary or
pretextual or lacks a real or substantial relation to the object of preventing community
transmission of COVID-19. We could not answer “yes” to this question even if the Real
Parties demonstrated that the closure measure had not been a success. Neither the
Real Parties’ nor Eddy County’s criticisms nor the alleged overbreadth of the prohibition,
even if further developed at an evidentiary hearing, would show that the prohibition is
arbitrary or pretextual. The unique risks of indoor dining, described by Dr. Scrase in his
affidavit, and the increased COVID-19 cases among New Mexico restaurant staff during
the time period when indoor dining restrictions were relaxed show a real and substantial
relation between the July Order’s temporary prohibition and the object of controlling and
suppressing the spread of COVID-19. See Jacobson, 197 U.S. at 31; Cleveland, 1943-
NMSC-029, ¶ 18. This Court may not second-guess the wisdom or efficacy of the July
Order merely because reasonable minds may differ about the best approach to
suppressing community transmission of COVID-19. Jacobson, 197 U.S. at 30; see also
Old Abe Co., 1995-NMCA-134, ¶ 10; See Legacy Church, Inc., 472 Fed. Supp. 3d at
1083 (holding that the court could not “say that the June 30 Order’s differential
treatment of restaurants, gyms, and religious gathering has no real or substantial
relation to protecting public health”).

{44} In all, we conclude that the July Order’s temporary closure of indoor dining is
neither arbitrary nor capricious.

III. CONCLUSION

{45} For the foregoing reasons, we have granted a writ of superintending control
vacating our previously issued stay and ordering the district court to vacate the TRO
and dismiss the Real Parties’ application.

{46} IT IS SO ORDERED.

JUDITH K. NAKAMURA, Justice,
Retired, Sitting by designation

WE CONCUR:

BARBARA J. VIGIL, Justice

C. SHANNON BACON, Justice

DAVID K. THOMSON, Justice (specially concurring)

THOMSON, Justice (specially concurring).

{47} “A limit in time, to tide over a passing trouble, well may justify a law that could not
be upheld as a permanent change.” Block v. Hirsh, 256 U.S. 135, 157 (1921) (J.
Holmes). This dispute and the other cases regarding the executive’s emergency public
health orders require this Court to confront the government’s authority to act in
response to a crisis. These cases reveal important questions surrounding separation of
powers, lawful delegation of authority, and the judiciary’s role in ensuring against
encroachments upon constitutional guarantees by the co-equal branches of
government. This complex and evolving analysis is not put entirely to rest by the
majority opinion.

{48} I join the majority on the facts of this case because I agree that the actions taken
in this matter were a proper exercise of executive emergency authority to address a
clearly identifiable public health crisis. However, we must be cautious in our
acknowledgement of the executive’s authority to act in all circumstances during an
emergency, as history and current events reveal. It is my belief that “robust judicial
review” of the validity of the exercise of executive police or emergency power “not only
helps to smoke out pretext for government actions during an emergency, but also has
value for the government — which can use the case law its policies generate to help
define the boundaries of its future approaches.” Lindsay F. Wiley & Stephen I. Vladeck,
Coronavirus, Civil Liberties, and the Courts: The Case Against “Suspending” Judicial
Review, 133 Harv. L. Rev. F. 179, 195 (2020).

{49} I therefore write separately to express my concern that the broad and vague
statutes that grant emergency powers to the Governor combined with the deference
given to the executive to act in times of emergency may pose potential long-term
consequences to our system of checks and balances. While I entirely endorse the
conclusion the majority reaches in this case, I respectfully disagree that “New Mexico
has not entered a ‘new normal.’” Maj. op. ¶ 34. The majority’s holding should not
communicate that executive or legislative responses to the pandemic will always
receive the same level of judicial deference as when the crisis first emerged. In
addition, I believe we must be wary of the precedent we set beyond the scope of the
COVID-19 crisis. The executive must be allowed to act with some flexibly in times of
true emergency and the means to address it. However, this does not relieve the
executive of its obligation to show, subject to scrutiny and verification, that the stated
emergency and the means to address it are reasonable.

{50} Perspective is important here. The courts in a wide variety of constitutional
contexts have found government concerns about “safety and . . . the lives of its citizens”
enough to justify restrictions on individual liberties. United States v. Salerno, 481 U.S.
739, 748, 755 (1987) (“We have repeatedly held that the Government's regulatory
interest in community safety can, in appropriate circumstances, outweigh an individual's
liberty interest.”). Outside of the exigencies of a crisis, such restrictions have been
upheld in constitutional challenges for interests arguably greater than those expressed
in this case. See Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (explaining that
“constitutional guarantees of free speech and free press do not permit a State to forbid
or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action”); see also Burdick v. Takushi, 504 U.S. 428, 433 (1992)
(“[W]hether [a code] governs the registration and qualifications of voters, the selection
and eligibility of candidates, or the voting process itself, [it] inevitably affects—at least to
some degree—the individual's right to vote and his right to associate with others for
political ends.”); State v. Widmer, 2020-NMSC-007, ¶ 1, 461 P.3d 881 (affirming the
ruling of the district court “that the Quarels public safety exception applied . . . because
of the need to determine whether Defendant was armed or carrying potentially harmful
drug paraphernalia before officers performed a pat-down search”). With that in mind,
what is cause for concern? Disputes over public health orders expose concerns that the
executive’s expansive emergency authority to enact restrictions on its citizens is
tethered only to its subjective belief that its actions are reasonable. See maj. op. ¶ 43
(“This Court may not second-guess the wisdom or efficacy of the July Order merely
because reasonable minds may differ about the best approach to suppressing
community transmission of COVID-19.”).

{51} As this opinion and previous opinions describe, the cobbling of statutes grants
broad authority for an executive to act under “emergency” or “inherent” authority. See
maj. op. ¶ 30; see also Reeb, 2020-NMSC- , ¶¶ 14, 15, 29 (reasoning that the
executive “may deploy both the special powers contained in the PHERA and the
general powers of [the] office in response to a public health emergency,” and “enforce
and administer New Mexico’s legislation concerning public health emergencies under
what are best described as concurrent and complementary statutes”). However, “[l]oose
and irresponsible use of adjectives colors all non-legal and much legal discussion of
presidential powers. ‘Inherent’ powers, ‘implied’ powers, ‘incidental’ powers, ‘plenary’
powers, ‘war’ powers and ‘emergency’ powers are used, often interchangeably and
without fixed or ascertainable meanings.” Youngstown, 343 U.S. at 646–47 (Jackson, J.
concurring). Such is true in these cases where the meaning of the adjectives “plenary”
and “emergency” used to justify an executive’s response must become more
ascertainable as a crisis continues.

{52} When a crisis first erupts, the question of whether the executive branch has
exercised its police or emergency powers within the structures of the Constitution can
be indeterminate and at times vague. This is understandable because the need to
immediately address a life-threatening situation does not necessarily allow for a full,
open debate concerning all of the possibilities to arrive at a best and clearly
constitutional response. At some point, however, as the crisis continues, the judiciary’s
deference to the executive’s reasoning and rationale wanes. In his concurrence in
Youngstown, Justice Jackson stated, “When the President acts in absence of either a
congressional grant or denial of authority, he can only rely upon his own independent
powers, but there is a zone of twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain.” Id. at 637 (emphasis added) (noting
that presidential powers “are not fixed but fluctuate, depending upon their disjunction or
conjunction with those of Congress”).

{53} There may reach a point at which the state of emergency is no longer an
immediate crisis but a managed and regulated one, because either the circumstances
have changed, and the crisis has ended, or life has settled into a new normal, and what
was once a crisis is now an everyday reality of life. Extending Justice Jackson’s
analysis concerning the semi-permeable boundary between the proper exercise of
federal executive and legislative power, the exercise of state executive power during a
crisis or emergency may likewise fall within a zone of twilight, where the power to act is
not the sole province of one branch of government. See, e.g., Reeb, 2021-NMSC-006, ¶
1 (addressing the question of whether an executive action taken was authorized by a
legislative delegation of power pursuant to Section 12-10A-19 of the PHERA). As the
crisis continues, the boundary between the executive, legislative, and judicial branches
becomes, in Justice Jackson’s words, “semi-permeable.”

{54} In my view, once a situation has moved beyond the status of an immediate crisis,
it is not enough for the executive to justify broad emergency authority based only on
subjective rationale. This does not mean the power to act is diminished; it simply means
the power to act without justifiable rationale wanes. At this point, the Legislature may
choose to assert its role. See, e.g., H.B. 10, 54th Leg., 1st Spec. Sess. (N.M. 2020)
(attempting with Section 1(A) to limit the invocation pursuant to an act in the Emergency
Powers Code to 30 days “unless extended by joint resolution of the legislature”). In
addition, there may be an increased need for judicial review of the executive’s declared
emergency, declared means to end the emergency, and the basis for both as it relates
to the end. Justice Cardozo stated in Ohio Bell Tel. Co. v. Pub. Utils. Comm'n of Ohio:

From the standpoint of due process—the protection of the individual
against arbitrary action—a deeper vice is this, that even now we do not
know the particular or evidential facts of which the Commission took
judicial notice and on which it rested its conclusion. Not only are the facts
unknown; there is no way to find them out. When price lists or trade
journals or even government reports are put in evidence upon a trial, the
party against whom they are offered may see the evidence or hear it and
parry its effect. Even if they are copied in the findings without preliminary
proof, there is at least an opportunity in connection with a judicial review of
the decision to challenge the deductions made from them.

301 U.S. 292, 302–03 (1937). During a longer-term crisis, the ability of the public to
know and parry the facts upon which the executive acts strengthens rather than
weakens our constitutional structure.

{55} Although courts may defer to the executive when reviewing an executive action
taken during a public health crisis—the most deferential review being exemplified by
Jacobson 24—this review recognizes that there is, in fact, an emergency. See 197 U.S.

24In my view Jacobson is unfairly maligned. It was decided prior to the enactment of the tiered system of
analyzing government restrictions, a system that perhaps itself is not suited for examination of a public
health crisis. In fact, Jacobson provides excellent guidance to this country facing a public health crisis
emerging nearly 105 years after its writing. Concerning an emerging trend in this crisis that posits
personal liberty as justification to not wear a mask despite its proven effectiveness to prevent the
transmission of COVID-19 to others, Jacobson instructs:
There are manifold restraints to which every person is necessarily subject for the
common good. On any other basis organized society could not exist with safety to its
members. Society based on the rule that each one is a law unto himself would soon be
confronted with disorder and anarchy. Real liberty for all could not exist under the
operation of a principle which recognizes the right of each individual person to use his
own, whether in respect of his person or his property, regardless of the injury that may be
done to others.
at 12. Intrinsic to the judiciary’s consideration of this question is whether the crisis or
emergency upon which the executive bases its exercise of police power is legitimate
and whether the executive action is reasonably related 25 to the response to the asserted
crisis or emergency. See Mitchell v. City of Roswell, 1941-NMSC-007, ¶ 13, 45 N.M. 92,
111 P.2d 41 (“It is the policy of the courts to uphold regulations intended to protect the
public health, unless it is plain that they have no real relation to the object for which
ostensibly they were enacted, and prima facie they are reasonable.”); cf. Jacobson, 197
U.S. at 31 (describing judicial review of legislative action, rather than executive action
“[i]f there is any such power in the judiciary to review legislative action . . . affecting the
general welfare, it can only be when that which the legislature has done comes within
the rule that, if a statute purporting to have been enacted to protect the public health . . .
or the public safety, has no real or substantial relation to those objects”). Respectfully,
the Legislature has created a statutory system with a closed loop of authority to regulate
liberties and the fact finding to support those regulations in times of emergency. The
executive describes the emergency, creates the means to address it, and justifies that
means in the same order that grants it the authority in the first place.

{56} Although the evidence before the Court in this case sufficiently establishes that
there is a state of emergency that justifies the executive actions taken up to this point,
with an eye toward the future, this Court must balance review of the executive’s
justification for exercising its authority with the need for the executive to respond
effectively to an emergency.

DAVID K. THOMSON, Justice

197 U.S. at 26.
25However, where there are “plain, palpable invasion of rights secured by the fundamental law” such as a
violation of a constitutionally protected right or discrimination based on a suspect class, courts must apply
the applicable level of scrutiny. Jacobson, 197 U.S. at 31; see also Roman Catholic Diocese of Brooklyn
v. Cuomo, ___U.S.___, ___, 141 S. Ct. 63, 70 (2020) (Gorsuch, J. concurring) (noting the Jacobson
Court “essentially applied rational basis review”).