New Mexico Supreme Court Rules Indoor Dining Ban Legal

In this April 15, 2020, file photo, New Mexico Gov. Michelle Lujan Grisham puts on her face mask when not speaking during an update on the COVID-19 outbreak. (Eddie Moore/The Albuquerque Journal via AP, Pool)

SANTA FE, N.M. (CN) — The New Mexico Supreme Court ruled unanimously Wednesday that the governor and secretary of the Department of Health have the authority to close down indoor dining at restaurants during the Covid-19 pandemic.

New Mexico originally implemented a ban on indoor dining at restaurants, taverns and other food-service establishments in March, restricting restaurants to takeout and delivery orders only. The ban was softened in June, allowing restaurants to operate indoor dining at 50% capacity with social distancing and enhanced cleaning and disinfecting measures in place.

But in July, after an increase in Covid-19 cases, state health officials reimplemented the indoor dining ban. Restaurants and other food-service businesses were allowed to continue to operate patio or outdoor dining at 50% capacity.

The New Mexico Restaurant Association and several business owners then filed a lawsuit in state court against Governor Michelle Lujan Grisham and New Mexico Secretary of Health Kathyleen Kunkel, seeking a restraining order that would have kept the prohibition from taking effect.

Judge Raymond Romero granted a temporary restraining order July 20 that would have let restaurants allow indoor dining. But the state sought an emergency order with the state’s Supreme Court to maintain the restrictions, which was granted the day it was filed.

On Wednesday, three hours before the Supreme Court hearing, Grisham announced an updated public health order which will allow restaurants to re-open indoor dining at 25% capacity, effective Aug. 29.

“I know New Mexicans are ecstatic about our recent progress against COVID-19,” Grisham said in a press release. “But, given what we know about this virus, we must sound a note of caution: Our progress is only as good as our willingness to stay the course. This virus is still looking for opportunities to spread.”

Despite the change in public health orders, the hearing on the indoor ban proceeded on Wednesday afternoon. Justices Barbara Vigil, Judith Nakamura, David Thompson, and Shannon Bacon heard arguments from Matthew Garcia, representing the defendants, Angelo Artuso, representing the petitioners, and Judge Romero.

The primary arguments of the injunction were whether the public health order was issued under a provision of the New Mexico Public Health Act, which states that the state Department of Health has the authority to “close any public place and forbid gatherings of people when necessary for the protection of the public health”, or whether the closures were governed by another provision of the act, which governs the quarantine of individuals and provides protections for those individuals. 

Further, the original petition claimed that the orders regarding indoor dining were “unreasonable, arbitrary and capricious” because other enterprises which potentially afford close contact by members of the public, such as gyms and places of worship, were not restricted in the same ways.

The state, represented by Garcia, argued that the relevant public health orders were covered by the act, and made the claim that this completely resolved the first section of the case. 

As to the second argument, that the restrictions on restaurants were arbitrary and capricious, Garcia cited previous rulings that, “The only thing that matters is, is there a reasonable connection between the regulation and the object of the regulation, and it’s only when it is unreasonable and without regard that it should be struck down.”

When asked by Justice Nakamura whether the case being heard was moot due to the earlier announcement of loosened restrictions, Garcia felt that if the matter were not decided, it would lead to many more cases challenging all public health orders to invalidate them, and that the court needed to make a conclusive ruling on whether these orders are arbitrary and capricious.

Arguing for the petitioners, Angelo Artuso of Modrall, Sperling, Roehl, Harris & Sisk in Albuquerque, maintained that the public health orders were issued without due process or the ability for affected businesses to appeal or protest the shutdown of indoor dining. 

Further, Artuso maintained that there is not sufficient proof to maintain that indoor dining leads to increased Covid-19 transmission. He argued that if a restaurant worker is diagnosed with Covid-19, there is no evidence that they were infected at the restaurant. 

“There’s no data from which anyone could determine whether that restaurant employee picked up Covid-19 from working indoors, or whether they picked it up by going to a party with their friends,” he said.

From this, Artuso concluded that, “I don’t think that the evidence offered by the petitions at this point establishes rationally and reasonably that there is a connection between indoor dining and Covid-19 transmission.”

In a rebuttal, Garcia argued again that, “It’s not a quarantine that’s happening here, it’s a restriction of business operations, which is expressly provided for by [the Public Health Act].” 

He further maintained that, “What the [original petitioners] claim was done arbitrarily and capriciously was done unreasonably was done, again, based in the context of a very serious spike in cases.”

After a brief recess, the court returned with a unanimous decision, finding that the ban was within the authority of the state Department of Health and that arguments connecting the ban to quarantine protocols were unpersuasive. 

On the matter of whether the ban was unreasonable, Justice Nakamura stated, “It’s well established that differing opinions do not make an action arbitrary and capricious.” 

The court granted the state’s writ and ordered Judge Romero to vacate the restraining order.

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