Governor’s emergency public health orders on trial

Gov. Michelle Lujan Grisham’s executive order declaring gun violence in New Mexico an emergency last fall was no doubt controversial, but the state Supreme Court on Monday wrestled with the bigger issues of whether she overstepped her authority and whether a true emergency exists under the law.

And what are the implications for future governors in New Mexico who choose to issue emergency public health orders?

The thorny questions arose during oral arguments before the five justices in a lawsuit filed in September by the National Rifle Association, a group of state Republican legislators and others. No decision was rendered as of Monday.

Since her initial temporary order on Sept. 8, the governor has pulled back the most contentious provision that barred the carrying or transporting of firearms in Bernalillo County for at least 30 days, with some exceptions. She also enacted a public health order declaring drug abuse a public health emergency.

The latest amended gun violence order, which runs through Jan. 26, now restricts firearms in parks and on playgrounds in the county. A lawsuit challenging that mandate is on appeal after a federal judge in Albuquerque upheld its constitutionality.

In the case before the Supreme Court, justices on Monday questioned the possible limits of the governor’s authority to declare emergencies, and what the Legislature intended by giving the executive branch broader leeway to enact such emergency orders, compared to other states.

Justice David Thomson noted a recent executive order by Ohio Gov. Mike DeWine that bans hospitals and ambulatory surgical facilities from performing gender-transition surgeries on minors.

That was deemed a public health emergency, Thomson said, “So the rules we write apply to everybody, this executive, and others.”

Lujan Grisham announced her executive order to address gun violence on Sept. 7, noting the shooting death of an 11-year-old boy after a minor league baseball game in Albuquerque. She also cited “mass shootings” in Farmington, and in Red River last summer.

She called the level of gun violence an “epidemic.”

Attorney Jessica Hernandez, representing the plaintiffs, said she’s reviewed more than 300 executive orders from Lujan Grisham that typically dealt with floods, fires or road repairs. But Lujan Grisham cites about 12 years of statistics in justifying her gun violence order, when state law requires a situation be “imminent.”

“That is not imminent, that is chronic,” said Hernandez, who has previously served as city attorney for the city of Albuquerque.

“This is an issue that we know is plaguing our communities. And the debate is important. But it is entirely contrary to our system of government for one individual to have the power to subjectively decide that a quote ’emergency’ has reached some unspecified level so that they can invoke emergency powers and start to substantively impose public policy decisions through the executive order,” Hernandez told the justices.

When the Legislature drafted the law giving the governor the power to enact emergency orders, Chief Justice Shannon Bacon said, “it was very intentional in saying, ‘we want the executive to have this large measure of authority.’ And I think part of that is that our Legislature meets either for 30 or 60 days a year. And so you’ve got the rest of the year where you have to be able to jump in and do something.”

So who is the bad actor here? Bacon said.

Justice Michael Vigil focused on the definition of what constitutes an emergency under state law. He said the law says there has to be an “imminent threat of substantial harm … or exposure to an extremely dangerous condition.”

“I think that this is not an emergency. It’s not that it’s an overreach. It’s that it doesn’t fit within the definition of a public health emergency,” Vigil said.

Vigil asked about statistics that would show that gun violence in public parks in Albuquerque and Bernalillo County is a problem. “There’s nothing in these declarations that show that,” he said.

Holly Agajanian, chief general counsel for the governor, said Patrick Allen, state’s Department of Health secretary, is a public health expert and he signed the emergency orders that back the governor’s executive orders. She also said no one has reported any damage or injury as a result of the orders.

She said other aspects of the governor’s executive order, which was renewed for another 30 days on Dec. 29, allow Lujan Grisham the flexibility to spend money gathering information, such as the wastewater analysis near schools in Albuquerque that has found evidence of illegal drugs, including cocaine, in some areas.

But Justice Brianna Zamora stated that provisions in the order, such as wastewater testing, are already within the governor’s power. “How do we practically speaking, handle this?” Zamora said.

Justice Julie Vargas said, “I’m concerned about how we determine what is an emergency here?” She noted the Supreme Court doesn’t have the data to answer that question independently.

Bacon offered the hypothetical of the high incidence of driving while intoxicated in New Mexico. Could the governor suspend the ability of New Mexicans to drive in San Juan County or McKinley County because of that emergency? Bacon said. “It seems to me there has to be some tether there.”

“When do we know when (it is an emergency)? How do we know when the water is boiling? Bacon said.

Vigil said the language of the statute states there has to be an imminent threat of substantial harm or exposure to an extremely dangerous condition.

Hernandez said executive orders were used extensively as a tool during the recent COVID-19 pandemic. The governor, in some of those orders, required mask mandates indoors and vaccinations for health care workers.

“But here you are getting into areas that the police power that has traditionally constitutionally been reserved to the Legislature,” Hernandez said. “The governor has chosen to invoke a statute that is meant to be applied in very limited circumstances, to try to apply it to a very broad problem.”