The term “to dupe someone” is loosely defined as to trick someone into doing your bidding by telling someone something that is not true or to convince someone into doing something that is ill advised or downright stupid. New Mexico Party Chairman Steve Pearce has kept his word to initiate a civil complaint against Governor Michelle Lujan Grisham to stop her emergency health orders that have closed businesses. However, what he has done is to get private businesses to do his dirty work for him by having the Republican Party promising to pay for the litigation, but not be a party to the lawsuit.
It has been reported that 7 businesses in six New Mexico cities have filed a civil law suit against Governor Michelle Lujan Grisham claiming that she is unfairly fining them if they decide to stay open against her public health orders. The civil suit was filed in Curry County District Court and it is being funded by the Republican Party. The businesses suing are Frontier Auto and Body and Sol Fitness in Lovington, K-Bob’s Steakhouse in Clovis, Monroe’s Restaurants in Albuquerque, an outdoor market in Socorro, Colfax Tavern & Diner in Maxwell, and J. Jones Massage in Hobbs.
GOP Party Chairman Steve Pierce explained it this way:
“The governor is overreaching. … She does not have the capability under the law as we read it that allows her to levy the $5,000 fine. … I do not think that many magistrate judges are going to put people in jail and I do not think they are going to try to find them guilty of trying to keep their business a live and afloat. … A lot of businesses would take the hundred-dollar risk. I will open up and then go to court and if I lose, I will pay a hundred bucks. it is way different for them to open and I may get a $5,000 fine.”
“The governor is mixing two laws; she’s taking the enforcement from one law and applying it to the other. … Under the law that she’s shutting down businesses, she really only has the opportunity to levy the equivalent of a parking ticket, she can give a misdemeanor fine for $100 bucks. … You can’t intimidate people, you don’t have the right to levy those $5000 dollar fines, you can put a hundred dollar fine, but you’ve got to prove that in court. … I think we’re going to give a pathway for every business in New Mexico to open up, and then the governor has to close them down individually, and I only risk 100 dollars each.”
On May 27, it was reported that Monroe’s Restaurants in Albuquerque has withdrawn from the lawsuit. Kathy Diaz, co-owner of Monroe’s Restaurants, gave no reason for withdrawing from the lawsuit challenging the state’s threat of $5,000 fines for violating New Mexico’s public health orders. Diaz voluntarily dismissed the restaurant claims in a short court pleading filed on Friday, May 22.
TWO SEPARATE AUTHORIZATION STATUTES
The two laws at the center of the lawsuit are the “Public Health Act” and the “Public Health Emergency Response Act.” The Public Health Act is the law the state has been using to temporarily close businesses and it allows for the state to levy $100-dollar criminal fine against non-compliant businesses, per day. The “Public Health Emergency Response Act” (PHERA) is the law the state has been using to threaten or issue businesses a civil fine of up to $5,000 per day. Note that the actions for violations of the “Public Health Act” are criminal and that violations of the “Public Health Emergency Response Act” are civil.
“PUBLIC HEALTH ACT”
In 1973, the New Mexico Legislature enacted the New Mexico Public Health Act (NMPHA), section 24-1-3, et. seq., (Laws 1973, Chapter 359, as amended) which is administered and enforced by the New Mexico Department of Health. It outlines the powers and authority of the department. There are at least 12 specific provisions of the NMPHA that empowers the department by and through the Governor by appointment of the cabinet secretary. Those sections are:
Section 24-1-3 (C) empowers the department to investigate, control, and abate causes of disease, especially epidemics, sources of mortality, and other conditions of public health.
Section 24-1-3 (D) empowers the department with the authority to establish, maintain and enforce isolation and quarantine.
Section 24-1-3 (E) empowers the department with authority to close any public place and forbid gatherings of people when necessary for the protection of the public health.
Section 24-1-3 (K) Ensure the quality and accessibility of health care services and the provision of health care when health care is otherwise unavailable;
Section 24-1-3 (L) Ensure a competent public health workforce;
Section 24-1-3 (M) empowers the department to bring action in court for the enforcement of health laws and rules and orders issued by the department;
Section 24-1-3 (P) Cooperate and enter into contracts or agreements with Native American nations, tribes and pueblos and off-reservation groups to coordinate the provision of essential public health services and functions;
Section 24-1-3 (Q) empowers the department to maintain and enforce rules for the control of conditions of public health importance;
Section 24-1-3 (R) empowers the department to maintain and enforce rules for immunization against conditions of public health importance;
Section 24-1-3 (U) Sue and, with the consent of the legislature, be sued
Section 24-1-3 (X)Inspect such premises or vehicles as necessary to ascertain the existence or nonexistence of conditions dangerous to public health or safety;
Section 24-1-3 (Z) provides that the health department do all other things necessary to carry out its duties.
CRIMINAL PENALTIES PROVIDED IN PUBLIC HEALTH ACT
The New Mexico Public Health Act also contains a criminal penalty provisions that can be sought and enforced for violations of the Health Department orders. The state police issues criminal citations that are misdemeanors that carry a maximum $100 fine and 6 months in jail. The penalty provision of the Public Health Act provides as follows:
NMSA§ 24-1-21. Penalties
Any person violating any of the provisions of the Public Health Act or any order, rule or regulation adopted pursuant to the provisions of the Public Health Act is guilty of a petty misdemeanor and shall be punished by a fine not to exceed one hundred dollars ($100) or imprisonment in the county jail for a definite term not to exceed six months or both such fine and imprisonment in the discretion of the court.
Each day of a continuing violation of Subsection A of Section 24-1-5 NMSA 1978 after conviction shall be considered a separate offense. The department also may enforce its rules and orders by any appropriate civil action.
The attorney general shall represent the department.”
Links to review the entire Public Health Act can be found here:
“PUBLIC HEALTH EMERGENCY RESPONSE ACT”
The “Public Health Emergency Response Act” (PHERA) is the law the state has been using to threaten or issue businesses an up to $5,000 fine per day. In 2003, the New Mexico legislature also enacted the Public Health Emergency Response Act. The act empowers the Governor to issue executive orders to respond to a health emergency that threatens the public health, safety and welfare, such as the corona virus pandemic.
It is section 12-10A-5 that empowers the Governor to declare a state of public health emergency and it provides as follows:
A. A state of public health emergency may be declared by the governor upon the occurrence of a public health emergency. Prior to a declaration of a state of public health emergency, the governor shall consult with the secretary of health. The governor shall authorize the secretary of health, the secretary of public safety and the director to coordinate a response to the public health emergency.
B. A state of public health emergency shall be declared in an executive order that specifies:
(1) the nature of the public health emergency;
(2) the political subdivisions or geographic areas affected by the public health emergency;
(3) the conditions that caused the public health emergency;
(4) the expected duration of the public health emergency, if less than thirty days;
(5) the public health officials needed to assist in the coordination of a public health emergency response; and
(6) any other provisions necessary to implement the executive order.
C. A declaration of a state of public health emergency shall not abrogate any disease-reporting requirements set forth in the Public Health Act [ 24-1-1 to 24-1-22 NMSA 1978].
D. A declaration of a state of public health emergency shall be terminated:
(1) by the governor, after consultation with the secretary of health, upon determining that there is no longer a public health emergency; or
(2) automatically after thirty days, unless renewed by the governor after consultation with the secretary of health.
E. Upon the termination of a state of public health emergency, the secretary of health shall consult with the secretary of public safety and the director to ensure public safety during termination procedures.
CIVIL PENALTIES PROVIDED IN PUBLIC HEALTH EMERGENCY RESPONSE ACT
The “Public Health Emergency Response Act” is civil in nature and as such provides for enforcement by the Secretary of Health and for $5,000 civil penalties as follows:
“12-10A-19. Enforcement; civil penalties.
A. The secretary of health, the secretary of public safety or the director may enforce the provisions of the Public Health Emergency Response Act by imposing a civil administrative penalty of up to five thousand dollars ($5,000) for each violation of that act. A civil administrative penalty may be imposed pursuant to a written order issued by the secretary of health, the secretary of public safety or the director after a hearing is held in accordance with the rules promulgated pursuant to the provisions of Section 12-10A-17 NMSA 1978.
B. The provisions of the Public Health Emergency Response Act shall not be construed to limit specific enforcement powers enumerated in that act.
C. The enforcement authority provided pursuant to the provisions of the Public Health Emergency Response Act is in addition to other remedies available against the same conduct under the common law or other statutes of this state.”
Link to the New Mexico Public Health Emergency Response Act are here:
RESTAURANTS CAN RE OPEN TO LIMITED OUTDOOR DINING
On May 26, Governor Michelle Lujan Grisham’s announced that she amended her public health order so that restaurants can reopen outdoor patio areas that have been closed for more than two months. The announcement is the first step in to broader restaurant reopening’s. Lujan Grisham said the state’s progress in slowing the spread of COVID-19 has allowed her administration to begin loosening restrictions and said in a statement:
“I greatly look forward to being able to continue to ease the restrictions imposed on us by this heinous virus – provided that we continue on the right track and New Mexicans take every necessary precaution, whether in an individual capacity or as a business-owner.”
Under the amended order, effective Wednesday, May 27, outdoor dining is permitted but with restrictions. Under the amended public health order, restaurants can have no more than six customers allowed to sit together at a table. Outdoor restaurant dining will be limited to 50% capacity in order to to allow for social distancing. The revised order will NOT mandate that restaurants obtain contact information from its diners as previously proposed. Customers can decide whether they want to share their personal contact information.
COMMENTARY AND ANALYSIS
Under the law, a single act of conduct can have both a criminal and a civil component at the same time. A good example is when a person is charge and found guilty of driving while intoxicated and sentence to jail and is also sued civilly by the driver of another vehicle he has hit and injured.
The suit, which is being funded by the Republican Party, is claiming that the governor is picking and choosing two different laws to cite businesses. It’s likely the Republican Party has been advised that it does not have standing to file the lawsuit and hence it recruited businesses to file the lawsuit and agreed to pay the attorney’s fees for them.
What apparently is not understood is that the State and the Governor are empowered to enforce the criminal statute consisting of the “Public Health Act” and the civil statute consisting of the “Public Health Emergency Response Act”. A business can be cited under both laws for the same conduct.
The enforcement provision of the Public Health Emergency Response Act is very clear and Section 12-10A-19 C provides:
“The enforcement authority provided pursuant to the provisions of the Public Health Emergency Response Act is in addition to other remedies available against the same conduct under the common law or other statutes of this state.”
When Steve Pearce says “The governor is mixing two laws; she’s taking the enforcement from one law and applying it to the other” he shows his ignorance of the law in that a business can be charge separately for violations of both statutes and based on the same conduct. Steve Pearce needs to refrain from the practice of law without a license. He also may want to confirm that the attorneys the Republican Party he has hired to file the lawsuit understand the difference between criminal law and civil law.
Now that the Governor has begun the reopening of restaurants across the state, many of the arguments Steve Pierce has made are evaporating like Elephant Butte Lake. The Republican Party may want to save a little money, and a little face at the same time, and convince the 6 remaining businesses to dismiss their lawsuits, which is totally up to the litigants. If they decline, Pierce would be smart to say the Republican Party will no longer pay for the frivolous lawsuits he encouraged, unless of course he wants to open up his own fat wallet to beat a political dead horse.