New Mexico restaurants question Supreme Court's authority in COVID-19 closure battle

Adrian Hedden
Carlsbad Current-Argus

New Mexico restaurants demanded that a lawsuit filed against the state of New Mexico’s ban on indoor dining — in response to the COVID-19 pandemic — be moved back to Fifth Judicial District Court for ruling after the New Mexico Supreme Court temporarily upheld such restrictions.

Last week, Fifth Judicial District Judge Ray Romero issued a 10-day restraining order barring the state of New Mexico from enforcing the ban until it could be heard in court.

In his decision, Romero cited a lack of response from the state to the initial motion that enforcement of the ban be blocked.

Later that same day, Gov. Michelle Lujan Grisham requested and was granted an emergency stay of the restraining order by the New Mexico State Supreme Court.

This effectively re-closed indoor dining hours after Romero had ordered it be opened and gave all parties a week to file responses to the action.

MORE:New Mexico restaurants defiant of Gov. Lujan Grisham's order to close amid COVID-19

In the New Mexico Restaurant Association’s Monday response, it called for the case to be moved back to District Court, and Chief Executive Officer Carol Wight said not doing so would set a precedent to circumvent the lower court to seek a more favorable ruling in Supreme Court.

“It’s pretty unprecedented for something to go straight to Supreme Court,” Wight said. “If this goes directly to Supreme Court, the governor does not get special treatment just because she’s the governor, it would seem any New Mexican could bypass the District Court.”

Support local journalism. Subscribe to the Carlsbad Current-Argus.

Wight said restaurants in New Mexico were struggling and called the economic impacts of closing indoor dining dire.

Indoor dining areas were first closed in March when the pandemic began in New Mexico but were reopened on June 1 as positive cases of the virus appeared on the decline.

MORE:Carlsbad restaurants protest state-mandated COVID-19 closures, stay open for indoor dining

But on July 13, Lujan Grisham ordered restaurants again close their indoor dining areas, while allowing outdoor patio seating, as New Mexico’s COVID-19 cases appeared to be back on the rise.

Wight said hundreds of restaurants across the state were forced to close permanently due to the shifting restrictions.

She said litigation was the industry’s only remaining option for relief amid the pandemic.

MORE:New Mexico takes action against Carlsbad restaurants open despite COVID-19 health order

“I think we got to a point where restaurants were backed into a corner,” Wight said. “They have nothing to lose. Obviously, the administration isn’t listening to use but we want to have our date in court.”

Despite the order, two Pizza Inn locations in Carlsbad and one in Hobbs along with the Trinity Hotel and Restaurant in Carlsbad remained open in defiance, seeing their food service licenses suspended by the state.

That local controversy exemplified a difference in perspective on opposite sides of the state, which is why the case was brought to the Fifth Judicial District, Wight said, which covers Eddy, Lea and Chaves counties.

“It’s kind of southern New Mexico versus northern New Mexico,” she said.

MORE:Carlsbad business leaders call for repeal New Mexico's latest COVID-19 health order

In the response from the Office of the Governor, attorneys argued that the emergency stay of Romero’s restraining order should not be lifted as the State was never contacted or given a deadline by the District to respond to the initial petition.

The governor’s response also argued that the restraining order did not meet requirements that it demonstrate it would not be “adverse to public interest” or that the plaintiffs would likely prevail in the case.

The response also questioned the restraining order for not demonstrating that damage caused to the defendant, the State of New Mexico, would be outweighed by injury caused the plaintiffs — the restaurants.

MORENew Mexico eateries prepare to reopen on June 1, adapt to COVID-19 health measures

The initial restraining order did argue that the plaintiffs would suffer “irreparable” harm if the order was not granted, but the governor’s response argued that that requirement alone did not justify the restraining order.

The governor’s response cited the potential increased spread of COVID-19 as a danger that would be exacerbated by the opening of restaurants and the importance of maintaining the state’s public health orders to slow the spread.

In his response, Romero contended that the Supreme Court should not use its power to supersede a lower court in this case because it could be resolved quicker at the District level and the requested restraining order did have merit as outlined when it was issued by Romero.

MORE:Dining-in back on the menu: Carlsbad eateries reopen as COVID-19 restrictions reduced

He argued that it was clear “irreparable” harm would be caused to the restaurants before they could officially voice their opposition to the health orders in court.

He also argued that the State could have sought to resolve the case in District Court in a timely manner, but instead opted to go to the Supreme Court for a more sympathetic ruling to appeal the restraining order.

“It would appear petitioners never intended to litigate this matter in District Court in Eddy County, and to extricate themselves from that proceeding, have filed this emergency petition as a means of appealing the District Court’s grant of the (temporary restraining order),” read Romero’s response.

MORE:Back to normal? Carlsbad embraces open-air dining as governor lifts COVID-19 restrictions

Romero also argued that the restraining order could not be appealed in the higher court because it did not create a final decision in the case.

The New Mexico Restaurant Association in its response agreed with Romero’s points on the authority of the Supreme Court, but also argued that the State’s health order to close restaurants was “arbitrary” and did not provide data supporting that the closure would slow the spread of the virus.

“There is no record regarding the rationale and reasons for the Secretary (of the Public Health Department Kathyleen Kunkel’s) decision to close indoor dining services at restaurants and breweries,” read the Association’s response.

MORE:Protesters gather at Carlsbad Pizza Inn, oppose New Mexico closing eateries amid COVID-19

Wight said the Association filed a separate lawsuit to obtain the data that informed the health order as it was not provided by the State, she said, in response to a request under the Inspection of Public Records Act (IPRA).

“All we want is the data they’re using against us,” she said. “So many people are just believing the numbers as they are presented. A little transparency would be nice.”

Adrian Hedden can be reached at 575-628-5516, or @AdrianHedden on Twitter.