Court rules against restraining order

The New Mexico Supreme Court last week unanimously rejected a temporary restraining order from an Eddy County judge that sought to stop enforcement of the state’s indoor-dining ban for restaurants during the COVID-19 pandemic.

Justices deliberated for less than an hour Wednesday afternoon before issuing the ruling from the bench. Three Democratic justices joined with the lone Republican and presiding justice, Judith Nakamura, on the decision.

Justice Michael Vigil, a Democrat, recused himself from the case and did not state his reason for doing so.

The high court primarily ruled on similar grounds from another coronavirus-related case three weeks ago — that the New Mexico Legislature gave the Department of Health and other officials statutory authority to ban indoor dining at restaurants during public emergencies.

Nakamura said the high court would direct Eddy County District Judge Raymond Romero to vacate his July 20 temporary restraining order and dismiss the application for a preliminary and permanent injunction against the state. The high court issued a stay of the restraining order a few hours after it was issued.

Nakamura said she and her fellow justices rejected arguments by the petitioner’s lawyer, Angel Artuso, that the state’s decision to ban indoor dining was arbitrary and capricious.

“It is the policy of courts to uphold regulations intended to protect public health unless it is plain they have no real relation to the object to which they were enacted,” Nakamura said.

“Only agency action that is willful and unreasoning and done without consideration and in disregard to the facts and circumstances can be deemed arbitrary and capricious,” she added.

She said Artuso’s argument that the state had to rely on another aspect of the public health order regarding quarantines to restrict restaurants was “unpersuasive.” Artuso said the state’s restrictions violated the equal-protection clause of the U.S. Constitution.

Matt Garcia, an attorney arguing on behalf of the governor’s office, said upholding the injunction would lead to ”inconsistent and different decisions that would invalidate the public health order.”

“The interest of business is outweighed by the interest of saving people’s lives,” Garcia said.

Gov. Michelle Lujan Grisham announced earlier Wednesday she would ease restrictions on restaurants effective Saturday, allowing indoor dining at 25% capacity. Justices asked whether the petition was moot in light of that action. Artuso responded the governor could re-impose new restrictions on eating establishments in the weeks ahead if the pandemic worsened.

The New Mexico Restaurant Association in a statement Wednesday afternoon criticized the ruling but also declared it a victory.

“The Governor and now the Supreme Court has sufficiently crushed the hope of New Mexico restaurants and today’s decision by the court reiterates the despair our industry faces during this pandemic,” it stated. “As your association, we can call this a win for our members because we believe that the Governor would not have opened restaurants at 25% if we did not put pressure on her with this lawsuit.

“It is baffling that our state leadership continues to ignore the livelihoods of servers, cooks, dishwashers, and other restaurant workers, as well as the long-term economic impact of this prolonged closure,” it continued. “We have yet to see the data that supports any validity or consistency of these decisions, which makes us question whether these decisions are scientific or political.”

Artuso argued the state’s affidavits “were far from conclusive” that a rise in COVID-19 cases had been caused by restaurants. He said there was no way to prove whether contracted the virus while working or at a party.

Justice David Thomson said, citing a recent case involving U.S. Supreme Court Chief Justice John Roberts, said health restrictions are “not subject to judicial second-guessing.”

Thomson and Nakamura questioned why Artuso didn’t present his oral arguments also in the filings of the original injunction request.

Romero briefly testified before the court Wednesday on his own behalf. He said the New Mexico Attorney General’s Office refused to act on the judge’s behalf, noting it had a conflict of interest due to the office taking enforcement action during the pandemic. Romero also said the judicial district also lacked the funds to hire a lawyer.

The association and seven restaurants requested the injunction. They stated in initial court filings the state’s restrictions had cost tens of thousands of jobs and closed more than 200 restaurants.

The state said indoor dining at restaurants contributed to a steep rise in COVID-19 cases in July, including about 15% of rapid responses to outbreaks in that sector. The disease has killed more than 750 people in New Mexico.