STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL
HECTOR H. BALDERAS
ATTORNEY GENERAL
March 23, 2020
The Honorable Cliff R. Pirtle
Senator – Chaves, Eddy & Otero-32
5507 Y.O. Road
Roswell, New Mexico 88203
Email: Cliff.pirtle@nmlegis.gov
Re:
Opinion Request – Governor’s Authority during a Public Health or Other
Emergency
Dear Senator Pirtle:
You have requested an Attorney General opinion regarding a governor’s authority to close
or otherwise regulate the activities of private businesses, including private clubs, engaged
in the sale of food and alcoholic beverages for consumption on the premises during a public
health or other emergency.
1
Based on our examination of the relevant constitutional,
statutory and case law authorities, as well as the information available to us at this time,
we conclude that the Governor has broad authority to declare a public health emergency
by executive order. In turn, the executive order properly triggers the authority of the
Secretary of Health to order the closure of public places, including privately owned
businesses generally open to the public, and forbid large gatherings.
As a preliminary matter, there are several rules of statutory construction that guide our
analysis. First, in construing a statute, our goal is to give primary effect to the legislative
intent, which intent is evidenced primarily through the statute’s language. See Souter v.
Ancae Heating and Air Conditioning, 2002-NMSC-0078, 132 N.M. 608, 611. Second,
under the plain meaning rule, we give statutory language its ordinary meaning unless the
Legislature indicates a different meaning is necessary. See Cooper v. Chevron, 2002-
NMSC-020, 132 N.M. 382, 388. Finally, we read statutes regarding the same subject matter
1
While you have asked that we address a governor’s authority to regulate private business activity in a
public health or other emergency, we decline to address other emergencies, as the executive’s declaration
and response in those instances will necessarily depend on the specific circumstances and nature of the
emergency.
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The Honorable Cliff R. Pirtle
March 23, 2020
Page 2
together as harmoniously as possible in a way that facilitates their operation and
achievement of their goals. See Jicarilla Apache Nation v. Rodarte, 2004-NMSC-035, 136
N.M. 630, 634-5.
We begin our analysis by reviewing the relevant statutes that authorize the governor to
declare a state of public health emergency and the executive’s response to said emergency.
The New Mexico Constitution vests the governor with the supreme power of the state and
directs
the
governor
to
take
care
that
the
laws
be
faithfully
executed.
N.M. Const., art. V, § 4. Notwithstanding, as head of the executive branch, the governor’s
powers are limited to those granted by the constitution or statute. See N.M. Const, art. III,
§ 1; State v. Fifth Judicial Dist. Court, 1932-NMSC-023
,
36
N
.
M
.
151
.
See
also
State
ex
rel. Sego v. Kirkpatrick, 86 N.M. 359, 362, 524 P.2d 975, 978 (1974) (stating that “[t]he
power of veto, like all powers constitutionally conferred upon a government officer or
agency, is not absolute and may not be exercised without any restraint or limitation
whatsoever”) (emphasis in original). Thus, while the governor may issue orders to
executive agencies in an effort to better execute existing law, the governor's executive order
will be invalid if it is outside the governor's constitutional or statutory authority.
The Public Health Emergency Response Act
2
provides a grant of authority to the governor
to declare a state of public health emergency “upon the occurrence of a public health
emergency.” See § 12-10A-5(A).
3
It requires the governor to consult with the secretary of
health prior to making such a declaration. Id. And, upon making the declaration, the Act
allows the governor to confer upon the secretaries of health, public safety, and homeland
security and emergency management the authority to coordinate a response to the public
health emergency. The Act also mandates that the governor’s declaration of a state of
public health emergency be by an executive order that specifies:
(1) the nature of the emergency;
(2) the areas of the state affected by the emergency;
(3) its causation;
(4) its expected duration, if less than thirty days;
(5) the public health officials needed to assist in coordinating a response to the
emergency; and
(6) any other provisions necessary to implement the order.
See § 12-10A-5(B).
2
NMSA 1978, Sections 12-10A-1 to -19 (2003, as amended through 2015),
3
The Act defines “public health emergency” as “the occurrence or imminent threat of exposure to an
extremely dangerous condition or a highly infectious or toxic agent, including a threatening communicable
disease, that poses an imminent threat of substantial harm to the population of New Mexico or any portion
thereof.” § 12-10A-2 (G). It further defines a “threatening communicable disease” as “ a disease that
causes death or great bodily harm that passes from one person to another and for which there are no means
by which the public can reasonably avoid the risk of contracting the disease. “Threatening communicable
disease” does not include acquired immune deficiency syndrome or other infections caused by the human
immunodeficiency virus.”” § 12-10A-2 (L).
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The Honorable Cliff R. Pirtle
March 23, 2020
Page 3
With an executive order in place, then, the Public Health Act
4
authorizes the Department
of Health to, among other things:
(C) investigate, control and abate the causes of disease, especially epidemics,
sources of mortality and other conditions of public health;
(D) establish, maintain and enforce isolation and quarantine;
(E) close any public place and forbid gatherings of people when necessary for the
protection of the public health; and
(F) respond to public health emergencies and assist communities in recovery.
See § 24-1-3 (emphasis added). The Public Health Act does not define public place, but
based on New Mexico statutory definitions and common usage, we find that a “public
place” is a place generally open or accessible to the public and may include both publicly
owned and privately owned spaces. See e.g. https://definitions.uslegal.com/p/public-place/
(public place is generally an indoor or outdoor area, whether privately or publicly owned,
to which the public have access by right or by invitation, expressed or implied, whether by
payment of money or not, but not a place when used exclusively by one or more individuals
for a private gathering or other personal purpose). As such, private businesses, including
private clubs would be subject to an executive order that closes any public place and forbids
gatherings of people when necessary for the protection of the public health.
While no New Mexico courts have had the opportunity to interpret Section 24-1-3, taken
as a whole, the statutory scheme outlined above appears to fall within the State’s traditional
police powers to regulate certain activity for the protection of public health against the
spread of infectious disease. “The United States Supreme Court has declared that the
‘structure and limitations of federalism . . . allow the States great latitude under their police
powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all
persons.’” Florida v. United States HHS, 648 F.3d 1235, 1305 (11th Cir. 2011) (alterations
in original) (quoting Gonzales v. Oregon, 546 U.S. 243, 270 (2006)). Moreover,
“[n]umerous Supreme Court decisions have identified the regulation of health matters as a
core facet of a state’s police powers.” Florida, 648 F.3d at 1305 (citing various Supreme
Court cases discussing the latitude of States to regulate matters of health); see also Barsky
v. Bd. of Regents, 347 U.S. 442, 449 (1954) (“It is elemental that a state has broad power
to establish and enforce standards of conduct within its borders relative to the health of
everyone there. It is a vital part of a state’s police power.”).
And, in a recent case challenging New York’s mandatory vaccination law for children
attending public, private or parochial schools, the federal district court for the Eastern
District of New York revisited the history of a State’s traditional police powers before
concluding that children with disabilities were not exempt from vaccination, as the
mandatory vaccination law did not interfere or modify their rights under the Individuals
with Disabilities Education Act. See V.D. et al. v. State of New York, 403 F. Supp. 3d 76
(E.D.N.Y. 2019).
4
NMSA 1978, Section 24-1-1 to -40 (1973, as amended through 2019).
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The Honorable Cliff R. Pirtle
March 23, 2020
Page 4
The district court recalled that “[s]tates have historically enjoyed considerable discretion
to regulate in areas affecting the health and safety of their citizens. See, e.g., Medtronic,
Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). As such, the
Supreme Court has long upheld the rights of states to enact compulsory vaccination
laws. See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 27, 25 S. Ct. 358, 49
L. Ed. 643 (1905).” "[A] community has the right to protect itself against an epidemic of
disease which threatens the safety of its members." Id. at 27. In service of this goal, a state
may impose certain requirements on its constituents without offending the
Constitution. See id. at 26 ("[T]he liberty secured by the Constitution of the United States
to every person within its jurisdiction does not import an absolute right in each person to
be, at all times and in all circumstances, wholly freed from restraint."); see also Prince v.
Massachusetts, 321 U.S. 158, 166-67, 64 S. Ct. 438, 88 L. Ed. 645 (1944) ("The right to
practice religion freely does not include liberty to expose the community or the child to
communicable disease or the latter to ill health or death." (citing People v. Pierson, 176
N.Y. 201, 68 N.E. 243 (N.Y. 1903))).” V.D. v. New York, at 86.
Turning our attention to recent events, on March 11, 2020 Governor Michelle Lujan
Grisham declared a state of emergency in New Mexico under Executive Order 2020-004
(“EO 2020-004”), in accordance with the Public Health Emergency Response Act and the
All Hazard Emergency Management Act.
5
See Executive Order 2020-004, §§ 1 and 2.
Executive Order 2020-004 describes the origin and nature of the novel coronavirus disease
(“COVID-19”) public health emergency, the areas of the state affected by the emergency,
its causation - going back to several cases of pneumonia with an unknown cause first
reported to the World Health Organization on December 31, 2019 – as well as other
information required by § 12-10A-5(B). Its stated intent is to minimize the spread and
adverse impacts of COVID-19 in New Mexico. Id.
A careful reading of the Executive Order reveals that it directs the Department of Health
and the Department of Homeland Security and Emergency Management to “collaborate to
provide an effective and coordinated response to this public health emergency” and
“consult with [the governor’s] office regarding all matters germane to this Order.”
Executive Order 2020-004, § 3. It further directs “[a]ll cabinets, departments, and agencies
to comply with the directives of this Order and any instruction given by the Department of
Health,” and provides specific instructions for the Secretary of the General Services, the
Superintendent of Insurance, the Secretary of Department of Workforce Solutions, the
Adjutant General of the New Mexico National Guard, and the Department of Finance and
Administration. Executive Order 2020-004, §§ 4 through 9.
Following the issuance of Executive Order 2020-004 and consistent with Section 24-1-3,
the Secretary of Health has issued several Public Health Orders (“PHO”). Relevant to your
question, Secretary Kunkel issued an Amended PHO Limiting Mass Gatherings and
Implementing Other Restrictions due to COVID-19, dated March 16, 2020, citing the
further spread of COVID-19 in New Mexico and the threat it poses to the health, safety,
wellbeing of the residents of the state.
5
NMSA 1978, §§ 12-10-1 to -10 (1959, as amended through 2007).
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MAILING ADDRESS: P.O. DRAWER 1508 - SANTA FE, NEW MEXICO 87504-1508
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The Honorable Cliff R. Pirtle
March 23, 2020
Page 5
The March 16, 2020 PHO expressly (1) prohibits all mass gatherings of 100 or more
persons; (2) orders all restaurants, bars, breweries and other food service establishments to
operate at no more than fifty percent of maximum capacity and no greater than 50 percent
of seating capacity, and directed that individual tables seat no more than six persons and
be separated by at least six feet; and; (3) with the exception of casinos located on Tribal
lands, orders all casinos and horse racing facilities and attendant restaurant and bar
operations to close during the pendency of the PHO.
Then, on March 19, 2020, Secretary Kunkel issued another PHO, further limiting mass
gatherings and imposing further restrictions, “organized around one principle: to
temporarily limit person-to-person contact, particularly in large groups. This is the best
way to minimize spread of COVID-19 and prevent a spike in illnesses, particularly serious
illnesses in vulnerable populations.” See https://cv.nmhealth.org/2020/03/19/new-public-
health-order-in-effect/. The limitations imposed by the March 19, 2020 are more granular
and includes mandatory closures, as the number of presumptive tests positive for COVID-
19 continues to rise. It includes a strengthened prohibition against mass gatherings, the
additional limitation of restaurants, bars, breweries, eateries and other food service
establishments to providing only take-out and home delivery service, the closure of indoor
shopping malls, recreational facilities, health clubs, resort spas and other public places.
Against the backdrop of the continued spread of COVID-19 and the threat it poses to the
health, safety and wellbeing of all New Mexico citizens, the PHOs issued by Secretary of
Health to date, limiting the activities of certain private businesses that offer services and
are open to the public appear to be a reasonable exercise of the police powers vested in the
Secretary and Department of Health by the Public Act.
Please be advised that this opinion is a public record, not subject to the attorney client
privilege. As such, we may provide copies to the public. If this office may be of further
assistance, or if you have any questions regarding this opinion, please do not hesitate to
contact our office.
Sincerely,
Sally Malavé
Sally Malavé
Assistant Attorney General
Director, Open Government Division
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You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.