Tuesday the New Mexico Restaurant Association sued the Governor, challenging her order prohibiting indoor dining. (Wednesday morning NMRA’s CEO discussed the situation with me on radio, repeating, “we’re not challenging the science” without mentioning the lawsuit.)
The case is politically-motivated. NMRA’s lawyer is Angelo Artuso. He has written that “Roe v Wade decided (wrongly), using both tortured language and logic, that pre-born humans are NOT ‘persons’ within the meaning of the Fourteenth Amendment.” Actually, “pre-born humans” exemplifies tortured language.
NMRA filed in the conservative 5th District (Eddy County). Judge Raymond L. Romero is a career prosecutor Governor Susana Martinez appointed in February 2013.
In April 2013, one of Romero’s first cases was too deep for him, or too political. State Engineer Scott Verhine had scheduled a hearing on a plan to pump water into the drought-parched Pecos River. Some angry ranchers asked Romero to enjoin that, making the novel claim that since the Interstate Stream Commission (on which Verhine sat) had recommended the program under consideration, Verhine had a conflict of interest. Romero bought the ranchers’ argument. Days later the New Mexico Supreme Court overturned Romero’s decision. As Justice Daniels said, many state agencies perform similar roles, and Romero’s ruling could undermine much of New Mexico’s government.
Romero ran unopposed in 2014 to stay on the bench. I’m guessing he’ll figure that the anti-Governor position will be popular in Eddy County, where the Sheriff says he won’t enforce health orders anyway.
Thus NMRA may well win the first round.
New Mexico’s Supreme Court is unlikely to agree.
To gain a TRO or preliminary injunction, you must show that: you’re likely to win the case; you’re facing irreparable harm that outweighs threatened harm to your opponents; and an injunction is in the public interest.
Likely to win? The NMRA argues that the Governor’s order is “arbitrary and capricious” and that the Governor lacked the power. Courts this year have tended to agree that governors have the power to make emergency public health orders. “Arbitrary and capricious” means much more than “wrong.” It’s courtspeak for unreasonable and without supporting facts.
I don’t think the Governor’s Order is arbitrary and capricious, for reasons that won’t fit here; and courts don’t like to step in to second-guess governmental decisions in complex areas. Protecting public health against a novel coronavirus is pretty complex. As U.S. Supreme Court Justice John Roberts said in a recent case, “Particularly where the issues are fact-intensive, fluid, scientifically uncertain, and urgent, officials should not be subject to second-guessing by an ‘unelected federal judiciary,’ which lacks the background, competence, and expertise to assess public health.”
Restaurants WILL suffer irreparable harm. That’s unfair, but this virus is unfair to everyone; and Death is kind of irreparable, too. NMRA’s argument largely ignores the fact that human lives are at issue and stresses a flourishing economy, as if partially opening restaurants could undo the vast economic damage caused by death, illness, and lockdowns.
NMRA has reasonable arguments why the Governor should have made a slightly different order, but unless the Governor was demonstrably “arbitrary and capricious,” the court won’t wade into complex policy arguments. The Governor did make some complimentary statements about restaurants to help make her order more politically digestible; and NMRA clearly hopes to use those against her.
I predict the NMRA will ultimately lose, probably after winning Round 1. I’d rather they spent their resources helping our restaurants survive – and adapt.
– 30 –
[The above column appeared this morning, Sunday, 19 July 2020, in the Las Cruces Sun-News, as well as on the newspaper's website and on KRWG's site. A spoken version will air during the week on KRWG and on KTAL (101.5 FM - https://www.lccommunityradio.org/) and will be available on demand on KRWG's site. (Note: Monday Judge Romero did as expected and the NM Supreme Court did as expected. Briefs are scheduled for filing July 27th and July 30th.]
[I've watched / listened to several of the Governor's press conferences. She and Doctors Scrase and Kunkel provide a lot of facts to back up their actions; and no one wants to close down the economy.NMRA's point that the restaurants are being careful is affecting, in that many undoubtedly are (the two I ate at, outdoors, a few weeks ago, were incredibly careful); and the fact that some of my favorite local restaurants could go out of business while big-box stores survive is galling -- and I'm glad we're starting to see both some enforcement against big-box stores and some apparent buy-in by some managements; but there IS some evidence that despite all that care the face-to-face time, indoors, fairly close, sans masks in order to eat and drink, just IS more dangerous than spending a shorter time wandering around a bigger area without ever facing anyone for long except when checking out (preferably through a plexiglass screen between customer and cashier). Just a sad, damned fact. I shop local and eat local. I drink coffee in one or another of our many wonderful coffeehouses, and haven't seen the inside of Starbucks for perhaps a year. I love some of our local places and some of the people who run 'em. But.]
[ Although this study was not before the governor, when she acted, it's interesting that when JP Morgan compared credit-card spending records of 30 million Chase cardholders with Johns Hopkins University's COVID-19 case tracker, it found that higher restaurant spending predicted a rise in new infections three weeks later. They called in-person restaurant spending "particularly predictive," and said that spending at supermarkets predicted a slower spread. I fact, the analyst said that among all categories of card spending, restaurant spending was the strongest predictor of an imminent spike in cases." (Here's one news story on the study).]
[These
facts, like Florida and some Texas cities renting freezer-trucks for
bodies, are hard to ignore; the voices describing Trump's ghastly
failures are getting pretty unanimous. One interesting example (though played up to the writer's benefit) is:
REPUBLICAN
Governor's Account of Trump's mishandling of the coronavirus.]
[It'll be interesting to see how the first round in NMRA v Lujan-Grisham goes. I don't know Judge Romero. Maybe he's grown some during seven years on the bench. Maybe it's unfair to guess he'll make the politically convenient decision. NMRA's lawyer seems to have a reasonable background, academically and with some years at a fair-sized law firm; but the writing sample I read regarding Roe v. Wade was a great example of circular reasoning. I know abortion was intermittently illegal through our history, though also tolerated; but can you imagine explaining to Thomas Jefferson that when he was writing documents to protect citizens against tyranny he meant to include protecting "pre-born humans" against a woman's medical needs and preferences? Whatever he thought about abortion, I'm pretty sure he'd have steered you toward the nearest asylum. Using that phrase while complaining about "tortured language" in legal decisions is kind of a hoot. None of which means he or his clients are necessarily wrong in the present lawsuit. But I tend to think they are.]
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