Commentary: 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.