SANTA FE – The state Supreme Court ruled today in a split decision that emergency orders by the governor on gun violence and drug abuse did not violate the separation of powers doctrine and were permissible under New Mexico law.
However, the Court concluded that a provision in the orders for suspension of the Juvenile Detention Alternatives Initiative (JDAI) constituted an improper exercise of police powers. The Court blocked enforcement of the suspension. The majority determined that the emergency orders failed to establish how suspending alternatives to locked detention of juveniles related to either reducing gun violence or drug abuse.
Gov. Michelle Lujan Grisham declared gun violence and drug abuse a public health emergency under the Public Health Emergency Response Act (PHERA) in September 2023. Her administration issued orders imposing temporary firearm restrictions and other measures, including the suspension of JDAI and the testing of wastewater at public schools to detect the presence of illegal drugs such as fentanyl.
After a federal court blocked a provision banning the possession of firearms in public in Albuquerque and Bernalillo County, the governor issued an amended public health emergency order on Sept. 15, 2023 to prohibit gun possession in parks and playgrounds in the city and county. The public health directives were in effect more than a year but expired in October 2024, after the governor did not renew them. Republican legislators and others – known as the petitioners in the court case – brought a lawsuit seeking to invalidate the emergency orders after they were initially issued.
Although the orders have lapsed, the Court concluded it was proper to decide the case because it presented issues of “substantial public interest” and similar legal questions could arise in the future in a way that avoided a court review of the matter.
The Court analyzed the language of the PHERA in interpreting the law. The Court’s majority concluded that the amended and subsequent public health orders were consistent with the law’s broad definition of 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.”
“The inclusion of ‘occurrence’ clearly indicates that the Legislature did not intend to limit public health emergencies to events that are ‘imminent’; by the disjunctive use of those terms, a public health emergency may be either happening currently or happening soon,” the majority wrote in an opinion by Justice C. Shannon Bacon.
The statutory language “supports that the Legislature intended for the PHERA to be a broad statute under which the executive can declare and address crises of different form and scope as public health emergencies,” the Court stated. Additionally, the majority explained that “indicators of legislative intent behind the PHERA support the conclusion that the Legislature meant to delegate considerable authority and discretion to the executive branch to declare a public health emergency.”
The Court’s majority rejected arguments that the PHERA required public health emergencies to be sudden or unforeseen.
“Petitioners offer no argument that the Legislature intended for a governor not to be able to declare and address a public health emergency when a proper crisis arises gradually and foreseeab
Justices Michael E. Vigil and Briana H. Zamora each wrote dissenting opinions disagreeing with the majority’s interpretation of the PHERA.
“The majority’s statement and its conclusion that a public health emergency may consist of an occurrence leaves it totally in the discretion of any governor to assume sweeping emergency powers for any reason the governor chooses,” Justice Vigil wrote. “I cannot agree that the Legislature intended this result, and the language it uses belies any such intent.”
