State v. Wilson

                                                      Office of the
                                                          Director    New Mexico
                                                                      Compilation
                                                       2021.07.12     Commission
                                                  '00'06- 09:59:52
           IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 

Filing Date: June 7, 2021

No. S-1-SC-38510

STATE OF NEW MEXICO,
KATHYLEEN KUNKEL,
in her official capacity as the
Secretary of the Department of
Health, and MICHELLE LUJAN
GRISHAM, in her official Capacity
as the Governor of New Mexico,

      Petitioners,

v.

HON. MATTHEW WILSON,
First Judicial District Court Judge,
HON. ERIN B. O’CONNELL,
Second Judicial District Court Judge,
HON. BEATRICE J. BRICKHOUSE,
Second Judicial District Court Judge,
HON. MARCI BEYER,
Third Judicial District Court Judge,
HON. JARED G. KALLUNKI,
Fifth Judicial District Court Judge,
HON. THOMAS E. LILLEY,
Fifth Judicial District Court Judge,
HON. MATTHEW G. REYNOLDS,
Seventh Judicial District Court Judge,
HON. MATTHEW E. CHANDLER,
Ninth Judicial District Court Judge,
HON. DAVID P. REEB,
Ninth Judicial District Court Judge,
HON. CURTIS R. GURLEY,
Eleventh Judicial District Court Judge, and
HON. ELLEN R. JESSEN,
Twelfth Judicial District Court Judge,

      Respondents,

and
PEREZ ENTERPRISES, LLC, ELITE FITNESS
& TANNING, LLC, COWBOY CAFE, LLC,
MAD MAC, LLC, HM PROPERTIES, LLC,
CAMPE2, LLC, ELI’S BISTRO, INC.,
DAVID HETT, SPORTS ADVENTURE,
KRK PROPERTIES, LLC, ALLSTAR AUCTION
CO., LLC, OOPS A DAISY FLORAL LTD.,
BEDONIE CASKET LTD., CO., LONE TREE, INC.,
MAUGER ESTATES B&B, GRAND AVENUE
ENTERPRISES, LLC, HINKLE FAMILY FUN
CENTER, LLC, SANTA FE OXYGEN & HEALING
BAR, LLC, and APOTHECARY RESTAURANT, LLC,

       Real Parties in Interest.

ORIGINAL PROCEEDING

Released for Publication July 20, 2021.

Hector H. Balderas, Attorney General
Nicholas M. Sydow, Civil Appellate Chief
Neil R. Bell, Assistant Attorney General
Erin Elizabeth Lecocq, Assistant Attorney General
Santa Fe, NM

Office of the Governor
Matthew L. Garcia, Chief General Counsel
Holly Agajanian, Chief General Counsel
Kyle P. Duffy, Associate General Counsel
Maria S, Dudley, Associate General Counsel
Santa Fe, NM

for Petitioners

Western Agriculture Resource and Business Advocates, LLP
A. Blair Dunn
Jared Robert Vander Dussen
Albuquerque, NM

for Real Parties in Interest

                                          OPINION

BACON, Justice.

{1}   The petition before the Court presents another case challenging the extent of the
executive branch’s actions in relation to the ongoing COVID-19 pandemic. Here, we
must determine as a matter of law whether the State’s public health orders (PHOs) may
support a claim for just compensation under either Article II, Section 20 of the New
Mexico Constitution or Section 12-10A-15 of the Public Health Emergency Response
Act (PHERA), NMSA 1978, §§ 12-10A-1 to -19 (2003, as amended through 2015). With
respect to the constitutional question, we hold that the PHOs cannot support a claim for
a regulatory taking requiring compensation. With respect to the statutory question, we
hold that the PHOs’ restrictions on business operations regarding occupancy limits and
closures cannot support a claim for just compensation. We further hold that claimants
for just compensation under the PHERA must exhaust the administrative remedies set
forth in Section 12-10A-15(B), (C) before seeking judicial relief.

I.      BACKGROUND

A.      Legislative Facts Regarding COVID-19 and the PHOs

{2}     As we said in Lujan Grisham v. Romero, this Court may take judicial notice of “a
fact that is not subject to reasonable dispute because it (1) is generally known within the
[C]ourt’s territorial jurisdiction, [or] (2) can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” 

, 

 (second alteration in original) (internal quotation marks omitted) (quoting Rule
11-201(B) NMRA); see Fry v. Lopez, 

, 

 (“[T]his
Court . . . may take judicial notice of legislative facts by resorting to whatever materials it
may have at its disposal establishing or tending to establish those facts. Legislative
facts are those which help the tribunal to determine the content of law and policy and to
exercise its judgment or discretion in determining what course of action to take.”
(internal quotation marks and citations omitted)). Therefore, we take judicial notice of
legislative facts relevant to this case regarding COVID-19 and the PHOs.

1.      COVID-19

{3}    In Grisham v. Reeb, we took notice that COVID-19, the disease caused by the
coronavirus SARS-CoV-2, had been responsible nationally for 7.96 million diagnosed
cases and 216,917 deaths, as of October 16, 2020. 

, 

. We also took notice that in New Mexico 34,958 cases had been diagnosed and
922 people had died as of October 9, 2020. Id. ¶ 22. As of May 3, 2021, the Centers for
Disease Control records 32.2 million diagnosed cases and 573,780 deaths nationally.1
As of May 3, 2021, the New Mexico Department of Health records that 197,733 cases
have been diagnosed and 4,067 New Mexicans have died.2

{4}    Since Reeb, multiple vaccines have been developed, and New Mexico has an
active program of vaccine distribution. New Mexico Dep’t of Health, COVID-19
Vaccine;3 New Mexico Dep’t of Health, State of New Mexico COVID-19 Vaccine


1Available at https://covid.cdc.gov/covid-data-tracker/#cases_casesper100k
last7days (last visited May 3, 2021).
2Available at https://cvprovider.nmhealth.org/public-dashboard.html (last visited May 3, 2021).
3Available at https://cv.nmhealth.org/covid-vaccine/ (last visited May 3, 2021).
Allocation Plan (updated January 28, 2021).4 During the same time, however, multiple
variants have been detected in the United States that seem to spread more easily and
quickly than the original strain, and research as to the available vaccines’ efficacy
against these variants has not been finalized. Mayo Clinic, COVID-19 variants: What’s
the concern? (updated March 23, 2021).5 No cure is available for COVID-19, and the
best way to avoid the illness remains to avoid exposure. Mayo Clinic, Coronavirus
disease 2019 (COVID-19): Diagnosis & treatment (updated April 30, 2021)6; U.S. Food
and Drug Administration, COVID-19 Frequently Asked Questions (updated April 16,
2021).7

2.      The PHOs

{5}    As we recognized in Reeb, 

, the Governor’s executive
order of March 11, 2020, pursuant to the PHERA, declared that a public health
emergency exists in New Mexico due to the spread of COVID-19. See State of N.M.,
Executive Order 2020-004 (Mar. 11, 2020).8 This executive order was most recently
extended on February 5, 2021. State of N.M., Executive Order 2021-004 (Feb. 5,
2021).9

{6}    Beginning on March 16, 2020, a series of PHOs has restricted mass gatherings
and the operations of certain businesses, requiring some to close entirely.10 See, e.g.,
N.M. Dep’t of Health, Public Health Emergency Order Limiting Mass Gatherings and
Implementing Other Restrictions Due to COVID-19 at 3 (Mar. 16, 2020) (restricting
operation of all “restaurants, bars, breweries, eateries, and other food service
establishments” to no greater than fifty percent of maximum occupancy and of seating
capacity; prohibiting all nontribal casinos and horse racing facilities and their attendant
restaurants and bars from operating).11 Subsequent PHOs have defined categories of
affected businesses and established a framework of differentiated restrictions on those
defined categories, “based on a county’s ability to satisfy specified metrics.” See, e.g.,
N.M. Dep’t of Health, Public Health Emergency Order . . . Providing Additional
Restrictions on Mass Gatherings Due to COVID-19 at 6 (July 30, 2020) (restricting
operation of “close contact businesses” at up to twenty-five percent of maximum

4Available at https://cv.nmhealth.org/wp-content/uploads/2021/02/2021.
1.28-DOH-Phase-Guidance.pdf (last visited May 3, 2021).
5Available at https://www.mayoclinic.org/diseases-conditions/
coronavirus/expert-answers/covid-variant/faq-20505779 (last visited May 3, 2021).
6Available at https://www.mayoclinic.org/diseases-conditions/
coronavirus/diagnosis-treatment/drc-20479976 (last visited May 3, 2021).
7Available at https://www.fda.gov/emergency-preparedness-and-response/
coronavirus-disease-2019-covid-19/covid-19-frequently-asked-questions (last
visited May 3, 2021).
8Available at https://www.governor.state.nm.us/wp-content/uploads/2020/03
/Executive-Order-2020-004.pdf (last visited May 3, 2021).
9Available at https://cv.nmhealth.org/wp-content/uploads/2021/02/Executive
-Order-2021-004.pdf (last visited May 3, 2021).
10All PHOs and executive orders available at https://cv.nmhealth.org/public-health-orders-and-executiveorders/ (last visited May 3, 2021).
11Available at https://cv.nmhealth.org/wp-content/uploads/2020/03/031620-DOH-PHO-r.pdf (last visited
May 3, 2021).
occupancy; prohibiting operation of “close-contact recreational facilities”)12; N.M. Dep’t
of Health, Public Health Emergency Order . . . to Impose County-by-County Restrictions
Due to COVID-19 at 6-11 (Nov. 30, 2020) (establishing the “Red to Green” reopening
framework; establishing underlying metrics of new COVID-19 incidence rate and
average percent of positive COVID-19 test results).13

{7}    While the defined COVID-19 metrics and the framework for the restrictions have
changed over time, the restrictions themselves have consistently manifested as
operational limitations on occupancy to the extent of closure of some categories of
businesses. See, e.g., N.M. Dep’t of Health, Public Health Emergency Order . . .
Amending . . . County-by-County Restrictions Due to COVID-19 at 6-13 (Feb. 24, 2021)
(adding “Turquoise” to the “Red to Green” framework).14 The PHOs have consistently
included public health information relating the orders to the COVID-19 pandemic. See,
e.g., N.M. Dep’t of Health, Public Health Emergency Order Limiting Mass Gatherings
and Implementing Other Restrictions Due to COVID-19 at 1 (Mar. 16, 2020) (describing
the World Health Organization’s announcement of the “novel Coronavirus Disease
2019” including the disease having “adapted to humans such that it is contagious and
easily spread from one person to another”)15; N.M. Dep’t of Health, Public Health
Emergency Order . . . Amending . . . County-by-County Restrictions Due to COVID-19
at 2 (Feb. 24, 2021) (providing that confirmed cases exceed 28 million nationally and
183,000 in New Mexico; providing that related deaths exceed 500,000 nationally and
3,600 in New Mexico).16

B.     Procedural History

{8}    On October 5, 2020, Petitioners State of New Mexico, Secretary of the
Department of Health Kathyleen Kunkel, and Governor Michelle Lujan Grisham filed
their verified petition for writ of superintending control and emergency request for stay in
this Court. Their petition describes fourteen relevant lawsuits brought against them by
small businesses and business owners17—real parties in interest (Real Parties) in this
proceeding—then “pending before eleven district court judges in eight judicial districts
across New Mexico.” Petitioners’ notice to this Court of October 22, 2020, identifies six
additional cases alleging similar claims or counterclaims. The just compensation issue


12Available at https://cv.nmhealth.org/wp-content/uploads/2020/07/07.30.20-PHO.pdf (last visited May 3,
2021).
13Available at https://cv.nmhealth.org/wp-content/uploads/2020/11/113020-PHO.pdf (last visited May 3,
2021).
14Available at https://cv.nmhealth.org/wp-content/uploads/2021/02/022421-PHO.pdf (last visited May 3,
2021).
15Available at https://cv.nmhealth.org/wp-content/uploads/2020/03/031620-DOH-PHO-r.pdf (last visited
May 3, 2021).
16Available at https://cv.nmhealth.org/wp-content/uploads/2021/02/022421-PHO.pdf (last visited May 3,
2021).
17These are Perez Enterprises, LLC; Elite Fitness & Tanning, LLC; Cowboy Cafe, LLC; Mad Mac, LLC;
HM Properties, LLC; Campe2, LLC; Eli’s Bistro, Inc.; David Hett; Sports Adventure; KRK Properties, LLC;
Allstar Auction Co., LLC; Oops A Daisy Floral Ltd.; Bedonie Casket Ltd. Co.; Lone Tree, Inc.; Mauger
Estates B&B; Grand Avenue Enterprises, LLC; Hinkle Family Fun Center, LLC; Santa Fe Oxygen &
Healing Bar, LLC; and Apothecary Restaurant, LLC.
now before this Court is the “share[d] . . . threshold legal question” in the twenty pending
cases.

{9}    Based on substantially identical allegations, the plaintiffs (Real Parties here) in
these lawsuits seek just compensation under Art. II, Section 20 and Section 12-10A-15
“as a result of [Petitioners’] total or partial takings of, and damages caused to [the Real
Parties’] private property.” The Real Parties allege therein that “[s]uch just
compensation . . . include[s] . . . lost revenues and expenses incurred due to the
seizure, limitation and closure of their businesses pursuant to the public health
emergency orders of the State.” The Real Parties’ response to the petition
acknowledges the relevant “20 pending cases” but argues that this Court should not
hear the matter “without any factual development in the record.”

{10} On November 20, 2020, we ordered briefing and granted the emergency request
for a stay of current and future district court lawsuits seeking just compensation as a
result of the PHOs during the pendency of this proceeding.

{11} In the briefing, we note that the Real Parties argue that the lack of factual
development here is “almost identically as the issue was presented to this Court but
declined in . . . Reeb.” In Reeb, 

, the Real Parties and Amici
contended in responding to the petition that we should not reach their just compensation
argument as it was an alternative argument in the district court lacking factual
development. We agreed and declined to issue a writ on that matter, as the record
“furnishe[d] insufficient facts for us to resolve the Real Parties’ takings claims.” Id. ¶ 11.
The Real Parties’ argument here suggests that the similar factual record should yield a
similar result: that we should not issue a writ regarding their takings claims.

{12} However, in Reeb, a developed factual record would have become necessary if
the Real Parties’ takings claims had challenged the PHOs as applied to specific pieces
of property, whereas here we consider only the presented facial question of law. See
Keystone Bituminous Coal Ass’n v. DeBenedictis, 

 (1987)
(recognizing “an important distinction between a claim that the mere enactment of a
statute constitutes a taking and a claim that the particular impact of government action
on a specific piece of property requires the payment of just compensation” (citing Hodel
v. Va. Surface Mining & Reclamation Ass’n, Inc., 

 (1981), for the
proposition that a facial challenge does not involve the “ad hoc, factual inquiries” of an
as-applied challenge)). Here, in contrast to Reeb, the facial question of law before us is
the sole issue and has been fully briefed by both parties. For these reasons, our
decision in Reeb to not reach the takings issue has no bearing here.

{13} On January 13, 2021, we heard oral argument but did not announce a decision at
that time. In this opinion we explain in detail the basis for our holdings herein.
II.    DISCUSSION

A.     This Court’s Power of Superintending Control

{14} As we recently discussed in Romero, 

, “this Court has the
power of superintending control over inferior courts.” N.M. Const. art. VI, § 3; see Reeb,

. This power enables the Court to control the course of litigation in
inferior courts and “to correct any specie of error.” Kerr v. Parsons, 

, 

 (citing Albuquerque Gas & Elec. Co. v. Curtis, 

, ¶¶ 7,
12-14, 

, 

). Our exercise of the power of superintending control
is appropriate where “necessary to prevent irreparable mischief, great, extraordinary, or
exceptional hardship, or costly delays and unusual burdens of expense.” Dist. Ct. of
Second Jud. Dist. v. McKenna, 

, ¶ 4, 

, 

(brackets and internal quotation marks omitted) (quoting State ex rel. Transcon. Bus
Serv., Inc. v. Carmody, 

, ¶ 23, 

, 

). We have
expressly acknowledged the appropriateness of exercising the power of superintending
control on an issue of first impression concerning “constitutional provisions with serious
public safety implications.” State ex rel. Torrez v. Whitaker, 

, 

.

{15} The issue raised by Petitioners presents exceptional circumstances justifying this
Court’s issuance of a writ of superintending control. The potential compensability of
alleged injuries caused by the PHOs raises a question of public importance that will
benefit from resolution. There is an obvious public interest in ensuring fair and
consistent adjudication of an issue touching the concerns of thousands of owners of
business property throughout New Mexico. Regardless of result, the question of law
before this Court is a statewide issue, both from the perspective of Petitioners, as
defendants in each case below, charged with managing a public health emergency and
stewarding the public money, and the Real Parties, businesses critically affected by the
PHOs. Moreover, since the effects of the COVID-19 pandemic continue to impact New
Mexico and its surrounding states, the issue is not a passing one, and it is reasonable to
predict additional future cases may arise. “Accordingly, it is in the public interest to settle
the question now.” Reeb, 

 (internal quotation marks and citation
omitted).

B.     Standard of Review and Principles of Statutory Construction

{16} “[W]e review questions of constitutional and statutory interpretation de novo.”
Romero, 

. In construing the language of a statute, our goal and
guiding principle is to give effect to the intent of the Legislature. Baker v. Hedstrom,

, 

; see In re Portal, 

, 

, 

 (“Statutes are to be read in a way that facilitates their operation and
the achievement of their goals.” (internal quotation marks and citation omitted)). “[I]n
determining intent we look to the language used.” Key v. Chrysler Motors Corp., 1996-
NMSC-038, ¶ 13, 

, 

. We generally give the statutory
language “its ordinary and plain meaning unless the [L]egislature indicates a different
interpretation is necessary.” Cooper v. Chevron USA, Inc., 

, 

, 

. However, we “will not be bound by a literal interpretation of the
words if such strict interpretation would defeat the intended object of the [L]egislature.”
State ex rel. Helman v. Gallegos, 

, ¶ 20, 

, 

(internal quotation marks and citation omitted). Thus, where statutory language “is
doubtful, ambiguous, or an adherence to the literal use of the words would lead to
injustice, absurdity or contradiction,” we construe a statute “according to its obvious
spirit or reason,” State v. Davis, 

, 

, 

; Bd.
of Educ. for Carlsbad Mun. Schs. v. N.M. State Dep’t of Pub. Educ., 

, 

, 

 (“A statute is ambiguous if reasonably informed
persons can understand the statute as having two or more meanings.”). In ascertaining
a statute’s spirit or reason, we consider its history and background, and we read the
provisions at issue “in the context of the statute as a whole, including [its] purposes and
consequences.” Baker, 

; Key, 

, ¶ 14 (“[A]ll parts
of a statute must be read together to ascertain legislative intent[, and w]e are to read the
statute in its entirety and construe each part in connection with every other part to
produce a harmonious whole.” (citation omitted)).

C.     Constitutional Claims Against the PHOs for Just Compensation

{17} We first address whether the PHOs can support a claim for just compensation
under Article II, Section 20.

{18} Petitioners argue that the PHOs are a proper exercise of the State’s police power
to protect the public health. They argue such an exercise cannot constitute a taking
under state and federal precedent and, therefore, the PHOs cannot support a claim for
just compensation under Article II, Section 20. Petitioners argue in the alternative that,
even if analyzed under regulatory takings caselaw, use regulation under the PHOs
constitutes temporary and partial restrictions that are not compensable.

{19} The Real Parties argue that the “unprecedent[ed]” deprivations of private
property under the PHOs cannot be justified merely as “regulatory police exercise” that
is ineligible for compensation. Additionally, they argue that issuance of the requested
writ would improperly foreclose their ability to bring fact-specific evidence under a
takings inquiry or to show that the PHOs are “unreasonable, arbitrary or capricious.”

{20} We begin by setting out the relevant authorities first for the State’s police power
and second for constitutional takings analysis. Then we apply those authorities to the
PHOs.

1.     Authority for the State’s Police Power

{21} As we discussed in Reeb, the State’s inherent police power is “the broadest
power possessed by governments” and encompasses “[l]aws providing for preservation
of the public peace, health and safety.” 

 (quoting State ex rel. City
of Albuquerque v. Lavender, 

, ¶ 24, 

, 

); see
State v. Rotherham, 

, ¶ 52, 

, 

 (defining the
police power as this State’s “authority to provide its citizenry a safe community in which
to live”); see also Hadacheck v. Sebastian, 

 (1915) (describing the
police power as “one of the most essential powers of government, one that is the least
limitable. . . . [T]he imperative necessity for its existence precludes any limitation upon it
when not exerted arbitrarily.”); Jacobson v. Massachusetts, 

 (1905)
(“According to settled principles, the police power of a state must be held to embrace, at
least, such reasonable regulations established directly by legislative enactment as will
protect the public health and the public safety.”). “All property and property rights are
held subject to the fair exercise of the police power.” Mitchell v. City of Roswell, 1941-
NMSC-007, ¶ 11, 

, 

. “These powers must, of course, be
delegated or enforced consistent with other constitutional requirements.” Reeb, 2021-
NMSC-006, ¶ 14; see Romero, 

 (depicting the century-long
history of delegation of the police power to the executive branch to respond to health
emergencies).

{22} Courts have refrained from defining with precision the limits on this broad power,
Thomas Cusack Co. v. City of Chicago, 

 (1917), beyond a
standard of reasonableness, Goldblatt v. Town of Hempstead, N.Y., 

(1962). The Goldblatt Court quoted Lawton v. Steele, 

 (1894), for the
“classic [and] . . . still valid” statement of the rule:

       To justify the state in . . . interposing its authority in behalf of the public, it
       must appear—First, that the interests of the public . . . require such
       interference; and, second, that the means are reasonably necessary for
       the accomplishment of the purpose, and not unduly oppressive upon
       individuals.

 (omissions in original) (internal quotation marks omitted)). However,
the U.S. Supreme Court “has often said that debatable questions as to reasonableness
are not for the courts but for the Legislature.” Goldblatt, 

 (internal
quotation marks omitted). Thus, “[i]t is the policy of the courts to uphold regulations
intended to protect the public health, unless it is plain that they have no real relation to
the object for which ostensibly they were enacted, and prima facie they are reasonable.”
Mitchell, 

, ¶ 13. In Mitchell, we upheld the decision of the city governing
board to prohibit the keeping of certain animals as “a nuisance [that] endangered the
public health,” despite “[t]he fact that [the] plaintiffs’ stable and lot were kept clean and
sanitary.” Id. ¶¶ 14-17 (“The ordinance was passed to take care of conditions that might,
or probably would, exist if not enacted.”). In Gomez v. City of Las Vegas, 1956-NMSC-
021, ¶¶ 17, 23, 

, 

, we said that “the action of the City must
stand” where we “entertain[ed] no shadow of doubt but that the [sanitation] ordinance in
question . . . [wa]s a [reasonable] police measure involving the health and welfare of all
members of the community.” Further, this Court has upheld the destruction of
contaminated grain as a reasonable exercise of the police power to protect the public
health. State v. 44 Gunny Sacks of Grain, 

, ¶ 9, 

, 

.

{23} Numerous cases affirm the principle that courts will intervene where plainly
apparent evidence shows an otherwise reasonable exercise of the police power is
“arbitrarily exercised.” Hadacheck, 

; see, e.g., Barber’s Super Mkts.,
Inc. v. City of Grants, 

, ¶ 7, 

, 

 (“If there is a
relationship between [a public health and safety] ordinance and its purpose, then unless
[the City’s] determination of the best method is so arbitrary and unreasonable as to be
equivalent to fraud it will not be set aside.”); Jacobson, 

; Reinman
v. City of Little Rock, 

 (1915); cf. Eccles v. Ditto, 

,
¶¶ 11-12, 

, 

 (“[I]f the court could judicially see that a [nuisance]
statute was a mere evasion, or was framed for the purpose of individual oppression, it
would be set aside as unconstitutional, but not otherwise.”). In Mitchell, we said that we
will uphold “the reasonableness of . . . public health regulations . . . unless it is plain and
palpable that there is no real or substantial relation between the [regulation] and its
object.” 

, ¶ 16, (citing Thomas Cusack Co., 

-31 (citing
Jacobson, 

)).

{24} Otherwise, a reasonable exercise of the police power comports with due process.
See State ex rel. N.M. Dry Cleaning Bd. v. Cauthen, 

, ¶ 8, 

,

 (If an exercise of the police power “bears a[] reasonable or valid relation
to the public safety, health or morals . . . , [then] our inquiry must end, the policy and
wisdom of legislation touching such matters being of purely legislative concern.”); Miller
v. Schoene, 

 (1928) (Where an exercise of the police power requires
a “choice [that] is unavoidable, we cannot say that its exercise, controlled by
considerations of social policy which are not unreasonable, involves any denial of due
process.”); see also Romero, 

 (providing modern cases that
affirm the deferential review of the holding of Jacobson, 

, applied to
Fourteenth Amendment claims regarding state action for the protection of public health).

2.     Authority for Constitutional Takings

{25} Article II, Section 20 of the New Mexico Constitution states that “[p]rivate property
shall not be taken or damaged for public use without just compensation.” In evaluating
claims under Article II, Section 20, “we turn to [both state and] federal cases for
guidance, since ‘[o]ur state Constitution provides similar protection’ to the Takings
Clause in Amendment V of the United States Constitution.” Primetime Hosp., Inc. v. City
of Albuquerque, 

, ¶ 19 n.1, 

, 

 (second
alteration in original) (quoting Bd. of Educ., Moriarty Mun. Sch. Dist. v. Thunder
Mountain Water Co., 

, 

, 

). While we
have not specifically stated the purpose of Article II, Section 20, the United States
Supreme Court has said that “the purpose of the Takings Clause . . . is to prevent the
government from forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.” Palazzolo v. Rhode Island, 

 (2001) (internal quotation marks and citation omitted).

{26} Takings jurisprudence distinguishes between physical takings and regulatory
takings. See, e.g., Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan. Agency, 

 (2002) (discussing the “longstanding distinction” between physical and
regulatory takings). Physical takings are categorically compensable and occur
“whenever the government acquires private property for a public purpose, whether the
acquisition is the result of a condemnation proceeding or a physical appropriation.” 

; see also Loretto v. Teleprompter Manhattan CATV Corp., 

(1982) (contrasting an “actual taking of possession and control” with a nontaking,
wartime, government order “to cease operations”). Regulatory takings may occur when
government regulation “prohibit[s] a property owner from making certain uses of her
private property.” Tahoe-Sierra, 

; see Moongate Water Co., Inc. v.
City of Las Cruces, 

, 

 (“A regulatory taking . . .
occurs when the government regulates the use of land, but does not condemn it, i.e.,
take title to the property.”).

{27} Regulatory takings jurisprudence began with Justice Holmes’s oft-cited
exposition in Pennsylvania Coal v. Mahon, 

 (1922), regarding the
relationship between the police power and the Takings Clause, arriving at the general
rule that “while property may be regulated to a certain extent, if regulation goes too far it
will be recognized as a taking.” “Nevertheless, our decision in Mahon offered little
insight into when, and under what circumstances, a given regulation would be seen as
going ‘too far’ for purposes of [just compensation].” Lucas v. S.C. Coastal Council, 

 (1992) (quoting Mahon, 

).

{28} Relevant jurisprudence since Mahon features disparate approaches regarding
compensability while “generally eschew[ing] any set formula for determining how far is
too far.” Lucas, 

 (internal quotation marks omitted) (quoting Penn Cent.
Transp. Co. v. City of New York, 

 (1978)). On the one hand, many
courts have recognized that regulation promoting “‘the health, safety, morals, or general
welfare’” is generally insulated from takings analysis and compensability. Lucas, 

 (quoting Penn Cent., 

); see Tahoe-Sierra, 

(quoting First Eng. Evangelical Lutheran Church of Glendale v. Los Angeles Cnty., 

 (1987) (recognizing that “‘denial of all use [may be] insulated as a part of
the State’s authority to enact safety regulations’”)). On the other hand, as we discuss
below, the United States Supreme Court in Lucas also articulated a categorical rule of
compensability: “Where the State seeks to sustain regulation that deprives land of all
economically beneficial use, we think it may resist compensation only if the logically
antecedent inquiry into the nature of the owner’s estate shows that the proscribed use
interests were not part of his title to begin with.” 

. Otherwise, courts
have “preferr[ed] to ‘engag[e] in . . . essentially ad hoc, factual inquiries.’” 

(second alteration and omission in original) (quoting Penn Cent., 

).

{29} Such fact-intensive inquiries follow the regulatory analysis adopted in Penn
Central (“Penn Central inquiries”), “designed to allow ‘careful examination and weighing
of all the relevant circumstances.’” Tahoe-Sierra, 

 (quoting Palazzolo,

 (O’Connor, J., concurring)). In a Penn Central inquiry, the factors for
determining a regulatory taking include “(1) the economic impact of the regulation on the
claimant; (2) the extent to which the regulation has interfered with distinct investmentbacked expectations; and (3) the character of the governmental action.” Murr v.
Wisconsin, 

 (2017) (citing Palazzolo, 

 (citing Penn
Cent., 

)).
{30} “[T]he nature of the State’s interest in [a challenged] regulation is a critical factor
in determining whether a taking has occurred, and thus whether compensation is
required.” Keystone, 

. For this principle, the Keystone Court cited
Mahon’s analysis that the Kohler Act, central to claims in Mahon, primarily served a
private interest, and neither addressed a public nuisance nor protected personal safety.

; see Mahon, 

. In Plymouth Coal Co. v. Pennsylvania,

 (1914), distinguished by Mahon, 

, the challenged statute
“dealt with ‘a requirement for the safety of employees invited into the mine, and secured
an average reciprocity of advantage that has been recognized as a justification of
various laws.’” Keystone, 

 (emphasis added) (quoting Mahon, 

). This example in Keystone impliedly contrasted the noncompensable public
purpose and interest in Plymouth Coal with the compensable private purpose and
interest in Mahon. See Keystone, 

.

{31} The Keystone Court cited “[m]any cases before and since” Mahon to show that
“the public interest in preventing activities similar to public nuisances is a substantial
one, which in many instances has not required compensation.” Keystone, 

. The Keystone Court cited Mugler v. Kansas, 

 (1887), for
the proposition that a “prohibition simply upon the use of property for purposes that are
declared, by valid legislation, to be injurious to the health, morals, or safety of the
community, cannot, in any just sense, be deemed a taking or appropriation of property.”
Keystone, 

; accord Penn Cent., 

 (Rehnquist, J.,
dissenting) (citing Mugler, et al. for the “nuisance exception to the taking guarantee”).
An exercise of the police power under this nuisance exception, “consistent[] with the
existence and safety of organized society,” cannot be “‘burdened with the condition that
the State must compensate such individual owners for pecuniary losses they may
sustain, by reason of their not being permitted, by a noxious use of their property, to
inflict injury upon the community.’” Keystone, 

 (quoting Mugler, 

).

{32} The Keystone Court cited the unanimous decision in Miller, 

,18 for
the proposition that a State’s strong interest in addressing a public nuisance made
“clear that the State’s exercise of its police power to prevent [an] impending danger was
justified, and did not require compensation.” Keystone, 

. In Miller, the
United States Supreme Court upheld the state entomologist’s order, in accordance with
Virginia’s Cedar Rust Act, to destroy infected ornamental red cedars for serving the
“preponderant public concern” of preventing the spread of a communicable plant
disease into nearby apple orchards. 

. In upholding the order, the
Miller Court concluded that there was no basis for compensation. 

.

{33} The foregoing cases demonstrate “[t]he Court’s hesitance to find a taking when
the State merely restrains uses of property that are tantamount to public nuisances.”
Keystone, 

. Five years after Keystone, the Lucas Court narrowed the
nuisance exception as it relates to noxious uses that may avoid compensation, as we

18The Keystone Court noted that the unanimity in Miller included Justice Holmes, five years after his
exposition on regulatory takings in Mahon. Keystone, 

.
discuss below. See Lucas, 

. That narrowing aside, the nuisance
principle underlying the foregoing cases bears directly on the issue before this Court:
that the police power, when properly exercised to protect the public good, both benefits
and burdens each of us, “as part of the burden of common citizenship.” 

 at 491
(quoting Kimball Laundry Co. v. United States, 

 (1949)).

       Long ago it was recognized that “all property in this country is held under
       the implied obligation that the owner’s use of it shall not be injurious to the
       community,” and the Takings Clause did not transform that principle to
       one that requires compensation whenever the State asserts its power to
       enforce it.

Keystone, 

 (citations omitted).

3.     Application of Authorities to the PHOs

{34} We apply the foregoing authorities to the issue before us. First, the threshold
consideration is whether the PHOs as an exercise of the State’s police power are
reasonably related to their stated purpose. See Mitchell, 

, ¶ 13.
Second, if that relationship is reasonable, then the purpose of the exercise may be
determinative of insulation from takings analysis, as argued by the State. See Lucas,

. If the PHOs’ purpose does not warrant such insulation, claims for just
compensation must be determined under fact-specific, case-intensive scrutiny, as
argued by the Real Parties. See Penn Cent., 

. Finally, regardless of the
purpose served, an otherwise proper regulatory exercise of the police power may be
found to violate the categorical rule of compensability articulated in Lucas. See Lucas,

. However, use restrictions that otherwise violate Lucas may inhere in
the affected property’s title under established principles of state property and nuisance
law. See 

. We address these considerations in turn, applying the
parties’ arguments as relevant.

a.     Reasonableness analysis

{35} Regulation under the police power that does not bear a reasonable relationship
to the object for which it was enacted will be “deemed . . . invalid.” See Jacobson, 

.

{36} We first observe that Reeb and Romero considered the underlying components
for this analysis: the PHOs themselves and the context of the public health emergency
that they address. See Reeb, 

; Romero, 2021-NMSC-
009, ¶¶ 2-7, 24-35. In both cases, the State’s “‘inherent constitutional police powers’”
were foundational to the authorities under scrutiny. Reeb, 

 (quoting
N.M. Dep’t of Health, Public Health Order Limiting Mass Gatherings and Implementing
Other Restrictions Due to COVID-19, supra note 11, at 1-2 (Mar. 16, 2020)); Romero,

 (same). Any infirmity in the exercise of those powers would be
material to our analysis, and our rulings in those cases impliedly found no such infirmity.
Yet because circumstances change, so too does the necessary showing for a
conclusion of reasonableness. However, we note that these prior cases have engaged
in relevant judicial inquiry regarding earlier stages of the public health emergency. Thus,
the notice and inquiry of the previous cases are informative but not dispositive.

{37} The Real Parties do not contest the State’s authority to take public health
measures to address “an emergent crisis that justified to a certain extent drastic
measures.” Citing Jacobson, 

, the Real Parties also concede that
“COVID-19 is certainly a grave concern, just like smallpox was.” However, citing Mahon,

, they contend that the extent of “diminution” of property values raises
doubt as to whether the PHOs “go too far.” The Petitioners argue that the PHOs’
restrictions on mass gatherings and business operations are reasonable exercises of
the police power that necessarily “seek to limit the spread of COVID-19 by reducing the
number of people in particular spaces and limiting person-to-person interaction and
non-essential outings.”

{38} Considering all available facts before the Court, including legislative facts, we
agree with Petitioners. Applying the first prong of the rule for reasonableness in Lawton,
it is reasonable to conclude that the COVID-19 crisis “require[s] such interference” as
the PHOs’ restrictions provide.19 See Lawton, 

. Given the contagious
nature of the disease and considering current information, including the promise of
vaccines and the concerns of variants, the PHOs’ efforts to reduce the spread of the
disease continue to be reasonably related to the public health emergency. Applying the
second prong, the “means” of the PHOs’ restrictions “are reasonably necessary for the
accomplishment of” reducing the transmission of the disease. 

 Occupancy limits and
closure of certain categories of businesses, while certainly harsh in their economic
effects, are directly tied to the reasonable purpose of limiting the public’s exposure to
the potentially life-threatening and communicable disease, and thus can be deemed
“reasonably necessary.”

{39} Accordingly, we find the PHOs to be a reasonable exercise of the police power to
protect the public health.

{40} The Real Parties also argue that “whether or not the [PHOs] are arbitrary and
capricious is a fact specific inquiry that requires looking at the data relied upon by the
government to see if it supports a rational speculation or instead results in an irrational
speculation.” They invite the Court to apply its test announced in State ex rel. State
Highway Dep’t v. Kistler-Collister Co., 

, 

, 

, for expenses or loss of business occasioned by the government’s road
construction, a test that includes consideration of whether the government was
“unreasonable, arbitrary or capricious.” They argue this test is suitable since both the

19Miller recognized that when a state is “under the necessity of making a choice” between injuries,
        [i]t would have been none the less a choice if . . . the state, by doing nothing, had
        permitted serious injury . . . to go on unchecked. When forced to such a choice the state
        does not exceed its constitutional powers by deciding upon the destruction of one class
        of property in order to save another which, in the judgment of the legislature, is of greater
        value to the public.

.
PHOs’ restrictions here and the road construction considered in Kistler-Collister involve
“loss of access of the public to . . . businesses.” See id. ¶¶ 20-22.

{41} We decline the invitation. The foregoing authorities on the police power and
constitutional takings provide ample consideration of the issues attendant in matters of
a public health emergency, and we do not apply Kistler-Collister in that context. While
the conditions of interference with access to business bear some relationship to the
PHOs’ occupancy limitations and closures, the differences make the comparison
inapposite. The circumstances of a public health emergency merit special consideration
beyond that of the everyday exercise of the police power regarding street construction.
See id. ¶ 22 (“The inconvenience and damage which a property owner suffers from
these temporary obstructions are incident to city life and must be endured.” (internal
quotation marks and citation omitted)). Emergency does not remove concerns of
constitutionality from regulation, as we will discuss further, nor does it “create power.”
See Home Bldg. & Loan Ass’n v. Blaisdell, 

 (1934) (“Although an
emergency may not call into life a power which has never lived, nevertheless
emergency may afford a reason for the exertion of a living power already enjoyed.”
(internal quotation marks and citation omitted)). However, the weight and urgency of the
government’s decisions in a public health crisis warrant the greater consideration
demonstrated in the foregoing authorities on the police power and constitutional takings.
See, e.g., Reeb, 

 (quoting Srader v. Pecos Constr. Co., 1963-
NMSC-010, ¶ 12, 

, 

 (“‘[O]rdinances enacted under the police
power . . . for the protection of the public health and safety . . . should be liberally
construed.’”) (second omission in original)); Section 12-10A-3(G) (defining a 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”); Jacobson, 

(recognizing the “acknowledged power of a local community to protect itself against an
epidemic threatening the safety of all”). Without more, we will not change our
jurisprudence to equate a public health emergency with street construction.

{42} Regarding claims that the PHOs are arbitrary or capricious, the foregoing
authorities on the police power and constitutional takings also stand for the proposition
that judicial inquiry into whether an exercise of the police power “to protect the public
health . . . has no real or substantial relation to [its stated] objects” is never foreclosed.
Jacobson, 

. However, the Real Parties bear the burden in this or any
other such proceeding to show plain and palpable evidence thereof. Future parties
should take into account that we have now thrice found that the State has broad powers
to act in the face of grave threats such as COVID-19. See Reeb, 

; Romero, 

. At this point plaintiffs bear a heavy burden to
produce evidence—or at least make offers of proof—sufficient to raise questions of
material fact as to whether the State’s actions are objectively improper or arbitrary and
capricious as a matter of public health science. See, e.g., Jacobson, 

(recognizing that “an acknowledged power of a . . . community to protect itself against
an epidemic threatening the safety of all might be exercised” in a “mode . . . not justified
by the necessities of the case”); Romero, 

 (citing Jacobson,


) (concluding that the affidavit of the Real Parties’ proponent-expert
was not sufficient to create a question of fact requiring a trial on the merits). Otherwise,
we will uphold the reasonableness of the exercise.

{43} In Romero, we specifically addressed whether the July 13, 2020, PHO’s
temporary ban on indoor dining was arbitrary and capricious. 

. The real parties in Romero challenged whether the ban justifiably singled out
indoor dining and whether the ban was the rational product of an administrative
“‘winnowing and sifting process.’” Id. ¶ 36. The real parties in Romero also asserted that
such an inquiry “is fact-dependent and requires review of the whole record,” thus
warranting remand for an evidentiary hearing. Id. We noted “that ‘where there is room
for two opinions, the action is not arbitrary and capricious even though one may believe
an erroneous conclusion has been reached.’” Id. ¶ 38 (brackets omitted) (quoting Old
Abe Co. v. N.M. Mining Comm’n, 

, ¶ 10, 

, 

).
Sufficient evidence was presented to the Court in Romero to show a real and
substantial relation between the specific order’s temporary prohibition and the object of
controlling and suppressing the spread of COVID-19. Id. ¶¶ 41, 43. We concluded,
therefore, that the real parties’ criticisms would not suffice to meet their burden to refute
the sufficiency even if bolstered by further evidentiary development. Id. ¶ 43. “This Court
may not second-guess the wisdom or efficacy of the . . . Order merely because
reasonable minds may differ about the best approach to suppressing community
transmission of COVID-19.” Id.

{44} For the foregoing reasons, the Real Parties’ arguments do not avail them. We
hold that the current PHOs are a reasonable exercise of the police power to protect the
public health.

b.     Insulation analysis

{45} Reasonable regulation under the police power may be insulated from just
compensation claims depending on the purpose served by the regulation. Lucas, 

. If the regulation is not so insulated, then a Penn Central inquiry is
applied. Lingle v. Chevron U.S.A. Inc., 

 (2005).

{46} The Real Parties do not contest that the purpose underlying the PHOs is to
protect the public health. They nonetheless argue that a fact-specific Penn Central
inquiry should not be foreclosed for any of the plaintiffs in the underlying pending cases.
The Real Parties also argue that this Court should neither apply a “diminished, overly
deferential, level of constitutional review” nor “simply ratify decisions reached under
different circumstances” in order to justify a denial of compensation. The Real Parties
cite Calvary Chapel Dayton Valley v. Sisolak, 

 (2020) (mem.)
(Alito, J., dissenting), for the proposition that “as States have time to craft policies in
light of [increasing medical and scientific] evidence, courts should expect policies that
more carefully account for constitutional rights.” Petitioners argue that valid exercises of
the police power to protect the public health cannot support a takings claim and that
Penn Central is inapposite. The Real Parties’ arguments fail for two reasons.
{47} First, as discussed above,20 a reasonable use regulation under the police power
to prevent injury to the health of the community “‘cannot . . . be deemed a taking.’”
Keystone, 

 (quoting Mugler, 

). This nuisance
exception occurs when the government “prevent[s] a property owner from using his
property to injure others without having to compensate the owner for the value of the
forbidden use.” Penn Cent., 

 (Rehnquist, J., dissenting).21

        “Such legislation does not disturb the owner in the control or use of his
        property for lawful purposes, nor restrict his right to dispose of it, but is
        only a declaration by the State that its use by any one, for certain
        forbidden purposes, is prejudicial to the public interests.”

 (quoting Mugler, 

). Since “there is no ‘taking’” where this
exception applies, 

 the PHOs, as reasonable use regulation to prevent injury to the
public health, are insulated from further takings analysis.22 Thus, the Real Parties’
arguments for Penn Central inquiries below cannot avail them at this time.23

{48} Second, the presumably temporary nature of the PHOs’ restrictions is also
relevant. While the COVID-19 crisis may seem interminable, the Real Parties do not
advance an argument that the public health emergency and its attendant restrictions are
permanent in nature. As informed by the parties’ briefing and the legislative facts herein,
we conclude that the current state of affairs does not require us to consider
permanence.

{49} In a case with facts similar to ours, the Pennsylvania Supreme Court concluded
that a regulatory taking had not been shown, based on the temporary nature of COVID-
19-related use restrictions combined with their public health and safety purpose. Friends
of Danny DeVito v. Wolf, 

, 895-96 (Pa. 2020), cert. denied, 

20See discussion of Keystone, paragraphs 31-33 supra.
21To distinguish the regulation in Penn Central as a compensable taking, Justice Rehnquist first
examined “two exceptions where the destruction of property does not constitute a taking,” the first of
which was the nuisance exception. 

. Though in dissent, we cite his recitation as it
reflects precedent.
22Also relevant to the PHOs, the dissent examined another takings “exception[] where the destruction of
property does not constitute a taking,” Penn Cent., 

 (Rehnquist, J., dissenting), which may
be termed the broad applicability exception. This exception applies “[e]ven where the government
prohibits a noninjurious use . . . if the prohibition applies over a broad cross section of land and thereby
‘secure[s] an average reciprocity of advantage.’” 

 (second alteration in original) (quoting Mahon,

). As in zoning, such use restrictions “at times reduce[] individual property values, [but] the
burden is shared relatively evenly and it is reasonable to conclude that on the whole an individual who is
harmed by one aspect of the [restriction] will be benefited by another.” 

 Under this theory, the PHOs
benefit as well as burden those harmed by their broad applicability.
23We note that our cases have stated that the regulatory takings test in New Mexico for claims under
Article II, Section 20 is the Temple Baptist Church test. See, e.g., Premier Trust of Nevada, Inc. v. City of
Albuquerque, 

, 

 (quoting Temple Baptist Church, Inc. v. City of
Albuquerque, 

, ¶ 27, 

, 

); see also City of Mesquite v. Aladdin’s
Castle, Inc., 

 (1982) (“[A] state court is entirely free to read its own State’s constitution
more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this
Court in favor of a different analysis of its corresponding constitutional guarantee.”).
(2020) (citing Tahoe-Sierra, 

 (affirming the determination that “no
. . . taking had occurred” where regulations had only a temporary impact on petitioners’
fee interest)) (quoting Nat’l Amusements Inc. v. Borough of Palmyra, 

(3d Cir. 2013) (holding that the government’s “‘emergency action to temporarily close
the Market [to abate the danger posed by unexploded artillery shells] . . . constituted an
exercise of its police power that did not require just compensation’”)). The Danny DeVito
Court stated that “the public health rationale for imposing the restrictions . . . to
suppress the spread of the virus throughout the [state] is a stop-gap measure and, by
definition, temporary.” 227 A.3d at 896. In contrast, we highlight that both Mahon and
Lucas, oft-cited regulatory takings cases, were predicated on the permanent nature of
the property deprivations at hand. See Mahon, 

 (stating the Kohler Act
“has very nearly the same effect for constitutional purposes as appropriating or
destroying [the property right]”); Lucas, 

 (“[A]s the Act then read, the
taking was unconditional and permanent.”).

{50} To be clear, we agree with the Real Parties that courts cannot simply ratify the
decisions of the coordinate branches of government. As we have already discussed, it
is the duty of the judiciary to “give effect to the Constitution” by exercising judicial review
of legislative and executive actions that are “beyond all question, . . . plain, palpable
invasion[s] of rights secured by the fundamental law.” Jacobson, 

. Even
during a public health emergency, the judiciary cannot write a blank check to the
executive branch or legislative branch. The checks on power herein are critical to the
judiciary’s role in scrutinizing exercises of the police power, and, in this case, they must
incorporate developments in medical and scientific evidence in relation to the State’s
exercised policies. It is in this light that we have taken judicial notice of changes over
time regarding the PHOs and the circumstances of the public health emergency. Our
reasonableness conclusion herein incorporates those changed realities.

{51} However, the only question for this stage of analysis is whether the uncontested
public health purpose of the PHOs insulates those orders against takings analysis. As
we have established, the answer is “yes.”

c.     Lucas analysis

{52} As referred to above, regulation, regardless of the purpose served, may support
a claim for just compensation if it violates the categorical rule in Lucas that a taking
occurs where an owner loses all economically beneficial use of a property. Lingle, 

. However, use restrictions that otherwise violate this categorical rule may
inhere in the property’s title under established principles of state property and nuisance
law, Lucas, 

, thereby constituting “regulatory deprivations that do not
require compensation,” 

.

{53} The Real Parties argue under Lucas only that too expansive an application of the
police power would create “essentially a limitless exception” in contravention of the
categorical rule. Petitioners cite Tahoe-Sierra, 

, to argue that the PHOs
are partial, temporary use restrictions that cannot meet the Lucas standard for
“regulation [that] permanently deprives property of all value.”
{54} The facial question before us requires that we contemplate what allegations
against the PHOs could support a claim for just compensation under Article II, Section
20. The Lucas Court expressly considered “Mahon’s affirmation of limits to the
noncompensable exercise of the police power,” 

, in announcing its
categorical rule, concluding that “regulations that prohibit all economically beneficial use
of land” are compensable, 

, “no matter how weighty the asserted ‘public
interests’ involved,” 

. Therefore, a claim against the PHOs alleging total
deprivation of use could survive a motion to dismiss, despite the unlikeliness of proving
permanent deprivation against temporary restrictions.

{55} However, as we have discussed, the Lucas Court expressly identified an
exception for use prohibitions that inhere in the title of property under background state
law principles of both public and private nuisance. See 

. The Lucas Court
analogized this public nuisance exception to the corporate owner of a nuclear power
generating plant being directed by the State to remove all improvements upon discovery
of an underlying earthquake fault. 

 “Such regulatory action may well have the effect of
eliminating the land’s only economically productive use, but it does not proscribe a
productive use that was previously permissible under relevant property and nuisance
principles.” 

. Thus, Article II, Section 20 does not require compensation
“when an owner is barred from putting land to a use that is proscribed by [our relevant]
existing rules or understandings.” 

 (internal quotation marks and citation
omitted).

{56} New Mexico’s background principles of public nuisance law clearly affirm the
power of the State to prevent injurious use applicable to the PHOs. See generally State
ex rel. Marron v. Compere, 

, ¶ 10, 

, 

(acknowledging as well established “that injunctive relief may be employed to protect
the public health, morals, safety and welfare from irreparable injury by a public
nuisance”); State ex rel. Vill. of Los Ranchos v. City of Albuquerque, 

, ¶
52, 

, 

 (describing a public nuisance as an “unreasonable
interference with a right common to the general public” that may affect “any number of
citizens” insofar “as the nuisance will interfere with those who come in contact with it in
the exercise of a public right or [insofar as] it otherwise affects the interests of the
community at large” (internal quotation marks and citation omitted)). Many cases
support the proposition that New Mexico’s existing rules and understandings regarding
public nuisance principles include the government’s authority to proscribe uses injurious
to the public generally. E.g., Gomez, 

, ¶ 20 (acknowledging that “the
removal of . . . noxious and unwholesome matter . . . tends directly to promote the
public health, comfort, and welfare” (internal quotation marks and citation omitted));
Town of Gallup v. Constant, 

, ¶ 21, 

, 

(recognizing “[t]he right of the state, or its governmental agencies, within reasonable
limits to thus declare a certain thing, or a certain use of property, a public nuisance, in
the interest of the public safety and welfare”); Colonias Dev. Council v. Rhino Envtl.
Servs., 

, 

, 

 (discussing the
relationship of public nuisance to the public health under the Solid Waste Act).
{57} Based on our clearly established background principles of state nuisance law,
the public nuisance exception to the categorical rule in Lucas would apply to a claim
against the PHOs alleging total deprivation of all beneficial use.

{58} For the foregoing reasons, a Lucas claim against the PHOs cannot avail the Real
Parties.

d.     Conclusion

{59} We conclude that the use restrictions under the PHOs as currently constituted
cannot support a claim for just compensation under Article II, Section 20.

D.     Statutory Claims for Just Compensation Against the PHOs

{60} We next address whether the PHOs can support a claim for just compensation
under Section 12-10A-15(A), the “compensation” provision of the PHERA. Section 12-
10A-2 states the purposes of the PHERA:

       A.      provide the state of New Mexico with the ability to manage public
       health emergencies in a manner that protects civil rights and the liberties
       of individual persons;

       B.     prepare for a public health emergency; and

       C.     provide access to appropriate care, if needed, for an indefinite
       number of infected, exposed or endangered people in the event of a public
       health emergency.

The compensation provision states in its entirety:

              The state shall pay just compensation to the owner of health care
       supplies, a health facility or any other property that is lawfully taken or
       appropriated by the secretary of health, the secretary of public safety or
       the director for temporary or permanent use during a public health
       emergency. The amount of compensation due shall be calculated in the
       same manner as compensation due for taking of property pursuant to
       nonemergency eminent domain procedures, as provided by the Eminent
       Domain Code; provided that the amount of compensation calculated shall
       include lost revenues and expenses incurred due to the taking or
       appropriating of property, including a health facility.

Section 12-10A-15A (emphasis added). At issue is the legislative meaning of “any other
property.”

{61} Petitioners argue that the rules of statutory construction direct an interpretation of
the compensation provision that limits “other property” to “property taken by the State
and used to provide health care pursuant to the emergency powers in Section 12-10A-
6.” Applying our construction rule of ejusdem generis, Petitioners argue that the scope
of “other property” as a general term was intended by the Legislature to be bounded by
the nature of its preceding specific terms: “health care supplies” and “health facility.”
Petitioners argue that this interpretation serves the purpose of the PHERA: “the
protection of public health during an emergency.” Reeb, 

.
Petitioners also argue that legislative intent does not abide in a broad interpretation of
the compensation provision that would result in “potentially catastrophic liability” for
governmental actions that are specifically enumerated in the statute. Finally, Petitioners
argue that Section 12-10A-15(B) requires claimants to exhaust available administrative
remedies through the Attorney General before seeking judicial relief under Section 12-
10A-15(A).

{62} The Real Parties argue that this Court should construe the compensation
provision broadly to correspond with our interpretation in Reeb of the PHERA’s penalty
provision. The Real Parties cite our statement that such a broad “interpretation is
consistent with the liberal construction given to statutes enacted for the protection of
public health during an emergency.” Reeb, 

 (citing Srader, 1963-
NMSC-010, ¶ 12). They argue that a broad reading of the compensation provision
would harmonize with our reading of the statute as a whole, thus “facilitat[ing] [the
PHERA’s] operation and the achievement of [its] goals.” The Real Parties also argue
that Petitioners’ narrow reading under ejusdem generis “would potentially yield an
absurd result” in precluding the State from taking or appropriating potentially necessary
property outside the statutory definitions of health care supplies and health facility, e.g.,
a cold storage facility or refrigerated truck. Finally, the Real Parties allege that
administrative process as specified under Section 12-10A-15(B) is “[c]learly [f]utile” as
“it is inarguable that [the] Attorney General has not already made his preliminary
determination.”

{63} We determine that the Legislature intended for “any other property” to be a
functional catch-all limited by the related use of “health care supplies” and “health
facility.” Our determination is based in application of our statutory construction rules,
analysis of the PHERA’s obvious spirit or reason, and weighing the PHERA’s purposes
and consequences. We also determine that claimants under Section 12-10A-15(A) must
first exhaust administrative remedies under Section 12-10A-15(B).

1.     Rules of statutory construction direct an interpretation of “any other
       property” that is limited by the series “health care supplies” and “health
       facility”

{64} Ejusdem generis is both a common law rule of construction, see State v. Off. of
the Pub. Def. ex rel. Muqqddin, 

, 

 (defining and
applying ejusdem generis), and a statutory rule under Section 12-2A-20(A) of our
Uniform Statute and Rule Construction Act, NMSA 1978, Sections 12-2A-1 to 12-2A-20
(1997). Section 12-2A-20(A) directs that

       (1)   the meaning of a word or phrase may be limited by the series of
       words or phrases of which it is a part; and
       (2)    the meaning of a general word or phrase following two or more
       specific words or phrases may be limited to the category established by
       the specific words or phrases.

We presume that the Legislature knew of the existence of Section 12-2A-20(A) when
enacting Section 12-10A-15 in 2003. See State v. Marquez, 

, 

, 

 (“When the Legislature enacts a statute, we presume that it is
aware of existing statutes.”); accord. Inc. County of Los Alamos v. Johnson, 1989-
NMSC-045, ¶ 4, 

, 

 (“We presume that the [L]egislature is
well informed as to existing statutory and common law . . . when it enacts a new
statute.”).

{65} Applying Section 12-2A-20(A) to the compensation provision, the meaning of
“any other property” may be limited by the series or to the category established by
“health care supplies” and “health facility,” both of which are statutorily defined. See §
12-10A-3(D)-(E). Health care supplies are defined as

       medication, durable medical equipment, instruments, linens or any other
       material that the state may need to use in a public health emergency,
       including supplies for preparedness, mitigation and recovery.

Section 12-10A-3(D) (emphasis added). Health facility is defined as

       (1)    a facility licensed by the state pursuant to the provisions of the
       Public Health Act;

       (2)   a nonfederal facility or building, whether public or private, for-profit
       or nonprofit, that is used, operated or designed to provide health services,
       medical treatment, nursing services, rehabilitative services or preventive
       care;

       (3)   a federal facility, when the appropriate federal entity provides its
       consent; or

       (4)     the following properties when they are used for, or in connection
       with, health-related activities:

              (a)    laboratories;

              (b)    research facilities;

              (c)    pharmacies;

              (d)    laundry facilities;

              (e)    health personnel training and lodging facilities;
                (f)      patient, guest and health personnel food service facilities;
        and

               (g)   offices or office buildings used by persons engaged in health
        care professions or services.

Section 12-10A-3(E) (emphasis added). We note that both statutory definitions include
their own general catch-all terms, emphasized in this paragraph, that allow flexible
application to meet the purposes of the PHERA under Section 12-10A-2.

{66} Applying ejusdem generis to the foregoing statutory definitions, we conclude that
“any other property” within Section 12-10A-15(A) was legislatively intended to be a
catch-all limited within the category of physical property that is directly taken or
appropriated by the State and used for, or in connection with, a public health
emergency.

{67} The Real Parties’ arguments regarding rules of construction do not overcome this
reading for two reasons. First, their broad reading of “any other property” would include
purely financial losses incurred by businesses impacted by the PHOs’ occupancy
limitations and closures. Such an interpretation would include “any other property”
almost without limitation and would thus render “health care supplies” and “health
facility” surplusage or superfluous. See State v. Javier M., 

, 

, 

 (“[A] statute must be construed so that no part of the statute is
rendered surplusage or superfluous.” (internal quotation marks and citation omitted)).

{68} Second, the Real Parties assert that a narrow reading under ejusdem generis
“would potentially yield an absurd result” by precluding the State from taking or
appropriating property that is necessary to combat the public health crisis but is also
outside the statutory definitions above. The Real Parties’ own illustration refutes their
argument, as appropriation of a refrigerated truck, or even an ice cream truck,24 to
transport vaccines could plausibly qualify under such a narrow reading. Under the
hypothetical, the underlying purpose of the appropriation would presumably qualify for
“use in a public health emergency,” and the vehicle could plausibly be read within the
parameters of 12-10A-3(D). Without ruling on a hypothetical, we nonetheless find the
Real Parties’ argument unpersuasive.

{69} Our narrow reading above is consistent with legislative intent to provide flexible
authority without expanding the definition of “any other property” beyond its series of
specific words. See § 12-10A-15(A); § 12-2A-20(A).




24This is in fact a notion that has entered the national conversation. See, e.g.,
https://www.youtube.com/watch?v=-UYcmOdo5yE (last visited May 3, 2021).
2.     Analysis of the PHERA’s obvious spirit or reason, as well as its
       consequences, supports a narrow interpretation of the compensation
       provision

{70} The Real Parties’ broad interpretation of “any other property” reflects an
adherence to the literal use of the words that (a) contradicts the obvious spirit or reason
of the PHERA and (b) would lead to absurdity.

a.     Under the PHERA’s obvious spirit or reason, the compensation provision
       as a due process protection does not warrant a broad application

{71} The PHERA’s obvious spirit or reason is indicated by its statement of purposes in
Section 12-10A-2, to prepare and provide for a public health emergency while also
protecting civil rights and the liberties of individual persons.

{72} In Reeb, we concluded that the penalty provision at issue was broadly applicable
under both the special powers of the Secretary of Health and the general powers of her
office, reflecting “the legislative intent . . . to permit enforcement of all measures lawfully
taken under the PHERA.” 

. This broad interpretation
served “[t]he spirit and intent of the Act.” Id. ¶ 35. In contrast, the compensation
provision is confined within the PHERA, as one of the Act’s explicit due process
protections directly applicable to its “most intrusive measures (e.g. isolation, quarantine,
and seizure of goods or property).” Id. ¶ 32. As an explicit due process protection, the
provision of “just compensation [due] to the owner” under Section 12-10A-15(A) serves
the obvious spirit or reason of the PHERA by ensuring the Act’s constitutionality even
when the government takes or appropriates property under the Act. See id. ¶ 32.

{73} Thus, the penalty provision and the compensation provision serve different
functions with different scopes under the PHERA. The compensation provision is a
discrete and confined component of the Act predicated on the PHERA’s special powers,
whereas the penalty provision is applicable under both the general and special powers
to ensure that the PHERA “shall not be construed to limit specific enforcement powers
enumerated” therein. Section 12-10A-19(B). “The PHERA conveys broad and
concurrent authority to coordinate a response to a public health emergency, and its
penalty provision is explicitly ‘in addition to’ remedies available under other statutes or
the common law.” Reeb, 

 (quoting § 12-10A-19(B), (C)).

{74} For these reasons, the Real Parties’ argument does not avail them of a
compensation provision that warrants the same liberal construction as the penalty
provision.

b.     Weighing the consequences, a broad interpretation of the compensation
       provision would result in absurdity

{75} As we discussed above, the Real Parties’ broad construction would render “any
other property” almost without limitation. Such a reading reflects an adherence to the
literal use of the words in question that would lead to an absurdity: unlimited liability
authorized by the Legislature. Because a public health emergency can affect the entire
population, anyone and everyone could be a potential claimant under the Real Parties’
interpretation, even under far less restrictive measures than the PHOs. It is simply not
credible that the Legislature in enacting the PHERA intended for such a potential raid on
the public wealth while simultaneously granting broad powers to protect the public
health. Such an absurdity weighs heavily against the broad construction of Section 12-
10A-15 proposed by the Real Parties. See § 12-2A-18(A)(3) (“A statute or rule is
construed, if possible, to . . . avoid an unconstitutional, absurd or unachievable result.”).

{76} Applying our foregoing interpretation of “any other property,” the business
restrictions in the PHOs to date, which do not include physical seizure of property,
cannot support a claim for just compensation under Section 12-10A-15.

3.     Claimants under Section 12-10A-15(A) must exhaust administrative
       remedies under Section 12-10A-15(B)

{77} Petitioners argue under Estate of McElveny v. State ex rel. Dep’t of Tax’n &
Revenue, 

, 

, that “[t]he failure to exhaust
administrative remedies under Section 12-10A-15(B) . . . forecloses any right to judicial
relief under Section 12-10A-15(A).” We agree.

{78} The Real Parties cite no legal authority in their briefing on this issue, so we do
not consider their arguments. Wilburn v. Stewart, 

, ¶ 18, 

,

 (“Issues raised in appellate briefs that are unsupported by cited authority
will not be reviewed by us on appeal.”); Adoption of Doe v. Lee, 

, ¶ 2,

, 

 (“We assume where arguments in briefs are unsupported
by cited authority, counsel after diligent search, was unable to find any supporting
authority. We therefore will not do this research for counsel.”).

{79} Nevertheless, we provide the following guidance for the trial courts under our writ
of superintending control. Section 12-10A-15(B) prescribes the administrative process
for claimants under Section 12-10A-15(A). The statute is unambiguous that such
process shall initiate through a “preliminary determination” by the Attorney General of
“whether or not compensation is due,” which the “owner of health care supplies, a
health facility or any other property” may appeal. Section 12-10A-15(B). Were they
entitled to compensation, we cannot excuse the Real Parties from their statutory duty to
exhaust administrative remedies. McElveny, 

 (“If a statute
explicitly requires a party to exhaust particular remedies as a prerequisite to judicial
review . . . the statutorily mandated exhaustion requirements are jurisdictional.”
(omission in original) (internal quotation marks and citation omitted)).

III.   CONCLUSION

{80} For the foregoing reasons, we grant a writ of superintending control ordering the
district courts to comply with the holding of this opinion, namely, that the PHOs to date
cannot support a claim for just compensation under either Article II, Section 20 of the
New Mexico Constitution or Section 12-10A-15 of the PHERA. In addition, claimants
under Section 12-10A-15(A) must exhaust administrative remedies under Section 12-
10A-15(B), (C) before seeking judicial relief. We hereby vacate our previously issued
stay, and therefore the underlying litigation may proceed, consistent with this opinion,
before the district courts.

{81}   IT IS SO ORDERED.

C. SHANNON BACON, Justice

WE CONCUR:

MICHAEL E. VIGIL, Chief Justice

BARBARA J. VIGIL, Justice

DAVID K. THOMSON, Justice

MICHAEL D. BUSTAMANTE, Judge, Retired
Sitting by designation