McKinley v. Grisham

PAMELA S. McKINLEY, as Parent and Guardian of G.M., a minor child; MARGUERITE GARNER; VALERIE GEORGE; EVAN D. ROBERTS; SAUNDRA THOMPSON d/b/a Q SHOES; KRISTINE M. BLACKMAN and PHILLIP BLACKMAN d/b/a BLACKMAN TAEKWONDO ACADEMY, LLC; MESA DE PLATA LLC d/b/a JALISCO CAFE; SUSANA VASQUEZ d/b/a PET FOOD GONE WILD, INC.; TRISHA D. KEEFE; JILL M. INANNA; DAVID G. STEPUTIS, and JOHN OR JANE DOES 1-100, Plaintiffs, v. GOVERNOR MICHELLE LUJAN GRISHAM, In Her Official Capacity as well as Individually; PUBLIC HEALTH DIRECTOR KATHYLEEN KUNKEL; INTERIM DIRECTOR BILLY JIMENEZ, TRACE COLLINS, M.D., Secretary-Designate of NMDOH, and JANE and JOHN DOES 1-20, Defendants.

No. CV 20-01331 JHR/JFR

United States District Court, D. New Mexico

September 21, 2021

MEMORANDUM OPINION AND ORDER GRANTING MOTION TO INTERVENE IN PART

JERRY H. RITTER U.S. MAGISTRATE JUDGE.

THIS MATTER comes before the Court on proposed Intervenor Arthur Firstenberg's Motion to Intervene as of Right [Doc. 11] filed February 3, 2021. Firstenberg also filed a Proposed Complaint in Intervention accompanying the Motion. [Id., pp. 11-32]. District Judge Martha Vazquez referred this case to me “to conduct all proceedings and order the entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73” upon the joined parties' consent. [Doc. 21].^[1] Having thoroughly reviewed the Motion and the relevant law, the Court grants the Motion in part.

I. BACKGROUND

Twelve Plaintiffs on behalf of themselves and John or Jane Does 1-100 filed a complaint on December 21, 2020 [Doc. 1], and an amended complaint on December 31, 2020 [Doc. 4]. Defendants are various New Mexico government officials and Jane and John Does 1-20. [Id., p. 22]. Plaintiffs seek monetary injunctive and declaratory relief arising from Executive Orders and Public Health Orders issued by Defendants in response to the coronavirus disease, commonly referred to as “COVID-19.” [Id., pp. 103-120]. In Executive Order 2020-004, Defendant Governor Michelle Lujan Grisham proclaimed a public health emergency and ordered all cabinets, departments and agencies to comply with the directives in the Executive Order and instructions given by the Department of Health. See N.M. Exec. Order No. 2020-004 (March 11, 2020), https://www.governor.state.nm.us/wp-content/uploads/2020/03/Executive-Order-2020-004.pdf. Governor Grisham renewed Executive Order 2020-004 multiple times through October 15, 2021. See N.M. Exec. Order No. 2020-054 (September 15, 2021), https://www.governor.state.nm.us/wp-content/uploads/2021/09/Executive-Order-2021-054.pdf. In the most recent Public Health Order, the current acting New Mexico Department of Health Secretary orders “[u]nless a healthcare provider instructs otherwise, all individuals age 2 years and older shall wear a mask or multilayer cloth face covering in all indoor public settings except when eating or drinking.” N.M. Public Health Order (September 15, 2021), https://cv.nmhealth.org/wp-content/uploads/2021/09/091521-PHO-Masks.pdf. Department of Health Secretaries previously set out a “Red to Green” framework and limited operation capacities based on counties' specific COVID-19 case levels. See e.g., N.M. Public Health Order (May 14, 2021), https://cv.nmhealth.org/wp- content/uploads/2021/05/NCOV-PHO-20210514-.pdf. At the highest (“red”) level: “‘essential businesses' identified as a ‘retail space' may operate up to 25% of the maximum capacity of any outdoor or enclosed space on the premises” and “‘Recreational facilities' may operate up to 25% of the maximum capacity of any outdoor space on the premises but shall not permit patrons to enter any indoor portion of the facility except for the limited purpose of using the restroom or momentarily exiting/entering.” Id.

In this case, only Defendant Grisham and Defendant Secretary-Designate Tracie Collins have appeared before the Court. [Doc. 7]. They filed a motion to dismiss the case on January 26, 2021, which remains pending. [Doc. 8].

On February 3, 2021, Firstenberg filed a Motion to Intervene as of Right [Doc. 11], claiming he “has been harmed by the Executive Orders and Public Health Orders of Defendants ... that are the subject of this action and his interests are not adequately represented by the existing parties.” [Id., p. 1]. Firstenberg has a doctor's letter stating that a “severe, chronic sinus condition” prohibits him from wearing a mask. [Id., pp. 2, 5; Id., Exhibit (“Ex.”), A (p. 10)]. He alleges that, despite his doctor's letter, he has been physically and verbally assaulted by citizens and banned from the Santa Fe Farmers Market for not wearing a mask. [Doc. 11, pp. 2, 13-14]. He asserts that masks are not just ineffective but harmful to all who wear them. [Id., p. 2].

Firstenberg also claims economic injury by loss of access to public computers through which he was accustomed to run his business, [Doc. 11, p. 2], because “Defendants' Orders have shut down all libraries, government buildings, senior centers and other locations that have public computers.” [Id., pp. 4-5]. Firstenberg seeks seven forms of relief, some distinct and some the same as existing plaintiffs. [See id., pp. 24-32].

All existing parties oppose Firstenberg's Motion. [Doc. 11, p. 3]. Defendants filed a response on February 17, 2021 [Doc. 18], challenging Firstenberg's standing and positing that his injuries were caused by third parties and cannot be redressed in an action against Defendants. [Id., pp. 5-6]. Firstenberg replied to Defendants on March 2, 2021 asserting that Defendants' coercion of the public was the cause of the third parties' actions. [Doc. 24, pp. 2-3]. He says that an injunction against Defendants' orders and “requiring Defendants to tell the public the truth about masks” will redress his injuries. [Id., pp. 4-5]. Regarding loss of access to public computers, Firstenberg argues that “he is alleging that public WiFi computers are no longer available anywhere in Santa Fe, at any price.” [Id., p. 5] (emphasis in original). He adds that “contrary to the contention of Defendants, Santa Fe's Public Libraries and Senior Centers are divisions of City government and political subdivisions of this State and by the terms of Defendants' order they are required to comply with and enforce those orders.” [Id., p. 6].

Plaintiffs filed a response to Firstenberg's Motion on February 26, 2021 [Doc. 23], arguing that Firstenberg's state law claims will delay the case or cause other unspecified prejudice. [Id., pp. 3-4]. Plaintiffs also dispute whether Firstenberg has shown “how, without his intervention, this suit would impede his ability to protect his interest.” [Id., p. 2]. Plaintiffs cite a previous version of Rule 24 to argue application of res judicata. [Id., p. 3]. Firstenberg replied to Plaintiffs' arguments on March 2, 2021 [Doc. 25].

II. STANDING REQUIREMENT FOR INTERVENORS

Article III of the United States Constitution limits the jurisdiction of federal courts to “[c]ases” and “[c]ontrovers[ies].” U.S. Const. art. III, § 2. For intervenors, the Tenth Circuit previously had a “piggyback standing” rule whereby parties seeking to intervene under Rule 24(a) or (b) did not need to establish Article III standing so long as another party with constitutional standing on the same side as the intervenor remained in the case. Kane Cty., Utah v. United States, 928 F.3d 877, 886 (10th Cir. 2019) (citing San Juan Cty., Utah v. United States, 503 F.3d 1163, 1172 (10th Cir. 2007) (en banc)). In 2017, the Supreme Court held that an intervenor as of right must meet the requirements of Article III standing if the intervenor wished to pursue relief not requested by an existing party. Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S.Ct. 1645, 1648 (2017). The basis for this holding was that for each forms of relief sought, there must be a litigant with standing, whether that litigant joined the lawsuit as a plaintiff, a coplaintiff or an intervenor of right. Id. at 1651. The Town of Chester Court considered separate money judgments in separate names to be different forms of relief. Id. at 1651. The Tenth Circuit considers Town of Chester to be a modification to the “piggyback standing” rule applicable only when the intervenor demands distinct relief. See Kane Cty., 928 F.3d at 887; see also Sierra Club v. Entergy Arkansas LLC, 503 F.Supp.3d 821, 850 (E.D. Ark. 2020). To the extent that an intervenor seeks to pursue the same forms of relief, the “piggyback standing” rule still applies.

Firstenberg seeks relief that is both the same as and distinct from the demands of Plaintiffs. [See Doc. 11, pp. 24-32; Doc. 4, pp. 103-120]. Firstenberg and existing Plaintiffs are aligned in their demands for injunctions against the mask wearing mandates. [See Doc. 11, pp. 30, 32; Doc. 4, pp. 101-06]. Firstenberg, however, raises state law claims under the New Mexico Constitution and the New Mexico Human Right Act, [see Doc. 11, pp. 25-28, 31-32], claims not raised by existing Plaintiffs. [See Doc. 23, p. 3]. He also seeks monetary damages for himself. [See Doc. 11, pp. 30, 32]. To the extend Firstenberg seeks distinct relief, he must establish standing.

III. STANDING

Article III standing requires a litigant to show: (1) a concrete and particularized injury that is actual or imminent (“injury in fact”); (2) a sufficient causal connection between the injury and the challenged action; and (3) a likelihood that the injury will be redressed by a favorable ruling. Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157-58 (2014).

a. Injury in Fact

The purpose of the injury in fact requirement is to ensure that the litigant has a personal stake in the litigation; the mere presence of an unconstitutional statute on the books by itself does not establishing standing. See Driehaus ...