IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

S-1-SC-38252

NEW MEXICO LAW OFFICES

OF THE PUBLIC DEFENDER;

NEW MEXICO CRIMINAL

DEFENSE LAWYERS ASSOCIATION; and

AMERICAN CIVIL LIBERTIES

UNION OF NEW MEXICO,

Petitioners,

v.

STATE OF NEW MEXICO; MICHELLE

LUJAN GRISHAM, Governor, State of New

Mexico; ALISHA TAFOYA LUCERO, Secretary,

New Mexico Corrections Department; and MELANIE

MARTINEZ, Director, New Mexico Probation and

Parole,

Respondents,

NEW MEXICO DISTRICT ATTORNEYS

ASSOCIATION;

HECTOR BALDERAS,

NEW MEXICO ATTORNEY GENERAL,

Real Parties in Interest.

MOTION FOR LEAVE TO FILE REPLY

AND REPLY

FiledSupreme Court of New Mexico

4/30/2020 4:45 PMOffice of the Clerk

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MOTION FOR LEAVE TO FILE REPLY

Pursuant to Rule 12-504(C)(1) NMRA, Petitioners move this Court for leave

to file a reply to the responses filed April 23, 2020, and contemporaneously submit

the proposed reply. Petitioners ask this Court to find that good cause exists and

grant this motion for leave to file the attached reply for the limited purpose of

addressing three critical issues challenged in the responses. This motion is timely if

filed within seven days of the responses, or by April 30, 2020. As grounds for this

motion, Petitioners state:

1. Rule 12-504(C)(1) states: “A reply is not permitted without leave of

the Court, which may be granted on a showing of good cause. A motion seeking

leave to file a reply must be filed and served within seven (7) days after service of

a response and must include the proposed reply.”

2. The Petition alleges under both the Eighth Amendment to the United

States Constitution and Article II, Section 13 of the New Mexico Constitution that

(1) coronavirus presents a substantial risk of harm to inmates, and (2) the

Corrections Department’s corrective measures are insufficient to protect inmates

from that substantial risk of harm, which constitutes deliberate indifference. [Pet.

3-5]; see also [Pet. 14-17 (Factual Subsection B(2) (“Because of close quarters and

asymptomatic transmission, current precautions in New Mexico prisons are

insufficient.”))].

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3. The Petition further provides factual support for these allegations

based on “recent media coverage and institutional publications for ‘fact[s] that

[are] not subject to reasonable dispute because [they] … can be accurately and

readily determined from sources whose accuracy cannot reasonably be

questioned.’” [Pet. ii (quoting Rule 11-201(B) NMRA).]

4. However, due to the nature of the pleading and the need for extensive

factual development in the absence of district court proceedings, the Petition did

not expand upon its constitutional analysis beyond what was necessary to assert a

claim, nor did it anticipate and address Respondents’ counterarguments.

5. The Petition also asserted organizational standing based on (1)

statutory mandate (LOPD) and (2) the standing of their members (ACLU-NM and

NMCDLA). Admittedly, the Petition did so without analysis. [Pet. 6]

6. The existence of a cruel and unusual punishment claim is a

prerequisite for this Court’s exercise of jurisdiction over this Petition and its

authority to grant the requested relief. See [Pet. 2 (citing N.M. Const. art. VI, § 3)].

Standing is also necessary to invoke this Court’s authority to grant relief. See Bank

of New York v. Romero, 2014-NMSC-007, ¶ 15, 320 P.3d 1 (“This Court may

reach the issue of standing based on prudential concerns.”).

7. The Respondents assert a lack of original jurisdiction due to the lack

of a constitutional violation, a lack of authority to infringe on Executive powers

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(also due to the absence of a constitutional violation), and a lack of organizational

standing. [Gov. Resp. 12, 17, 19]; [NMCD Resp. 2-4]

8. In the absence of a briefing order, see Rule 12-504(C)(3) (noting the

Court may request briefs), Petitioners anticipated addressing Respondents’

counterarguments during oral argument. However, because the constitutional

issues of standing and deliberate indifference raised by Respondents require case

analysis not previously addressed, Petitioners believe that oral argument will not

present adequate opportunity to fully argue these two threshold issues.

9. Additionally, the Respondents mischaracterize the relief requested as

(1) ordering the Governor to exercise discretionary powers [Gov. Resp. 17]; or (2)

mass release of all inmates in the described categories without consideration of

public safety or individuals’ preparedness for reentry. [NMCD Resp. 11]. Neither

is accurate. Petitioners ask this Court to address a particular constitutional violation

by exercising its original jurisdiction to order NMCD to reduce prison populations

enough to make it possible for the remaining inmates to avoid close contact with

each other and therefore safeguard them from infection. Petitioners intend to

clarify the scope of their relief request in their reply.

10. Relying entirely on oral argument to respond to these critical issues

would detract from the Court’s ability to meaningfully evaluate the merits of the

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Petition and/or discuss the practicalities of granting relief under the time

constraints inherent to such a proceeding.

11. Undersigned counsel has contacted counsel for the Respondents and

NMDAA, the only Real Parties in Interest who filed a response. On behalf of the

Governor, Matt Garcia opposes this motion. On behalf of NMCD, Olga

Serafimova opposes this motion. On behalf of NMDAA, John Sugg does not

oppose this motion.

WHEREFORE, Petitioners ask this Court to find that good cause exists and

grant this motion for leave to file the attached reply for the limited purpose of

addressing matters challenged in the responses filed April 23, 2020.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................................................. ii

REPLY ...................................................................................................................... 1

I. Because Respondents’ corrective measures fail to prevent close contact

in inmate housing units and fail to accurately identify infected persons by

ignoring the existence of asymptomatic or contra-symptomatic infected

persons, the Respondents are acting with deliberate indifference to a

substantial risk of harm to and serious medical need of inmates

incarcerated in the New Mexico Corrections Department. .............................. 2

A. As a matter of medical reality, the policies in place are inadequate. .. 2

B. Because this medical information has been either acknowledged by

Respondents or is readily available and publicized nationally, the failure

to take actions that account for the facts on the ground constitutes

deliberate indifference to a substantial risk of serious harm and/or a

serious medical need. ........................................................................................ 6

C. Releasing inmates to reduce the incarcerated population enough to

allow the same protective measures available outside of prison is the only

remedy for the Eighth Amendment violation. ................................................ 9

II. Petitioners have standing to file this petition and request relief on

behalf of New Mexico’s prison population. ......................................................10

III. The relief requested tailors a traditional Eighth Amendment remedy

of release to the needs of this unprecedented pandemic to achieve

manageable inmate populations and protect the incarcerated from

infection... ............................................................................................................13

CONCLUSION .......................................................................................................14

ii

TABLE OF AUTHORITIES

New Mexico Cases

ACLU of New Mexico v. City of Albuquerque, 2008-NMSC-045, 144 N.M. 471 .....10

Bank of New York v. Romero, 2014-NMSC-007, 320 P.3d 1 .................................... 2

Forest Guardians v. Powell, 2001-NMCA-28, 130 N.M. 368 ..................................10

N.M. Gamefowl Ass'n v. State ex rel. King, 2009-NMCA-088, 146 N.M. 758 .......13

Prot. & Advocacy Sys. v. City of Albuquerque, 2008-NMCA-149, 145 N.M. 156 .11

Federal Cases

Ancata v. Prison Health Servs., Inc., 769 F.2d 700 (11th Cir. 1985) ........................ 8

Brown v. Plata, 563 U.S. 493 (2011) ...................................................................9, 14

Estelle v. Gamble, 429 U.S. 97 (1976) ..................................................................2, 8

Helling v. McKinney, 509 U.S. 25 (1993) ................................................................. 2

Hunt v. Uphoff, 199 F.3d 1220 (10th Cir. 1999) ....................................................... 7

Jones v. Muskegon Cnty., 625 F.3d 935 (6th Cir. 2010) ........................................... 8

Keith v. Koerner, 843 F.3d 833 (10th Cir. 2016).....................................................12

Langford v. Norris, 614 F.3d 445 (8th Cir. 2010) ..................................................... 6

Motto v. Corr. Med. Services, 2010 WL 4781123 (S.D.W. Va. Nov. 16, 2010) ...... 9

Oxendine v. Kaplan, 241 F.3d 1272 (10th Cir. 2001) ............................................... 9

Poore v. Glanz, 724 F. App’x 635 (10th Cir. 2018) ................................................12

Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) ........................................................ 7

Sealock v. Colorado, 218 F.3d 1205 (10th Cir. 2000) ............................................... 9

Tafoya v. Salazar, 516 F.3d 912 (10th Cir. 2008) ...................................................12

Wilson v. Williams, CASE NO. 4:20-cv-00794, Order (N.D. Ohio, April 22, 2020)

................................................................................................................................ 7

Constitutional Provisions

N.M. Const. art. VI, § 3 .......................................................................................1, 13

U.S. Const. amend. VIII ............................................................................................. 2

Other Authorities

CDC, Use of Cloth Face Coverings to Help Slow the Spread of COVID-19

(updated April 13, 2020 .......................................................................................... 8

iii

Safiya Richardson, MD, MPH, et al., Presenting Characteristics, Comorbidities,

and Outcomes Among 5700 Patients Hospitalized With COVID-19 in the New

York City Area, Journal of the American Medical Association (April 22, 2020) .. 5

Vera Institute of Justice, Guidance for Preventative Measures to Coronavirus for

Jails, Prisons, Immigration Detention Centers and Youth Facilities (Mar. 18,

2020) .....................................................................................................................10

News Sources

Andrew Naughtie, Coronavirus: US Doctors Demand Immediate Release of

Prisoners and Detainees to Avert Disaster, Independent (Mar. 9, 2020) ............10

Angie Jackson and Kristi Tanner, Coronavirus cases at Michigan prison surge as

widespread testing begins, Detroit Free Press (April 25, 2020) ............................ 4

David Wallace-Wells, We Still Don’t Know How the Coronavirus Is Killing Us,

NY Mag: Intelligencer (April 26, 2020) ................................................................ 5

Josiah Rich, et al., We Must Release Prisoners to Lessen the Spread of

Coronavirus, Washington Post (Mar. 17, 2020) .................................................... 9

Lenny Bernstein, et al., Coronavirus destroys lungs. But doctors are finding its

damage in kidneys, hearts and elsewhere, Washington Post (April 15, 2020) ...... 5

Marisa Demarco, et al., YNMG & COVID: Behind The Walls, KUNM (Mar. 30,

2020) ...................................................................................................................3, 8

Mike Gallagher, Nurse at Santa Rosa prison has COVID-19, ABQ Journal (April

24, 2020) ................................................................................................................. 3

Patrick Cooley and Jim Woods, More than 1,800 inmates at Marion Correctional

test positive for coronavirus, Columbus Dispatch (April 19, 2020) ...................... 3

Phaedra Haywood, Medical providers ask state to release inmates, Santa Fe New

Mexican (Mar. 30, 2020) ......................................................................................10

Tim Carpenter & Sherman Smith, Kansas coronavirus update: Lansing prison

locked down as all inmates get tested, Topeka Capital-Journal (April 30, 2020) . 4

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REPLY

The Respondents argue this Court lacks jurisdiction and/or authority to issue

its extraordinary writ. These arguments depend on this Court rejecting the

underlying claim that conditions in the New Mexico Corrections Department

(NMCD) during the coronavirus pandemic constitute cruel and unusual

punishment. [NMCD Resp. 2 (“This Court’s exercise of original jurisdiction under

Article VI, Section 3 – whether in the form of a writ of mandamus or habeas

corpus – requires an initial finding of a constitutional or other violation of law.”)];

[Gov. Resp. 1-2 (asserting no nondiscretionary legal duty subject to mandamus

and separation of powers)]. The responses appear to acknowledge that this Court

would have both jurisdiction and authority to grant the requested relief if it finds a

constitutional violation.

Additionally, the Governor’s response argues that Petitioner’s lack

organizational standing because the process of granting relief would involve

“participation of affected individuals.”

Because the responses fail to dispel the existence of a constitutional

violation, this Court has both jurisdiction to grant its writ and authority to order the

release of inmates in the Secretary’s custody. Furthermore, because Petitioners can

establish organizational standing on behalf of unnamed incarcerated individuals,

this Court should find prudential standing more than justified. See Bank of New

2

York v. Romero, 2014-NMSC-007, ¶ 15, 320 P.3d 1 (“This Court may reach the

issue of standing based on prudential concerns” regarding “the role of courts in a

democratic society.”) (quoting New Energy Economy, Inc. v. Shoobridge, 2010-

NMSC-049, ¶ 16, 149 N.M. 42).

I. Because Respondents’ corrective measures fail to prevent close contact

in inmate housing units and fail to accurately identify infected persons

by ignoring the existence of asymptomatic or contra-symptomatic

infected persons, the Respondents are acting with deliberate

indifference to a substantial risk of harm to and serious medical need

of inmates incarcerated in the New Mexico Corrections Department.

The risk of infection with a communicable disease is a cognizable claim

under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 33-34 (1993)

(incarcerated persons have a “clear and undisputed right” under the Eighth

Amendment not to be “expos[ed] … to serious, communicable disease.”); U.S.

Const. amend. VIII. It is also a violation when prison officials are deliberately

indifferent to a prisoner’s serious medical needs. Estelle v. Gamble, 429 U.S. 97,

104 (1976). Both types of claim are at issue in this case.

A. As a matter of medical reality, the policies in place are inadequate.

Because of conditions inherent to prison, the coronavirus pandemic places

prisoners and staff at grave risk of substantial harm from infection because, by the

Secretary’s own admission, the protective measures available to the unincarcerated

are not possible in a prison environment. Marisa Demarco, et al., YNMG &

3

COVID: Behind The Walls, KUNM (Mar. 30, 2020)1 (in an interview with KUNM

Radio, Secretary Tafoya Lucero agreed that NMCD facilities are unable to

implement social distancing in their “closed environment.”).

Despite taking some measures intended to limit inmate and staff exposure to

coronavirus, the protocols put in place by Respondents do not address contact

within housing units and focus entirely on symptomatic transmission. Respondents

have failed to account for commonly known realities of the coronavirus pandemic.

Furthermore, the NMCD protocols in place fail to ensure realistic access to

adequate medical care in case of an outbreak. Although Corrections has only

reported one positive test result so far, almost no inmates and staff have actually

been tested. See Mike Gallagher, Nurse at Santa Rosa prison has COVID-19, ABQ

Journal (April 24, 2020).2 Based on nationwide reporting on the results of

widespread testing in prisons, it is extremely likely that a significant number of

NMCD inmates and staff are indeed infected despite not presenting with fever or

cough. See Patrick Cooley and Jim Woods, More than 1,800 inmates at Marion

Correctional test positive for coronavirus, Columbus Dispatch (April 19, 2020)3;

1 Available at https://www.kunm.org/post/ynmg-covid-behind-walls.

2 Available at https://www.abqjournal.com/1447333/nurse-at-santa-rosa-prison-

has-covid-19.html.

3 Republished by The Marion Star at

https://www.marionstar.com/story/news/local/2020/04/19/1-800-inmates-marion-

4

Angie Jackson and Kristi Tanner, Coronavirus cases at Michigan prison surge as

widespread testing begins, Detroit Free Press (April 25, 2020) (“The number of

inmates confirmed to have the novel coronavirus at one Michigan prison is surging

as the Department of Corrections begins its first wave of widespread testing of

prisoners who don't show symptoms of the virus.”)4; Tim Carpenter & Sherman

Smith, Kansas coronavirus update: Lansing prison locked down as all inmates get

tested, Topeka Capital-Journal (April 30, 2020) (“Initial testing results from a

sample earlier this week of 240 men who live in a single unit at Lansing show that

75% have the coronavirus but no symptoms.”).5

Additionally, the absence of fever or cough does not mean “uninfected.”

“[W]hile the CDC does list fever as the top symptom of COVID-19, so confidently

that for weeks patients were turned away from testing sites if they didn’t have an

elevated temperature, according to the Journal of the American Medical

Association, as many as 70 percent of patients sick enough to be admitted to

New York State’s largest hospital system did not have a fever.” David Wallace-

correctional-positive-coronavirus/5163285002/.

4 Available at

https://www.freep.com/story/news/local/michigan/2020/04/25/coronavirus-cases-

michigan-prison-surge-widespread-testing-prisoners/3002811001/.

5 Available at https://www.cjonline.com/news/20200430/kansas-coronavirus-

update-lansing-prison-locked-down-as-all-inmates-get-tested.

5

Wells, We Still Don’t Know How the Coronavirus Is Killing Us, NY Mag:

Intelligencer (April 26, 2020)6 (emphasis added) (citing Safiya Richardson, MD,

MPH, et al., Presenting Characteristics, Comorbidities, and Outcomes Among

5700 Patients Hospitalized With COVID-19 in the New York City Area, Journal of

the American Medical Association (April 22, 2020).7

Furthermore, many NMCD inmates and staff without fever or cough may

well be experiencing dangerously low blood oxygen levels and organ damage

associated with COVID-19. “[F]or weeks now, front-line doctors have been

expressing confusion that so many coronavirus patients were registering lethally

low blood-oxygenation levels while still appearing, by almost any vernacular

measure, pretty okay.” Supra, Wallace-Wells, Intelligencer (citation omitted). “[I]n

New York and Wuhan, between 14 and 30 percent of ICU patients had lost kidney

function, requiring dialysis.” Id. (citing Lenny Bernstein, et al., Coronavirus

destroys lungs. But doctors are finding its damage in kidneys, hearts and

elsewhere, Washington Post (April 15, 2020)8). Doctors report that “‘[y]oung and

6 Available at https://nymag.com/intelligencer/2020/04/we-still-dont-know-how-

the-coronavirus-is-killing-us.html.

7 Available at

https://jamanetwork.com/journals/jama/fullarticle/2765184?guestAccessKey=906e

474e-0b94-4e0e-8eaa-

606ddf0224f5&utm_source=For_The_Media&utm_medium=referral&utm_campa

ign=ftm_links&utm_content=tfl&utm_term=042220.

8 Available at https://www.washingtonpost.com/health/coronavirus-destroys-lungs-

6

middle-aged people, barely sick with COVID-19, are dying from strokes.’ Many of

the patients described didn’t even know they were sick.” Id. (citing Bernstein,

Washington Post).

Screening inmates and staff based entirely on the presence of fever and

cough is patently insufficient to identify infected people. It is substantially likely

that a significant segment of the inmates and staff in all NMCD facilities are

currently infected, able to transmit the disease to others, and potentially

experiencing serious symptoms not observable without focused medical

evaluation. Only widespread testing would provide the NMCD with the actual

information it needs to take effective protective measures that could have avoided

the current constitutional violation. In the absence of certain data, strict compliance

with social distancing as described by the CDC must be possible.

B. Because this medical information has been either acknowledged by

Respondents or is readily available and publicized nationally, the

failure to take actions that account for the facts on the ground

constitutes deliberate indifference to a substantial risk of serious harm

and/or a serious medical need.

“[A] total deprivation of care is not a necessary condition for finding a

constitutional violation.” Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010).

Deliberate indifference is established if a party disregarded a risk, “by failing to

but-doctors-are-finding-its-damage-in-kidneys-hearts-and-

elsewhere/2020/04/14/7ff71ee0-7db1-11ea-a3ee-13e1ae0a3571_story.html.

7

take reasonable measures to abate it.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th

Cir. 1999) (emphasis added); see also Ramos v. Lamm, 639 F.2d 559, 574 (10th

Cir. 1980) (the constitution “requires that the State make available to inmates a

level of medical care which is reasonably designed to meet the routine and

emergency health care needs of inmates.”) (internal quotation marks and citation

omitted).

Measures that ignore the facts on the ground are not reasonably designed to

meet the existing health care needs of New Mexico inmates. By only screening for

fever and cough, NMCD is only able to identify a small percentage of infected

individuals. By only testing people who exhibit fever and cough, NMCD is

willfully turning a blind eye to the extreme likelihood of an existing outbreak of

COVID-19 in its facilities. Relying on these “protective” measures constitutes

deliberate indifference. As the Northern District of Ohio recently observed,

While research concerning the virus is ongoing, for some time health

officials have known and reported that asymptomatic persons spread

the virus. A large percentage of coronavirus-infected citizens are

asymptomatic. These asymptomatic persons show no, or limited,

symptoms. Yet, they spread the virus. Due to this threat from infected

but asymptomatic individuals, testing, tracing and treatment

became the first mitigation responsibilities.

Wilson v. Williams, CASE NO. 4:20-cv-00794, Order (N.D. Ohio, April 22, 2020)

(granting TRO based on likely success in a class habeas action based on cruel and

8

unusual punishment addressing inmates with increased medical risk) (emphasis

added).

Secretary Tafoya Lucero has acknowledged that facilities cannot “open new

units and separate beds out,” in order for inmates to remain six feet apart. Supra

Demarco, et al., KUNM. Under the NMCD policies described by Respondents,

inmates are not socially distanced within their units and are reusing a single cloth

mask. The NMCD policy does not comply with CDC guidelines. See CDC, Use of

Cloth Face Coverings to Help Slow the Spread of COVID-19 (updated April 13,

2020) (recommending machine washing to adequately sterilize cloth masks).9

It is well-established that, while prisoners may not be entitled to any

particular treatment of their choosing, medical care in prison cannot be “so cursory

as to amount to no treatment at all.” Ancata v. Prison Health Servs., Inc., 769 F.2d

700, 704 (11th Cir. 1985). By the same token, prison officials may not adopt an

“easier and less efficacious treatment” that does not adequately address a

prisoner’s serious medical needs. Estelle, 429 U.S. at 103-06. Prison officials may

not avoid liability “simply by providing some measure of treatment.” Jones v.

Muskegon Cnty., 625 F.3d 935, 944 (6th Cir. 2010).

9 Available at https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-

sick/diy-cloth-face-coverings.html.

9

Waiting until a critical mass of inmates are visibly sick and require medical

intervention to safely separate them is deliberate indifference. See Oxendine v.

Kaplan, 241 F.3d 1272, 1276 (10th Cir. 2001) (delay in providing medical care

constitutes deliberate indifference where the delay results in substantial harm). As

noted above there is a substantial likelihood that hundreds of inmates and staff are

currently infected and experiencing “hidden” symptoms of COVID-19. Substantial

harm is demonstrated “where the delay causes unnecessarily prolonged pain and

suffering.” Motto v. Corr. Med. Services, 2010 WL 4781123, at *4 (S.D.W. Va.

Nov. 16, 2010) (citing Sealock v. Colorado, 218 F.3d 1205, 1210 n.5 (10th Cir.

2000)).

C. Releasing inmates to reduce the incarcerated population enough to

allow the same protective measures available outside of prison is the

only remedy for the Eighth Amendment violation.

“When necessary to ensure compliance with a constitutional mandate, courts

may enter orders placing limits on a prison’s population.” Brown v. Plata, 563 U.S.

493, 510-11 (2011). Experts have been widely publicized in calling for release as

the only way to avoid an outbreak. See Josiah Rich, et al., We Must Release

Prisoners to Lessen the Spread of Coronavirus, Washington Post (Mar. 17,

2020)10; Phaedra Haywood, Medical providers ask state to release inmates, Santa

10 Available at https://www.washingtonpost.com/opinions/2020/03/17/we-must-

release-prisoners-lessen-spread-coronavirus/.

10

Fe New Mexican (Mar. 30, 2020)11 (a group of sixty New Mexico medical

professionals urged state officials that “The safest way to ensure that a jail or

prison does not become a site for COVID-19 to spread is to reduce the number of

people who are incarcerated.”); Vera Institute of Justice, Guidance for

Preventative Measures to Coronavirus for Jails, Prisons, Immigration Detention

Centers and Youth Facilities (Mar. 18, 2020); Andrew Naughtie, Coronavirus: US

Doctors Demand Immediate Release of Prisoners and Detainees to Avert Disaster,

Independent (Mar. 9, 2020).12

II. Petitioners have standing to file this petition and request relief on

behalf of New Mexico’s prison population.

An organization has standing to sue when “[(1)] its members would otherwise

have standing to sue in their own right; [(2)] the interests it seeks to protect are

germane to the organizations’ purpose; and [(3)] neither the claim asserted nor the

relief requested requires the participation of individual members in the lawsuit.”

ACLU of New Mexico v. City of Albuquerque, 2008-NMSC-045, ¶ 30, 144 N.M. 471

(quoting Forest Guardians v. Powell, 2001-NMCA-28, ¶ 21, 130 N.M. 368).

11 Available at https://www.santafenewmexican.com/news/coronavirus/medical-

providers-ask-state-to-release-inmates/article_28ec48ee-7089-11ea-8873-

5b52a107906d.html. 12 Available at https://www.vera.org/downloads/publications/coronavirus-

guidance-jails-prisons-immigration-youth.pdf;

https://www.independent.co.uk/news/world/americas/coronavirus-us-prison-

release-doctors-medical-workers-symptoms-a9410501.html.

11

For purposes of determining standing, the reviewing Court “must accept as true all

material allegations of the complaint, and must construe the complaint in favor of

the complaining party.” Prot. & Advocacy Sys. v. City of Albuquerque (“P&A”),

2008-NMCA-149, ¶ 17, 145 N.M. 156.

Individual inmates would certainly have standing to sue. Those inmates are

constituents of LOPD and NMCDLA. In P&A, the Court of Appeals found

organizational standing even though it did not have “members” in the traditional

sense. 2008-NMCA-149, ¶ 32. The Court of Appeals rationale depended on the

fact that P&A is a unique type of organization: an advocacy group defined and at

least partially funded by Congress “to protect and advocate the rights of

individuals with mental illness.” Id. ¶ 29, 32. Thus, the interests sought to be

protected in the suit were germane to the organization’s purpose. Id. ¶ 34. P&A

“was created to serve a specialized segment of the community, and those

community members possessed all the indicia of membership in an organization.”

Id. ¶ 32 (internal quotation marks and citation omitted).

As an organization, LOPD is nearly indistinguishable from P&A, as it is

legislatively created and funded to serve a specialized segment of the community,

whose clients are its constituents, and whose interests are protected by the Petition.

Similarly, NMCDLA members represent criminal defendants, including the

majority of NMCD inmates and ACLU is an advocacy organization that advocates

12

for inmates in conditions cases. Under P&A, Petitioners can establish both that

members or constituents would have individual standing and that the interests to be

protected are germane to Petitioners’ associational purposes.

Under the third prong, “neither the claim asserted nor the relief requested

requires the participation of individual members in the lawsuit.” The Petition does

not rely on harm to particular unnamed inmates to state its claim. The Eighth

Amendment claim is categorical to all incarcerated New Mexicans and based on the

inherent risk of harm to which current NMCD conditions expose all NMCD inmates

and staff. See Keith v. Koerner, 843 F.3d 833, 848 (10th Cir. 2016) (“In identifying

the relevant risk, we do not focus on the risk to a specific inmate by a specific

employee; we instead analyze whether the combined circumstances created a risk

for inmates in the plaintiff’s situation.”); Poore v. Glanz, 724 F. App’x 635, 641

(10th Cir. 2018) (an “official’s knowledge of the risk need not be knowledge of a

substantial risk to a particular inmate, or knowledge of the particular manner in

which injury might occur.”) (citing Tafoya v. Salazar, 516 F.3d 912, 916 (10th Cir.

2008)). The proposed relief would apply categorically, not individually. Although the

Petitioners’ proposed process, see infra Section III, permits individualized objections

by the Respondents to ensure public safety, the presumption of release is categorical

and resolution of objections would be accomplished summarily, not through

individualized litigation. See Appendix E.

13

Finally, prudential standing is appropriate because Petitioners request non-

monetary relief such as a declaration or injunction. See N.M. Gamefowl Ass'n v.

State ex rel. King, 2009-NMCA-088, ¶¶ 31, 34, 146 N.M. 758.

III. The relief requested tailors a traditional Eighth Amendment remedy of

release to the needs of this unprecedented pandemic to achieve

manageable inmate populations and protect the incarcerated from

infection.

Petitioners are not asking this Court to order the Executive to exercise its

discretionary powers. Petitioners are asking this Court to exercise its own inherent

authority to remedy an Eighth Amendment violation by ordering Corrections to

take a particular remedial action, up to and including the release of inmates, if that

is the only remedy to cure the violation. While ordering NMCD to comply with the

constitution could be justified under this Court’s mandamus authority, it is

squarely within this Court’s inherent habeas authority, both of which arise out of

Article VI, Section 3, of the New Mexico Constitution.

The Petitioners’ proposed order (attached hereto, Appendix E) outlines a

release process to be overseen by a Special Master appointed by this Court for that

purpose. Under Petitioner’s proposed order, NMCD must identify inmates within

certain classes that represent a low public safety risk. Those inmates are subject to

a presumption of release, Respondents and Real Parties may object to the release

of individual inmates on public safety grounds, and the objections are resolved by

the Special Master in expedited, consolidated proceedings. See Brown, 563 U.S. at

14

510-11 (“Courts faced with the sensitive task of remedying unconstitutional prison

conditions must consider a range of available options, including appointment of

special masters or receivers and the possibility of consent decrees.”).

Although Respondents appear to interpret the Petition as seeking an order

that the Executive exercise its discretionary authority, Petitioners hereby clarify the

relief request. The Petition includes authority showing that the Governor could

have released such inmates before now, see [Pet.23-25], to establish two bases for

granting the relief: (1) that these categories have previously been contemplated by

the Legislature and therefore represent a low public safety risk; (2) the fact the

Governor declined to exercise that discretion before now is further evidence of

deliberate indifference. As outlined in the proposed order, the remedy would

include safeguards both for public safety and safety and stability for the releasees.

CONCLUSION

Because reducing inmate populations is the only way to ensure compliance

with CDC guidelines within prison facilities to protect the inmates not released

under the proposed remedy, Petitioners ask this Court to grant the requested relief.

Respectfully Submitted,

/S/ Lalita Moskowitz

Lalita Moskowitz

Leon Howard

ACLU of New Mexico

P.O. Box 566

Albuquerque, NM 87103

15

(505) 266 5915

Bennett J. Baur,

Chief Public Defender

Adrianne R. Turner,

General Counsel

/S/ Kimberly Chavez Cook

Kimberly Chavez Cook,

Appellate Defender

Law Offices of the Public Defender

301 N. Guadalupe St.

Santa Fe, NM 87501

(505) 395-2890

/S/ Richard Pugh Richard Pugh, President

/S/ Matthew Coyte Matthew Coyte, Past President

New Mexico Criminal Defense Lawyers

Association PO Box 8324

Santa Fe, NM 87504

(505) 992-0050

Certificate of Service

I hereby certify that a copy of this pleading was served electronically to the

Respondents and Real Parties in Interest this 30th day of April, 2020 by email to:

Michelle Lujan Grisham, Governor,

c/o Counsel Matt Garcia: Matt.Garcia@state.nm.usGarcia,

and Jonathan Guss: jonathan.guss@state.nm.us

Alisha Tafoya Lucero, Corrections Secretary,

Melanie Martinez, Director Probation and Parole,

c/o Counsel Olga Serafimova: oserafimova@nmag.gov

New Mexico District Attorneys Association,

c/o Counsel John Sugg: jsugg@da.state.nm.us

16

James Grayson: james.grayson@da2nd.state.nm.us

and Jamshid Askar: jaskar@da.state.nm.us

/S/ _Kimberly Chavez Cook__

Kimberly Chavez Cook, LOPD

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

S-1-SC-38252

NEW MEXICO LAW OFFICES

OF THE PUBLIC DEFENDER;

NEW MEXICO CRIMINAL

DEFENSE LAWYERS ASSOCIATION; and

AMERICAN CIVIL LIBERTIES

UNION OF NEW MEXICO,

Petitioners,

v.

STATE OF NEW MEXICO; MICHELLE

LUJAN GRISHAM, Governor, State of New

Mexico; ALISHA TAFOYA LUCERO, Secretary,

New Mexico Corrections Department; and MELANIE

MARTINEZ, Director, New Mexico Probation and

Parole,

Respondents,

NEW MEXICO DISTRICT ATTORNEYS

ASSOCIATION;

HECTOR BALDERAS,

NEW MEXICO ATTORNEY GENERAL,

Real Parties in Interest.

APPENDIX E

ORDER

IT IS HEREBY ORDERED, that

1. A special master shall be appointed to oversee the release of inmates

identified pursuant to Paragraph 6, for whom there is a presumption that

release pursuant to this Order is in the best interest of public health and

public safety, subject to the procedures outlined herein.

2. If the Respondents or Real Parties object to the release of an individual

inmate identified pursuant to Paragraph 6, they shall file with the Special

Master and electronically serve on Petitioners, a written objection within 24

hours of the inmate’s disclosure, specifying why the release of the inmate

would pose a significant risk to the safety of the inmate or the public.

3. If appropriate, counsel for the Petitioners may file and electronically serve

responses to any objections filed pursuant to Paragraph 2 within 24 hours of

the objection.

4. The presiding Special Master shall consider all disputed cases arising from

Paragraphs 2 and 3. The presiding Special Master shall address all

objections no later than May 18, 2020. All identified inmates shall be

released as efficiently as possible.

a. In recognition of the pressing need for release, the judge shall conduct

summary proceedings and make determinations on the pleadings. In

the event the judge determines an individual hearing must be held, the

inmate’s presence shall be waived and counsel shall appear via

telephone or video conferencing.

b. In making its determinations, release shall be presumed, unless the

presumption is overcome by a preponderance of the evidence that the

release of the inmate would pose a significant risk to the safety of the

inmate or the public.

c. If the judge determines by a preponderance of the evidence that the

risk to the inmate or the public can be effectively managed, the judge

shall order the inmate’s release subject to the provisions of this Order.

d. The Special Master may order release by converting an inmate’s

existing incarceration sentence to one of house arrest, community

corrections, or suspension with probation supervision. The Special

Master may order release by furlough, which order shall extend to the

conclusion of the health pandemic and be credited toward the inmate’s

sentence.

5. The Secretary of Corrections shall have a continuing duty to report daily to

the Court, Petitioners, the Special Master, and Real Parties in Interest

regarding the number of NMCD staff and inmates who have been tested for

COVID-19, presumptive and confirmed positive cases, and number of

individuals currently held in quarantine.

6. No later than May 8, 2020, the New Mexico Department of Corrections shall

identify and provide to Petitioners and Real Parties in Interest a preliminary

list of all inmates in the following categories. NMCD shall have a

continuing obligation to disclose qualifying inmates and disclosure shall be

completed by May 15, 2020. Subject to proceedings overseen by the Special

Master:

a. Individuals solely serving a sentence for probation or parole

revocation not predicated on the commission of a new criminal

offense shall be released to probation or parole with all conditions

originally imposed by the trial court, other than in-person reporting,

shall remain in full force and effect;

b. Individuals at increased risk of serious illness from COVID-19,

including but not limited to individuals aged 60 or older; individuals

with diabetes, cardiovascular disease, renal disease, liver disease,

chronic lung disease or moderate to severe asthma; individuals who

are immunocompromised; individuals who have cancer or have had

cancer in the last 5 years; individuals who have other underlying

medical conditions or any other risk factors identified by the CDC,

shall be released;

c. Individuals currently serving in-house parole or who have one year or

less on their maximum term of imprisonment shall be released;

d. Individuals who are pregnant shall be released; and

e. Individuals incarcerated for a nonviolent offense or offenses shall be

released.

7. The Department of Corrections shall inform all inmates released pursuant to

this Order of their continuing obligations as outlined in the Reentry

Procedures (attached).

8. The Department of Corrections shall ensure that inmates released pursuant to

this Order have medical, housing, food, and other vital resources upon reentry

as outlined in the attached Reentry Procedures, but shall not strictly apply the

existing requirements for a parole plan that could unduly restrict release

eligibility.

9. Where applicable, notice of inmate release shall be provided to eligible

victims in accordance with NMSA 1978, § 31-26-12(D) (2009).

REENTRY GUIDELINES

A. Housing

Access to stable housing is essential for the success of those reentering the community,

especially in light of the current public health crisis. Probation and parole must make changes to

the existing process for placement of releasees. Among other things, Respondents should:

Relax placement requirements that prohibit individuals from being placed with family

because a member of the family has a criminal history;

Incentivize family or friends willing to house releasees with stipends or other incentives;

Purchase/access unused hotel/motel rooms to house releasees with no other housing

options or who are assessed as needing to quarantine before joining family;

Expand use of existing housing support (e.g., housing vouchers).

B. Access to technology and reporting

Supervision agencies and social-service providers are relying more on distance

communications, increasing the need for access to technology among releasees. People releasing

after long periods of incarceration will need to be familiarized with technology and how to

access online resources.

Respondents should provide a prepaid phone at release for anyone who will not have

immediate access to one upon their release.

C. Health

Correctional populations face disproportionately high risk of infection due to higher

prevalence of pre-existing health conditions compared with the general population, increasing

the need for continuity of care with community-based healthcare providers so that pre-existing

health conditions can be appropriately managed. The incidence of mental health and substance

use disorders is also higher among correctional populations. Releasees will be entering society at

a time when healthcare providers are strained, making pre-release healthcare planning, including

physical health, mental health, and substance use treatment services even more essential.

Respondents should work with Wexford Health Services to:

Ensure those needing medication receive at least a 30-day supply of medication and a

prescription;

Where eligible, enroll releasees in Medicaid;

Educate releasees on how to stop spread of COVID-19;

Schedule mental-health related appointments and substance-abuse treatment with

community-based providers, preferably via telehealth;

For those with substance abuse disorders, provide a list of online recovery support and

apps, tailored to the release area if possible;

D. Other considerations

Releasees may need assistance with other aspects of reentry, including food and

employment.

Respondents should:

Suspend the employment requirement for releasees at least until the state re-opens all

businesses;

Match releasees to essential-service employers, whenever possible, prior to release;

Enroll releasees in all eligible benefits prior to release: SNAP, disability benefits, and

utility assistance;

Ensure releasees have immediate access to food; otherwise provide several weeks of

nonperishable food at release;

Ensure releasees have a state identification card and Social Security card;

Ensure that releasees have safe transportation to their placement, including subsidizing

individuals’ transportation, where appropriate.

E. Supervision

Electronic monitoring can be used, but should only be used for those releasees at highest

risk for violent reoffending. Financial responsibility for monitoring should not be imposed upon

releasees at least until the economy stabilizes.

Community supervision should be used for all other releasees. Respondents should

modify existing supervision procedures to provide for the greatest public safety. Respondents

should, among other things:

Avoid in-person reporting, using check-ins by phone or video only (in-person reporting

may be instituted on a limited, case-by-case basis);

Incentivize compliance by reducing supervision time;

Impose standard drug-testing requirements only upon individuals with documented

substance abuse disorders.