Right to counsel

NOTE: this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states.  Please read our primer on quarantine/isolation law before reading this specific state law.

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During a public health emergency, the Public Health Emergency Response Act applies and the "...secretary of health may isolate or quarantine a person as necessary."  N.M. Stat. Ann. § 12.10A-8(A).  Prior to the isolation or quarantine of a person, group, or class of persons, the secretary of health must obtain an ex parte order from a court authorizing the isolation or quarantine.  N.M. Stat. Ann. § 12.10A-7(A).  The person(s) who will be affected by the ex parte order should be notified of the application for the order, unless damage, injury, or loss will occur before they can be heard.  N.M. Stat. Ann. § 12.10A-7(A).  If the ex parte order is granted, it will be served on the persons affected, advising them of the right to a hearing and right to be represented by counsel.  N.M. Stat. Ann. § 12.10A-7(B)(3).  A person cannot be isolated or quarantined under an ex parte order for longer than 5 days without a hearing as to whether the isolation or quarantine should continue.  N.M. Stat. Ann. § 12.10A-7(D).   Alternatively, if the secretary of health finds that "...a delay in isolating or quarantining a person will significantly jeopardize the secretary’s ability to prevent or limit the transmission of a threatening communicable disease," the secretary may issue a public health order to isolate or quarantine a person but, within 24 hours, they must obtain an ex parte order from the court as discussed above.  N.M. Stat. Ann. § 12.10A-9(A), and (B).  

A person may petition the court to contest an order of isolation or quarantine.  N.M. Stat. Ann. § 12.10A-10(A).  N.M. Stat. Ann. § 12-10A-10(c)(4) provides that, in a hearing to contest an order of quarantine or isolation, the notice of the hearing shall include a statement about "...the person’s right to counsel, including the right, if indigent, to be represented by counsel designated by the court."

Where there is no public health emergency, the Public Health Act applies and the department of health has the general power to “…establish, maintain, and enforce isolation and quarantine.”  N.M. Stat. Ann. § 24-1-3(D).  The department “…may establish or require isolation or quarantine of any animal, person, institution, community or region.”  N.M. Admin. Code 7.4.3.9(c).  When the secretary of health knows that a person "...is infected with or reasonably believes that a person is infected with or exposed to a threatening communicable disease and the person has refused voluntary treatment, testing, evaluation, detention or observation..." they "...shall petition the court for an order to isolate or quarantine the person until the person is no longer a threat to the public health or until the person voluntarily complies with treatment and contagion precautions.”  N.M. Stat. Ann. § 24-1-15(A).  The secretary can, in the alternative, issue a public health order for temporary isolation or quarantine lasting 24 hours, and then petition the court for continued isolation or quarantine.  N.M. Stat. Ann. § 24-1-15(B). 

A person infected with, or reasonably believed to be infected with, or exposed to a threatening communicable disease, subject to a court order of isolation or quarantine, can retain counsel or counsel shall be appointed  "...if the court determines that the person held cannot afford legal representation or if the court determines that appointment of counsel is required in the interest of justice."  N.M. Stat. Ann. § 24-1-15(F); see also, § 24-1-15(E).