{"id":41924,"date":"2022-03-01T01:19:47","date_gmt":"2022-03-01T08:19:47","guid":{"rendered":"https:\/\/dh.durangoherald.com\/tj\/judge-dismisses-lawsuit-against-san-juan-basin-public-health\/"},"modified":"2026-03-31T03:04:19","modified_gmt":"2026-03-31T09:04:19","slug":"judge-dismisses-lawsuit-against-san-juan-basin-public-health","status":"publish","type":"post","link":"https:\/\/dh.durangoherald.com\/tj\/judge-dismisses-lawsuit-against-san-juan-basin-public-health\/","title":{"rendered":"Judge dismisses lawsuit against San Juan Basin Public Health"},"content":{"rendered":"\n

\"Jerry
Jerry Martinez, owner of CJ&#x2019;s Diner, stands in front of his restaurant Tuesday. The diner has remained open to in-person dining despite a state public health order that prevents in-person dining in counties that are categorized as Level Red because of a high rate of COVID-19 cases.<\/span>Jerry McBride\/Durango Herald<\/span><\/figcaption><\/figure>\n<\/p>

A judge has dismissed a lawsuit brought by CJ\u2019s Diner that argued state and local public health orders violated co-owners Jerry and Carrie Martinez\u2019s constitutional rights.<\/p>\n

Sixth Judicial District Judge William Herringer dismissed the Martinezes\u2019 case Friday after the state and San Juan Basin Public Health asked the judge to dismiss the lawsuit. Herringer\u2019s ruling brings to an end CJ\u2019s Diner\u2019s protracted battle against health mandates implemented by state and local authorities during the COVID-19 pandemic.<\/p>\n

In his ruling, Herringer found that the lawsuit\u2019s claims were either \u201cmoot,\u201d meaning they were already resolved, or failed to identify a claim that the judge could rule upon.<\/p>\n

In filings to dismiss the case, lawyers for the state and SJBPH argued that the lawsuit brought by CJ\u2019s Diner was moot because state and local authorities had previously lifted public health orders to allow for indoor dining.<\/p>\n

Herringer agreed.<\/p>\n

\u201cThe Plaintiffs cannot point to similar orders having issued in the past and do not offer any credible scenario under which such orders would issue in the future,\u201d Herringer wrote.<\/p>\n

\u201cThe executive orders and public health orders challenged in this matter were issued in response to a unique threat, i.e., a potentially lethal novel coronavirus that caused a global pandemic,\u201d Herringer wrote. \u201cThe orders were based upon an evolving understanding of what measures might mitigate the impact the pandemic would have on public health.\u201d<\/p>\n

In his ruling, Herringer also found that the Colorado Disaster Emergency Act was constitutional.<\/p>\n

Herringer criticized some of the filings by the Martinezes\u2019 lawyers \u2013 Bayfield attorney Marian Tone and Randy Corporon, a Denver-area lawyer and tea party activist.<\/p>\n

The lawyers\u2019 response to the state and SJBPH\u2019s motion to dismiss the case \u201cprimarily concentrates on rebutting the authorities cited by the Defendants but offers no persuasive authority beyond generalized constitutional principles and hyperbolic language,\u201d Herringer wrote.<\/p>\n

SJBPH celebrated the decision.<\/p>\n

\u201cAs expected, the State of Colorado and local public health\u2019s abilities to protect health and safety during this pandemic were upheld. We are pleased with the dismissal and look forward to continuing to protect health and well-being in our community,\u201d said Liane Jollon, executive director of SJBPH, in a statement.<\/p>\n

Michael Goldman of Durango law firm Goldman, Nicholson & Mack, who represented SJBPH in the lawsuit, said Herringer\u2019s ruling was sound.<\/p>\n

\u201cOn behalf of San Juan Basin Public Health, I\u2019m completely satisfied,\u201d Goldman said. \u201cThey did what they needed to do as a health department enforcing their local orders and state orders, (and) the judicial system came through. CJ\u2019s Diner ultimately complied and everything for the most part worked out the way it should under a good public health regimen.\u201d<\/p>\n

Tone said the Martinezes and their legal team were disappointed by the ruling, but they were still considering their options.<\/p>\n

\u201cThese issues of executive overreach need to continue to be carefully examined by the courts on a case-by-case basis,\u201d she said.<\/p>\n

Tone also noted the Martinezes and CJ\u2019s Diner were grateful for the outpouring of community support for the restaurant and were appreciative of Herringer\u2019s thorough analysis.<\/p>\n

\u201cJudge Herringer spent months and months reviewing hundreds of pages of pleadings and arguments,\u201d she said. \u201cI think we all appreciate his dedication and thoroughness and the judicial review.\u201d<\/p>\n

Jerry Martinez expressed frustration with the ruling.<\/p>\n

\u201cWe\u2019re pretty disappointed,\u201d Martinez said. \u201c\u2026 We felt like our only hope was the judicial (branch) would step in and see what we were seeing.<\/p>\n

\u201cI do understand that we didn\u2019t know everything about COVID-19, but we acted like we didn\u2019t know anything,\u201d he said. \u201cNothing changed through that whole time of a year and a half.\u201d<\/p>\n

While unhappy with the ruling, Martinez said some good did come from the lawsuit and CJ\u2019s Diner\u2019s pushback against public health orders.<\/p>\n

\u201cPeople came together to help support us and what we believed in,\u201d he said. \u201cI think it was not just our case, but I think it affected everybody in our community.\u201d<\/p>\n

The Martinezes and CJ\u2019s Diner filed the lawsuit in January 2021 questioning the constitutionality of the Colorado Disaster Emergency Act, which establishes the authority of the governor and state to act during a disaster. It also argued that executive orders issued by Gov. Jared Polis and public health orders announced by SJBPH violated the Colorado Constitution.<\/p>\n

The lawsuit targeted Polis, the Colorado Department of Public Health and Environment and its executive director, Jill Hunsaker Ryan, and SJBPH and its executive director, Jollon.<\/p>\n

CJ\u2019s Diner objected to the \u201cLevel Red\u201d public health order issued by SJBPH on Nov. 20, 2020, which prevented indoor dining.<\/p>\n

The restaurant stayed open amid the order with Jerry Martinez arguing that the restaurant and its staff members would not be able to survive another shutdown of indoor dining.<\/p>\n

In response, SJBPH issued a cease-and-desist order on Dec. 1 directing CJ\u2019s Diner to stop indoor dining, but Martinez defied the orders.<\/p>\n

A few days later, a district court judge ordered law enforcement to prevent indoor dining at CJ\u2019s Diner by \u201cwhatever means necessary.\u201d<\/p>\n

One day after the order, La Plata County Sheriff\u2019s deputies were met at the door of the diner and denied entrance by supporters who said they were protecting the restaurant and its rights.<\/p>\n

A day later, Martinez announced he had decided to suspend indoor dining and offer only takeout and delivery.<\/p>\n

The lifting of public health orders banning indoor dining have since allowed CJ\u2019s Diner to return to its usual operations.<\/p>\n

In her statement, Jollon said SJBPH was not trying to target businesses and limit their financial viability during the pandemic, but instead protect public health.<\/p>\n

\u201cWe understand the last two years have been extraordinarily difficult for families and businesses across the state, and we thank local businesses for their cooperation toward supporting community health,\u201d Jollon said. \u201cSJBPH has worked hard to limit the burden of disease in our community so that we could have a strong economic recovery, and as few interruptions as possible to essential government services, activities, events and in-person learning in schools and higher ed.\u201d<\/p>\n

The Martinezes could appeal the decision or ask Herringer to reconsider, but Martinez said CJ\u2019s Diner was likely done with the case.<\/p>\n

\u201cIt all costs money,\u201d he said. \u201cIt\u2019s hard, but I think we\u2019re done.\u201d<\/p>\n

ahannon@durangoherald.com<\/a><\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

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