A judge has dismissed a lawsuit brought by CJ’s Diner that argued state and local public health orders violated co-owners Jerry and Carrie Martinez’s constitutional rights.
Sixth Judicial District Judge William Herringer dismissed the Martinezes’ case Friday after the state and San Juan Basin Public Health asked the judge to dismiss the lawsuit. Herringer’s ruling brings to an end CJ’s Diner’s protracted battle against health mandates implemented by state and local authorities during the COVID-19 pandemic.
In his ruling, Herringer found that the lawsuit’s claims were either “moot,” meaning they were already resolved, or failed to identify a claim that the judge could rule upon.
In filings to dismiss the case, lawyers for the state and SJBPH argued that the lawsuit brought by CJ’s Diner was moot because state and local authorities had previously lifted public health orders to allow for indoor dining.
Herringer agreed.
“The 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,” Herringer wrote.
“The 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,” Herringer wrote. “The orders were based upon an evolving understanding of what measures might mitigate the impact the pandemic would have on public health.”
In his ruling, Herringer also found that the Colorado Disaster Emergency Act was constitutional.
Herringer criticized some of the filings by the Martinezes’ lawyers – Bayfield attorney Marian Tone and Randy Corporon, a Denver-area lawyer and tea party activist.
The lawyers’ response to the state and SJBPH’s motion to dismiss the case “primarily concentrates on rebutting the authorities cited by the Defendants but offers no persuasive authority beyond generalized constitutional principles and hyperbolic language,” Herringer wrote.
SJBPH celebrated the decision.
“As expected, the State of Colorado and local public health's 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,” said Liane Jollon, executive director of SJBPH, in a statement.
Michael Goldman of Durango law firm Goldman, Nicholson & Mack, who represented SJBPH in the lawsuit, said Herringer’s ruling was sound.
“On behalf of San Juan Basin Public Health, I’m completely satisfied,” Goldman said. “They did what they needed to do as a health department enforcing their local orders and state orders, (and) the judicial system came through. CJ’s Diner ultimately complied and everything for the most part worked out the way it should under a good public health regimen.”
Tone said the Martinezes and their legal team were disappointed by the ruling, but they were still considering their options.
“These issues of executive overreach need to continue to be carefully examined by the courts on a case-by-case basis,” she said.
Tone also noted the Martinezes and CJ’s Diner were grateful for the outpouring of community support for the restaurant and were appreciative of Herringer’s thorough analysis.
“Judge Herringer spent months and months reviewing hundreds of pages of pleadings and arguments,” she said. “I think we all appreciate his dedication and thoroughness and the judicial review.”
Jerry Martinez expressed frustration with the ruling.
“We’re pretty disappointed,” Martinez said. “... We felt like our only hope was the judicial (branch) would step in and see what we were seeing.
“I do understand that we didn’t know everything about COVID-19, but we acted like we didn’t know anything,” he said. “Nothing changed through that whole time of a year and a half.”
While unhappy with the ruling, Martinez said some good did come from the lawsuit and CJ’s Diner’s pushback against public health orders.
“People came together to help support us and what we believed in,” he said. “I think it was not just our case, but I think it affected everybody in our community.”
The Martinezes and CJ’s 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.
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.
CJ’s Diner objected to the “Level Red” public health order issued by SJBPH on Nov. 20, 2020, which prevented indoor dining.
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.
In response, SJBPH issued a cease-and-desist order on Dec. 1 directing CJ’s Diner to stop indoor dining, but Martinez defied the orders.
A few days later, a district court judge ordered law enforcement to prevent indoor dining at CJ’s Diner by “whatever means necessary.”
One day after the order, La Plata County Sheriff’s deputies were met at the door of the diner and denied entrance by supporters who said they were protecting the restaurant and its rights.
A day later, Martinez announced he had decided to suspend indoor dining and offer only takeout and delivery.
The lifting of public health orders banning indoor dining have since allowed CJ’s Diner to return to its usual operations.
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.
“We 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,” Jollon said. “SJBPH 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.”
The Martinezes could appeal the decision or ask Herringer to reconsider, but Martinez said CJ’s Diner was likely done with the case.
“It all costs money,” he said. “It’s hard, but I think we’re done.”
ahannon@durangoherald.com
