Horse Gulch Blog

Watchdogging for the greater Durango area

10 Jan 2021

Lawsuit filed against SJBHD, governor & CDPHE

Posted by LPCBA


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A monumental lawsuit was filed by CJ’s Diner, supported by La Plata County Business Alliance, against Colorado’s Governor Jared Polis, the Colorado Department of Public Health (CDPHE) and San Juan Basin Public Health (SJBPH) in response to their collective actions against this long and well established community diner. The owners Jerry and Carrie Martinez decided to take action after receiving a cease and desist order from the local health department.

A lawsuit was filed by CJ's Diner against SJBHD, the governor and the CDPHE for Colorado constutitional violations.In November, the Colorado Department of Health (CDPHE) and San Juan Basin Health (SJBPH) classified La Plata County as “Code Red”, arbitrarily shutting down restaurants to in-person dining.  Recently, the county was moved to “Code Orange” but Mr. Martinez believes it’s simply not enough.  “My restaurant and community are my life but it is far worse to see my employees lose their incomes and their ability to support their families, we had no choice,” Martinez said.

In their lawsuit, their attorneys claim Governor Polis’ Executive Order EO-235 and the Colorado Department of Health Order PHO (20-36) both past and present are facially and as applied wholly unconstitutional, exceedingly unlawful and as a result have no legal authority whatsoever.

Moreover, the lawsuit alleges the use of the Colorado Disaster Emergency Act is a “wholesale” delegation of legislative power to the executive branch and its inconsistent with the separation of powers found both in the Colorado and United States Constitution.

Finally, the allegations declare the Governor has chosen to be out of compliance of his own authority granted by the people because any law must be passed in the form of a bill in regular or special legislative session.  Instead, his actions have been unlawfully executed through “targeted and special orders” executed by agencies and not their elected representatives.

Lawsuit outlines nine Colorado Constitutional claims

In total there are nine Colorado Constitutional claims in the complaint including:

  1. The orders by the Governor and Executive Agencies require Judicial Review, Article VI.
  2. The orders are “express” and the authority to make law is granted by the people including any distribution of power and non-delegation, Article III.  And no law except by bill which be presented to the legislature Article V Section 17.
  3. The orders are in violation of procedural due process of law Article II Section 25.
  4. The orders are in violation of the equal protection clause Article II Section 25.
  5. The orders are in violation of individual and inalienable rights, religious freedom, freedom of speech and the right of association (Articles II Section 3, Articles II Section 4, Article II Section 10 and Articles II Section 25 respectively).
  6. The orders violate the takings clause Article II Section 15.
  7. The orders have caused plaintiffs to seek Declaratory Relief under Colorado Statutes.
  8. The orders have caused plaintiff to seek Injunctive Relief under Colorado Statutes.
  9. The orders have been taken under the color of State Law in violation of the people’s fundamental rights, civil rights, their interest in liberty and property rights.

A statement by Garth Schultheis the President of the La Plata County Business Alliance, said “the circumstances are dire for affected businesses and continuing closures of our friends and families’ businesses are having a profound effect on peoples lives.  Protecting economic prosperity and our safety can both exist but we need a conscious effort to do both.”

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La Plata County Business Alliance

info@lpcbusinessalliance.com

Legal Team Contact Phone: 949-616-6167

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