Horse Gulch Blog

Watchdogging for the greater Durango area

5 May 2021

Civil case against CJ’s Diner from health department dismissed

Posted by Adam Howell


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A civil case against CJ’s Diner in Durango to force them to comply with COVID-19 Executive Orders of Governor Jared Polis was dismissed five months later upon the request of the plaintiff, San Juan Basin Public Health.

civil caseGiven that CJ’s Diner chose to stay open during the alleged emergency, San Juan Basin Public Health decided to enforce their will upon them in civil court. The Governor’s Executive Orders and Public Health Orders occurred without constitutional or statutory authority and could not be enforced, according to the defense counsel.

First, the health department issued a Cease and Desist Order.

Then, San Juan Basin Public Health’s attorney Michael Goldman requested and obtained a 14-day restraining order that prohibited CJ’s Diner from offering indoor dining or violating any Public Health Orders.

The health department also sought a Court Order requiring local law enforcement to “use whatever means necessary” to secure the premises. Ultimately, their request for a Court Order was denied.

At first, the defendant’s attorney Randy Corporon gave notice to the Attorney General that the state statutes, the Executive Order of the Governor and Public Health Orders were unconstitutional.

In order to obtain the restraining order, the health department first coordinated with Durango Police Department. DPD had Police Services Technicians Holly Gile and Milo Witte go to the establishment to observe the lack of compliance and issue them written warnings.

Lawsuit compels CJ’s Diner to comply with Public Health Orders

After the restraining order was issued, a modified preliminary injunction was requested and granted by the judge. This action for injunctive relief was filed in District Court on December 9th, 2020 by Judge William Herringer.

lawsuitA temporary injunction was granted by the judge to force the restaurant to close based upon the public health orders of Governor Polis and San Juan Basin Public Health. Officials shut down Colorado’s economy and many societal activities as a means of reducing the transmission of the Wuhan Virus.

As a defense, the defendant’s attorney Randy Corporon filed a Motion to Dismiss the civil case on December 18, 2020.

In response, the health department filed a letter of opposition to the defendant’s Motion to Dismiss.

In defense of the constitutionality of the Executive Orders, the Public Health Orders, and the CDEA, the State Attorney General filed an Amicus Curiae Brief asking the court to deny CJ’s Diner’s Motion to Dismiss.


Civil case dismissed when change in Public Health Orders made case moot

For 8 weeks, CJ’s Diner complied with both the restraining order, and then complied with the temporary injunction by restricting the capacity of their restaurant.

While the defense was concerned with the lack of a ruling on their Motion to Dismiss, something finally happened–the judge initiated the dismissal.

On April 17th, Judge Herringer issued an Order raising the concern of the case now being moot. The Order came almost immediately after the local restrictions were lifted.

San Juan Basin Public Health acknowledged the Judge’s point and their attorney filed a Notice of Dismissal since the existing Public Health Orders no longer restricted indoor dining. Here’s the main point made in the Notice:

This action was initiated on December 3, 2020 for Injunctive Relief, and although a Motion to Dismiss is presently pending, no answer or motion for summary judgment has been filed or served by Defendant. The claims raised in Plaintiff’s Complaint are now rendered moot because the public health order that was the basis for this case is no longer in effect and there are no longer COVID-19 capacity restrictions on indoor dining. Accordingly, with all costs having been paid to the Court, dismissal of this action, without prejudice, is appropriate under
C.R.C.P. 41(a)(1)(A).

The dismissal by the plaintiff did not require a court Order in this case, but the Judge voluntarily entered an Order dismissing the civil case.

Last winter when the lawsuit against CJ’s Diner was still active, the counsel for CJ’s Diner was planning a counter suit against San Juan Basin Public Health, the Governor, and the CDPHE. In March, however, a Joint Motion to Stay or Extend the Deadline for a Responsive Pleading in this case was granted by Judge Herringer despite the objections of CJ’s Diner’s counsel.

On behalf of CJ”s Diner and the Martinez family, their counsel is planning to file a motion to lift the Stay in their upcoming Plaintiff’s case and pursue a just resolution of their claims as soon as possible.

2021-04-17 Order to File Briefing Regarding Mootness
Notice of Dismissal Without Prejudice
2021-P. Order Re- Notice of Dismissal Without Prejudice
Order granting Motion to Stay

Adam Howell is a writer who believes in free press and the importance of the constitution. He can be reached by clicking on this link to the contact page.



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2 Responses to “Civil case against CJ’s Diner from health department dismissed”

  1. Excellent article. Thank you for presenting the facts. Have yet to see anything in the DH regarding this important issue.

     

    Donna Gulec

  2. You are welcome, Donna. Thank you for caring about this important issue.

     

    Adam Howell

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