Horse Gulch Blog

Watchdogging for the greater Durango area

5 Mar 2022

CJ’s Diner civil suit against state officials dismissed by Colorado District Court Judge

Posted by Adam Howell


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CJ’s Diner lawsuit against several prominent state officials was dismissed by a Colorado District Court judge last week.

CJ's Diner resisted the COVID-19 mandates from state officials.The lawsuit filed by CJ’s Diner, and supported by La Plata County Business Alliance, was 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 the 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.

In November of 2020, 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.

“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.

Lawsuit outlined nine Colorado constitutional violations

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 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 claimed that the Governor had strayed from his own authority granted by the people. Laws should 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.

Presiding over the case was Judge Herringer, who sat on the case for 6 months without responding to the defendant’s Motion to Dismiss.

Finally in response, the judge ordered the dismissal on February 25, 2022, calling the plaintiff’s claims hyperbolic. The orders from the state were indeed constitutional since the state legislature could have overturned the executive orders if they really wanted to, Judge Herringer said.

CJ’s Diner’s owners response to dismissal

Martinez was disappointed with Judge Herringer’s grant of dismissal, saying that he threw the case out like a sack lunch.

Jerry Martinez working in the kitchen at CJ's Diner.

Jerry Martinez cooks breakfast for customers at CJ’s Diner.

“All of the things we really were going after, meaning the mandates, he completely misread it, in the sense that he said the mandates had all been lifted, so it didn’t effect us, so it was all moot.

“The whole thing (the lawsuit) was about the government wasn’t going to change it. Our only hope was to see the judicials step in. To me, they are as disengaged in a sense. Just like San Juan Basin Health. They’re like, ‘we did all this just to protect people.’  It’s like, is there other ways to protect people? Just because what we did I don’t believe really protected people, and hurt more people than we tried to protect.”

“The reality is, people were effected by all this,” Martinez said about the mandates.

“What do you tell those ten restaurants that are closed and that’ll never open again? And the employees that are effected? What about their lives, how they are effected? And instead, they have the health department just celebrating because they threw that thing out like it was nothing,” said Martinez.

“When they found out they were getting sued, did you notice Liane was not able to put any mandates out,” Martinez asked. “She herself, as the health department could not put out the mandates this last 6 to 8 months because of our case, I’ll guarantee you.”

In fact, one of the arguments that SJBPH made in the Motion for Dismissal was that the complaint was moot since most of the mandates had been lifted at the time when the Motion for Dismissal was made.


Some mandates lifted following CJ’s Diner civil suit complaint

Martinez feels like Governor Polis changed his tune on the mandates when presented with the economic opportunity of hosting the All Stars baseball game in July.

A good luck fetish at CJ's Diner restaurant sits on the counter at the front.After a voting law was passed in Georgia that the Major League Baseball Commissioner viewed as restrictive, the organization found a new home for the event at Coors Field in Denver.

“The minute the the All Star game was kicked out of Atlanta, and relocated to Colorado, did you notice how quick all the mandates started to get lifted in Colorado,” Martinez asked.

Shortly after the relocation was announced, Polis lifted the mask mandate. Also, City of Denver Mayor Michael Hancock announced that the City would be lifting its mask mandate in most settings and doing away with capacity limits and social distancing requirements starting on Sunday, May 16.

“We probably had some of the hardest restrictions in the whole state. Not maybe the hardest, but some of the top restrictions,” said Martinez. “More restrictions, more mandates than most. I felt like she (Liane Jollon) was able to influence that across the state, and you saw the rest of the state start falling under those same kind of restrictions. Not all, because if you remember some of those were fighting back at that time.”

Mandates were resisted to support small local businesses

Martinez emphasized that the resistance that CJ’s Diner to the mandates was because revenues from take out and delivery orders only brought in a quarter of their normal income.

Obviously, Martinez was disappointed with the case being dismissed, but it also drained his will to keep fighting, he said.

“We’re just out of energy to have the ruling that we got after all of that. It almost is like, again, they never even looked at what our suit was. Why would I want to put more into it,” Martinez said. “To me it doesn’t bode well. We already know where we stand with our government and everything they are doing. And now you have the judicial piece doing the same thing. It just doesn’t make for a great environment.”

“We feel like what we did made a change in a lot of people’s attitudes,” said Martinez. “And we feel like they supported us both financially and encouragement in other ways. We don’t want to keep spending money on this.”

“It’s not just our money,” said Martinez. “We couldn’t walk away from that because of how many people had supported us. I want to say we spent over $170,000 dollars between Marian and Randy. If I was the one who had to pay for all of that, I would’ve been done a long time ago. That’s how important all of those people have been.”

CJ’s Diner for sale on marketplace

“We’re moving forward with our life,” Martinez said about the dismissal of the lawsuit. “It’s had a stronghold on us.”

CJ's Diner is now for sale.Randy and Carrie put their diner on the market for sale, he said.

“We were waiting for our case to be over. Cause we couldn’t sell it. We had to wait for it to be dismissed or whatever.”

“I probably will come as close to retirement as I can,” Martinez said.

In hindsight, Martinez said that he and his wife’s business were well-suited to challenge the mandates.

“We were probably the best people to be able to walk this thing through, and not just representing ourselves, but representing a community,” he said. “That’s what we kind of hold onto is the fact that we do feel like we made some changes.”

Consolidated Order Granting Motions to Dismiss
A+Civil+Complaint+CJ's+v+Jared+Polis+CDPHE+San+Juan+Basin+Public+Health+and+Liane+Jollon+filed+Jan+7+21+La+Plata+6th+Judicial

Adam Howell is a writer who believes in the 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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