Jefferson County Public Health, the department in whose jurisdiction Bandimere is located, chose the latter course. Yesterday, September 3, JCPH filed suit against the racetrack seeking both preliminary and permanent injunctions to prevent the venue from staging such a large-scale event until current public-health orders are lifted.
Meanwhile, on the same day, attorney and KNUS radio host Randy Corporon dropped his own lawsuit on behalf of the Bandimeres — a massive, 137-page document targeting Polis; the Colorado Department of Public Health and Environment and its executive director, Jill Hunsaker Ryan; plus JCPH and its leader, Mark Johnson. But rather than focusing on the rally and portraying it as a demonstration similar to Black Lives Matter gatherings in downtown Denver, where social distancing and other safety recommendations weren't always practiced, either, the complaint offers an attack on pretty much every action taken to date by Polis and company to prevent the spread of the disease.
The actions requested of Jefferson County District Court include "striking down as unconstitutional the Colorado Disaster Emergency Act," "striking down as unconstitutional each and all of the Executive Orders complained of by Plaintiffs," "striking down as unconstitutional each and all of the CDPHE Public Health Orders complained of by Plaintiffs," "striking down as unconstitutional each and all of the JCPH Public Health Orders complained of by Plaintiffs," and granting both declaratory and injunctive relief, as well as "any other relief this court deems just and proper."
Meanwhile, the Jefferson County Public Health suit notes that the agency "has authority 'to investigate and control the causes of epidemic or communicable diseases and conditions affecting public health" under Colorado law — and that includes authorization to "close schools and public places and to prohibit gatherings of people when necessary to protect public health," as well as the ability to "investigate and abate nuisances when necessary in order to eliminate sources of epidemic or communicable diseases and conditions affecting public health."
All of these factors came into play on March 10, when Polis declared a state of emergency over COVID-19, followed by a stay-at-home order issued on March 25 that was amended on April 6. After that edict expired on April 26, new public-health orders were put into place statewide — but they didn't usurp the powers of departments such as JCPH, which imposed a rule on July 20 requiring pre-approval for events and venues to allow gatherings of 100 patrons indoors or 175 outdoors.
On August 31, when JCPH got wind of the Stop the COVID Chaos rally, the agency had "no proof — only speculation — that the event would exceed 175 attendees," its lawsuit states. "Thus, JCPH sent a letter to Bandimere reminding them of the Public Health Orders, including the requirement to obtain pre-approval of a written plan for events that would exceed 175 attendees. JCPH never received a request for approval of a plan for the Rally."
A subsequent passage in the JCPH suit considerably understates what happened next: "On September 1, 2020, more than 175 people attended the Rally. Many of the people attending the event did not wear face coverings, even though they were less than six feet from others." Moreover, "based on Bandimere's lack of a written plan for pre-approval demonstrating compliance" with the public-health order and "the flagrant disagreement" with its specifics as expressed on social media, "JCPH has a reasonable basis to believe Bandimere may host additional events" that will violate it again.
Should such extravaganzas take place, the suit contends, "JCPH will suffer immediate and irreparable injury because it will be unable to duly execute its duty" under Colorado law "to administer and enforce public health orders of the state department and to prohibit or limit gatherings of people when necessary to protect public health against the spread of this deadly virus." Hence the agency requests that Jefferson County District Court "issue a preliminary injunction because irreparable injury, loss, or damage will result to the residents of Jefferson County. COVID-19 is highly contagious and the Bandimeres' decision to host a large-scale public event in violation of the Public Health Orders threatens the public health of those in Jefferson County."
The suit argues that "the balance of equities favors a preliminary and permanent injunction because
JCPH’s protection of the public health considering COVID-19 outweighs any potential impact caused by the Public Health Orders, which permits gatherings at outdoor venues in limited numbers to prevent further spread of this potentially deadly virus."
As a direct result of JCPH enforcement of the Target Orders, Bandimere Speedway is now faced with business failure for only one reason: the Target Orders and JCPH enforcement of the Target Orders.Additionally, the lawsuit maintains that "Defendant Polis ignored constitutionally compliant options by which to implement new laws and policies," such as to "seek enactment of a bill during the Regular Session of the Legislature," "seek enactment of a bill during a Special Session of the Legislature," or to direct the CDPHE to issue new rules or orders under the State Administrative Procedures Act, which Polis is accused of violating. Besides, it claims that "even if the Target Orders are based upon legally sufficient authority, they are unconstitutionally overbroad and void for vagueness."
Bandimere Speedway personnel have tried their best to comply with the Target Orders, despite the fact that the Target Orders have no category of business narrowly tailored to Bandimere Speedway’s truly one-of-a-kind business model and venue.
Bandimere Speedway’s requests to JCPH for a "workaround” the Target Orders in the form of a variance or other accommodation to obtain approval for large events have been denied, despite the fact that the Bandimere Speedway format (largely outdoors), facility size (160 plus acres) and configuration (multiple activities and focal points spread out over a wide area) easily allows for social distancing by those who choose to do so.
As a direct result of the Target Orders and JCPH’s actions to enforce them, the Bandimeres have already suffered ruinous financial losses, irreparable damage to reputation and standing in the community, and grievous losses of liberty, civil rights, and property rights.
If judicial review of the Target Orders does not result in the relief requested in this Complaint, then Bandimere Speedway may not survive in business.
What follows are ten separate claims against the defendants, with the sixth suggesting that the orders violate the Colorado Constitution's mandate about freedom of speech. "The Target Orders have had far more than a chilling effect upon each Plaintiff," as exemplified by the "Bandimeres’ right to freely associate with family, friends and members of the community and engage in protected expression" during a July 4 fireworks spectacular that drew a crowd of around 7,000 and spurred the facility's first face-off with Jefferson County Public Health.
"The Bandimere Speedway 4th of July activities have always included the usual full range of car races," the suit notes, "but it is an extra special day upon which to glorify God and celebrate the nation’s independence with public prayers, the national anthem, a military honor guard to present the colors, speeches to honor God and country and military veterans and law enforcement and then — when night falls — the fireworks show.... For the Bandimeres and hundreds (if not thousands) of Bandimere Speedway customers, just being there to take it all in is constitutionally protected worship and speech and association and political expression, each and all of which are fundamental liberty interests which Plaintiffs are entitled to freely exercise by the Colorado Constitution."
Here's the key paragraph in this lawsuit's conclusion: "The essence of the Bandimeres’ Complaint is that the chief executive by executive order is purportedly making new laws and implementing new public policies which wholly usurp the power of the legislative department to make the laws, a power which has been delegated by the People through their Colorado Constitution exclusively to the legislative department."
The ugly legal duel kicked off by these suits will likely take months to play out. Colorado's approach to battling the pandemic hangs in the balance.
Click to view John Bandimere Jr., et al., v. Jared Polis, et al., Jefferson County Public Health v. Bandimere Auto Performance Center Inc., and the JCPH's August 31 letter about the Stop the COVID Chaos rally.