John Bandimere JR., Et Al., v. Jared Polis, Et Al.

DISTRICT COURT, JEFFERSON COUNTY, COLORADO
100 Jefferson County Parkway,

Golden, CO 80401
JOHN BANDIMERE JR.,

LORRAINE BANDIMERE, and
BANDIMERE AUTO-PERFORMANCE CENTER, INC.
d/b/a BANDIMERE SPEEDWAY, INC.,
Plaintiffs,
v.
JARED POLIS, in only his official capacity as Governor of

the State of Colorado, COURT USE ONLY
THE COLORADO DEPARTMENT OF PUBLIC
HEALTH AND ENVIRONMENT,
JILL HUNSAKER RYAN, in only her official capacity as
Executive Director of the Colorado Department of Public
Health and Environment,
JEFFERSON COUNTY PUBLIC HEALTH, and
MARK B. JOHNSON, M.D., in only his official capacity as
Executive Director of Jefferson County Public Health,
Defendants.
ATTORNEYS FOR PLAINTIFFS:

Law Offices of Randy B. Corporon, P.C. Case No.:
Randy B. Corporon, #29861
Dane E. Torbenson, #29860 Division:
Kevin J. Farrell, #27091
Brian E. Lewis, #41295
Joanna Floribus, #50414
2821 S. Parker Road, Suite 555
Aurora, CO 80014
Phone Number: 303-749-0062
VERIFIED COMPLAINT
FOR DECLARATORY AND INJUNCTIVE RELIEF AND DAMAGES
John Bandimere, Jr., Lorraine Bandimere, and Bandimere Auto-Performance Center,
Inc., doing business as Bandimere Speedway, Inc. (collectively, “the Bandimeres” or

“Plaintiffs”), by and through undersigned counsel, respectfully state, allege, and complain
against:
(1) Jared Polis, in only his official capacity as Governor of the State of Colorado
(“Defendant Polis”);
(2) Colorado Department of Public Health and Environment (“Defendant CDPHE”);
(3) Jill Hunsaker Ryan, in only her official capacity as Executive Director of Colorado
Department of Public Health and Environment (“Defendant Ryan”);
(4) Jefferson County Public Health (“Defendant JCPH”); and
(5) Mark B. Johnson, M.D., in only his official capacity as Executive Director of
Jefferson County Public Health (“Defendant Johnson”);
for clarity and brevity, collectively “Defendants.”1
Overview of the Complaint.
1. In order to obtain specific enforcement of the explicit requirements of Article III and
Article V (including, but not limited to, Article V, Section 17) of the Colorado Constitution to
which each Plaintiff is entitled under Article II, Section 6 of the Colorado Constitution, Plaintiffs
bring this action in which they challenge as unconstitutional, both “as applied” and “facially,”
various state actions by state actors including, but not limited to:
Defendant Polis acting by and through one or more Executive Orders (“EOs”);
Defendant Ryan acting by and through one or more of Defendant CDPHE’s Public Health
Orders (“PHOs”); and
Defendant Johnson, acting by and through either: (a) one or more of Defendant CDPHE’s
1
To properly address the constitutional issues raised by the extraordinary conduct of Defendants
requires a Complaint of extraordinary length. To assist the Court in navigating this Complaint, a
Table of Contents is attached to this Complaint as Appendix A, and same is hereby incorporated
by reference as though fully set forth herein.
2
PHOs; or (b) one or more of Defendant JCPH’s PHOs issued by Defendant Johnson.
“As applied” and “facial” constitutional challenges.2
2. “When asserting an as-applied challenge, the party ‘contends that the statute would be
unconstitutional under the circumstances in which the [party] has acted or proposes to
act.’ Sanger v. Dennis, 148 P.3d 404, 410–11 (Colo.App.2006). ‘The practical effect of holding a
statute unconstitutional as applied is to prevent its future application in a similar context, but not
to render it utterly inoperative.’ Dev. Pathways v. Ritter, 178 P.3d 524, 534 (Colo.2008)
(quoting Sanger, 148 P.3d at 410). In contrast, a facial constitutional challenge is used when a
party seeks ‘to render [a statute] utterly inoperative.’ Id. (quoting Sanger, 148 P.3d at 410).”
Colorado Ins. Guar. Ass'n v. Sunstate Equip. Co., LLC, 2016 COA 64, 405 P.3d 320, 329.
Plaintiffs challenge the Colorado Disaster Emergency Act as unconstitutional.
3. For the reasons more particularly described in this Complaint, Plaintiffs challenge the
Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., generally, and specifically §
24-33.5-704(2) and § 24-33.5-704(7)(a), as unconstitutional, both as applied and facially,
because the statutes do not comply with the requirements of the United States Constitution and
2
For a somewhat dated, yet learned, thoughtful, and comprehensive treatment of “as applied”
and “facial” constitutional challenges, see the exchange (citations below) between two Harvard
Law School professors in the April 2000 Harvard Law Review.
See Fallon, Jr., Richard H., As-applied and Facial Challenges and Third Party Standing. 113
Harv. L. Rev. 1321 (2000). Available at SSRN: https://ssrn.com/abstract=229015
See Professor Adler’s detailed critique of the arguments presented by Professor Fallon. Adler,
Matthew D., Rights, Rules, and Structure of Constitutional Adjudication: A Response to
Professor Fallon. 113 Harv. L. Rev. 1371 (2000).
Available at SSRN: https://ssrn.com/abstract=229017
3
the Colorado Constitution, 3 the direct consequence of which is unjust injury to the fundamental
civil rights, liberty interests, and property rights of each Plaintiff.
“Target Statutes” identified.
4. For clarity and brevity, the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et
seq., generally, and specifically § 24-33.5-704(2) and § 24-33.5-704(7)(a), may be collectively
referred to as “the Target Statutes.”
Plaintiffs challenge various Executive Orders as unconstitutional.
5. For the reasons more particularly described in this Complaint, Plaintiffs challenge each of
various EOs (listed below), and, in particular, Defendant Polis’ Executive Order D 2020 123, as
unconstitutional, both as applied and facially, because the Executive Orders do not comply with
the requirements of the United States Constitution and the Colorado Constitution, the direct
consequence of which is unjust injury to the fundamental civil rights, liberty interests, and
property rights of each Plaintiff.
3
Each and all of Plaintiffs’ claims for relief in this action are grounded in Colorado state law, i.e.
the Colorado Constitution and Colorado state statutes and other Colorado state laws, as enforced
by and through 42 U.S.C. §§ 1983 and 1988.
References in this Complaint (and all other Plaintiffs’ pleadings) to the United States
Constitution and U.S. Constitutional jurisprudence are to place in proper context the Colorado
state laws upon which Plaintiffs rely as the basis of their claims. Cnf. People Ex Rel. Salazar v.
Davidson, 79 P.3d 1221 (2003)(We base our decision on the Colorado Constitution, but to put
state law in context, we begin with a discussion of federal law.).
Each Plaintiff does not waive, and hereby expressly reserves for adjudication as federal questions
in the federal courts, all of their rights, remedies, and claims grounded in the United States
Constitution and U.S. Constitutional jurisprudence.
4
The “Target EO” identified.
6. For clarity and brevity, Defendant Polis’ June 30, 2020 Executive Order D 2020 123
may be referred to as “EO 123” or “the Target EO;” a copy of this EO 123 is attached to this
Complaint as Exhibit 1.
Plaintiffs challenge various CDPHE Public Health Orders as unconstitutional.
7. For the reasons more particularly described in this Complaint, Plaintiffs challenge each of
various CDPHE Public Health Orders, and, in particular, Defendant CDPHE’s Eighth Amended
Public Health Order 20-28, as unconstitutional, both as applied and facially, because Defendant
CDPHE’s Public Health Orders do not comply with the requirements of the United States
Constitution and the Colorado Constitution, the direct consequence of which is unjust injury to
the fundamental civil rights, liberty interests, and property rights of each Plaintiff.
The “Target CDPHE PHO” identified.
8. For clarity and brevity, Defendant CDPHE’s Eighth Amended Public Health Order 20-28
may be referred to as “the Eighth Amended PHO 20-28” or “the Target CDPHE PHO;” a
copy of this Eighth Amended PHO 20-28 is attached to this Complaint as Exhibit 2.
Plaintiffs challenge various JCPH Public Health Orders as unconstitutional.
9. For the reasons more particularly described in this Complaint, Plaintiffs challenge various
JCPH Public Health Orders, and, in particular, Defendant JCPH Public Health Order 20-007, as
unconstitutional, both as applied and facially, because Defendant JCPH’s Public Health Orders
do not comply with the requirements of the United States Constitution and the Colorado
Constitution, the direct consequence of which is unjust injury to the fundamental civil rights,
liberty interests, and property rights of each Plaintiff.
5
The “Target JCPH PHO” identified.
10. For clarity and brevity, Defendant JCPH’s Public Health Order 20-007 may be referred to
as “JCPH PHO 20-007” or “the Target JCPH PHO;” a copy of this JCPH PHO 20-007 is
attached to this Complaint as Exhibit 3.
Link to Defendant Polis’ Executive Orders and Defendant CDPHE’s Public Health Orders.
11. The state actions by state actors about which Plaintiffs complain are based, in part, upon
certain EOs issued by Defendant Polis and certain PHOs issued by Defendant Ryan for
Defendant CDPHE; these include, but are not limited to, the Target EO and the Target CDPHE
PHO. On information and belief, all of Defendant Polis’ EOs and many, but not all, of
Defendant CDPHE’s PHOs are published by the State of Colorado at this link:
https://covid19.colorado.gov/prepare-protect-yourself/prevent-the-spread/public-health-
executive-orders
Link to Defendant JCPH’s Public Health Order 20-007.
12. The state actions by JCPH state actors about which Plaintiffs complain are based, in part,
upon certain PHOs issued by Defendant Johnson for Defendant JCPH; these include, but are not
limited to, the Target JCPH PHO. On information and belief, the Target JCPH PHO and the
other JCPH PHOs are published by Defendant JCPH at this link:
https://www.jeffco.us/DocumentCenter/View/22689/JeffCo-Public-Health-Order-20-007-
072020Signed
A list of the EOs, CDPHE PHOs, and JCPH PHOs challenged in this Complaint as
unconstitutional, collectively “the Subject Orders.”
13. The EOs issued by Defendant Polis, the CDPHE PHOs issued by Defendant Ryan, and the
JCPH PHOs issued by Defendant Johnson, about which Plaintiffs complain in this action, are
more particularly described elsewhere in this Complaint, but are here listed (in chronological
6
order) as follows:
A. CDPHE Public Health Order 20-20, issued March 12, 2020;
B. CDPHE Public Health Order 20-22, issued March 16, 2020;
C. CDPHE Updated Public Health Order 20-22, issued March 19, 2020;
D. Executive Order D 2020 013, issued March 22, 2020;
E. CDPHE Public Health Order 20-24, issued March 22, 2020;
F. Executive Order D 2020 017, issued March 25, 2020;
G. CDPHE Second Updated Public Health Order 20-24, issued March 27, 2020;
H. CDPHE Third Updated Public Health Order 20-24, issued April 1, 2020;
I. Executive Order D 2020 024, issued April 6, 2020;
J. CDPHE Amend Public Health Order 20-20, issued April 20, 2020;
K. Executive Order D 2020 044, issued April 26, 2020;
L. CDPHE Public Health Order 20-28, issued April 26, 2020;
M. CDPHE Amended Public Health Order 20-28, issued May 4, 2020;
N. CDPHE Second Amended Public Health Order 20-28, issued May 8, 2020;
O. CDPHE Third Amended Public Health Order 20-28, issued May 14, 2020;
P. CDPHE Fourth Amended Public Health Order 20-28, issued May 26, 2020;
Q. Executive Order D 2020 91, issued June 1, 2020;
R. CDPHE Fifth Amended Public Health Order 20-28, issued June 2, 2020;
S. CDPHE Sixth Amended Public Health Order 20-28, issued June 5, 2020;
T. CDPHE Seventh Amended Public Health Order 20-28, issued June 18, 2020;
U. Executive Order D 2020 123, issued June 30, 2020
(the Target EO);
7
V. CDPHE Eighth Amended Public Health Order 20-28, issued June 30,
2020 (the Target CDPHE PHO);
W. JCPH Order 20-005, issued July 14, 2020;
X. JCPH Order 20-006, issued July 16, 2020;
Y. JCPH Order 20-007, issued July 20, 2020
(the Target JCPH PHO);
Z. Executive Order D 2020 142, issued July 21, 2020;
AA. Executive Order D 2020 144, issued July 23, 2020;
BB. JCPH Order 20-008, issued July 24, 2020;
CC. CDPHE Ninth Amended Public Health Order 20-28, issued July 30, 2020;
DD. Executive Order D 2020 170, issued August 21, 2020;
EE. CDPHE Tenth Amended Public Health Order 20-28, issued August 31, 2020
each, and all, as extended or amended or revised or replaced.4
The listed EOs, CDPHE PHOs, and JCPH PHOs referred to as “the Subject Orders.”
14. Plaintiffs challenge each and all of the above listed EOs and CDPHE PHOs and JCPH
PHOs (collectively, “the Subject Orders”), as unconstitutional, both as applied and facially,
because they do not comply with the requirements of the United States Constitution and the
Colorado Constitution.
4
Most, if not all, of the EOs and PHOs about which Plaintiffs complain in this Complaint have
been repeatedly extended or amended or revised or replaced. Plaintiffs intend that each and every
reference in this Complaint to a specific EO or PHO will encompass all predecessor EOs and
PHOs and successor EOs and PHOs by way of extension, amendment, revision, replacement, or
otherwise.
In order to avoid needless redundancy of verbiage, and for clarity and brevity, in this Complaint
and all other pleadings of Plaintiffs, reference will be made to only a specific EO or PHO
wherever possible, but without the cumbersome trailing inclusion of “… as extended or amended
or revised or replaced.”
8
The three “Target Orders” which are a subset of the thirty-one Subject Orders.
15. In order to simplify this Complaint and streamline communication about the disputed
issues, Plaintiffs have identified a representative subset of only three (3) of the thirty-one (31)
Subject Orders; for clarity and brevity, this subset of the Subject Orders is identified in this
Complaint and Plaintiffs’ other pleadings collectively as “the Target Orders.”
16. The Target Orders subset of the Subject Orders is comprised of: (1) one of the EOs issued
by Defendant Polis; (2) one of the CDPHE PHOs issued by Defendant Ryan; and (3) one of the
JCPH PHOs issued by Defendant Johnson; these Target Orders are listed as follows:
Executive Order D 2020 123, issued June 30, 2020 (“the Target EO”);
the CDPHE Eighth Amended Public Health Order 20-28, issued June 30, 2020
(“the Target CDPHE PHO”);
JCPH Order 20-007, issued July 20, 2020 (“the Target JCPH PHO”).
17. For clarity and brevity, Plaintiffs will frame this Complaint and Plaintiffs’ other
pleadings by reference primarily to the Target Orders, each of which is an archetype of the other
Subject Orders of like kind.
18. It is Plaintiffs’ intention that each allegation about and complaint against each Target
Order in this Complaint and Plaintiff’s other pleadings applies to the other Subject Orders of like
kind. Plaintiff respectfully reserves the right to amend this Complaint to address with specificity
each and every one of the thirty-one (31) Subject Orders, in the event this approach is objected to
by any party or the Court.
Relief Requested by each Plaintiff.
19. In order to compel each and all of the Defendants to cease and desist their unlawful state
actions in violation of the explicit requirements of Article III and Article V (including, but not
9
limited to, Article V, Section 17) of the Colorado Constitution, Plaintiffs bring this action in
which they seek:
(as to the Colorado Disaster Emergency Act)
(a) judicial review of the constitutionality of the Target Statutes, the Colorado
Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., generally, and specifically § 24-
33.5-704(2) and § 24-33.5-704(7)(a);
(b) a declaratory judgment that the Target Statutes do not comply with Article III of
the Colorado Constitution which requires distribution of expressly enumerated powers
among the executive, legislative, and judicial departments of Colorado government;
(c) a declaratory judgment that the Target Statutes do not comply with Article III of
the Colorado Constitution which explicitly prohibits exercise of Article V legislative
powers by the executive department;
(d) a declaratory judgment that the Target Statutes do not comply with Article V,
Section 17 of the Colorado Constitution which explicitly requires that no law shall be
passed except by bill in the legislature;
(e) an injunction to restrain Defendant Polis from any action to enforce, administer,
or in any other way take action based upon the purported authority of the Target Statutes;
(as to Defendant Polis and the Executive Orders)
(f) judicial review of the constitutionality of the Target EO issued by Defendant Polis
in his official capacity as Governor of the State of Colorado;
(g) a declaratory judgment that the Target EO does not comply with Article III of the
Colorado Constitution which requires distribution of expressly enumerated powers
among the executive, legislative, and judicial departments of Colorado government;
10
(h) a declaratory judgment that the Target EO does not comply with Article III of the
Colorado Constitution which explicitly prohibits exercise of Article V legislative powers
by the executive department;
(i) a declaratory judgment that the Target EO does not comply with Article V,
Section 17 of the Colorado Constitution which explicitly requires that no law shall be
(j) a declaratory judgment that the Target EO is a set of state executive agency rules
issued in violation of the State Administrative Procedures Act. C.R.S. §§ 24-4-101, et.
seq. generally, and in particular, C.R.S. § 24-1-101, and that as such, the Target EO is a
set of state executive agency rules not issued within the power delegated to the agency
and as authorized by law, and therefore is void in accord with C.R.S. § 24-1-101 and
C.R.S. § 24-4-103(8)(a);
(k) a declaratory judgment that the Target EO is a set of state executive agency rules
seq. generally, and in particular, C.R.S. § 24-4-103(8)(a), and that as such, the Target EO
is a set of state executive agency rules issued in conflict with the State Administrative
Procedures Act, and therefore is void in accord with C.R.S. § 24-4-103(8)(a);
(l) a declaratory judgment that the Target EO is a set of state executive agency rules
seq., generally, and in particular, C.R.S. § 24-4-103(8)(b), and that as such, the Target
EO is a set of state executive agency rules issued without first being submitted to the
attorney general for his or her opinion as to its constitutionality and legality as required
11
by the State Administrative Procedures Act, and therefore is void in accord with C.R.S. §
24-4-103(8)(b);
(m) a declaratory judgment that the Target EO is a set of state executive agency rules
that does not comply with the explicit requirements of the State Administrative
Procedures Act. C.R.S. §§ 24-4-101, et. seq., and is void because it is:
(i) contrary to constitutional rights or privileges;
(ii) in excess of the statutory authority or jurisdiction of the county or district
board or public health director;
(iii) affected by any error of law;
(iv) made or promulgated upon unlawful procedure;
(v) unsupported by substantial evidence in view of the entire record as submitted;
or
(vi) arbitrary or capricious;
(n) an injunction to restrain Defendant Polis from any action to enforce, administer,
or in any other way take action based upon the purported authority of the Target EO;
(as to Defendant CDPHE, Defendant Ryan, and the CDPHE PHOs)
(o) judicial review of the constitutionality of the Target CDPHE PHO issued by
Defendant Ryan in her official capacity as Executive Director of Colorado Department of
Public Health and Environment;
(p) a declaratory judgment that the Target CDPHE PHO does not comply with Article
III of the Colorado Constitution which requires distribution of expressly enumerated
powers among the executive, legislative, and judicial departments of Colorado
government;
12
(q) a declaratory judgment that the Target CDPHE PHO does not comply with Article
III of the Colorado Constitution which explicitly prohibits exercise of Article V
legislative powers by the executive department;
(r) a declaratory judgment that the Target CDPHE PHO does not comply with Article
V, Section 17 of the Colorado Constitution which explicitly requires that no law shall be
(s) a declaratory judgment that the Target CDPHE PHO is a set of state executive
agency rules issued in violation of the State Administrative Procedures Act. C.R.S. §§
24-4-101, et. seq. generally, and in particular, C.R.S. § 24-1-101, and that as such, the
Target CDPHE PHO is a set of state executive agency rules not issued within the power
delegated to the agency and as authorized by law, and therefore is void in accord with
C.R.S. § 24-1-101 and C.R.S. § 24-4-103(8)(a);
(t) a declaratory judgment that the Target CDPHE PHO is a set of state executive
24-4-101, et. seq. generally, and in particular, C.R.S. § 24-4-103(8)(a), and that as such,
the Target CDPHE PHO is a set of state executive agency rules issued in conflict with the
State Administrative Procedures Act, and therefore is void in accord with C.R.S. § 24-4-
103(8)(a);
(u) a declaratory judgment that the Target CDPHE PHO is a set of state executive
24-4-101, et. seq., generally, and in particular, C.R.S. § 24-4-103(8)(b), and that as such,
the Target CDPHE PHO is a set of state executive agency rules issued without first being
submitted to the attorney general for his or her opinion as to its constitutionality and
13
legality as required by the State Administrative Procedures Act, and therefore is void in
accord with C.R.S. § 24-4-103(8)(b);
(v) a declaratory judgment that the Target CDPHE PHO is a set of state executive
agency rules that does not comply with the explicit requirements of the State
Administrative Procedures Act. C.R.S. §§ 24-4-101, et. seq., and is void because it is:
or
(w) an injunction to restrain Defendant Ryan from any action to enforce, administer, or
in any other way take action based upon the purported authority of the Target CDPHE
PHO;
(as to Defendant JCPH, Defendant Johnson, and the JCPH PHOs)
(x) judicial review of the constitutionality of the Target JCPH PHO issued by
Defendant Johnson in his official capacity as Executive Director of Jefferson County
Public Health;
(y) a declaratory judgment that the Target JCPH PHO does not comply with Article
III of the Colorado Constitution which requires distribution of expressly enumerated
14
powers among the executive, legislative, and judicial departments of Colorado
government;
(z) a declaratory judgment that the Target JCPH PHO does not comply with Article
III of the Colorado Constitution which explicitly prohibits exercise of Article V
legislative powers by the executive department;
(aa) a declaratory judgment that the Target JCPH PHO does not comply with Article
V, Section 17 of the Colorado Constitution which explicitly requires that no law shall be
(bb) a declaratory judgment that the Target JCPH PHO is a set of state executive
24-4-101, et. seq. generally, and in particular, C.R.S. § 24-1-101, and that as such, the
Target JCPH PHO is a set of state executive agency rules not issued within the power
delegated to the agency and as authorized by law, and therefore is void in accord with
C.R.S. § 24-1-101 and C.R.S. § 24-4-103(8)(a);
(cc) a declaratory judgment that the Target JCPH PHO is a set of state executive
24-4-101, et. seq. generally, and in particular, C.R.S. § 24-4-103(8)(a), and that as such,
the Target JCPH PHO is a set of state executive agency rules issued in conflict with the
State Administrative Procedures Act, and therefore is void in accord with C.R.S. § 24-4-
103(8)(a);
(dd) a declaratory judgment that the Target JCPH PHO is a set of state executive
24-4-101, et. seq., generally, and in particular, C.R.S. § 24-4-103(8)(b), and that as such,
15
the Target JCPH PHO is a set of state executive agency rules issued without first being
submitted to the attorney general for his or her opinion as to its constitutionality and
legality as required by the State Administrative Procedures Act, and therefore is void in
accord with C.R.S. § 24-4-103(8)(b);
(ee) a declaratory judgment that the Target JCPH PHO is a set of state executive
agency rules that does not comply with the explicit requirements of the State
Administrative Procedures Act. C.R.S. §§ 24-4-101, et. seq., and is void because it is:
or
(ff) an injunction to restrain Defendant Johnson from any action to enforce,
administer, or in any other way take action based upon the purported authority of the
Target JCPH PHO.
Additional Relief Requested by each Plaintiff.
20. In addition, by and through the Claims more particularly stated elsewhere in this
Complaint, Plaintiffs seek:
16
(1) declaratory relief from this Court declaring that each of the Subject Orders deprives
each Plaintiff of fundamental civil rights, liberty interests, and property rights
fundamental civil rights, liberty interests, and property rights in violation of:
(a) 42 U.S.C. Section 1983 of the Federal Civil Rights Act (“Section 1983”);
(b) Article III, IV, V, and VI of the Colorado Constitution (Distribution of Powers);
(c) Article III of the Colorado Constitution (nondelegation of Article IV, V, and VI
powers);
(d) Article V, Section 17 of the Colorado Constitution (no laws except by bill passed
in the legislature);
(e) Article II, Section 25 of the Colorado Constitution (due process and equal
protection);
(f) Article II, Section 3 of the Colorado Constitution (inalienable rights);
(g) Article II, Section 4 of the Colorado Constitution (religious freedom);
(h) Article II, Section 10 of the Colorado Constitution (freedom of speech and right
of association); and
(i) Article II, Section 15 of the Colorado Constitution (taking private property for
public use);
(2) equitable and injunctive relief to enjoin the enforcement of each of the Target Orders;
(3) attorney’s fees and costs for the work done by counsel for each Plaintiff in
connection with this lawsuit in an amount according to proof; and
(4) for such other and further relief as the Court deems just and appropriate.
Plaintiff, John Bandimere, Jr.
17
21. Plaintiff John Bandimere, Jr. (“Plaintiff John, Jr.”), is a natural person, the husband of
Plaintiff Lorraine Bandimere, and a resident of Jefferson County in the State of Colorado.
Plaintiff John, Jr. is currently personally involved in management and ownership of Bandimere
Speedway, as he has been his entire adult life.
Plaintiff, Lorraine Bandimere.
22. Plaintiff Lorraine Bandimere (“Plaintiff Lorraine”), is a natural person, the wife of
Plaintiff John Bandimere, Jr. and a resident of Jefferson County in the State of Colorado.
Plaintiff Lorraine is currently personally involved in management and ownership of Bandimere
Speedway, as she has been her entire adult life.
Plaintiff, Bandimere Speedway.
23. Plaintiff Bandimere Auto-Performance Center, Inc., doing business as Bandimere
Speedway, Inc. (“Plaintiff Speedway” or “Bandimere Speedway”), is a Colorado corporation in
good standing and doing business in Jefferson County, Colorado, with its principal office street
address located at 51 South Rooney Road, Morrison, Colorado 80465.
24. "In 1958, John Bandimere, Sr. purchased a parcel of land on the west side of Denver
nestled up against the hogback leading up to the Rocky Mountains. He and his family began the
process of constructing a small but efficient dragstrip that was used to augment their auto parts
business. It was also the fulfillment of a dream of John Sr. and his wife Frances to provide a safe
environment for young people to learn about cars and race them off the streets.” Quoted from
the jacket of the book about the history of the Bandimere family and Bandimere Speedway,
Living It Loud, Faith Family and the Pursuit of Speed, by Chad Bonham (with Forewards by
drag racing legends John Force and Don Garlits).
25. “Now, over [62] years later, the only thing at Bandimere Speedway that has not changed
18
is the facility’s location. A major renovation in 1988 replaced nearly every original structure,
allowing the facility to host larger events while providing major exposure opportunities for the
race track and its sponsors.” Living It Loud, Faith Family and the Pursuit of Speed, id.
26. Bandimere Speedway is now nationally and internationally recognized as a world class
racing facility, proudly operated by a third generation of the Bandimere family.
Defendant, Jared Polis.
27. Defendant Jared Polis (“Defendant Polis”), is a natural person, a resident of the State of
Colorado, and the current Governor of the State of Colorado (“the Governor”).
28. As Governor, Mr. Polis is the head of the executive department of government of the
State of Colorado. Colo. Const. Article IV, Section 2.
29. Defendant Polis issued the Executive Orders which are among the subjects of this action,
including the Target EO. Defendant Polis is sued only in his official capacity as Governor of the
State of Colorado, pursuant to Ex Parte Young, 209 U.S. 123, 152-154 (1908).
Defendant, Colorado Department of Public Health and Environment.
30. The Colorado Department of Public Health and Environment is a state agency in the
executive department of Colorado government.
31. Defendant CDPHE is a political subdivision of the State of Colorado established as a
state public health agency pursuant to C.R.S. § 24-1-119.
Defendant, Jill Hunsaker Ryan.
32. Defendant, Jill Hunsaker Ryan (“Defendant Ryan”), is a natural person, a resident of the
State of Colorado, and the current Executive Director of Defendant CDPHE.
19
33. As Executive Director of Colorado Department of Public Health and Environment,
Defendant Ryan is the head of a state agency in the executive department of government of the
State of Colorado.
34. Defendant Ryan issued the Public Health Orders which are among the subjects of this
action, including the Target CDPHE PHO.
35. Defendant Ryan is sued only in her official capacity as Executive Director of Colorado
Department of Public Health and Environment, pursuant to Ex Parte Young, 209 U.S. 123, 152-
154 (1908).
Defendant, Jefferson County Public Health.

36. Jefferson County Public Health (“Defendant JCPH”) is a county agency in the executive
department of Colorado government.
37. Defendant JCPH is a political subdivision of the State of Colorado established as a
county public health agency pursuant to C.R.S. § 25-1-506.
Defendant, Mark B. Johnson.

38. Defendant, Mark B. Johnson, M.D. (“Defendant Johnson”), is a natural person, a resident
of the State of Colorado, and the current Executive Director of Jefferson County Public Health
(“JCPH”).
39. As Executive Director of JCPH, Defendant Johnson is the head of a county agency in the
executive department of government of the State of Colorado.
40. Defendant Johnson issued the Public Health Orders which are among the subjects of this
action, including the Target JCPH PHO.
41. Defendant Johnson is sued only in his official capacity as Executive Director of Jefferson
County Public Health, pursuant to Ex Parte Young, 209 U.S. 123, 152-154 (1908).
20
Jurisdiction and Venue.
42. This Court has personal jurisdiction over each of the parties Plaintiff because they reside
and do business in Jefferson County, Colorado, and they have filed this Complaint in voluntary
submission to the jurisdiction of the District Court in Jefferson County, Colorado.
43. This Court has personal jurisdiction over the parties Defendant because each of them is a
public officer, the claims brought against them are in virtue of the discharge of their respective
duties as a public officer, and each Defendant is located and performs government functions in
the State of Colorado.
44. This Court has subject matter jurisdiction over this action pursuant to the Constitution of
the State of Colorado, Article VI, Section 9, and C.R.C.P. 106.
45. This Court has jurisdiction over the parties and the subject matter of this case because
Plaintiffs are aggrieved and affected by the state actions of Defendant Polis who issued the
Target EO, which directed Defendant CDPHE to issue a PHO in accord with the dictates of the
Target EO, and the CDPHE PHO issued by Defendant Ryan as directed by Defendant Polis was
enforced by the state actions of Defendant JCPH state actors, including Defendant Johnson.
46. This Court has jurisdiction over the parties and the subject matter of this case because
Plaintiffs are entitled to judicial review in this district court in accord with C.R.S. § 25-1-515;
the fundamental civil rights, liberty interests, and property rights of Plaintiffs have been
implicated and injured by the Target EO issued by Defendant Polis, the Target CDPHE PHO
issued by Defendant Ryan, and the enforcement actions of Defendant JCPH including, but not
limited to enforcement of the Target CDPHE PHO and the Target JCPH PHO issued by
Defendant Johnson, which, individually and collectively, are:
(a) contrary to constitutional rights or privileges;
21
(b) in excess of the statutory authority or jurisdiction of the county or district
(c) affected by any error of law;
(d) made or promulgated upon unlawful procedure;
(e) unsupported by substantial evidence in view of the entire record as submitted;
or
(f) arbitrary or capricious.
C.R.S. § 25-1-515.
47. Venue is proper in this Court under C.R.C.P. 98(b)(2) because each of Defendants Polis,
Ryan, and Johnson is a public officer, the claims brought against each of them are in virtue of the
discharge of their duties as a public officer, and substantially all of the enforcement actions of
Defendant JCPH including, but not limited to, enforcement of the Target CDPHE PHO and the
Target JCPH PHO, occurred in Jefferson County, Colorado.
General Allegations.
48. Plaintiffs make the following general allegations in support of their Complaint about and
against each Defendant in this action.
The Declaration of Independence.
49. On July 4, 1776, the final text of the Declaration of Independence was approved by
Congress, after independence was formally declared on July 2, 1776.5
The United States Constitution.
5
One of the most widely held misconceptions about the Declaration of Independence is that it
was signed on July 4, 1776. In fact, independence was formally declared on July 2, 1776, a date
that John Adams believed would be “the most memorable epocha in the history of America.” On
July 4, 1776, Congress approved the final text of the Declaration, but it was not signed until
August 2, 1776. ConstitutionFacts.com
22
50. On September 17, 1787, the Constitution of the United States was signed.6 The United
States Constitution describes the fundamental architecture of America’s system of government.
51. By and through the United States Constitution, the People:
A. recognized their inherent authority to govern themselves;
B. created a government that keeps that authority in the hands of the people;
C. delegated their authority and separated the powers of government into three
branches:
the legislative branch, which makes the laws;
the executive branch, which executes the laws; and
the judicial branch, which interprets the laws;
D. set up a system of checks and balances that ensures no one branch has too
much power;
E. divided power between the states and the federal government;
F. described the purposes and duties of the government;
G. defined the scope and limits of government power;
H. prescribed the system for electing representatives;
I. established the process for the Constitution’s ratification and amendment; and
J. recognized and enumerated many rights and freedoms of the people.
6
The Constitution did not go into effect the moment it was signed by the delegates. It needed to
be approved by the people through the ratification process. Article VII of the Constitution
established the process for ratification, by simply stating: “The Ratification of the Conventions
of nine States, shall be sufficient for the Establishment of this Constitution between the States so
ratifying the Same.” On June 21, 1788, New Hampshire became the ninth state to ratify, and the
Confederation Congress established March 4, 1789 as the date to begin operating a new
government under the Constitution. National Constitution Center at constitutioncenter.org
23
52. On December 15, 1791, the first ten amendments to the Constitution were ratified and the
“Bill of Rights” became an integral part of the fundamental framework of America’s system of
government.
53. The Preamble to the United States Constitution states as follows.
WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish
Justice, insure domestic Tranquility, provide for the common defense, promote the
general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do
ordain and establish this CONSTITUTION for the United States of America.
U.S. Const. Preamble.
54. The Federal Constitution was, as its preamble recites, ordained and established by the
people of the United States. White v. Hart, U.S.Ga.1871, 80 U.S. 646, 20 L.Ed. 685, 13 Wall.
646.
55. The Constitution emanated from the people, and was not the act of sovereign and
independent states. M'Culloch v. State, U.S.Md.1819, 17 U.S. 316, 4 L.Ed. 579, 4 Wheat. 316.
56. The Constitution of the United States was ordained and established not by the states in
their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by “the
people of the United States; there can be no doubt that it was competent to the people to invest
the general government with all the powers which they might deem proper and necessary, to
extend or restrain these powers according to their own good pleasure, and to give them a
paramount and supreme authority. Martin v. Hunter's Lessee, U.S.Va.1816, 14 U.S. 304, 4
L.Ed. 97, 1 Wheat. 304.
57. The Constitution of the United States was made by, and for the protection of, the people
of the United States. League v. De Young, U.S.Tex.1850, 52 U.S. 185, 11 How. 185, 13 L.Ed.
657.
24
58. Under the Constitution we see the people acting as sovereigns of the whole country; and
in the language of sovereignty, establishing a constitution by which it was their will that the state
governments should be bound, and to which the state constitutions should be made to conform.
Chisholm v. Georgia, U.S.Ga.1793, 2 U.S. 419, 2 Dall. 419, 1 L.Ed. 440.
59. The United States Constitution is the supreme law of the land, and the Judges in every
State are bound thereby. U.S. Const. art. VI, cl. 2.
60. The Supremacy Clause the U.S. Constitution reads as follows.
Clause 2. Supreme Law of Land
This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.
U.S. Const. art. VI, cl. 2.
61. The United States Constitution and the laws passed pursuant to it are the supreme laws of
the land, binding alike upon states, courts, and the people, anything in the Constitution or laws of
any state to the contrary notwithstanding. Testa v. Katt, 330 U.S. 386, 390, 67 S.Ct. 810, 813, 91
L.Ed. 967 (1947), citing with approval Claflin v. Houseman, 93 U.S. 130, 23 L.Ed. 833 (1876).
62. The Constitution and laws of the United States are the supreme law of the land and states
may not enact laws or regulations which are contrary to federal law. Youakim v. Miller, C.A.7
(Ill.) 1977, 562 F.2d 483, probable jurisdiction noted 98 S.Ct. 1230, 434 U.S. 1060, 55 L.Ed.2d
760, affirmed 99 S.Ct. 957, 440 U.S. 125, 59 L.Ed.2d 194.
63. Any section of the state Constitution which is contrary to the federal Constitution is, for
that reason and to that extent, null and void. People v. Western Union Telegraph Co., 1921, 198
P. 146, 70 Colo. 90.
25
The Colorado Constitution.
64. On August 1, 1876, Colorado joined the United States as the thirty-eighth state to enter
the Union.
65. The Constitution of the State of Colorado is the foundation of the laws and government
of the state of Colorado. The current, and only, Colorado State Constitution was drafted March
14, 1876, approved by Colorado voters July 1, 1876, and took effect upon the admission of
Colorado into statehood on August 1, 1876.7 https://leg.colorado.gov/colorado-constitution
66. The Preamble of the Colorado Constitution states as follows.
We, the people of Colorado, with profound reverence for the Supreme Ruler of the
Universe, in order to form a more independent and perfect government; establish justice;
insure tranquility; provide for the common defense; promote the general welfare and
secure the blessings of liberty to ourselves and our posterity, do ordain and establish this
constitution for the “State of Colorado.”
Colo. Const. Preamble.
67. The People of Colorado apparently saw the wisdom in the architecture and substance of
the Federal Constitution because in most respects they echoed it, as - by and through their
Colorado Constitution - the People:
A. recognized their inherent authority to govern themselves;
B. created a government that keeps that authority in the hands of the people;
C. delegated their authority and separated the powers of government into three
departments:
the legislative department, which makes the laws;
the executive department, which executes the laws; and
7
The Colorado Constitution was written in three languages: English, Spanish, and German. This
was due to the efforts of Casimiro Barela, a territorial legislator who was born in then-Mexico.
historycolorado.org
26
the judicial department, which interprets the laws;
D. set up a system of checks and balances that ensures no one department has too
much power;
E. described the purposes and duties of the government;
F. defined the scope and limits of government power;
G. prescribed the system for electing representatives;
H. established the process for the Constitution’s amendment; and
I. recognized and enumerated many rights and freedoms of the people.
The People of Colorado are the source of all political power.
68. In Article II, Section 1 of the Colorado Constitution, the People unequivocally declared
themselves as the source of all political power and the authors of their self-government.
69. Article II, Section 1 of the Colorado Constitution states as follows.
§ 1. Vestment of political power
“All political power is vested in and derived from the people; all government, of right,
originates from the people, is founded upon their will only, and is instituted solely for the
good of the whole.”
Colo. Const. art. II, § 1.
The People of Colorado have the authority to delegate their political power.
70. The authors of the Colorado Constitution, i.e. the People, are the “authors” of their
republican form of self-government; as the authors of the Colorado Constitution, the People
have the “author-ity” to delegate their political power as they see fit by and through their
27
In Article III, the People of Colorado distributed their political power.
71. In Article III of the Colorado Constitution, the People delegated their authority and
invested their powers of government into three separated departments as a system of checks and
balances that ensures no one department has too much power.
72. Article III of the Colorado Constitution states as follows.
Distribution of Powers
The powers of the government of this state are divided into three distinct departments,
--the Legislative, Executive and Judicial; and no person or collection of persons charged
with the exercise of powers properly belonging to one of these departments shall exercise
any power properly belonging to either of the others, except as in this Constitution
expressly directed or permitted.
Colo. Const. art. III.
The Colorado Constitution says what the People intended.
73. Each clause and sentence of a constitution or statute must be presumed to have purpose
and use, which neither courts nor legislature may ignore. Colorado State Civil Service Emp.
Ass'n v. Love, 1968, 448 P.2d 624, 167 Colo. 436.
74. The constitution is to be construed as a whole, including the amendments, giving to each
word its proper effect, and so far as possible harmonizing each provision with every other. The
same meaning is to be ascribed to the same words in the different articles and sections, unless it
clearly appears from the context that a different sense was intended in what is alleged to be an
exception. Dixon v. People, 1912, 127 P. 930, 53 Colo. 527.
75. Where language of the Constitution is plain and its meaning clear, that language must be
declared and enforced as written. Colorado Ass'n of Public Employees v. Lamm, 1984, 677 P.2d
1350.
28
In Article IV, the People of Colorado delegated their authority
and certain powers to the Executive Department.
76. In Article IV of the Colorado Constitution, the People delegated their authority and
invested their power to execute the laws in the executive branch of Colorado government, the
“Executive Department.”
In Article V, the People of Colorado delegated their authority

and certain powers the Legislative Department.
77. In Article V of the Colorado Constitution, the People delegated their authority and
invested their power to make the laws in the legislative branch of Colorado government, the
“Legislative Department.”
In Article VI, the People of Colorado delegated their authority

and certain powers the Judicial Department.
78. In Article VI of the Colorado Constitution, the People delegated their authority and
invested their power to interpret the laws in the judicial branch of Colorado government, the
“Judicial Department.”
In the Administrative Organization Act of 1968, the Colorado Legislature created the
structure of state government by which state administrative agencies were delegated
limited legislative authority.
79. The “Administrative Organization Act of 1968” (“AOA”) is found in Colo. Rev. Stat.
Ann. § 24-4-101, et seq.
80. The following Legislative declaration begins the AOA.
§ 24-1-101. Legislative declaration
The general assembly declares that this article is necessary to create a structure of state
government which will be responsive to the needs of the people of this state and
sufficiently flexible to meet changing conditions; to strengthen the powers of the
governor and provide a reasonable span of administrative and budgetary controls within
an orderly organizational structure of state government; to strengthen the role of the
general assembly in state government; to encourage greater participation of the public in
state government; to effect the grouping of state agencies into a limited number of
29
principal departments primarily according to function; and to eliminate overlapping and
duplication of effort. It is the intent of the general assembly to provide for an orderly
transfer of powers, duties, and functions of the various state agencies to such principal
departments with a minimum of disruption of governmental services and functions and
with a minimum of expense. To the ends stated in this section, this article shall be
liberally construed.
Colo. Rev. Stat. Ann. § 24-1-101.
In the State Administrative Procedures Act, the Colorado Legislature prescribed the rules
by which a state administrative agency is authorized to exercise limited legislative powers.
81. The “State Administrative Procedure Act” (“SAPA”) is found in Colo. Rev. Stat. Ann. §
24-4-101, et seq.
82. The following Legislative declaration follows immediately after the short title of the
SAPA.
§ 24-4-101.5. Legislative declaration
The general assembly finds that an agency should not regulate or restrict the freedom of
any person to conduct his or her affairs, use his or her property, or deal with others on
mutually agreeable terms unless it finds, after a full consideration of the effects of the
agency action, that the action would benefit the public interest and encourage the benefits
of a free enterprise system for the citizens of this state. The general assembly also finds
that many government programs may be adopted without stating the direct and indirect
costs to consumers and businesses and without consideration of such costs in relation to
the benefits to be derived from the programs. The general assembly further recognizes
that agency action taken without evaluation of its economic impact may have unintended
effects, which may include barriers to competition, reduced economic efficiency, reduced
consumer choice, increased producer and consumer costs, and restrictions on
employment. The general assembly further finds that agency rules can negatively impact
the state's business climate by impeding the ability of local businesses to compete with
out-of-state businesses, by discouraging new or existing businesses from moving to this
state, and by hindering economic competitiveness and job creation. Accordingly, it is the
continuing responsibility of agencies to analyze the economic impact of agency actions
and reevaluate the economic impact of continuing agency actions to determine whether
the actions promote the public interest.
Colo. Rev. Stat. Ann. § 24-4-101.5.
30
In the State Administrative Procedure Act, the Colorado Legislature prescribed the rules
by which a state administrative agency is authorized to issue rules.
83. In the SAPA, the Colorado Legislature has prescribed specific rules and procedures to be
followed by state agencies with the authority to make rules in their exercise of the limited
legislative authority delegated to the agency by the Legislature. C.R.S. § 24-4-103, et seq.
84. The detailed rulemaking procedures provide for due process and include, inter alia:
notice of proposed rulemaking in C.R.S. § 24-4-103(2);
publication of the notice in C.R.S. § 24-4-103(2.5)(a);
publication of the proposed rule(s) in C.R.S. § 24-4-103(3)(a);
public hearing C.R.S. § 24-4-103(4)(a);
the making of a record in C.R.S. § 24-4-103(4)(a.5);
the requisites of every proposed rule in C.R.S. § 24-4-103(4)(b); and
the procedure by which to create a temporary or emergency rule under C.R.S. § 24-4-
103(6)(a) and (b).
85. The SAPA rulemaking procedures include within the enabling legislation numerous
safeguards against abuse of discretion, including all of those listed in the preceding paragraph,
and others, e.g. the requirement that:
“On and after July 1, 1967, no rule may be issued nor existing rule amended by any
agency unless it is first submitted by the issuing agency to the attorney general for his or
her opinion as to its constitutionality and legality. Any rule or amendment to an existing
rule issued by any agency without being so submitted to the attorney general is void.”
C.R.S. § 24-4-103(8)(b).
86. As an additional safeguard against state agency abuse of discretion in making new or
amended rules, the SAPA provides:
31
“No rule shall be issued except within the power delegated to the agency and as
authorized by law. A rule shall not be deemed to be within the statutory authority and
jurisdiction of any agency merely because such rule is not contrary to the specific
provisions of a statute. Any rule or amendment to an existing rule issued by any agency,
including state institutions of higher education administered pursuant to title 23, C.R.S.,
which conflicts with a statute shall be void.”
C.R.S. § 24-4-103(8)(a).
The Colorado Disaster Emergency Act.
87. The Colorado Disaster Emergency Act (“CDEA”) is found at C.R.S. § 24-33.5.701, et
seq. The CDEA (enacted prior to the outbreak of COVID-19 in the United States) establishes a
framework under which the Governor may operate in the event of a declared disaster emergency,
including a disease epidemic.
88. The CDEA provides inter alia that “…the governor may issue executive orders,
proclamations, and regulations and amend or rescind them. Executive orders, proclamations, and
regulations have the force and effect of law.” C.R.S. § 24-33.5-704(2). The CDEA also
provides inter alia that “…In addition to any other powers conferred upon the governor by law,
the governor may: (a) Suspend the provisions of any regulatory statute prescribing the
procedures for conduct of state business or the orders, rules, or regulations of any state agency, if
strict compliance with the provisions of any statute, order, rule, or regulation would in any way
prevent, hinder, or delay necessary action in coping with the emergency;” C.R.S. § 24-33.5-
704(7)(a).
89. Plaintiffs challenge the CDEA in general, and specifically C.R.S. § 24-33.5-704(2) and §
24-33.5-704(7)(a), as unconstitutional in violation of the United States Constitution and the
32
Colorado Constitution, inter alia, Article III, IV, V, and VI of the Colorado Constitution
(Distribution of Powers, express and implied); Article III of the Colorado Constitution
(nondelegation of Article IV, V, and VI powers); and Article V, Section 17 of the Colorado
Constitution (no laws except by bill passed in the legislature).
Colorado Legislative Department Response to COVID-19 in Colorado.
90. On January 8, 2020, the Second Regular Session of the Seventy-second General
Assembly convened and was scheduled to adjourn sine die on May 6, 2020, pursuant to Article
V, Section 7 of the Colorado Constitution. Senate Joint Resolution 19-009.
https://leg.colorado.gov/sites/default/files/2019a_sjr009_signed.pdf
91. On March 13, 2020, Colorado lawmakers announced plans for the General Assembly to
adjourn for two weeks from and after March 14, 2020. Executive Committee of the Legislative
Council. https://www.westword.com/news/colorado-lawmakers-to-suspend-session-amid-
covid-19-outbreak-11664988
92. On March 14, 2020, the General Assembly made a request pursuant to Article VI,
Section 3 of the Colorado Constitution to the Colorado Supreme Court to render its opinion upon
a question regarding Section 7 of Article V of the Colorado Constitution. 2020 House Joint
Resolution 20-1006.
http://leg.colorado.gov/sites/default/files/documents/2020A/bills/2020a_hjr1006_enr.pdf
93. On March 16, 2020, the Colorado Supreme Court en banc entered an Order accepting
the Interrogatory from the General Assembly. Supreme Court Case No. 2020SA100.
https://www.courts.state.co.us/Media/Opinion_Docs/ORDER%20OF%20COURT.pdf
94. On April 1, 2020, the Colorado Supreme Court en banc answered the General
Assembly’s interrogatory, construing the requirement in Article V, Section 7 of the Colorado
33
Constitution limiting the length of the regular legislative session to ”one hundred twenty
calendar days.” In Re: Interrogatory on House Joint Resolution 20-1006, 2020 CO 23. Colorado
Supreme Court en banc, April 1, 2020.
https://www.courts.state.co.us/Media/Opinion_Docs/20SA100.pdf
95. On May 11, 2020, the adjournment of the Seventy-second General Assembly which
began March 14, 2020 was extended through May 25, 2020.
96. On May 26, 2020, the General Assembly was reconvened for legislative work until the
end of the 120-day regular session.
97. Despite being adjourned for more than half of March, all of April, and most of May, the
full 120-day regular session of the Seventy-second General Assembly was allowed by the
Colorado Supreme Court’s decision on April 1, 2020. In Re: Interrogatory on House Joint
Resolution 20-1006, id.
98. On June 15, 2020, the Second Regular Session of the Seventy-second General
Assembly adjourned.
Colorado Executive Department Response to COVID-19 in Colorado.
99. On March 5, 2020, the first case of COVID-19 in Colorado was confirmed. COVID-19
is a disease caused by the SARS-CoV-2 virus.
100. On March 10, 2020, in recognition of the emerging global COVID-19 pandemic and the
presence of COVID-19 cases in Colorado, Governor Polis verbally declared a disaster
emergency pursuant to the Colorado Disaster Emergency Act.
Defendant Polis’ Executive Orders.
101. Since March 11, 2020, Defendant Polis has issued a plethora of Executive Orders with
unprecedented, life-changing consequences for all Coloradans.
34
102. On information and belief, as of September 2, 2020, at 11:00 a.m. Mountain time,
Defendant Polis has issued 175 D 2020 series EOs, all but two of which were issued on or after
March 11, 2020.
103. On information and belief, all of the Governor’s 175 EOs may be found at the following
link:
https://covid19.colorado.gov/covid-19-in-colorado/public-health-executive-orders
Defendant Ryan’s CDPHE Public Health Orders.
104. As expressly directed by Defendant Polis in each of the Subject EOs, Defendant Ryan
issued CDPHE PHOs.
105. On information and belief, as of September 2, 2020, at 11:00 a.m. Mountain time,
Defendant Ryan has issued 32 original CDPHE PHOs, including the Target CDPHE PHO;
many of the original CDPHE PHOs have been amended or replaced, so that the total number of
CDPHE PHO greatly exceeds 34.
106. On information and belief, all of the “current and updated” orders and some of the past (no
longer current) CDPHE PHOs may be found at the following link:
https://covid19.colorado.gov/covid-19-in-colorado/public-health-executive-orders
Defendant Johnson’s JCPH Public Health Orders.
107. As allowed or directed by some of the EOs and PHOs, some Colorado county public
health agencies issued their own public health orders, effective within their respective counties.
Defendant Johnson issued JCPH PHOs, including the Target JCPH PHO.
The scope and sweep of the EOs, CDPHE PHOs and county or district PHOs.
108. Early on, the initial EOs were relatively simple, relatively narrow in topical focus,
relatively limited in scope, and relatively limited in duration.
35
109. For example, Executive Order D 2020 001 (“EO 001”), which activated the Colorado
National Guard to assist with election cybersecurity defense efforts, exemplifies an Executive
Order in which Governor Polis acted within the executive power delegated to him in Article IV,
Section 2 of the Colorado Constitution to faithfully execute the laws. Colo. Const. art. IV, § 2.
110. But with each successive “order” from and after the first few EOs and from and after the
very first CDPHE PHO, there has been dramatic growth in the scope and sweep of the EOs,
CDPHE PHOs and county or district PHOs, i.e. the range of topics, and the depth, breadth, and
complexity of the substance in each order has exponentially increased, as the duration of the
“orders” has been repeatedly extended.8
111. As well-intentioned as the Subject Orders may be with respect to the health, safety and
welfare of the general public, the Subject Orders have implicated and damaged each Plaintiff’s
individual civil rights, liberty interests and property rights in violation of the United States and
Colorado Constitutions. This action challenges the constitutionality of the Target Orders in the
many ways they have implicated each Plaintiff’s fundamental civil rights, liberty interests, and
property rights.
112. Each Plaintiff’s fundamental civil rights, liberty interests, and property interests have
been injured by the JCPH PHOs; those JCPH PHOs stemmed from the CDPHE PHOs; those
CDPHE PHO stemmed from the taproot of the unconstitutional conduct that has directly and
proximately injured Plaintiffs, Defendant Polis’ directives which grew out of his Executive
Orders.
An overview of the Subject Orders.
8
Plaintiffs find it necessary to utilize the term “order” in reference to each and all of the Subject
Orders, but in so doing, Plaintiffs in no way concede that the term “order” is an honest, accurate,
or correct characterization of the substance contained in each document. This problem will be
addressed by Plaintiffs in more detail elsewhere in this Complaint.
36
113. Between February 26, 2020 and August 12, 2020, Defendant Polis issued 162 EOs, all
but two of which were issued on or after March 11, 2020. The sheer number of Executive
Orders is unprecedented. Likewise, the new law and public policy measures implemented by
these Executive Orders is unprecedented in scope and includes, but is not limited to:
suspension or modification of a wide variety of statutes and procedures;
directing the actions of numerous state agencies;
restricting the movements of people in their work and play;
directing the closure or restricted operation of privately owned businesses;
reallocating funds previously appropriated by the General Assembly;
repeatedly amending, extending, rescinding, or replacing previous EOs;
all of which has fundamentally reconfigured the way our society functions on a day-to-day basis.
114. Even the most perfunctory reprise of just the basic details from Defendant Polis’
Executive Orders to date would fill a substantial book. Certainly close examination and analysis
of each of Defendant Polis’ Executive Orders to date would become encyclopedic. The sheer
volume of the new law and public policy measures implemented by these Executive Orders is
massive.
115. Also noteworthy is the fact that the pace of Defendant Polis in issuing Executive Orders
has been swift, averaging more than 1 per day, as Defendant Polis has issued 160 EOs
(Executive Orders D 2020 003 through D 2020 162) in the span of 155 days from March 11,
2020 through August 12, 2020.
116. Suffice it to say for purposes of context, that the scope and pace and impact and
consequences of Defendant Polis’ Executive Orders to date are, individually and collectively,
truly breathtaking.
37
117. There is no reason to expect any change in Defendant Polis’ established pattern of
frequently issuing sweeping Executive Orders with far-reaching consequences, unless and until
this Court orders the Governor to comply with the explicit requirements of Article III of the
Colorado Constitution, as requested in this action.
118. In order to have some modicum of appreciation for the ripple effects that Defendant
Polis’ Executive Orders have caused throughout Colorado government, one must consider the
fact that most of the EOs direct numerous state agencies to take specific actions. When those
agencies comply with Defendant Polis’ EO directives, their agency actions implement new law
and public policy measures as Defendant Polis directed.
119. By way of just one example, the profound utility of the EO as a tool for creating new law
and public policy may be seen in the reactions of a single state agency to Defendant Polis EO
directives, the Colorado Department of Public Health and Environment. Many of Defendant
Polis’ EOs directed Defendant CDPHE to issue Public Health Orders (PHOs) in accord with
terms specified in the EO.
120. As specifically directed in many of Defendant Polis’ EOs, between March 11 and July
23, 2020, Defendant CDPHE issued 32 PHOs (many of which were amended, extended,
rescinded, or replaced, so that that actual number of PHOs far exceeds 32). The new law and
public policy measures implemented by these 32-plus PHOs is unprecedented in scope and
represents a substantial body of new law and public policy in addition to the new law and public
policies embodied in the Governor’s EOs.
121. The total output of EOs and PHOs from Defendant Polis and Defendant CDPHE rivals a
productive session of the Colorado General Assembly, but none of it has been the work of the
Legislature as required by the Colorado Constitution in Articles III and V.
38
122. A different EO is illustrative of the immense legislative power wielded by Defendant
Polis by Executive Order to the exclusion of the legislative department in complete disregard of
Article III of the Colorado Constitution.
123. On April 30, 2020, Defendant Polis issued Executive Order D 2020 50, Declaring
Insufficient Revenues Available for Expenditures and Ordering Suspension or Discontinuation of
Portions of Certain State Programs and Services to Meet a Revenue Shortfall Due to the
Presence of COVID-19 in the State of Colorado (“EO 50”). On information and belief, EO 50
may be found at the following link:
https://drive.google.com/file/d/145ed57_TkitjvxUWyHPHzJMW13i0PRGK/view
124. EO 50 states: “This Executive Order suspends or discontinues portions of the functions or
services of departments, boards, bureaus, and agencies of the State government to reduce general
fund expenditures before the end of the FY 2019-2020.” EO 50 at page 2, paragraph 3. To this
end, EO 50 sequestered $228,685,915 to reduce general fund expenditures by specific line-item
budget reductions from those previously appropriated by the General Assembly.
125. The stated purpose of the sequestration was “To satisfy the provisions of C.R.S. § 24-75-
201.5 requiring that the “governor shall promptly notify the general assembly of the plan, …” to
reduce expenditures pursuant to C.R.S. § 24-75-201.5. But Defendant Polis did not simply
notify the General Assembly of the plan in accord with C.R.S. § 24-75-201.5, his EO 50
purported to codify the plan into law. EO 50 at page 2, paragraph 2.
126. Codification of Defendant Polis’ plan into law is a patently legislative function properly
done by only the legislative department in accord with Article V of the Colorado Constitution.
Codification of Defendant Polis’ plan into law by the executive department is clearly proscribed
39
by Article III of the Colorado Constitution, notwithstanding § 24-33.5-704(2) and § 24-33.5-
704(7)(a) of the Colorado Disaster Emergency Act.
127. Examination of EO 50 reveals Defendant Polis, not the General Assembly, as the
legislator redirecting disposition of one-quarter Billion dollars of funds previously appropriated
by the legislature. In EO 50, we see the profound utility of the EO as a tool for Defendant Polis
to purportedly rewrite the budget and implement new law and public policy in a manner
explicitly proscribed by Article III of the Colorado Constitution.9
Specific Allegations.
128. Plaintiffs incorporate by reference all prior allegations as though fully set forth herein.
The Target EO,

Executive Order D 2020 123.
129. Among the Executive Orders challenged by Plaintiffs in this action is Executive Order D
2020 123 (“EO 123” or “the Target EO”). Defendant Polis signed EO 123 on June 30, 2020,
and it is currently in effect.10
Legal Authority to Issue EO 123.

9
Despite the impressive implied authority projected by each of the Subject EOs from their
citation to the Colorado Constitution and the Target Statutes, Plaintiffs vehemently dispute
whether the Target Statutes in pari materia with the Target Orders truly have the legal authority
they claim; this position is in accord with Plaintiffs’ position that the Target Statutes and the
Target Orders are unconstitutional, so they are ultra vires and void ab initio and, therefore, the
Target Orders do not possess the requisite legal authority to have the force of law and binding
legal effect. That said for the record, Plaintiffs will avoid the tiresome repetition of qualifying
adjectives like ‘purportedly,’ ‘ostensibly,’ and ‘allegedly’ in reference to the legal efficacy of the
Subject Orders and the actions of state actors to enforce them.
10
The origin of EO 123 was on June 1, 2020 in EO 91, Safer at Home and in the Vast, Great
Outdoors, which was amended and extended on June 30, 2020 by EO 123, which was amended
and extended on July 21, 2020 by EO 142, and then again amended and extended on July 23,
2020 by EO 144, and then again amended and extended on August 21, 2020 by EO 170; EO
123, as amended and extended, shall expire thirty (30) days from August 21, 2020, unless
extended further by Executive Order. See EOs 91, 123, 142, 144, and 170. It is each Plaintiff’s
intention that any allegation made in this Complaint as to any one of the many predecessor and
successor Executive Orders of the Target Order EO 123 is realleged as to each and all of them.
40
130. EO 123 begins with the following statement of authority.
"Pursuant to the authority vested in the Governor of the State of Colorado and, in
particular, pursuant to Article IV, Section 2 of the Colorado Constitution and the relevant
portions of the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., I, Jared
Polis, Governor of the State of Colorado, hereby issue this Executive Order amending
and extending Executive Order D 2020 091, Safer at Home and in the Vast, Great
Outdoors, due to the presence of coronavirus disease 2019 (COVID-19) in Colorado.”
EO 123 on page 1.
Definition of “executive order.”
131. An executive order is a declaration or directive issued by a president or governor in order
to implement powers granted to their office by constitution or statute. A governor may be
relatively free to issue executive orders directing the actions of state and local agencies – and
their officers – under his purview, i.e. within the executive department. Orders affecting the
general public, however, must be “based upon the presence of some constitutional or statutory
provision, which authorizes the executive order either specifically or by way of necessary
implication.” Shapp v.Butera, 22 Pa.Cmwlth. 229, 348 A.2d 910, at 913 (1975).
September 7, 2018 Memorandum and April 30, 1980 Memorandum

prepared by the Office of Legislative Legal Services
on the scope of Governor’s authority to issue Executive Orders.
132. The citation to Shapp v.Butera, id., appears in a Memorandum dated September 7, 2018,
prepared by the Office of Legislative Legal Services to “Interested Persons,” on the subject:
“Scope of Governor’s Power to Issue Executive Orders.”
41
133. The above referenced Memorandum dated September 7, 2018 was self-described as “… a
‘primer’ on the scope of the Governor’s authority to issue executive orders.,” and was “…based
on a memorandum prepared by this Office, dated April 30, 1980, titled ‘Legal Analysis of
Governor’s Executive Order on Human Settlement Policies.’ That memorandum contains
extensive legal discussion of executive orders and the scope of the Governor’s power to issue
such orders.”
134. On information and belief, a true and accurate copy of the above referenced
Memorandum dated April 30, 1980, prepared by the Legislative Drafting Office, titled
“Legal Analysis of Governor’s Executive Order on Human Settlement Policies,” is attached
hereto as Exhibit 4.
Memorandum dated September 7, 2018, prepared by the Office of Legislative Legal
Services, to “Interested Persons,” on the subject: “Scope of Governor’s Power to Issue
Executive Orders” is attached hereto as Exhibit 5.
The Colorado Constitution is no source of legal authority for EO 123.
136. In EO 123, Defendant Polis cited Article IV, Section 2 of the Colorado Constitution and
C.R.S. § 24-33.5-701, et seq. as his authority to issue that Order.
137. Article IV, Section 2 of the Colorado Constitution states as follows:
§2. Governor supreme executive.
The supreme executive power of the state shall be vested in the governor, who
shall take care that the laws be faithfully executed.
Colo. Const. art. IV, § 2.
138. The general grant of executive power made in Article IV, Section 2 of the Colorado
Constitution goes to administrative powers only; Defendant Polis’ authority is to execute law and
42
policy made by the legislature. Defendant Polis may not create law and policy, except as and if
such legislative power is properly delegated by the state legislature. Article IV, Section 2
contains no language investing Defendant Polis with the authority to legislate as he has done in
EO 123, and Article III of the Colorado Constitution eliminates the possibility of delegation by
the state legislature of legislative power to Defendant Polis.
139. Having made specific reference to only Article IV, Section 2 of the Colorado
Constitution as an inapposite source of constitutional authority to issue EO 123, the Target EO
makes no reference to any of the other places in the Colorado Constitution by which authority is
vested in the Governor - Article IV, Section 5, Article IV, Section 9, and Article VIII, Section 3
-because not one of those provisions is relevant as legal authority for the Governor’s Executive
Orders.
The Colorado Disaster Emergency Act is no source of legal authority for EO 123.
140. The CDEA provides that “…the governor may issue executive orders, proclamations, and
regulations and amend or rescind them. Executive orders, proclamations, and regulations have
the force and effect of law.” C.R.S. § 24-33.5-704(2).
141. The CDEA also provides that “…In addition to any other powers conferred upon the
governor by law, the governor may: (a) Suspend the provisions of any regulatory statute
prescribing the procedures for conduct of state business or the orders, rules, or regulations of any
state agency, if strict compliance with the provisions of any statute, order, rule, or regulation
would in any way prevent, hinder, or delay necessary action in coping with the emergency;”
C.R.S. § 24-33.5-704(7)(a).
142. When it comes to issuing executive orders that go beyond the administration of
government and call for actions that affect private citizens by force of law, the Governor’s
43
authority is limited by the constraints of the Colorado Constitution and neither C.R.S. § 24-33.5-
704(2) nor C.R.S. § 24-33.5-704(7)(a) overcomes those constitutional constraints.
143. The Colorado Supreme Court “… has adopted from Field v. Clark, 143 U.S. 649, 12
S.Ct. 495, 36 L.Ed. 294, this criteria for determining the constitutionality of the delegation of
authority by the legislature:
‘The true distinction . . . is between the delegation of power to make the law, which
necessarily involves a discretion as to what it shall be, and conferring authority or
discretion as to its execution, to be exercised under and in pursuance of the law. The first
cannot be done; to the latter no valid objection can be made.’ ”
Dixon v. Zick, 179 Colo. 278, 284–85, 500 P.2d 130, 133 (1972).
144. See also Hazlet v. Gaunt, 126 Colo. 385, 250 P.2d 188; Prouty v. Heron, 127 Colo. 168,
255 P.2d 755; and Swisher v. Brown, 157 Colo. 378, 402 P.2d 621.
Article V Legislative Power Invested in Only the Colorado Legislature.
145. In Article V of the Colorado Constitution, the People unequivocally expressed their will
that their authority to legislate, i.e. to make the laws, be confined within the legislative
department.
146. And to emphatically express that it was the will of the People to contain the authority to
legislate in only the legislative department as stated in Article V, the People reinforced that point
in Article III of the Colorado Constitution, when they unequivocally stated:
--the Legislative, Executive and Judicial; and no person or collection of persons
charged with the exercise of powers properly belonging to one of these departments
shall exercise any power properly belonging to either of the others, except as in this
Constitution expressly directed or permitted. (Emphasis added.)
Colo. Const. art. III.
The Nondelegation Doctrine expressed in Article III.
44
147. After the People distributed their authority and powers into three departments in the first
part of Article III, they forcefully expressed the “nondelegation doctrine.” Under the explicit
prohibitions of the nondelegation doctrine expressed in Article III, the General Assembly may
not delegate its Article V powers to the executive department (or anyone else) unless such
delegation is expressly “directed or permitted” within the Colorado Constitution. Nowhere else
within the Colorado Constitution is delegation of the legislature’s Article V legislative powers
“directed or permitted.”
Only the Colorado Legislature has authority to exercise Article V Legislative Power.
148. C.R.S. § 24-33.5-704(2) in tandem with § 24-33.5-704(7)(a) purports to effect a
wholesale delegation from the General Assembly to the Governor of the authority to legislate; it
is abundantly clear that the constraints upon legislative authority so clearly and unambiguously
expressed in Article V and Article III of the Colorado Constitution do not allow for such a
wholesale delegation.
149. In the absence from the Colorado Constitution of any legal authority to issue the Target
EO, whether or not the Governor has the statutory legal authority claimed in EO 123 depends
upon the efficacy of C.R.S. § 24-33.5-704(2) and § 24-33.5-704(7)(a) as legally sufficient
authority to issue EO 123. To put it another way, do C.R.S.§ 24-33.5-704(2) and § 24-33.5-
704(7)(a) comply with the constraints upon delegation of legislative authority expressed in
Article V and Article III of the Colorado Constitution?
150. The question before this Court is whether the legislative authority purportedly delegated
by the CDEA to the Governor in C.R.S. § 24-33.5-704(2) and § 24-33.5-704(7)(a) is
constitutionally permitted despite the clearly prohibitive language of Article V and Article III of
the Colorado Constitution. The straight answer to that simple question is “no.”
45
151. It is manifest that the CDEA in C.R.S. § 24-33.5-704(2) and § 24-33.5-704(7)(a) attempts
to effect a wholesale delegation of legislative power from the legislature to the Governor which
is utterly without any meaningful constraints. Such delegation of legislative power from the
legislative department to the executive department is precisely what is proscribed by Article V
and Article III of the Colorado Constitution.
152. Due to the truly unprecedented nature of the wholesale delegation of legislative power
embodied in C.R.S.§ 24-33.5-704(2) and § 24-33.5-704(7)(a), such a wholesale delegation has
not been tested in the Colorado courts, so there is no case law guidance in this uncharted
territory. Plaintiffs respectfully submit that if one gives the respect due Articles III, IV, V, and
VI of the Colorado Constitution, then case law guidance is not required to decide each Plaintiff’s
constitutional challenges to EO 123.
Delegation of limited legislative authority to a state agency.
153. Although the wholesale legislative delegation in the CDEA defies close comparison to
limited legislative delegation to an administrative agency, there is some guidance in that case
law. Any such wholesale delegation from the legislature to an administrative agency most
certainly would not survive a close scrutiny challenge based upon the unmistakable import of
Article V and Article III of the Colorado Constitution.
154. In the case of legislative delegation to an administrative agency, the test for determining
whether delegation of legislative power is impermissibly broad is “whether there are sufficient
standards and safeguards and administrative standards and safeguards, in combination, to protect
against unnecessary and uncontrolled exercise of discretionary power.” Regional Transp. Dist.
v. Colorado Dept. of Labor and Employment, Div. of Labor, 830 P.2d 942 (Colo. 1992).
46
155. Applying this test to the marginally analogous context of the delegation of legislative
power to the Governor in the CDEA readily illuminates exactly why the delegation in the CDEA
is an unconstitutional delegation in violation of Article V and Article III of the Colorado
Constitution: there are many specific powers granted to the Governor in the CDEA, but no
constraints upon the exercise of those powers by any statutory standards or safeguards within the
CDEA. And because the Governor has unilaterally exercised those powers outside of any
administrative agency context, there are no administrative standards and safeguards (like those
required by the State Administrative Procedures Act) to act as a check upon the Governor’s
otherwise unconstrained exercise of legislative powers.
156. The CDEA purports to delegate legislative power to the Governor without any internal
statutory standards or safeguards within the CDEA itself, and without subjecting the Governor to
any administrative standards and safeguards, e.g. from the SAPA; under these circumstances,
the CDEA purports to make the Governor a law unto himself, empowered to unilaterally make
new laws and implement unprecedented new public policies with the stroke of a pen.
157. In Cottrell v. City & Cty. of Denver the Colorado Supreme Court en banc explained in
detail the rationale behind the formulation of the “standards” test with which to assess whether or
not a statutory delegation to an administrative agency survives the nondelegation doctrine as
expressed in Article III of the Colorado Constitution.
The traditional statement of the nondelegation doctrine is that the legislature may delegate
power to an administrative agency only if “the legislature has provided sufficient standards to
guide the agency's exercise of that power.” Elizondo v. Department of Revenue, 194 Colo.
113, 570 P.2d 518 (1977); accord, Asphalt Paving Co. v. Board of County Commissioners,
162 Colo. 254, 425 P.2d 289 (1967); Swisher v. Brown, 157 Colo. 378, 402 P.2d 621 (1965).
This has been labeled the “standards” test for determining the propriety of a legislative
delegation.11 However, in applying the standards test this court has repeatedly emphasized
the impracticality and inappropriateness, in many contexts, of requiring anything more than
the most broad and general standards to guide administrative action. As a result, violation of
the nondelegation doctrine has been an argument frequently invoked but seldom sustained. E.
47
g., Elizondo v. Department of Revenue, supra; People v. Willson, 187 Colo. 141, 528 P.2d
1315 (1974); Fry Roofing Co. v. Department of Health, 179 Colo. 223, 499 P.2d 1176
(1972); People v. Giordano, 173 Colo. 567, 481 P.2d 415 (1971); see generally K. Davis,
Administrative Law Treatise, s 3:1 et seq. (2d Ed. 1978). Thus, we have held in appropriate
circumstances that limitation of delegated authority by the mere requirement of
“reasonableness” is sufficient to satisfy the standards requirement. People v. Giordano, supra;
Asphalt Paving Co. v. Board of County Commissioners, supra; see also Fry Roofing Co. v.
Department of Health, supra, 179 Colo. at 230, 499 P.2d at 1180 (“It has been said that the
term ‘air pollution’ in itself is a standard, albeit a broad one.”). Nor is Colorado case law
unusual in this respect. See F. Cooper, State Administrative Law 61-70 (1965). It appears,
therefore, that in its traditional form the nondelegation doctrine has not proved to be a fully
satisfactory approach to the delegation question.
It would be incorrect to conclude, however, that no substantial issues are involved in the
exercise of legislatively delegated power. The extensive authority delegated to administrative
bodies has created important repositories of power largely insulated from the constraining
force of the democratic process. It is important that individuals be protected against the
unnecessary and uncontrolled exercise of this discretionary power, while still permitting a
broad scope to legislative delegation where narrow legislative standards are not feasible.
Courts across the land are increasingly coming to recognize the delegation doctrine as an
appropriate vehicle for providing these needed protections and are recasting that doctrine in
new molds to serve that purpose. See generally comment, Delegation of Legislative
Authority: Westervelt v. Natural Resources Commission, Detroit College of Law Rev. 281,
284 n. 20, 285 n. 22 (1979).
The modern view is to recognize that the traditional standards test to determine the validity
of delegation of legislative authority is inadequate, and that the proper focus should be upon
the totality of protection provided by standards and procedural safeguards at both the
statutory and administrative levels. See, e. g., State v. Peloquin, 427 A.2d 1327 (R.I.1981);
Westring v. James, 71 Wis.2d 462, 238 N.W.2d 695 (1976); Yakima County Clean Air
Authority v. Glascam Builders, Inc., 85 Wash.2d 255, 534 P.2d 33 (1975); Avant v. Clifford,
67 N.J. 496, 341 A.2d 629 (1975); see generally comment, Delegation of Legislative
Authority: Westervelt v. Natural Resources Commission, Detroit College of Law Rev. 281,
284 n. 20, 285 n. 22, 284-86 (1979). In our most recent thorough review of the nondelegation
doctrine, we indicated our approval of this modern view. Elizondo v. Department of
Revenue, supra. We stated there that in addition to considering whether standards have been
articulated by the legislature, “It is important to recognize that, as a practical matter,
procedural safeguards in administrative proceedings are just as essential as a broad legislative
statement of standards. See generally K. Davis, Administrative Law Treatise, s 2.00-1 et seq.
(1970 Supp.).” Elizondo v. Department of Revenue, supra, 194 Colo. at 117, 570 P.2d at 521.
We now make explicit that the test is not simply whether the delegation is guided by
standards, but whether there are sufficient statutory standards and safeguards and
administrative standards and safeguards, in combination, to protect against unnecessary and
48
uncontrolled exercise of discretionary power. The guiding consideration is whether these
constraints are sufficient to insure that administrative action will be rational and consistent in
the first instance and that subsequent judicial review of that action is available and will be
effective. See Hide-A-Way Massage Parlor v. Board of County Commissioners, 198 Colo.
175, 597 P.2d 564 (1979); Elizondo v. Department of Revenue, supra.12 Therefore, the
appropriate analysis is to determine first whether sufficient statutory standards or safeguards
exist to fulfill these functions. Second, if those standards and safeguards are inadequate, it
must be determined whether additional administrative standards and safeguards accomplish
the necessary protection from arbitrary action.
FN 11. See F. Cooper, State Administrative Law 54-61 (1965). Under Colorado
law, the standards test has also been articulated in two other forms. The first states, “The
legislature does not abdicate its function when it describes what job must be done, who
must do it, and the scope of his authority.” Swisher v. Brown, supra, 157 Colo. at 388,
402 P.2d at 626; accord, Fry Roofing Co. v. Department of Health, 179 Colo. 223, 499
P.2d 1176 (1972); People v. Giordano, 173 Colo. 567, 481 P.2d 415 (1971). The second
states, “(T)he legislature may not delegate the power to make or define a law, but it may
delegate the power to determine the applicable facts and situations to which the law
applies.” People v. Willson, 187 Colo. 141, 143, 528 P.2d 1315, 1316 (1974); accord,
Swisher v. Brown, supra. These various formulations are obviously interrelated and our
prior cases usually mention each prior to application of the nondelegation doctrine. E. g.,
People v. Willson, supra; Fry Roofing Co. v. Department of Health, supra. However,
while the first two formulations provide some guidance in analyzing a delegation
challenge, the last manner of stating the test is particularly unhelpful although it has
exercised great influence. See K. Davis, Administrative Law Treatise, s 3:14 (2d Ed.
1978).
FN 12. Elizondo and Hide-A-Way, as relevant on this point, were concerned with
the unconstitutionality of the statute as applied in light of the requirements of procedural
due process. While some commentators and courts view the modern delegation doctrine
discussed above as an aspect of due process, e. g., K. Davis, Administrative Law
Treatise, s 2.00-6 (1970 Supp.); Westervelt v. Natural Resources Commission, 402 Mich.
412, 263 N.W.2d 564 (1978); Holmes v. New York City Housing Authority, 398 F.2d
262 (2d Cir. 1968), and while we find that the due process concerns help give content to
the delegation doctrine, we view these doctrines as independent. Not all delegations of
authority will sufficiently impinge a “liberty or property” interest to invoke the
protections of due process, e. g., Asphalt Paving Co. v. Board of County Commissioners,
supra, but it is nevertheless important to assure that discretionary authority will be
constrained from abuse. Moreover, the central concern with notice and hearing under
procedural due process analysis is only one of several concerns addressed by the
delegation doctrine. Although the protections afforded by these doctrines will often
overlap, they are not coextensive.
49
Cottrell v. City & Cty. of Denver, 636 P.2d 703, 709–10 (Colo. 1981).
Summary of Each Plaintiff’s Constitutional Challenges.11, 12
158. If allowed to stand, the Target Orders will not only continue to violate each Plaintiff’s
fundamental civil rights, liberty interests, and property rights under both the United States and
Colorado Constitutions, but they will continue to needlessly inflict personal injury and other
damages upon each Plaintiff.
159. Plaintiffs are not asking the Court to consider a difference of opinion about the scientific
evidence, or lack thereof, of the danger from COVID-19 or the propriety of the governmental
response to COVID-19 in Colorado. No such reasoned inquiry is even possible because each of
the Target Orders has been an impermissible unilateral executive decree of purportedly new law
and public policy based upon only conclusory allegations with no meaningful statement of
specific scientific basis, if any.
160. The EO/PHO process of Defendant Polis not only is devoid of the usual constraints
inherent in the legislative process in accord with Article V of the Colorado Constitution, it totally
avoids the due process constraints of administrative rulemaking in accord with the SAPA.
Instead of being founded upon a constitutionally compliant process appropriate to the gravitas of
11
In addition to the many issues of law which arise in this case under the Colorado Constitution
and Colorado state law, this case also raises numerous federal questions and other issues of law
under the United States Constitution and other Federal laws; however, each Plaintiff hereby
expressly reserves for adjudication in the Federal courts all federal questions and issues arising
under the United States Constitution.
12
Under the Supremacy Clause of the United States Constitution, the State of Colorado is
obliged to recognize the fundamental rights of each Plaintiff to life, liberty, and the pursuit of
happiness, and to protect them, in accordance with the United States Constitution, as construed
in the case law of the Supreme Court of the United States. Accordingly, citation to the United
States Constitution, as amended, or the case law of the Supreme Court of the United States
(and any other Federal court) in this document is appropriate; however, such citations in no
way constitute a request by each Plaintiff for adjudication by this (or any other) Colorado state
court of the questions of law each Plaintiff has reserved for adjudication in the Federal courts,
as stated in fn. 11 of this Complaint.
50
the unprecedented changes Defendant Polis has dictated by Executive Order, Defendant Polis
has issued the Target Orders without any transparent fact-finding process or the making of public
record of the evidence upon which those Orders are based.
161. Thus, the Target Orders are the product of executive department state actors exclusive of
any meaningful legislative department role and beyond the reach of the SAPA’s thoughtful
provisions for judicial review and other due process mechanisms.
162. There has been no opportunity for elected representatives of the people to even have any
meaningful input into the substance of the Target Orders, much less any oversight, so the EOs
have been issued by Defendant Polis without lawful authority and without any real transparency
or accountability to anyone.
163. Much has been made by the Governor, various public health agency representatives, and
the media about how important it is that we all obey the rules expressed in the Target Orders.
164. Plaintiffs understand and respect the principle that we all should obey the rules, subject to
a proviso which is integral to the Rule of Law in the American System of Justice, i.e. we all
should obey the rules, provided those rules comply with the rules of the United States
Constitution, the Colorado Constitution, and applicable Colorado statutes.
165. Plaintiffs also understand and respect the principle that a statute, or order, or rule, which
does not comply with the requirements of the United States Constitution and the Colorado
Constitution is void, and without any legal force or effect, and need not be obeyed.
166. Plaintiffs also understand and respect the principle that when a citizen recognizes that a
statute, or order, or rule, does not comply with the requirements of the United States Constitution
and the Colorado Constitution, it is the duty of the citizen to seek judicial review of the conduct
51
of state actors who otherwise would use the unconstitutional statute, or order, or rule to
perpetrate, with impunity, a fraud upon the People of Colorado.
167. The interplay of these principles is precisely what brings each Plaintiff to this Court
seeking judicial review. At issue before this Court is a profound question about the most
important rules of law in our constitutional republic, those being the rules expressed by the
People in their United States and Colorado Constitutions. Are the Governor and unelected
executive agency officials required to obey the preeminent rules expressed in the United States
Constitution and the Colorado Constitution?
168. The Subject Orders reflect Defendant Polis’ unbridled discretion to do as he pleases
without any meaningful check or balance upon his asserted power to legislate. This is so
because when the General Assembly passed the CDEA: they did not include appropriate and
sufficient statutory standards and safeguards within the CDEA, and they did not expressly
require the administrative standards and safeguards from the SAPA or otherwise, so Defendant
Polis has evaded the mechanisms required to protect the People against unnecessary and
uncontrolled executive exercise of discretionary power.
169. It is manifest from the plain language of the Colorado Constitution that in accord with
Article IV, the Governor may execute, i.e. administer, the laws which already exist, but
Defendant Polis has no constitutional authority to make new laws (as his EOs purport to do on an
epic scale) in violation of Article V, and the General Assembly has no constitutional authority to
delegate to the Governor their authority to make the laws in violation of Article III, as they
purported to do in the CDEA generally, and specifically, in C.R.S. § 24-33.5-704(2) and § 24-
33.5-704(7)(a). Colo. Const. arts. III, IV, and V.
52
170. Respect for the distribution of powers in accord with the requirements of the Colorado
Constitution is well established in Colorado jurisprudence.
171. It is the province of the Legislature to enact legislation and the province of the executive
to see that the laws are faithfully executed. Colorado General Assembly v. Lamm, 704 P.2d
1371, 1380 (Colo. 1985).
172. Likewise, when it comes to issuing executive orders that go beyond the administration of
government and call for actions that affect private citizens by force of law, the Governor’s
authority is limited by enabling legislation. See e.g. Colo. Polytechnic College v. State Board,
476 P.2d 38 (Colo. 1970).
173. For these reasons, the Memorandum of the Office of Legislative Legal Services,
September 7, 2018, is correct when it states: “… the Governor lacks authority to formulate
policy or impose requirements beyond regulating the internal workings of the executive branch.”
See the Memorandum of the Office of Legislative Legal Services, September 7, 2018, id., at page
5 (Exhibit 5 of this Complaint).
174. Despite the language in C.R.S. § 24-33.5-704(2) and § 24-33.5-704(7)(a) and Defendant
Polis’ citation in each EO to Article IV, Section 2 of the Colorado Constitution and the CDEA as
authority, the Target EO is invalid because neither Article IV, Section 2 of the Colorado
Constitution nor the CDEA is legally sufficient as authority for Defendant Polis to issue EO 123.
175. In the absence of any legal authority to issue EO 123, the Target EO brazenly usurps the
authority and powers of the Legislature, in that only the Legislature has the authority to enact
legislation. Colo. Const. art. III and art. V.
176. Orders issued by executive agencies that are legislative in nature and “which fall beyond
the purview of the statute granting the agency or body its powers [such orders] are not merely
53
erroneous, but are void. Flavell v. Dep't of Welfare, City & Cty. of Denver, 355 P.2d 941, 943
(Colo. 1960). Thus, each of the Defendant Polis’ EOs may be fairly characterized as a
constitutionally unauthorized, unilateral executive decree which was and is ultra vires and void
ab initio.
177. In light of the unconstitutionality of the Target EO, the Target CDPHE PHO is invalid
because Defendant CDPHE issued it on the sole authority of Defendant Polis’ directive in EO
123 which was ultra vires and void ab initio, and Defendant CDPHE had no other legally
sufficient authority to issue the Target CDPHE PHO without rulemaking as required by the
SAPA. As a direct consequence, the Target CDPHE PHO is ultra vires and void ab initio
because it is:
(a) contrary to constitutional rights or privileges; and
board or public health director; and
(c) affected by any error of law; and
(d) made or promulgated upon unlawful procedure; and
(e) unsupported by substantial evidence in view of the entire record as
submitted;13 and
C.R.S. § 25-1-515.
13
Because there is no record, there is no evidence, substantial or otherwise. Thus, the conclusory
allegations in the Target Orders about their basis and intent are self-serving, yet it is the lack of
any record which makes the basis and intent of the Target Orders largely immune to close
scrutiny challenge in any forum that matters.
54
178. In the same way, the actions of Defendant JCPH to enforce the Target CDPHE PHO and
the Target JCPH PHO are invalid because each of the Target CDPHE PHOs upon which the
enforcement action was based is ultra vires and void ab initio and Defendant JCPH had no other
legal authority upon which to base the Target JCPH PHO and JCPH’s enforcement actions.
179. Under these extraordinary circumstances, the conduct of JCPH state actors to enforce the
Target CDPHE PHO and the Target JCPH PHO is ultra vires and void ab initio because it is:
(a) contrary to constitutional rights or privileges; and
board or public health director; and
(c) affected by any error of law; and
(d) made or promulgated upon unlawful procedure; and
(e) unsupported by substantial evidence in view of the entire record as
submitted;14 and
C.R.S. § 25-1-515.
Defendants have issued PHOs without rulemaking as required by law.
14
The text of footnote 13 is not repeated here merely because it is equally applicable; it is
repeated because it is so important that it bears repeating since the premises are at the core of
why the Target Orders must be struck down.
Because there is no record, there is no evidence, substantial or otherwise. Thus, the conclusory
allegations in the Target Orders about their basis and intent are self-serving, yet it is the lack of
any record which makes the basis and intent of the Target Orders largely immune to close
scrutiny challenge in any forum that matters.
The willful evasion of due process and accountability by each of the Defendants in the process of
issuing their Target Orders reflects such a profound disrespect for our constitutional system that
it must be stopped lest it infect others.
55
180. State administrative agencies, including Defendants CDPHE and JCPH, are subject to
rule making requirements under the State Administrative Procedure Act (“SAPA”). C.R.S. § 24-
1-103, et seq.
181. However, Defendants CDPHE and JCPH have issued their respective Target Orders with
none of the condition precedent rulemaking procedures required by the SAPA.
In January 2020, Bandimere Speedway prepares for the upcoming 2020 racing season.
182. On or about January 31, 2020, Bandimere Speedway submitted an application to JCPH
requesting approval to operate a food service event on July 4, 2020, at the Bandimeres’ annual
Independence Day celebration. The application named the event the “Jet Car
Nationals/Fireworks Show” (the “Event”) and indicated an expected peak attendance of 15,000
people.
183. On information and belief, JCPH received and approved the Bandimeres’ application on
January 31, 2020, and in due course the Bandimeres received the license from JCPH dated
February 13, 2020.
In March 2020, the Governor’s response to COVID-19 in Colorado begins.
184. On March 10, 2020, as a result of the emerging global COVID-19 pandemic, pursuant to
the Colorado Disaster Emergency Act, Colorado Governor Jared Polis verbally declared a
disaster emergency due to the presence of COVID-19 cases in Colorado.
March 10, 2020, Memorandum prepared by the Office of Legislative Legal Services
on the Governor’s Constitutional and Statutory Emergency Powers.
56
185. On March 10, 2020, the Office of Legislative Legal Services prepared a Memorandum to
the Executive Committee of the Legislative Council on the subject: “Governor’s Constitutional
and Statutory Emergency Powers.”
Memorandum dated March 10, 2020, prepared by the Office of Legislative Legal Services,
to the Executive Committee of the Legislative Council, on the subject: “Governor’s
Constitutional and Statutory Emergency Powers” is attached hereto as Exhibit 6, and same is
hereby incorporated by reference as though fully set forth herein.15
CDPHE Public Health Order 20-20

(replaced by CDPHE Ninth Amended PHO 20-28).
187. On March 12, 2020, Defendant Ryan issued CDPHE Notice of Public Health Order 20-
20 (“PHO 20-20”).
188. PHO 20-20 has been amended or extended and replaced.
189. PHO 20-20 cites no constitutional authority for its existence, and - unlike most of the
subsequent PHOs - there is no recitation near the beginning of PHO 20-20 of a directive
from Defendant Polis in an EO as authority.
190. The only references to statute(s) in PHO 20-20 are in functional parts of the PHO
(not in the preliminary recitations) which state:
(in paragraph number 4 on page 1), “Pursuant to the authority in section 25-1.5-
102(1), C.R.S., I am ordering …;” and
15
Unlike the Office of Legislative Legal Services Memorandum dated September 7, 2018,
(Exhibit 5 of this Complaint) which disclosed the Memorandum dated April 30, 1980, (Exhibit 4
of this Complaint) as relevant to the subject of the Governor’s authority to issue executive
orders, their Memorandum dated March 10, 2020, curiously makes no reference whatsoever to
these two prior memoranda.
57
(in penultimate paragraph on page 3), “This Public Health Order is necessary to
control any potential transmission of disease to others. Section 25-1.5-102(1),
C.R.S.;” and
(at the end of the penultimate paragraph on page 3), “Immediate issuance of this
Order is necessary for the preservation of public health, safety, or welfare, and the
requirements of the Administrative Procedure Act, article 4, title 24, C.R.S. do not
apply to this Order.” 16
191. On information and belief, Defendant Ryan issued PHO 20-20 solely on her own
initiative and authority, neither of which is legally sufficient to excuse noncompliance with
the rulemaking requirements under the SAPA. C.R.S. § 24-1-101, et seq.
192. The statute cited in PHO 20-20, Colo. Rev. Stat. § 25-1.5-102(1), provides Defendant
Ryan no legal authority to issue rules of general applicability without the rulemaking
process required by the State Administrative Procedures Act, C.R.S. § 24-4-101, et. seq.
193. The last paragraph of PHO 20-20 states the criminal penalties for non-compliance with
PHO 20-20 as follows:
“FAILURE TO COMPLY WITH THIS ORDER IS SUBJECT TO THE

PENALTIES CONTAINED IN SECTIONS 25-1-114 C.R.S., INCLUDING A FINE
UP TO ONE THOUSAND (1,000) DOLLARS AND IMPRISONMENT IN THE
COUNTY JAIL FOR UP TO ONE YEAR.”
PHO 20-20, last paragraph, on page 3.
194. The statute cited in PHO 20-20, Colo. Rev. Stat. § 25-1.5-102(1), provides Defendant
Ryan no legal authority to issue new rules which criminalize previously lawful conduct without
CDPHE Notice of PHO 20-20 and CDPHE Amended Notice of PHO 20-20 have no page
16
numbers.
58
the rulemaking process required by the State Administrative Procedures Act, C.R.S. § 24-4-
101, et. seq.
195. On information and belief, CDPHE’s PHO 20-20 was originally issued and then extended
or amended or replaced by the Amended Notice of PHO 20-20 issued on April 20, 2020, all
without rulemaking as required by the SAPA. C.R.S. § 24-4-101, et. seq.
196. Plaintiffs reallege the immediately preceding nine paragraphs as to the CDPHE Amended
Notice of PHO 20-20, except that it was issued on April 20, 2020.
The ongoing session of Colorado General Assembly was suspended.
197. On March 14, 2020, the ongoing regular session of the Seventy-second Colorado
General Assembly was suspended until May 11, 2020.
CDPHE Public Health Order 20-22

198. On March 16, 2020, Defendant Ryan issued CDPHE Notice of Public Health Order 20-
22 (“PHO 20-22”).
200. PHO 20-22 cites no constitutional authority for its existence, and - unlike most of the
subsequent PHOs - there is no recitation near the beginning of PHO 20-22 of a directive
from Defendant Polis in an EO as authority.
201. The only references to statute(s) in PHO 20-22 are in functional parts of the PHO
(not in the preliminary recitations) which states:
(in paragraph number 6 on page 2), “Pursuant to Colo. Rev. Stat. § 25-1-101(1)(a)
and § 25-1-101(1)(a)(l), this Public Health Order closes bars, restaurants, … ;” and
59
(in penultimate paragraph on page 6), “See sections 25-1-101(1)(a) and § 25-1-
101(1)(a)(l), C.R.S.” 17
202. On information and belief, Defendant Ryan issued PHO 20-22 solely on her own
initiative and authority, neither of which is legally sufficient to excuse noncompliance with
the rulemaking requirements under the SAPA. C.R.S. § 24-1-101, et seq.
203. Neither of the two statutes referenced in PHO 20-22, Colo. Rev. Stat. § 25-1-101(1)(a)
and § 25-1-101(1)(a)(l), provides Defendant Ryan the legal authority to issue rules of
general applicability without the rulemaking process required by the State Administrative
Procedures Act, C.R.S. § 24-4-101, et. seq.
204. The last paragraph of PHO 20-22 states the criminal penalties for non-compliance with
PHO 20-22 as follows:
“FAILURE TO COMPLY WITH THIS ORDER IS SUBJECT TO THE

PENALTIES CONTAINED IN SECTIONS 25-1-114 C.R.S., INCLUDING A FINE
UP TO ONE THOUSAND (1,000) DOLLARS AND IMPRISONMENT IN THE
COUNTY JAIL FOR UP TO ONE YEAR.”
PHO 20-22, last paragraph, on page 6.
205. Neither of the two statutes referenced in PHO 20-22, Colo. Rev. Stat. § 25-1-101(1)(a)
and § 25-1-101(1)(a)(l), provides Defendant Ryan the legal authority to issue new rules
which criminalize previously lawful conduct without the rulemaking process required by the
State Administrative Procedures Act, C.R.S. § 24-4-101, et. seq.
206. On information and belief, CDPHE’s PHO 20-22 was originally issued and then extended
or amended or replaced by the Updated Notice of PHO 20-22 issued on March 19, 2020, all
without rulemaking as required by the SAPA. C.R.S. § 24-4-101, et. seq.
CDPHE Notice of PHO 20-22 and CDPHE Updated Notice of PHO 20-22 have no page
17
numbers.
60
207. Plaintiffs reallege the immediately preceding nine paragraphs as to the CDPHE Updated
Notice of PHO 20-22, except that it was issued on March 19, 2020.
Executive Order D 2020 013

(purported authority for CDPHE to issue CDPHE Public Health Order 20-24).
208. On March 22, 2020, Defendant Polis issued Executive Order D 2020 013 “Ordering
Colorado Employers To Reduce In-Person Workforce by Fifty Percent Due to the Presence of
COVID-19 in the State” (“EO 13”).
209. EO 13 has been repeatedly amended or extended and replaced.
210. EO 13 begins with the following statement of authority:
particular, pursuant to Article IV, Section 2 of the Colorado Constitution and the
relevant portions of the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701,
et seq. (Act), I, Jared Polis, Governor of the State of Colorado, hereby issue this
Executive Order ordering Colorado employers to reduce in-person work
requirements by fifty percent for non-critical workplaces due to the presence of
coronavirus disease 2019 (COVID-19) in the State.” EO 13 on page 1.
211. In EO 13 Defendant Polis stated: “I direct the Executive Director of the Colorado
Department of Public Health and Environment to issue a public health order consistent with the
directives in this Executive Order.” EO 13 on page 2 in II. C. Defendant Polis’ EO 13 directives
to Defendant CDPHE went on to specify additional details with which the new PHO must
comply.
CDPHE Public Health Order 20-24,

(amended, extended, or replaced by numerous CDPHE PHOs,
the most current being the Tenth Amended PHO 20-28).
61
212. On March 22, 2020, Defendant Ryan issued CDPHE Public Health Order 20-24
“Implementing Fifty Percent Reduction in Nonessential Business In-person Work and Extreme
Social Distancing” (“PHO 20-24”).
214. PHO 20-24 begins with the following statement of authority:
“I issue this Public Health Order (PHO or Order) pursuant to the Governor’s
directive in Executive Order D 2020 013 … .” PHO 20-24 on page 1.
215. PHO 20-24 cites no constitutional or statutory authority for its existence. It appears
from the recitation of authority at the beginning of PHO 20-24 that Defendant Ryan issued
PHO 20-24 solely on the authority, if any, from the directive she received from Defendant
Polis set forth in Executive Order D 2020 013 ("EO 13").
relevant portions of the Colorado Disaster Emergency Act, C.R.S. §, et seq. [sic]18
(Act), I, Jared Polis, Governor of the State of Colorado, hereby issue this
Executive Order ordering Colorado employers to reduce in-person work
requirements by fifty percent for non-critical workplaces due to the presence of
coronavirus disease 2019 (COVID-19) in the State.” EO 13 on page 1.
217. Defendant Polis states at the beginning of EO 13 that it is issued on the legal
authority of the Colorado Disaster Emergency Act, C.R.S. §§ 24-33.5-701, et seq.
However, the only two applicable statutes within the CDEA are C.R.S. §§ 24-33.5-704 and
18
The missing citation is repeated exactly as in Defendant Polis’ Executive Order D 2020 013.
62
24-33.5-704.5, and neither statute provides Defendant Polis the legal authority to issue rules
of general applicability without the rulemaking process required by the State Administrative
218. Likewise, Defendant Ryan in her capacity as Executive Director of Defendant
CDPHE has no independent constitutional or statutory source of authority upon which to
issue rules of general applicability like those contained in PHO 20-28 (and numerous other
PHOs issued by Defendant CDPHE as directed by Defendant Polis in numerous EOs)
without the rulemaking process required by the State Administrative Procedures Act, C.R.S.
§ 24-4-103, et. seq.
219. The third from last paragraph of PHO 20-24 (on page 9) states the criminal penalties for
non-compliance with PHO 20-24 as follows:
This order will be enforced to the greatest extent possible by all legal means. Failure to
comply with this order is subject to the penalties contained in sections 25-1-114, C.R.S.
including a fine of up to one thousand (1,000) dollars and imprisonment in the county jail
for up to one year. PHO 20-24 (on page 9).19
220. Defendant Ryan in her capacity as Executive Director of Defendant CDPHE has no
independent constitutional or statutory source of authority upon which to issue new rules of
general applicability which criminalize previously lawful conduct without the rulemaking
221. On information and belief, CDPHE’s PHO 20-24 which was originally issued on March
22, 2020, was then extended or amended or replaced by the Second Updated Public Health Order
20-24 issued on March 27, 2020, and then extended or amended or replaced by the Third
19
CDPHE’s PHO 20-24, and Second Updated Notice of PHO 20-24, and Third Updated Notice
of PHO 20-24 have no page numbers.
63
Updated Public Health Order 20-24 issued on April 1, 2020, all without rulemaking as required
by the SAPA. C.R.S. § 24-4-101, et. seq.
222. Plaintiffs reallege the immediately preceding eight paragraphs about CDPHE PHO 20-24
as to both the Second Updated Public Health Order 20-24 issued on March 27, 2020, and the
Third Updated Public Health Order 20-24 issued on April 1, 2020.
Executive Order D 2020 017

(purported authority for CDPHE to issue
Second and Third Updated Public Health Order 20-24).
223. On March 25, 2020, Defendant Polis issued Executive Order D 2020 013 “Ordering
Coloradans to Stay at Home Due to the Presence of COVID-19 in the State” (“EO 17”).
Executive Order ordering Coloradans to stay at home whenever possible due to
the presence of coronavirus disease 2019 (COVID-19) in the State.” EO 17 on
page 1.
225. In EO 17 Defendant Polis stated: “I direct the Executive Director of the CDPHE to issue
a public health order consistent with the directives in this Executive Order.” EO 17 on page 2 in
II. D. Defendant Polis’ EO 17 directives to Defendant CDPHE went on to specify additional
details with which the new PHO must comply. EO 17 on pages 2 and 3 in II. D.1., et seq.
CDPHE Second Updated Public Health Order 20-24

64
226. On March 27, 2020, Defendant Ryan issued CDPHE Second Updated Public Health
Order 20-24 (“Second Updated PHO 20-24”).
227. The Second Updated PHO 20-24 has been amended or extended and replaced.
228. The Second Updated PHO 20-24 begins with the following statement of authority:
directive in Executive Orders D 2020 017 … .” Second Updated PHO 20-24 on
page 1.
229. The Second Updated PHO 20-24 cites no constitutional or statutory authority for its
existence. It appears from the recitation of authority at the beginning of the Second Updated
PHO 20-24 that Defendant Ryan issued the Second Updated PHO 20-24 solely on the
authority, if any, from the directive she received from Defendant Polis set forth in Executive
Order D 2020 017 ("EO 17").
page 1.
65
issue rules of general applicability like those contained in the Second Updated PHO 20-24
(and numerous other PHOs issued by Defendant CDPHE as directed by Defendant Polis in
numerous EOs) without the rulemaking process required by the State Administrative
233. The third from last paragraph of the Second Updated PHO 20-24 (on page 12 of 12)
states the criminal penalties for non-compliance with the Second Updated PHO 20-24 as
follows:
This order will be enforced by any appropriate legal means. Local authorities are
encouraged to determine the best course of action to encourage maximum compliance.
Failure to comply with this order could result in penalties including a fine of up to one
thousand (1,000) dollars and imprisonment in the county jail for up to one year, pursuant
to 25-1-114, C.R.S.
Second Updated PHO 20-24, in paragraph V., on page 12 of 12.20
20
66
235. On information and belief, CDPHE’s Second Updated PHO 20-24 was originally issued
on March 27, 2020, and then extended or amended and replaced, all without rulemaking as
required by the SAPA. C.R.S. § 24-4-101, et. seq.
CDPHE Third Updated Public Health Order 20-24

236. On April 1, 2020, Defendant Ryan issued CDPHE Third Updated Public Health Order
20-24 (“Third Updated PHO 20-24”).
237. The Third Updated PHO 20-24 has been amended or extended and replaced.
238. The Third Updated PHO 20-24 begins with the following statement of authority:
directive in Executive Orders D 2020 017 … .” Third Updated PHO 20-24 on
page 1.
239. The Third Updated PHO 20-24 cites no constitutional or statutory authority for its
existence. It appears from the recitation of authority at the beginning of the Third Updated
PHO 20-24 that Defendant Ryan issued the Third Updated PHO 20-24 solely on the
Order D 2020 017 ("EO 17").
67
page 1.
issue rules of general applicability like those contained in the Third Updated PHO 20-24
243. The Third Updated PHO 20-24 states the criminal penalties for non-compliance as
follows:
to 25-1-114, C.R.S.
Third Updated PHO 20-24, in paragraph V., on page 12 of 13.21
21
68
245. On information and belief, CDPHE’s Third Updated PHO 20-24 was originally issued on
April 1, 2020, and then extended or amended and replaced, all without rulemaking as required by
the SAPA. C.R.S. § 24-4-101, et. seq.
Executive Order D 2020 024,

“Amending and Extending Executive Order D 2020 017
Ordering Coloradans to Stay at Home Due to the Presence of COVID-19.”
246. On April 6, 2020, Defendant Polis issued Executive Order D 2020 024 “Amending and
Extending Executive Order D 2020 017 Ordering Coloradans to Stay at Home Due to the
Presence of COVID-19” (“EO 24”).
247. In EO 24 Defendant Polis amended inter alia one provision in EO 17 on page 2 in II.D.,
and concluded: “… In all other respects Executive Order D 2020 017 as extended and amended
shall remain in full force and effect.”
CDPHE Fourth Updated Public Health Order 20-24

248. On April 9, 2020, Defendant Ryan issued CDPHE Fourth Updated Public Health Order
20-24 (“Fourth Updated PHO 20-24”).
249. The Fourth Updated PHO 20-24 has been amended or extended and replaced.
250. The Fourth Updated PHO 20-24 begins with the following statement of authority:
69
directive in Executive Orders D 2020 017 … .” Fourth Updated PHO 20-24 on
page 1.
251. The Fourth Updated PHO 20-24 cites no constitutional or statutory authority for its
existence. It appears from the recitation of authority at the beginning of the Fourth Updated
PHO 20-24 that Defendant Ryan issued the Fourth Updated PHO 20-24 solely on the
Order D 2020 017 ("EO 17").
page 1.
70
issue rules of general applicability like those contained in the Fourth Updated PHO 20-24
255. The Fourth Updated PHO 20-24 states the criminal penalties for non-compliance as
follows:
to 25-1-114, C.R.S.
Fourth Updated PHO 20-24, in paragraph V., on page 13 of 13.
257. On information and belief, CDPHE’s Fourth Updated PHO 20-24 was originally issued
on April 9, 2020, and then extended or amended and replaced, all without rulemaking as required
by the SAPA. C.R.S. § 24-4-101, et. seq.
The Stay at Home Order.
258. Defendant Polis’ EO 17, EO 24, and Defendant CDPHE’s PHO 20-24, all as extended
and amended, may be collectively referred to as “The Stay At Home Order.”
71
Executive Order D 2020 044, the “Safer at Home Order”.
259. On April 26, 2020, Defendant Polis issued Executive Order D 2020 044 “Safer at Home”
(“EO 44”), which modified the existing Stay-At-Home Order.
et seq., I, Jared Polis, Governor of the State of Colorado, hereby issue this
Executive Order continuing stay-at-home requirements for vulnerable individuals
and permitting the limited reopening of postsecondary institutions and certain
business operations due to the presence of coronavirus disease 2019 (COVID-19)
in the State.” EO 44 on page 1.
261. In EO 44 Defendant Polis stated: “I direct the Executive Director of CDPHE to issue a
public health order consistent with the directives in this Executive Order.” EO 44 on page 2 in II.
H. Defendant Polis’ EO 44 directives to Defendant CDPHE went on to specify additional details
with which the new or amended PHO must comply. EO 44 on page 3 in II. I.
CDPHE Public Health Order 20-28,

and successor PHOs purportedly issued on the authority of EO 44.
262. On April 26, 2020, Defendant Ryan issued CDPHE Public Health Order 20-28 (“PHO
20-28”), implementing Safer at Home standards in a PHO comprised of 14 initial pages,
followed by seven appendices in an additional 20 pages.
72
263. PHO 20-28 has been amended or extended or replaced eight times, with the current
iteration being the “CDPHE Ninth Amended PHO 20-28” issued on July 30, 2020.
264. PHO 20-28 begins with the following statement of authority:
directive in Executive Order D 2020 044 … .” PHO 20-28 on page 1.
265. PHO 20-28 cites no constitutional or statutory authority for its existence. It appears
from the recitation of authority at the beginning of PHO 20-28 that Defendant Ryan issued
PHO 20-28 solely on the authority, if any, from the directive she received from Defendant
Polis set forth in Executive Order D 2020 044 ("EO 44"), captioned "Safer at Home.”
266. Defendant Polis states at the beginning of EO 44 that it is issued on the legal authority
of the Colorado Disaster Emergency Act, C.R.S. §§ 24-33.5-701, et seq. However, the only
two applicable statutes within the CDEA are C.R.S. §§ 24-33.5-704 and 24-33.5-704.5, and
neither statute provides Defendant Polis the legal authority to issue rules of general
applicability without the rulemaking process required by the State Administrative
267. Likewise, Defendant Ryan in her capacity as Executive Director of Defendant CDPHE
has no independent constitutional or statutory source of authority upon which to issue rules
of general applicability like those contained in PHO 20-28 (and numerous other PHOs
issued by Defendant CDPHE as directed by Defendant Polis in numerous EOs) without the
rulemaking process required by the State Administrative Procedures Act, C.R.S. § 24-4-103,
et. seq.
268. The third from last paragraph of PHO 20-28 (on page 13 of 34 total pages) states the
criminal penalties for non-compliance with PHO 20-28 as follows:
73
This order will be enforced by all appropriate legal means. Local authorities are
Failure to comply with this order could result in penalties, including jail time, and fines,
and may also be subject to discipline on a professional license based upon the applicable
practice act.
PHO 20-28, in paragraph VI., on page 13 of 34 total pages.
270. On information and belief, CDPHE’s PHO 20-28 which was originally issued on April
26, 2020, was repeatedly extended or amended or replaced, by:
CDPHE Amended PHO 20-28, issued May 4, 2020 on the purported authority of EO 44
(with the same criminal enforcement language as PHO 20-28, but in paragraph VI., on
page 14 of 36 total pages);
CDPHE Second Amended PHO 20-28, issued May 8, 2020 on the purported authority
of EO 44 (with the same criminal enforcement language as PHO 20-28, but in paragraph
VI., on page 14 of 36 total pages);
CDPHE Third Amended PHO 20-28, issued May 14, 2020 on the purported authority
VI., on page 14 of 36 total pages); and
CDPHE Fourth Amended PHO 20-28, issued May 26, 2020 on the purported authority
74
VI., on page 14 of 41 total pages).
271. On information and belief, each and all of the CDPHE PHOs which amended or extended
or replaced PHO 20-28 (identified in the immediately preceding paragraph) were issued by
CDPHE without rulemaking as required by the SAPA. C.R.S. § 24-4-101, et. seq.
272. Plaintiffs reallege the immediately preceding ten paragraphs as to each and all of the
amendments and extensions and replacements of PHO 20-28 which was originally issued on
April 26, 2020, and then repeatedly extended or amended or replaced, by:
CDPHE Amended PHO 20-28, issued May 4, 2020;
CDPHE Second Amended PHO 20-28, issued May 8, 2020;
CDPHE Third Amended PHO 20-28, issued May 14, 2020); and
CDPHE Fourth Amended PHO 20-28, issued May 26, 2020.
Suspension of the General Assembly continues.
273. On May 11, 2020, the previously announced suspension of the regular session of the
Seventy-second Colorado General Assembly (from March 14, 2020 to May 11, 2020) was
extended until May 26, 2020.
75
“Safer at Home and in the Vast, Great Outdoors”.
274. On June 1, 2020, Defendant Polis issued Executive Order D 2020 91 “Safer at Home and
in the Vast, Great Outdoors” (“EO 91”), which modified EO 44.
et seq., I, Jared Polis, Governor of the State of Colorado, hereby issue this
Executive Order due to the presence of coronavirus disease 2019 (COVID-19) in
the State.” EO 91 on page 1.
276. In EO 91 Defendant Polis stated: “I direct the Executive Director of CDPHE to issue a
public health order consistent with the directives in this Executive Order.” EO 91 on page 2 in II.
E. Defendant Polis’ EO 91 directives to Defendant CDPHE went on to specify additional details
with which the new or amended PHO must comply. EO 91 on page 3 in II. E., et seq. and page 4
and 5 in II. F., et seq.
277. In EO 91 (section II.E. and the immediately following section II.F.) Defendant Polis
specified a two-page list of requirements, protocols, definitions, operations requirements,
guidelines, guidance, and mandatory requirements and protocols which must be identified and
developed in “… any new or amended PHO issued pursuant to this Executive Order.” EO 91 on
pages 3, 4, and 5 in II. E. and F. Near the conclusion of EO 91, it states: “Except as modified by
this Executive Order, Executive Orders issued due to COVID-19 that are currently in effect shall
remain in full force and effect as promulgated.”
76
CDPHE Fifth Amended Public Health Order 20-28,
and successor PHOs purportedly issued on the authority of EO 91.
278. On June 2, 2020, Defendant Ryan issued CDPHE’s Fifth Amended Public Health Order
20-28 (“Fifth Amended PHO 20-28”), in a PHO comprised of 17 initial pages, followed by
eleven appendices in an additional 28 pages, for a total of 45 pages.
279. CDPHE’s Fifth Amended PHO 20-28 has been amended or extended or replaced four
times, with the current iteration being the “CDPHE Ninth Amended PHO 20-28” issued on July
30, 2020.
280. CDPHE’s Fifth Amended PHO 20-28 begins with the following statement of authority:
directive in Executive Order D 2020 091 … .” Fifth Amended PHO 20-28 on
page 1.
281. CDPHE’s Fifth Amended PHO 20-28 cites no constitutional or statutory authority for
its existence. It appears from the recitation of authority at the beginning of CDPHE’s Fifth
Amended PHO 20-28 that Defendant Ryan issued that PHO 20-28 solely on the authority, if
any, from the directive she received from Defendant Polis set forth in Executive Order D
2020 091 ("EO 91"), captioned "Safer at Home and in the Vast, Great Outdoors.”
282. Defendant Polis states at the beginning of EO 91 that it is issued on the legal authority
of the Colorado Disaster Emergency Act, C.R.S. §§ 24-33.5-701, et seq. However, the only
two applicable statutes within the CDEA are C.R.S. §§ 24-33.5-704 and 24-33.5-704.5, and
neither statute provides Defendant Polis the legal authority to issue rules of general
applicability without the rulemaking process required by the State Administrative
77
283. Likewise, Defendant Ryan in her capacity as Executive Director of Defendant CDPHE
has no independent constitutional or statutory source of authority upon which to issue rules
of general applicability like those contained in PHO 20-28 (and numerous other PHOs
issued by Defendant CDPHE as directed by Defendant Polis in numerous EOs) without the
rulemaking process required by the State Administrative Procedures Act, C.R.S. § 24-4-103,
et. seq.
284. The third from last paragraph of CDPHE’s Fifth Amended PHO 20-28 (on page 16 of 45)
states the criminal penalties for non-compliance with CDPHE’s Fifth Amended PHO 20-28 as
follows:
This order will be enforced by all appropriate legal means. Local authorities are
Failure to comply with this order could result in penalties, including jail time, and fines,
and may also be subject to discipline on a professional license based upon the applicable
practice act.
CDPHE’s Fifth Amended PHO 20-28, in paragraph VI., on page 17 of 45.
286. On information and belief, CDPHE’s PHO 20-28 which was originally issued on April
26, 2020, was repeatedly extended or amended or replaced (as previously described in more
detail) by four successors on the purported authority of EO 44, as follows:
78
CDPHE Third Amended PHO 20-28, issued May 14, 2020; and
CDPHE Fourth Amended PHO 20-28, issued May 26, 2020.
287. Then, after EO 91 was issued by Defendant Polis on June 1, 2020, CDPHE’s PHO 20-28
which was originally issued on April 26, 2020, was repeatedly extended or amended or replaced
by four additional successors on the purported authority of EO 91, as follows:
CDPHE Fifth Amended PHO 20-28, issued June 2, 2020 on the purported
authority of EO 91 (with the same criminal enforcement language as PHO 20-28,
but in paragraph VI., on page 16 of 45 total pages);
CDPHE Sixth Amended PHO 20-28, issued June 5, 2020 on the purported
CDPHE Seventh Amended PHO 20-28, issued June 18, 2020 on the purported
CDPHE Eighth Amended PHO 20-28, issued June 30, 2020 on the purported
authority of EO 91 as amended by EO 123 (with the same criminal enforcement
language as PHO 20-28, but in paragraph VI., on page 19 of 48 total pages);
CDPHE Ninth Amended PHO 20-28, issued May 26, 2020 on the purported
authority of EO 91 as amended by EO 123 and EO 142 (with the same criminal
enforcement language as PHO 20-28, but in paragraph VI., on page 20 of 51 total
pages); and
79
CDPHE Tenth Amended PHO 20-28, issued August 21, 2020 on the purported
authority of EO 91 as amended and extende by EO 123 and EO 142 and EO 144
and EO 170 (with the same criminal enforcement language as PHO 20-28, but in
paragraph VI., on page 20 of 52 total pages).
288. On information and belief, each and all of the CDPHE PHOs which amended or extended
or replaced PHO 20-28 (identified in the immediately preceding two paragraphs) were issued by
CDPHE without rulemaking as required by the SAPA. C.R.S. § 24-4-101, et. seq.
289. Plaintiffs reallege the immediately preceding eleven paragraphs as to each and all of the
amendments and extensions and replacements of PHO 20-28, which was originally issued on
April 26, 2020, and then repeatedly extended or amended or replaced,
first by four successors on the purported authority of EO 44:
CDPHE Third Amended PHO 20-28, issued May 14, 2020); and
CDPHE Fourth Amended PHO 20-28, issued May 26, 2020;
and then by three successors on the purported authority of EO 91:
CDPHE Fifth Amended PHO 20-28, issued June 2, 2020;
CDPHE Sixth Amended PHO 20-28, issued June 5, 2020;
CDPHE Seventh Amended PHO 20-28, issued June 18, 2020;
and then by one successor on the purported authority of EO 91 and EO 123:
CDPHE Eighth Amended PHO 20-28, issued June 30, 2020;
and then by one successor on the purported authority of EO 91 and EO 123 and EO 142:
80
CDPHE Ninth Amended PHO 20-28, issued July 30, 2020;
and then by one successor on the purported authority of EO 91 and EO 123 and EO 142
and EO 144, as amended and extended by EO 170, issued on August 21, 2020;22
CDPHE Tenth Amended PHO 20-28, issued August 21, 2020;
each and all without rulemaking as required by the SAPA. C.R.S. § 24-4-101, et. seq.
Sixth Amended Public Health Order 20-28.
290. On June 5, 2020, Defendant CDPHE issued the Sixth Amended Public Health Order 20-
28 Safer at Home and in the Vast, Great Outdoors (“Sixth Amended PHO 20-28”).
291. The Sixth Amended PHO 20-28 has been amended and extended.
292. The Sixth Amended PHO 20-28 begins with the following statement of authority:
directive in Executive Order D 2020 091 … .” Sixth Amended PHO 20-28 on
page 1.
Seventh Amended Public Health Order 20-28.
293. On June 18, 2020, Defendant CDPHE issued the Seventh Amended Public Health Order
20-28 Safer at Home and in the Vast, Great Outdoors (“Seventh Amended PHO 20-28”).
294. The Seventh Amended PHO 20-28 has been amended and extended.
295. The Seventh Amended PHO 20-28 begins with the following statement of authority:
directive in Executive Order D 2020 091 … .” Seventh Amended PHO 20-28 on
page 1.
22
It is each Plaintiff’s intention that any allegation made in this Complaint as to any one of the
many iterations of CDPHE’s Health Order 20-28 Safer at Home and in the Vast, Great Outdoors
is realleged as to each and all of them.
81
Defendant JCPH’s enforcement actions begin in May and June 2020.
296. Prior to the Seventh Amended PHO 20-28 issued on June 18, 2020, PHO 20-28
prohibited spectator events. Although spectator events were not allowed, the Bandimeres and
JCPH collaborated so that Bandimere Speedway conducted auto racing events in May and June
2020 as outdoor recreation that complied with PHO 20-28 based on the Bandimeres’ voluntary
actions, e.g. implementing track rules which created sufficient spacing of vehicles, imposing
limits on the number of crew members, etc.
On June 29, 2020, Defendant Johnson abruptly changes

Defendant JCPH’s enforcement actions.
297. On June 29, 2020, Defendant Johnson initiated written communication with the
Bandimeres about their scheduled Fourth of July event (food license previously approved by
JCPH on January 31, 2020), demanding that the Bandimeres furnish “… a plan that details the
protocols Bandimere has put into place to ensure that the upcoming 4th of July event operates in
compliance with PHO 20-28.”
On June 30, 2020, Defendant Polis issues the Target EO,

“Amending and Extending Executive Order D 2020 091 Safer at Home and in the Vast,
Great Outdoors.”
298. On June 30, 2020, Defendant Polis issued the Target EO, Executive Order D 2020
123, “Amending and Extending Executive Order D 2020 091 Safer at Home and in the Vast
Great Outdoors” (“EO 123”).
299. EO 123 has been amended or extended and replaced.
82
particular, pursuant to Article IV, Section 2 of the Colorado Constitution and the relevant
portions of the Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., I, Jared
Polis, Governor of the State of Colorado, hereby issue this Executive Order amending
and extending Executive Order D 2020 091, Safer at Home and in the Vast, Great
Outdoors, due to the presence of coronavirus disease 2019 (COVID-19) in Colorado.”
EO 123 on page 1.
301. In EO 123 Defendant Polis amended inter alia four provisions in EO 91 and concluded:
“Executive Order D 2020 091, as extended and amended by this Executive Order, shall expire
thirty (30) days from June 30, 2020, unless extended further by Executive Order. In all other
respects Executive Order D 2020 091 shall remain in full force and effect as originally
promulgated.” EO 123 on page 3.
On June 30, 2020, Defendant Ryan issues the Target CDPHE PHO,
Eighth Amended Public Health Order 20-28.
302. On June 30, 2020, Defendant CDPHE issued the Eighth Amended Public Health Order
20-28 Safer at Home and in the Vast, Great Outdoors (“Eighth Amended PHO 20-28”). The
Eighth Amended PHO 20-28 begins with the following statement of authority:
“I issue this Public Health Order (PHO or Order) pursuant to the Governor’s directive in
Executive Order D 2020 091 as amended by Executive Order D 2020 123 … .” Eighth
Amended PHO 20-28 on page 1.
303. The Eighth Amended Public Health Order 20-28 provides that “[o]utdoor venues may
allow up to 175 people within their usable space calculated using the Social Distancing Space
Calculator, excluding staff, per designated activity with a minimum of 6 feet of distance between
individuals or non-household contacts.” (Eighth Amended PHO 20-28, at page 6, in ¶ I.H.4.a.)
83
On July 1, 2020, Defendant Johnson involves Jefferson County Attorneys in JCPH
enforcement actions.
304. On July 1, 2020, the Bandimeres’ counsel (the undersigned attorney) responded to
Defendant Johnson, and Defendant Johnson immediately referred the matter to the Jefferson
County Attorney’s office.
On July 1, 2020, the Supreme Court of Colorado issues their opinion in Ritchie v. Polis.
305. On July 1, 2020, the Colorado Supreme Court announced their opinion in Richie v. Polis,
No. 20SC453, finding that Governor Polis exceeded his lawful authority by Executive Order
065, in which he purported to: (1) suspend the operation of certain statutes governing the ballot
initiative process that require signature collection to take place in person, and (2) authorize the
Secretary of State to create temporary rules to permit signature gathering by mail and email.
Ritchie v. Polis, 2020 CO 69, ¶ 2, 467 P.3d 339, 241.
On July 1, 2020, JCPH takes de facto control of Bandimere Speedway.
306. On July 2, 2020, Bandimere Speedway employees and their counsel communicated back
and forth repeatedly with JCPH employees and their counsel (various attorneys with the County
Attorney’s office of Jefferson County) in an effort to understand the Target EO and the Target
CDPHE PHO - both issued on June 30, 2020 - and negotiate plans for the Bandimeres’ 4th of July
God and Country Celebration satisfactory to Defendant JCPH under the confusing new
requirements of the Target EO and the Target CDPHE PHO.
On July 2, 2020, DORA Liquor Enforcement agents

summarily suspend the Bandimeres’ liquor license.
307. On July 2, 2020, the Bandimeres received telephonic notice from Colorado Department
of Revenue Liquor Enforcement authorities that their liquor license was summarily suspended.
84
Later the same day, DORA Liquor Enforcement agents arrived at Bandimere Speedway, served
written notice, and directed the posting of notice to the public on the Bandimere Speedway
grounds.
On July 2, 2020, the District Court conducts a hearing

on JCPH’s Emergency request for TRO against Bandimere Speedway.
308. On July 2, 2020, Bandimere Speedway received short notice of a hearing on JCPH’s ex
parte Complaint for Injunctive Relief, Including a Motion for Temporary Restraining Order and
Telephonic Hearing to force the Bandimeres to comply with the Target EO and the Target
CDPHE PHO on the 4th of July. The Bandimeres’ undersigned counsel was allowed to appear
for Bandimere Speedway via WebEx. At the conclusion of the hearing, the Court issued a TRO
ordering Bandimere Speedway to comply with the Target EO and the Target CDPHE PHO and
set a hearing on the merits of JCPH’s request for injunction on July 8, 2020.
On July 3, 2020, the Bandimeres work to avoid

JCPH cancellation of the annual 4th of July Event.
309. On July 3, 2020, Bandimere Speedway employees and their counsel communicated back
and forth repeatedly with JCPH employees and their counsel in an effort to address and resolve
JCPH concerns about the 4th of July Event and how the Bandimeres’ planned “to ensure
compliance” with the Target EO and the Target CDPHE PHO. After halting tickets sales
advertising, cutting off ticket sales early, and implementing numerous other measures in an effort
to comply with the Target EO and the Target CDPHE PHO, the Bandimeres understood they had
JCPH approval to proceed with their 4th of July Event.
Bandimere Speedway hosts their annual 4th of July God and Country Celebration.
310. On July 4, 2020, Bandimere Speedway hosted their 4th of July God and Country
Celebration for approximately 1/3 of the people the Bandimeres expected to be in attendance on
85
Independence Day. JCPH personnel went to Bandimere Speedway during the event to observe
and collect evidence of noncompliance with the Target EO and the Target CDPHE PHO by
Bandimere Speedway and their customers.
On July 8 and 9, 2020, District Court

conducts the hearing on JCPH’s request for Injunction.
311. On July 8, 2020, JCPH and Bandimere Speedway engaged in the first day of an in-
person hearing on JCPH’s Complaint for Injunctive Relief. At the end of the day, the hearing
was continued into the next day.
312. On July 9, 2020, JCPH and Bandimere Speedway engaged in the second day of an in-
person hearing on JCPH’s Complaint for Injunctive Relief. At the end of the hearing on July 9,
2020, the Court took the matter under advisement and set July 21, 2020, for announcement of the
Court's decision.
On July 20, 2020, JCPH issues the Target JCPH PHO,

JCPH Order 20-007.
313. On July 20, 2020, JCPH issued a Public Health Order, JCPH Order 20-007, entitled
"Jefferson County Public Health Order 20-007 Requiring JCPH Pre-approval for Events and
Venues to Allow More Than 100 Patrons Indoors or 175 Patrons Outdoors."
314. On July 20, 2020, JCPH filed a Notice in the pending Case No. 2020CV30773, the JCPH
complaint against Bandimere Speedway Inc. for injunctive relief, asking the Court to take
judicial notice of JCPH Order 20-007 issued by Defendant Johnson on July 20, 2020.
On July 21, 2020, the District Court

dismisses the JCPH case against Bandimere Speedway.
315. On July 21, 2020, District Court Judge Tamara S. Russell announced her decision in the
pending Case No. 2020CV30773, finding the issues disputed at the preliminary injunction
86
hearing to be moot in light of the recent orders issued by JCPH, JCPH Orders 20-006, 20-006,
and 20-007, the Temporary Restraining Order granted by the Court on July 2, 2020, was vacated,
and the case closed. Minute Order issued July 21, 2020 and filed at 11:11 a.m. on July 21, 2020.
JCPH control of Bandimere Speedway from and after July 21, 2020.
316. Since July 21, 2020, the Bandimeres have had frequent, detailed, and extensive
communications with JCPH employees in a vain effort to submit a plan acceptable to JCPH for
Bandimere Speedway to conduct larger events than allowed by the Target EO, the Target
CDPHE PHO, and the Target JCPH PHO.23
317. The Target JCPH PHO, JCPH PHO 20-007, was issued on June 20, 2020, and then
amended and extended on August 21, 2020, by an “order” entitled “First Extension of Jefferson
County Public Health Order 20-007 Requiring JCPH Pre-approval for Events and Venues to
Allow More Than 100 Patrons Indoors or 175 Patrons Outdoors.”
318. The first extension of the Target JCPH PHO states that it will continue in force “until
midnight on September 20, 2020, or until it is extended, rescinded, superseded, or amended … .”
First Extension of JCPH PHO 20-007, on page 5, at paragraph number 8.
319. The First Extension of JCPH PHO 20-007 states criminal and civil penalties for violation
as follows:
5. This Order has the effect of law. Pursuant to C.R.S. §§ 25-1-114.1 and 25-1-516, it is
unlawful for any person to fail to comply with this Order. Any person who fails to
comply with this Order may also be subject to a fine of up to one thousand dollars
23
As previously stated near the beginning of this Complaint, it is Plaintiffs’ intention that each
allegation about and complaint against each Target Order in this Complaint and Plaintiffs’ other
pleadings applies to the other Subject Orders of like kind. Plaintiff respectfully reserves the right
to amend this Complaint to address with specificity each and every one of the thirty-one (31)
Subject Orders, in the event this approach is objected to by any party or the Court.
87
($1,000) per violation and imprisonment in the county jail for up to one year. For
violations of this Order, JCPH may seek a court order in Colorado state district court to
enforce this Order and/or to restrain or enjoin any violation of this Order.
6. Any business open to the public that fails to obtain JCPH approval before hosting an
event with more than one designated activity may be subject to the suspension or
revocation of its license by the appropriate licensing authority as provided by law.
First Extension of JCPH PHO 20-007, on page 5, at paragraph numbers 5 and 6.
320. The 2020 Bandimere Speedway racing season is coming to a close and some of the biggest
events of the 2020 schedule have not been allowed by JCPH under the terms of the current
version of the Target EO 123 (now EO 170), the current version of the Target CDPHE PHO
(now the Tenth Amended CDPHE PHO 20-28), and the current version of the Target JCPH PHO
(now the First Extension of JCPH PHO 20-007).
321. Bandimere Speedway’s many and repeated efforts to obtain a variance or other
accommodation from JCPH for the truly one-of-a-kind venue and entertainment operation at
Bandimere Speedway have failed. Only small scale events have been approved by JCPH, and
then only after extensive advance communications with JCPH to the point of JCPH micro-
management of each small event.
322. As a direct result of JCPH actions, the major events on the 2020 Bandimere Speedway
schedule have been postponed or cancelled altogether.
323. In 2019, during their April through October racing season, Bandimere Speedway was host
to over 150 events and welcomed racers, fans, and sponsors alike to enjoy their state-of-the-art,
23,500 seat facility on 160 acres.
88
324. The premier racing event on the 2019 schedule, the Dodge Mile-High NHRA Nationals,
brought nearly $15 million into the local economy.
325. The Mile-High Nationals is a world class racing event sanctioned by the National Hot Rod
Association which draws competitors from all over the nation.
326. As a direct result of JCPH actions, the 2020 Mile-High Nationals event (originally
scheduled for July 17-19) has been repeatedly postponed to the point that the last available
remaining dates that it may be scheduled are September 25-27, 2020.
327. Due to the lead time required to prepare for the Mile-High Nationals and the logisitics
involved, the small window of opportunity for it to be rescheduled in the 2020 season is closing
fast.
328. If the Mile-High Nationals event is not immediately scheduled with the approval of the
sanctioning body, the NHRA, it will not be held in 2020.
329. As a direct result of JCPH past actions approving only small events and refusing to
approve large events, it is apparent that JCPH will not approve the Mile-High Nationals.
330. 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.
331. 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.
332. 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
89
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.
333. 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.
334. 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.
335. Under these unreasonable and unsustainable circumstances, the Bandimeres seek
immediate judicial relief from the Target Orders and JCPH’s actions to enforce them.
Defendant Polis ignored

constitutionally compliant options by which to implement new laws and policies.
336. At all times relevant to this action, Defendant Polis had multiple options by which to
implement new laws and policies in a manner that complied with the requirements of the
Option One
for Defendant Polis’ to have new laws and public policies implemented
and comply with the Colorado Constitution –
seek enactment of a bill during the Regular Session of the Legislature.
337. At all times relevant to this action, during those time periods when the legislature was in
session in 2020, Defendant Polis had a constitutionally compliant course of action by which to
have new laws and policies implemented in response to COVID-19 in Colorado and comply with
the Colorado Constitution:
the Governor could have presented the substance of any given executive order to the
General Assembly with the request that its substance be put into the form of a bill which
90
the legislature could then enact (or not) as explicitly required by Article V, Section 17 of
the Colorado Constitution.
338. Article V, section 17 of the Colorado Constitution states as follows.
§ 17. No law passed but by bill--amendments

No law shall be passed except by bill, and no bill shall be so altered or amended on its
passage through either house as to change its original purpose.
Colo. Const. art. V, § 17.
Option Two
seek enactment of a bill during a Special Session of the Legislature.
339. At all times relevant to this action, during those time periods when the legislature was not
in session in 2020, Defendant Polis has had a second constitutionally compliant course of action
by which to have new laws and policies implemented in response to COVID-19 in Colorado and
comply with the Colorado Constitution:
the Governor could have called the Colorado legislature into a special legislative session
under the authority of Article IV, section 9 of the Colorado Constitution, which
authorizes the governor, on "extraordinary occasions" to convene the General Assembly
in a special legislative session.
340. Article IV, section 9 of the Colorado Constitution states as follows.
§ 9. Governor may convene legislature or senate

The governor may, on extraordinary occasions convene the general assembly, by
proclamation, stating therein the purpose for which it is to assemble; but at such special
session no business shall be transacted other than that specially named in the
proclamation. He may by proclamation, convene the senate in extraordinary session for
the transaction of executive business.
Colo. Const. art. IV, § 9.
91
341. Under the authority of Article IV, section 9 of the Colorado Constitution, Defendant Polis
could have called a special session of the General Assembly by proclamation, stating therein that
the purpose for which the legislature was to assemble: to enact the substance of his proposed
executive order in the form of a bill as explicitly required by Article V, Section 17 of the
342. If Defendant Polis had called a special session and offered the substance of his EO(s) for
the General Assembly to put in the form of a bill and enact, then Defendant Polis would not have
usurped the Article V legislative power of the legislature, and he would have complied with
Colorado Constitution’s Article III requirements that “…no person or collection of persons
charged with the exercise of powers properly belonging to one of these departments shall
exercise any power properly belonging to either of the others, except as in this Constitution
expressly directed or permitted.” Colo. Const. art. III.
343. Whether the bill was enacted in the regular or special legislative session, immediately
upon passage of the bill enacting the substance of the Governor’s executive order into law by the
General Assembly as required by Article III and Article V, Section 17 of the Colorado
Constitution, the Governor then could have lawfully acted with dispatch to faithfully execute the
laws as provided by Article IV, section 2 of the Colorado Constitution.
344. In so doing, Defendant Polis would have honored three of the most fundamental precepts
of Colorado Constitutional law: (1) that the legislative department makes the laws in accord with
Article V of the Colorado Constitution; and (2) that the executive department executes the laws
in accord with Article IV, Section 2 of the Colorado Constitution; and (3) that the executive
department will not usurp the authority and powers of the legislative department in violation of
92
Article III of the Colorado Constitution. But Defendant Polis did not honor those three most
fundamental precepts in Colorado Constitutional law when he issued EO 123.
Option Three
direct CDPHE to issue rules after rulemaking as prescribed by SAPA.
345. At all times relevant to this action, Defendant Polis has had a third constitutionally
compliant course of action by which to have new laws and policies implemented in response to
COVID-19 in Colorado and comply with the Colorado Constitution:
the Governor could have directed either Defendant Ryan or the State Board of Health to
engage in rulemaking as prescribed in the State Administrative Procedures Act, C.R.S.
§ 24-4-101, et. seq.
346. For clarity and accuracy in analyzing whether the Target Orders were issued in accord
with the State Administrative Procedures Act (the “SAPA”), it is imperative to properly
distinguish a “rule” from an “order”.
347. The term “rule” is defined in the State Administrative Procedures Act in C.R.S. § 24-4-
102(15) as follows:
(15) "Rule" means the whole or any part of every agency statement of general
applicability and future effect implementing, interpreting, or declaring law or
policy or setting forth the procedure or practice requirements of any agency. "Rule"
includes "regulation.” (Emphasis added.)
348. The term “order” is defined in the State Administrative Procedures Act in C.R.S. §
24-4-102(10) as follows:
93
(10) "Order" means the whole or any part of the final disposition (whether affirmative,
negative, injunctive, or declaratory in form) by any agency in any matter other than
rulemaking. (Emphasis added.)
349. Applying the definitions above to the content of the Target Orders reveals that despite
the fact that each is entitled as an “Order,” in fact the Target Order is
comprised of a number of different "rules" wearing the erroneous and
misleading collective label, "Order."
350. Erroneously identifying the rules in the Target Orders as “orders” when that term of art is
a patent falsehood contributes to confusion from mixed signals about whether the Target Orders
are “guidance,” whether or not they have any binding legal effect, and whether or not they are
enforceable by criminal penalties as some state.
351. More importantly, erroneously characterizing the rules in the Target Orders as “orders”
obscures the fact that no Defendant had constitutional or statutory authority to issue any of the
rules in the Target Orders without first complying with the SAPA rulemaking process.
Option Four
direct CDPHE to issue temporary or emergency rules in accord with the SAPA.
352. At all times relevant to this action, Defendant Polis has had a fourth constitutionally
compliant course of action by which to have new laws and policies implemented in response to
COVID-19 in Colorado and comply with the Colorado Constitution:
the Governor could have directed either Defendant Ryan or the State Board of Health
to enact the rules through temporary or emergency rulemaking as prescribed in the
State Administrative Procedures Act in C.R.S. § 24-4-103(6)(a).
94
353. C.R.S. § 24-4-103(6)(a) provides as follows:
(6)(a) A temporary or emergency rule may be adopted without compliance with the
procedures prescribed in subsection (4) of this section and with less than the twenty
days' notice prescribed in subsection (3) of this section, or where circumstances
imperatively require, without notice, only if the agency finds that immediate
adoption of the rule is imperatively necessary to comply with a state or federal
law or federal regulation or for the preservation of public health, safety, or
welfare and compliance with the requirements of this section would be contrary
to the public interest and makes such a finding on the record. Such findings and
a statement of the reasons for the action shall be published with the rule. A
temporary or emergency rule may be adopted without compliance with subsections
(2.5) and (2.7) of this section, but shall not become permanent without compliance
with such subsections (2.5) and (2.7). A temporary or emergency rule shall become
effective on adoption or on such later date as is stated in the rule, shall be published
promptly, and shall have effect for not more than one hundred twenty days after its
adoption or for such shorter period as may be specifically provided by the statute
governing such agency, unless made permanent by compliance with subsections (3)
and (4) of this section. (Emphasis added.)
354. On information and belief, none of the rules in the Target Orders were issued in
compliance with the provisions for temporary or emergency rules prescribed in the State
Administrative Procedures Act. C.R.S. § 24-4-103(6)(a).
The rules in the Target Orders were issued by Defendants without lawful authority.
95
355. As described in this Complaint, the rules in the Target Orders were issued by
Defendants without lawful authority from either constitution or statute, and the Target
Statutes are no source of authority because they are unconstitutional. Under these
circumstances, each of the Target Orders is void because it either does not comply with the
SAPA, or it violates the Colorado Constitution, or both.
Even if the Target Orders are based upon legally sufficient authority, they are
unconstitutionally overbroad and void for vagueness.
356. The Target Orders deprive each Plaintiff of due process because the Target Orders
generally, and the Target Orders in particular, are not narrowly tailored as required by Article II,
Section 25 of the Colorado Constitution. Colo. Const. art II, § 25.
357. For state actors to restrict the fundamental civil rights, liberty interests, and property rights
of each Plaintiff on the basis of the unconstitutionally overbroad Target Orders is arbitrary and
capricious state action. “The overbreadth doctrine addresses the concern that the scope of a law
may be so broad that it restricts speech protected by the First Amendment or has a chilling effect
on such constitutionally protected speech. People v. Shell, 148 P.3d 162, 174 (Colo.2006). The
doctrine permits a litigant to bring a facial challenge to a law that impacts speech or expressive
conduct protected by the First Amendment. See Broadrick v. Oklahoma, 413 U.S. 601, 612–13,
93 S.Ct. 2908, 37 L.Ed.2d 830 (1973); Bd. of Educ. of Jefferson Cty. Sch. Dist. R–1 v. Wilder,
960 P.2d 695, 702–03 (Colo.1998).” People v. Graves, 2016 CO 15, ¶ 12, 368 P.3d 317, 322–
23.
358. The use of force by state actors to coerce Plaintiffs into compliance with the Target Orders is
state action which deprives each Plaintiff of subtantive and procedural due process in violation of
Article II, Section 25 of the Colorado Constitution.
96
359. In addition, the Target Orders deprive Plaintiffs of due process because they are
unconstitutionally vague. “The essential inquiry in addressing a void for vagueness challenge is
whether the statute ‘forbids or requires the doing of an act in terms so vague that persons of
ordinary intelligence must necessarily guess as to its meaning and differ as to its application.’
” People ex rel. Rein v. Meagher (Colo. 2020). People v. Gross, 830 P.2d 933, 937 (Colo.
1992) (quoting People v. Becker, 759 P.2d 26, 31 (Colo. 1988)).
360. In the personal experience of each Plaintiff, the Subject Orders generally, and the Target
Orders in particular, are vague, overbroad, and confusing. Of one thing each Plaintiff is certain -
the result of Defendant Polis’ EO and PHO process to date, as applied to Plaintiffs, is
simultaneously a deprivation of procedural due process and substantive due process in violation
of Article II, Section 25 of the Colorado Constitution.
Each Plaintiff has suffered personal injury

from the state actions of each Defendant.
361. As a direct result of the Subject Orders generally, and the Target Orders in particular, each
Plaintiff has suffered a grievous loss of their fundamental civil rights, liberty interests, and
property rights from the conduct of each Defendant.
362. Plaintiffs seek immediate judicial relief from the Subject Orders generally, and the Target
Orders in particular, so as to restore their constitutional rights unjustly taken by the state actions
described in this Complaint. Each Plaintiff has standing, having suffered an injury to a legally-
protected interest as a result of each Defendant’s actions. Colorado Medical Society v.
Hickenlooper, 349 P.3d 1133 (2015).
CLAIMS FOR RELIEF

363. Each and all of Plaintiffs’ claims for relief in this action are grounded in Colorado state
law, i.e. the Colorado Constitution and Colorado state statutes and other Colorado state laws, as
97
enforced by and through 42 U.S.C. §§ 1983 and 1988. References in this Complaint (and all
other Plaintiffs’ pleadings) to the United States Constitution and U.S. Constitutional
jurisprudence are to place in proper context the Colorado state laws upon which Plaintiffs rely as
the basis of their claims. Cnf. People Ex Rel. Salazar v. Davidson, 79 P.3d 1221 (2003)(We base
our decision on the Colorado Constitution, but to put state law in context, we begin with a
discussion of federal law.). Each Plaintiff does not waive, and hereby expressly reserves for
adjudication as federal questions in the federal courts, all of their rights, remedies, and claims
grounded in the United States Constitution and U.S. Constitutional jurisprudence.
FIRST CLAIM
(Each Plaintiff as against each Defendant)
Plaintiffs are entitled to Judicial Review of the Subject Orders

pursuant to the Colorado Constitution, Article VI, Section 9.
365. Each Plaintiff is a person aggrieved or affected by EO 123 issued by Defendant Polis.
366. Each Plaintiff is a person aggrieved or affected by the Colorado Disaster Emergency Act,
C.R.S. § 24-33.5-701, et seq.
367. Each Plaintiff is a person aggrieved or affected by C.R.S. § 24-33.5-704(2) and § 24-
33.5-704(7)(a).
368. Each Plaintiff is a person aggrieved or affected by the CDPHE Eighth Amended PHO 20-
28 issued by Defendant Ryan.
369. Each Plaintiff is a person aggrieved or affected by the JCPH PHO 20-007 issued by
Defendant Johnson.
98
370. A real and actual controversy exists between each Plaintiff, on the one hand, and each
Defendant, on the other hand, concerning the constitutionality the Target Statutes and the Target
Orders.
371. This Court should enter an order to relieve the parties of uncertainty.
372. Each Plaintiff’s Complaint in this action is a petition for redress of grievances to which
each Plaintiff is entitled under Article II, Section 24 of the Colorado Constitution.
373. Plaintiffs request that Court exercise judicial power in accord with Article VI, Section 9
of the Colorado Constitution and conduct judicial review of the constitutionality of each of the
Target Statutes and the Target Orders.
374. On information and belief, Defendants issued the Target Orders without the regular
or emergency or temporary rulemaking prescribed by the State Administrative Procedures
Act, C.R.S. § 24-4-103, et. seq. In the absence of rulemaking in accord with the SAPA,
Plaintiffs are entitled to immediate judicial review of the Target Orders because they issued
without either the standard rulemaking or emergency rulemaking required by the SAPA, and
without any other legally sufficient constitutional or statutory authority.
375. The State Administrative Procedures Act governs judicial review only of state agency
actions. Colorado State Bd. of Medical Examiners v. Colorado Court of Appeals, 920 P.2d 807,
811 (Colo.1996).
376. The APA defines “agency” as “any board, bureau, commission, department, institution,
division, section, or officer of the state.” § 24–4–102(3), C.R.S.2011. Crow v. Penrose-St.
Francis Healthcare Sys., 2012 COA 43, ¶ 11, 292 P.3d 1018, 1021.
377. The Colorado Supreme Court en banc explained when judicial review of a state agency is
available without exhaustion of remedies in Envirotest Sys., Corp. v. Colorado Dep't of Revenue.
99
The Colorado Administrative Procedure Act (APA), sections 24–4–101 to 108, C.R.S.
(2004), governs this case. The APA reflects concern for separation of powers by
requiring parties involved in administrative proceedings to exhaust their administrative
remedies before seeking judicial review. State Personnel Bd. v. Dist. Court, 637 P.2d
333, 335 (Colo.1981); see also § 24–4–106(2), C.R.S. (2004)(“Final agency action under
this or any other law shall be subject to judicial review as provided in this section. ...”.)1
Generally, under the APA and exhaustion of remedies principles, courts will not review
or grant relief in regard to any aspect of administrative proceedings until the agency has
taken final action. Colo. Health Facilities Review Council v. Dist. Court In and For City
and County of Denver, 689 P.2d 617, 621 (Colo.1984).
The exception to this rule is stated in section 24–4–106(8). For a district court to
intervene, the agency proceeding or action must clearly exceed the constitutional or
statutory jurisdiction or authority of the agency and the party seeking to enjoin the
proceedings must show that the agency action will cause irreparable injury. Section 24–
4–106(8) states:
Upon a showing of irreparable injury, any court of competent jurisdiction may enjoin at
any time the conduct of any agency proceeding in which the proceeding itself or the
action proposed to be taken therein is clearly beyond the constitutional or statutory
jurisdiction or authority of the agency. (emphasis added).
Unless the requirements of section 24–4–106(8) are met, interlocutory judicial review of
an issue presented in the agency proceeding encroaches on the executive function; thus,
courts otherwise will not interfere with ongoing agency proceedings until they are
finalized. T & S Leasing v. Dist. Court, 728 P.2d 729, 731 (Colo.1986); see also State
Personnel Bd., 637 P.2d at 337 (agency's action is entitled to a presumption of validity
and constitutionality).
FN1 Requiring exhaustion of administrative remedies allows agencies to develop

the factual record upon which the agency and subsequent reviewing courts may
base their decisions, promotes administrative efficiency, and preserves the
autonomy of the agency. City and County of Denver v. United Air Lines, Inc., 8
P.3d 1206, 1212–13(Colo.2000).
Envirotest Sys., Corp. v. Colorado Dep't of Revenue, 109 P.3d 142, 143–44 (Colo. 2005)
378. On information and belief, Defendants issued the Target Orders without regular
rulemaking or emergency or temporary rulemaking required by the SAPA, and without any
other legally sufficient constitutional or statutory authority.
100
379. The Target Statutes and the Target Orders, individually and collectively, have implicated
and injured the fundamental civil rights, liberty interests, and property rights of each Plaintiff.
380. This Court should conduct the judicial review of the Target Statutes, the Target EO, the
Target CDPHE PHO, and the Target JCPH PHO, individually and collectively, using the strict
scrutiny standard of review appropriate in cases where state actions by state actors infringe upon
any constitutional right. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440, 105
S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985).
381. Laws that are subject to strict scrutiny review will be sustained only if they are supported
by a compelling state interest and narrowly drawn to achieve that interest in the least restrictive
manner possible. Plyler v. Doe, 457 U.S. 202, 217, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982).
382. This Court should declare that each of the Target Statutes, the Target EO, the Target
CDPHE PHO, and the Target JCPH PHO, individually and collectively, both facially and as
applied to each Plaintiff, does not comply with the requirements of the Colorado Constitution,
and thereby violates the rights, privileges, and immunities to which each Plaintiff is entitled by
the Colorado Constitution.
383. Each Plaintiff has no adequate remedy at law, has suffered serious and irreparable harm to
their constitutional rights, and will continue to suffer serious and irreparable harm to their
fundamental civil rights, liberty interests, and property rights, unless and until each Defendant is
enjoined from enforcing the Target Orders. In order to establish standing, a plaintiff must allege
that he or she has suffered an injury to a legally protected interest. Hickenlooper v. Freedom
from Religion Found., Inc., 2014 CO 77, ¶ 8, 338 P.3d 1002, 1006.
384. Defendants issued the Target Orders without any other legally sufficient constitutional
or statutory authority, and without regular rulemaking or emergency or temporary
101
rulemaking required by the SAPA; as such, the Target Orders are clearly beyond the
respective constitutional or statutory jurisdiction or authority of each Defendant, and the actions
of each Defendant have caused each Plaintiff to unjustly suffer irreparable personal injury
from the loss of fundamental civil rights, liberty interests, and property rights.
385. Under these circumstances, each Plaintiff is entitled to immediate judicial review of
the Target Orders and the actions of each Defendant in issuing the Target Orders.
386. Pursuant to 42 U.S.C. §§ 1983 and 1988, each Plaintiff is entitled to declaratory relief and
temporary, preliminary, and permanent injunctive relief invalidating EO 123 and restraining each
Defendant’s enforcement of EO 123 and all PHOs issued by Defendants.
387. Each Plaintiff found it necessary to engage the services of private counsel to vindicate their
rights under the law. Each Plaintiff is therefore entitled to an award of attorneys’ fees pursuant
to 42 U.S.C. § 1988.
SECOND CLAIM
The Target Orders do not comply with the requirements in Article III
of the Colorado Constitution for distribution of powers and nondelegation of powers,
and they violate 42 U.S.C. § 1983.
389. This Court should enter findings of fact and conclusions of law that Defendant Polis’
power under Article IV, Section 2 of the Colorado Constitution is limited to the administration of
existing laws, i.e. the power to faithfully execute the laws already extant, and Article IV, Section
2 in no way empowers Defendant Polis to enact new laws or public policies. See Articles III, IV,
V, and VI of the Colorado Constitution and the separation of powers required by the U.S.
Constitution.
390. This Court should enter findings of fact and conclusions of law that Defendant Polis has
102
no authority, under either the Colorado Constitution or C.R.S. § 24-33.5-701, et seq., the
Colorado Disaster Emergency Act, to issue any executive order which creates, enacts, or
implements new law or new public policy, or punishes with civil or criminal liability any person
who does not comply with any Executive Order purporting to create, enact, or implement new
laws or public policies. See Articles III, IV, V, and VI of the Colorado Constitution.
391. This Court should enter findings of fact and conclusions of law that, to the extent C.R.S.
§ 24-33.5-704, et seq., grants the Governor power to legislate without incorporating proper
standards and safeguards, the legislature disregarded the explicit constitutional prohibition of
nondelegation of legislative power in Article III of the Colorado Constitution; consequently,
C.R.S. § 24-33.5-704, et seq., does not comply with the requirements of the Colorado
Constitution and violates the rights, privileges, and immunities to which each Plaintiff is entitled
by the Colorado Constitution. See Articles III, IV, V, and VI of the Colorado Constitution and
the separation of powers required by the U.S. Constitution.
392. This Court should enter findings of fact and conclusions of law that, to the extent C.R.S.§
24-33.5-704(2) purports to empower the Governor to issue, amend, or rescind executive orders,
proclamations, and regulations which have the force and effect of law, and § 24-33.5-704(7)(a)
purports to empower the Governor to “.. [s]uspend … any statute, order, rule, or regulation …,”
the legislative department cannot delegate their legislative authority to the executive department
without including in the enabling statute standards defining what is to be done and procedural
safeguards to control arbitrary action or abuse of power; consequently, each of C.R.S.§ 24-33.5-
704(2) and § 24-33.5-704(7)(a) is a constitutionally impermissible attempt by the legislative
department to delegate their legislative authority to the executive department which does not
comply with the requirements of the Colorado Constitution and violates the rights, privileges,
103
and immunities to which each Plaintiff is entitled by the Colorado Constitution. See Articles III,
IV, V, and VI of the Colorado Constitution and the separation of powers required by the U.S.
Constitution.
393. This Court should enter findings of fact and conclusions of law that each of EO 123, the
Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., in general, and C.R.S.§ 24-
33.5-704(2) and § 24-33.5-704(7)(a) in particular, the Eighth Amended PHO 20-28, and JCPH
PHO 20-007, individually and collectively, both facially and as applied to each Plaintiff, does
not comply with the requirements of the Colorado Constitution and thereby violates the rights,
privileges, and immunities to which each Plaintiff is entitled by the Colorado Constitution. See
Articles III, IV, V, and VI of the Colorado Constitution.
THIRD CLAIM
The Target Orders do not comply with the requirements in

Article V, Section 17 and Article II, Section 25 of the Colorado Constitution,
and the Fifth and Fourteenth Amendments of the U.S. Constitution,
395. When Defendant Polis issued EO 123 he did not lawfully act with dispatch to faithfully
execute the laws as required by Article IV, section 2 of the Colorado Constitution; instead,
Defendant Polis acted in flagrant disregard of Article III and Article V, Section 17 of the
Colorado Constitution to unilaterally issue in EO 123 a constitutionally impermissible executive
decree which violated not only Article III and Article V, Section 17, but also Article IV, section
2, because EO 123 is in no way “law” within the meaning of the Colorado Constitution Article
V, Section 17, despite the language in the Colorado Disaster Emergency Act which purports to
say otherwise. C.R.S. § 24-33.5-704(2) and § 24-33.5-704(7)(a).
104
396. This Court should enter findings of fact and conclusions of law that Defendant Polis’
power under Article IV, Section 2 of the Colorado Constitution is limited to the administration of
existing laws, i.e. the power to faithfully execute the laws already extant, and that Article IV,
Section 2 in no way empowers Defendant Polis to enact new laws or public policies as he
purportedly did in EO 123, and that the Colorado Disaster Emergency Act which purports to say
otherwise in C.R.S. § 24-33.5-704(2) and § 24-33.5-704(7)(a) does not comply with the explicit
requirements of the Colorado Constitution. See specifically, Article V, Section 17 and generally,
Articles III, IV, V, and VI of the Colorado Constitution, and the separation of powers required by
the U.S. Constitution.
Colorado Disaster Emergency Act, to issue any executive order, proclamation, or regulation
which creates, enacts, or implements new law or new public policy, or punishes with civil or
criminal liability any person who does not comply with any executive order, proclamation, or
regulation purporting to create, enact, or implement new laws or public policies. See
specifically, Article V, Section 17 and generally, Articles III, IV, V, and VI of the Colorado
Constitution, and the separation of powers required by the U.S. Constitution.
Colorado Disaster Emergency Act, to issue EO 123, and that EO 123 is unconstitutional because
it does not comply with the requirements of the Colorado Constitution, and because it violates
the rights, privileges, and immunities to which each Plaintiff is entitled by the Colorado
105
Constitution. See specifically, Article V, Section 17 and generally, Articles III, IV, V, and VI of
the Colorado Constitution, and the separation of powers required by the U.S. Constitution.
399. This Court should enter findings of fact and conclusions of law that, to the extent C.R.S.
§ 24-33.5-704, et seq., purports to grants the Governor power to legislate without incorporating
proper standards and safeguards, the legislature disregarded the explicit constitutional
prohibition of nondelegation of legislative power in Article III of the Colorado Constitution and
the explicit requirement that no law shall be passed except by a bill in the legislature;
consequently, C.R.S. § 24-33.5-704, et seq., does not comply with the requirements of the
Colorado Constitution and violates the rights, privileges, and immunities to which each Plaintiff
is entitled by the Colorado Constitution. See specifically, Article V, Section 17, and generally,
Articles III, IV, V, and VI of the Colorado Constitution, and the separation of powers required by
400. This Court should enter findings of fact and conclusions of law that, to the extent C.R.S.§
24-33.5-704(2) purports to empower the Governor to issue, amend, or rescind executive orders,
proclamations, and regulations which have the force and effect of law, and § 24-33.5-704(7)(a)
purports to authorize the governor to suspend any statute, order, rule, or regulation, Article III
and Article V, Section 17 of the Colorado Constitution unequivocally prohibit the legislative
department from delegating their legislative authority to the executive department by C.R.S.§ 24-
33.5-704(2) and § 24-33.5-704(7)(a); consequently, each of C.R.S.§ 24-33.5-704(2) and § 24-
33.5-704(7)(a) is a constitutionally impermissible attempt by the legislative department to
delegate their legislative authority to the executive department which does not comply with the
requirements of the Colorado Constitution and violates the rights, privileges, and immunities to
which each Plaintiff is entitled by the Colorado Constitution. See specifically, Article V, Section
106
17 and generally, Articles III, IV, V, and VI of the Colorado Constitution, and the separation of
powers required by the U.S. Constitution.
FOURTH CLAIM
The Target Orders do not comply with

the Due Process Clauses of Article II, Section 25 of the Colorado Constitution
and the Fifth and Fourteenth Amendments of the U.S. Constitution,
no authority, under either the Colorado Constitution or C.R.S. § 24-33.5-701, et seq., to create,
enact, or implement new laws that are not issued pursuant to the constitutionally required
procedure for enacting new laws in accord with Article V, Section 17 of the Colorado
Constitution; consequently, EO 123 and the Colorado Disaster Emergency Act, C.R.S. § 24-
33.5-701, et seq., in general, and C.R.S.§ 24-33.5-704(2) and § 24-33.5-704(7)(a) in particular,
do not comply with the procedural due process requirements of the Colorado Constitution, and
violate the rights, privileges, and immunities to which each Plaintiff is entitled by the Colorado
Constitution. See Article V, Section 17 of the Colorado Constitution, Article II, Section 25 of
the Colorado Constitution, and the Fifth and Fourteenth Amendments of the U.S. Constitution.
403. This Court should enter findings of fact and conclusions of law that EO 123, and the
Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., in general, and C.R.S. § 24-
33.5-704(2) and § 24-33.5-704(7)(a) in particular, do not comply with the procedural
requirements of the Colorado Constitution; consequently, EO 123 and the Colorado Disaster
Emergency Act, C.R.S. § 24-33.5-701, et seq., in general, and C.R.S.§ 24-33.5-704(2) and § 24-
33.5-704(7)(a) in particular, individually and collectively, both facially and as applied to each
107
Plaintiff, violate the rights, privileges, and immunities to which each Plaintiff is entitled by the
Colorado Constitution. See Article V, Section 17 of the Colorado Constitution, Article II,
Section 25 of the Colorado Constitution, and the Fifth and Fourteenth Amendments of the U.S.
Constitution.
PHO 20-007, individually and collectively, both facially and as applied to each Plaintiff, is not
narrowly tailored, is unconstitutionally overbroad, and does not comply with the substantive due
process requirements of the Colorado Constitution, and thereby violates the rights, privileges,
and immunities to which each Plaintiff is entitled by the Colorado Constitution. See Article V,
Section 17 of the Colorado Constitution, Article II, Section 25 of the Colorado Constitution, and
the Fifth and Fourteenth Amendments of the U.S. Constitution.
PHO 20-007, individually and collectively, both facially and as applied to each Plaintiff, is not
narrowly tailored, is unconstitutionally vague, and does not comply with the substantive due
process requirements of the Colorado Constitution, and thereby violates the rights, privileges,
and immunities to which each Plaintiff is entitled by the Colorado Constitution. See Article V,
108
no authority, under either the Colorado Constitution or C.R.S. § 24-33.5-701, et seq., to enact
new law that criminalizes non-compliance with EO 123, and that each of EO 123, the Eighth
Amended PHO 20-28, and JCPH PHO 20-007, individually and collectively, both facially and as
applied to each Plaintiff, do not comply with the substantive due process requirements of the
Colorado Constitution, and violates the rights, privileges, and immunities to which each Plaintiff
is entitled by the Colorado Constitution. See Article V, Section 17 of the Colorado Constitution,
Article II, Section 25 of the Colorado Constitution, and the Fifth and Fourteenth Amendments of
Eighth Amended PHO 20-28, and JCPH PHO 20-007, individually and collectively, both facially
and as applied to each Plaintiff, do not comply with the substantive and procedural due process
requirements of the Colorado Constitution, and thereby violates the rights, privileges, and
immunities to which each Plaintiff is entitled by the Colorado Constitution. See Article V,
408. As specifically directed by Defendant Polis in EO D2020 017 and subsequent Executive
Orders including, but not limited to, EO 123, Defendant CDPHE has issued PHO 20-28 and
related amendments thereto including, but not limited to CDPHE’s Eighth Amended PHO 20-28,
which Defendant JCPH has used, along with JCPH PHO 20-007, to force each Plaintiff to
substantially alter their personal conduct or suffer civil and criminal liability for non-compliance.
409. The Target Orders, individually and collectively, both facially and as applied to each
Plaintiff, do not comply with the substantive due process requirements of the Colorado
109
Constitution, and violate the rights, privileges, and immunities to which each Plaintiff is entitled
by the Colorado Constitution. See Article V, Section 17 of the Colorado Constitution, Article II,
Section 25 of the Colorado Constitution, and the Fifth and Fourteenth Amendments of the U.S.
Constitution.
410. The Target Statutes and the Target Orders, individually and collectively, both facially and
as applied to each Plaintiff, do not comply with the constitutionally required due process to
which each Plaintiff is entitled by Article II, Section 25 of the Colorado Constitution;
consequently, the Target Statutes and the Target Orders, individually and collectively, deprive
each Plaintiff of fundamental civil rights, liberty interests, and property rights without due
process of law, have caused proximate and legal harm to each Plaintiff, and violate the Colorado
Constitution. See Article V, Section 17 of the Colorado Constitution, Article II, Section 25 of the
Colorado Constitution, and the Fifth and Fourteenth Amendments of the U.S. Constitution.
Defendants’ violations of the Colorado Constitution by and through the Target Orders have
caused proximate and legal harms to each Plaintiff.
411. Plaintiffs have no adequate remedy at law and they have suffered and will continue to
suffer serious and irreparable harm to their constitutional rights, liberty interests, and property
rights unless each Defendant is enjoined from enforcing the Target Orders.
412. Pursuant to 42 U.S.C. §§ 1983 and 1988, each Plaintiff is entitled to declaratory relief
and temporary, preliminary, and permanent injunctive relief invalidating the Target Orders and
restraining each Defendant’s enforcement of the Target Orders.
413. Plaintiffs found it necessary to engage the services of private counsel to vindicate their
rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 42
U.S.C. § 1988.
110
FIFTH CLAIM
The Target Orders do not comply with

Equal Protection of the Laws in Violation of Colo. Constitution Art. II, § 25,
415. Although the Colorado Constitution has no express counterpart to the Equal Protection
Clause of the Fourteenth Amendment of the United States Constitution, Colorado courts have
interpreted article II, Section 25 of the Colorado Constitution to guarantee equal protection
similar to that of the Due Process and Equal Protection Clauses of the federal constitution. R.
Collins and D. Oesterle, The Colorado State Constitution: A Reference Guide 60 (2002).
416. “The Fourteenth Amendment to the United States Constitution provides that “[n]o State
shall ... deny to any person within its jurisdiction the equal protection of the laws.” Although the
Colorado Constitution does not contain an identical provision, “it is well-established that a like
guarantee exists within the constitution's due process clause, Colo. Const. art. II, sec. 25, and that
its substantive application is the same insofar as equal protection analysis is concerned.” Qwest
Corp. v. Colo. Div. of Prop. Taxation, 2013 CO 39, ¶ 22, 304 P.3d 217 (quoting Lujan v. Colo.
State Bd. of Educ., 649 P.2d 1005, 1014 (Colo.1982)).” Colorado Ins. Guar. Ass'n v. Sunstate
Equip. Co., LLC, 2016 COA 64, ¶ 19, 405 P.3d 320, 328.
417. Thus, the guarantee of “equal protection of the laws” is inherent in the due process clause
of Art. II, § 25 of the Colorado Constitution. The right to equal protection of the laws guarantees
that all parties who are similarly situated receive like treatment by the law. J. T. v. O'Rourke In
& For Tenth Judicial Dist., 651 P.2d 407, 413 (Colo. 1982).
111
418. Plaintiffs challenge the Target Statutes and the Target Orders as unconstitutional, both
facially and as applied, because they do not comply with the requirements of the United States
Constitution and the Colorado Constitution for equal protection of the laws.
419. Plaintiffs may properly raise both “facial” and “as applied” challenges pursuant to
constitutional equal protection guarantees. U.S. Const. amend. XIV, § 1; Colo. Const. art. II, §
25; Cnf. Scholz v. Metropolitan Pathologists, P.C., 851 P.2d 901, 906 n. 7 (Colo.1993) (right to
equal protection is encompassed by due process clause of Colorado Constitution). See Western
Metal, 851 P.2d at 880 n. 7 (“ ‘as applied’ ” analysis requires inquiry into whether “ ‘government
officials who administer the law are applying it with different degrees of severity to different
groups of persons' ” despite a facially benign statutory framework) (quoting John E. Nowak et
al., Constitutional Law at 600 (2d ed.1983)).
420. Each of Defendant Polis, Defendant CDPHE, and Defendant JCPH arbitrarily and
unreasonably discriminated against Bandimere Speedway, and other entities similarly situated,
when they were ordered by EO 044 and CDPHE PHO 20-28 to remain closed to ingress, egress,
use and occupancy by the public, while allowing other services, including those that serve food,
to remain open. For example, while some restaurants, cafes, coffeehouses and food service
operations like Bandimere Speedway were forced by the Target Orders to close or restrict their
operations, others were allowed to remain open to the public, e.g. room service in hotels, dining
rooms in higher education institutions, and airport concessionaires.
421. As a provider of food, beverages, and entertainment, Bandimere Speedway, and other
entities similarly situated, have been deemed “non-critical” services by Defendant Polis,
Defendant CDPHE, and Defendant JCPH.
112
422. The Target Orders arbitrarily and unreasonably designate certain business as “critical”
while others are designated as “non-critical.” For example, restaurants and bars (for take-
out/delivery only), liquor stores and establishments engaged in the retail sale of food and any
other household consumer products are deemed “critical.” See PHO 20-28, Appendix F. Any
retail business not included in the long list of “critical retail service” is deemed “non-critical.”
Bandimere Speedway is considered a “non-critical” business.
423. The Target Orders provide no rationale or objective standard to explain why some
entities are able to receive the coveted designation of “critical” as opposed to the other business
entities that are considered “non-critical.” The practical consequence, as is the case with
Bandimere Speedway, is that Defendant Polis’ selection of “critical” and “non-critical” entities
means the government is picking and choosing between those who have the opportunity to
continue to remain open for business and potentially operate at a profit, and those who will be
doomed to business failure and economic ruin.
424. Not only do the Target Orders fail to provide any rationale or objective standard for
determining which business is “critical” (other than the will of Defendant Polis and Defendant
Ryan and Defendant Johnson), but the distinctions among various businesses defy reason and
common sense.
425. The direct effect of the Target Orders is that some businesses deemed “critical” by
Defendant Polis and the Defendant Ryan and Defendant Johnson, such as Walmart, Home Depot
and liquor stores, are permitted to have patrons physically enter their premises to purchase goods
and services in large numbers, while Bandimere Speedway is not permitted to do the same. It
there any reasonable basis to believe the public is any less safe grabbing a cup of coffee at the
113
Bandimere Speedway concession stand as opposed to shopping for a new television or buying
food from the McDonald’s inside the local Walmart?
426. At no point in any of the EOs or PHOs is there explanation whatsoever as to why some
comparable business operations are deemed “critical” while, for no apparent reason, others are
deemed “non-critical.” This is where the absence from Defendant Polis’ EOs of the due process
inherent in a SAPA rulemaking procedure becomes conspicuous.
427. The lack of any record of the basis for Defendant Polis’ EOs not only frustrates the
Bandimeres and others subjected to the “Orders,” it denies them procedural due process because
it frustrates any meaningful appellate review of the Target Orders. Without the record which
results from rulemaking under SAPA, every Court which undertakes judicial review of the EOs
can only speculate about what empirical data, if any, they are based upon. The same is true with
respect to judicial review of the PHOs.
428. Under these circumstances, each of the Target Orders issued by Defendant Polis and
Defendant Ryan and Defendant Johnson, creates a suspect class subjected to disparate treatment
by state actors under color of state law.
429. To be more precise, the Target Orders - having been issued by executive department
officers without the requisite due process inherent in a rulemaking process - created a suspect
class subjected to disparate treatment by state actors under color of state law.
430. “An equal protection claim is appropriate where legislation leads to disparate impacts on
different elements of the group that the legislature intended to embrace within a law. “The Equal
Protection Clause comes into question only when a law ‘has a special impact on less than all the
persons subject to its jurisdiction.’ ” People in Interest of C.B., 740 P.2d 11, 17 (Colo.1987)
(quoting Board of County Comm'rs v. Flickinger, 687 P.2d 975, 982 (Colo.1984)). Therefore, an
114
equal protection analysis must begin with a threshold inquiry as to whether (1) persons who are
in fact similarly situated, (2) are subjected by some governmental act to disparate
treatment. E.g., C.B., 740 P.2d at 17; Flickinger, 687 P.2d at 982.” People v. Black, 915 P.2d
1257, 1266 (Colo. 1996).
431. Not only did the Target Orders issued by Defendant Polis and Defendant Ryan create a
suspect class with disparate impact, but enforcement of the Target Orders by Defendant Johnson
through Defendant JCPH implicated the fundamental civil rights, liberty interests, and property
rights of each Plaintiff.
432. State actions which either create a suspect class or implicate fundamental civil rights,
liberty interests, and property rights are subject to strict scrutiny judicial review, and the Target
Orders do both. City of Cleburne, id., 473 U.S. at 440, 105 S.Ct. at 3254. Even assuming
arguendo that the Target Orders advance a compelling state interest, they cannot be sustained
under strict scrutiny because they are not narrowly drawn to achieve that interest in the least
restrictive manner possible. Plyler v. Doe, id., 457 U.S. 202, 217, 102 S.Ct. 2382, 2395.
433. To merely state that the Target Orders do not comply with the Colorado Constitution’s
requirement for equal treatment under law, and violate the Equal Protection guarantees in the
Colorado Constitution, hardly begins to communicate what enforcement of the Target Orders has
done to Plaintiffs’ business. In short, if the Target Orders survive, then Bandimere Speedway
will not.
434. The disparate impact upon Bandimere Speedway from enforcement of the Target Orders
is manifest. The disparate impact upon Plainff John and Plaintiff Lorraine is not so apparent, but
it is very real, and no less harmful. Defendants’ violations of the Colorado Constitution by and
through the Target Orders have caused proximate and legal harms to each Plaintiff.
115
rights unless each Defendant is enjoined from enforcing the Target Orders.
and temporary, preliminary, and permanent injunctive relief invalidating the Target Orders and
restraining each Defendant’s enforcement of the Target Orders.
437. Plaintiffs found it necessary to engage the services of private counsel to vindicate their
rights under the law. Plaintiffs are therefore entitled to an award of attorneys’ fees pursuant to 42
U.S.C. § 1988.
116
SIXTH CLAIM
The Target Orders do not comply with the requirements of the Colorado Constitution
in Article II, Section 3 (inalienable rights); Article II, Section 4 (religious freedom); Article
II, Section 10 (freedom of speech and right of association); and Article II, Section 25 (due
process and equal protection),
439. The Colorado Constitution provides “No law shall be passed impairing the freedom of
speech; every person shall be free to speak, write or publish whatever he will on any subject,
being responsible for all abuse of that liberty.” Colo. Const. Art. II, § 10.
440. The federal constitutionally protected right to “freedom of association” may be
considered under either the First Amendment’s guarantee of protection for purposes of speech,
assembly, petition for the redress of grievances, and the exercise of religion, or under the
Fourteenth Amendment’s substantive due process guarantee of personal liberty. Roberts v. U.S.
Jaycees, 468 U.S. 609, 618 (1984). Both senses of “freedom of association” are implicated by
the Target Orders and JCPH enforcement of the Target Orders.
441. The freedom of expression includes freedom of association and guarantees the right to
associate or refuse to associate with whomever one chooses. Brandon v. Springspree, Inc., 888
P.2d 357, 359 (Colo. App. 1994).
442. Under Article II, § 10 of the Colorado Constitution, the freedom of speech is given even
broader protection than under the federal constitution. People ex rel. Tooley v. Seven Thirty-Five
E. Colfax, Inc., 697 P.2d 348, 356 (Colo. 1985).
443. Because free speech protection afforded by the Colorado Constitution is of greater scope
than that guaranteed by the First Amendment, the level of scrutiny required to safeguard the
broader free speech protections afforded by the Colorado Constitution is necessarily more
117
stringent than that associated with First Amendment analysis. Browne v. City of Grand
Junction, 2015, 136 F.Supp.3d 1276. Governmental regulations that have a “chilling effect” on
the exercise of First Amendment rights are often found unconstitutional. While not an adequate
substitute for a claim of specific present objective harm or a threat of specific future harm,
governmental action may be subject to constitutional challenge even though it has only an
indirect effect on the exercise of First Amendment rights. Laird v. Tatum, 408 U.S. 1, 11-13
(1972).
444. The Target Orders have had far more than a chilling effect upon each Plaintiff, in that the
Bandimeres’ right to freely associate with family, friends and members of the community and
engage in protected expression on Independence Day was violated by JCPH enforcement of the
Target Orders to limit ticket sales and control ingress, egress, use and occupancy of Bandimere
Speedway’s facilities by members of the public.
445. For many decades, the Bandimere Speedway 4th of July Event has been one of the most
popular dates on the entire Bandimere Speedway calendar, so much so that thousands of people
have made spending their 4th of July at Bandimere Speedway an annual family tradition.
446. The Bandimere Speedway 4th of July activities have always included the usual full range
of car races, 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 (highly regarded as one of the best around, it draws
hundreds to the highways and roads around Bandimere just to see that annual spectacle).
447. 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
118
and political expression, each and all of which are fundamental liberty interests which Plaintiffs
are entitled to freely exercise by the Colorado Constitution in Article II, Section 3 (inalienable
rights); Article II, Section 4 (religious freedom); Article II, Section 10 (freedom of speech and
association); and Article II, Section 25 (due process and equal protection).
448. Acting under color of state law, when JCPH state actors enforced the Target Orders in
advance of the 4th of July, they violated the liberty of the Bandimeres and Bandimere Speedway
customers to freely associate for personal and expressive purposes.
449. As a direct result of the JCPH prior restraints on liberty, the Bandimeres restricted
advertising and ticket sales and so Bandimere Speedway customers who otherwise would have
attended the event were not permitted on the Bandimeres’ private property.
450. Despite the efforts of the Bandimeres since the 4th of July to find a way to satisfy
Defendant Johnson and the other state actors at Defendant JCPH, Bandimere Speedway has not
found a way to comply with the requirements of the Target Orders, so the ongoing enforcement
actions of Defendant Johnson and the other state actors at Defendant JCPH have caused the
postponement or cancellation of multiple Bandimere Speedway events which would otherwise
be held.
451. The most notable event postponed is the Mile-High Nationals, a world class racing event
sanctioned by the National Hot Rod Association which draws competitors from all over the
nation. Due to the lead time required to prepare for the Mile-High Nationals and the logisitics
involved, the small window of opportunity for it to be rescheduled in the 2020 season is closing
fast.
119
452. Based upon the experience of the Bandimeres to date in dealing with Defendant Johnson
and the other state actors at Defendant JCPH, the Bandimeres have no hope of obtaining a
variance from the Target Orders so that the Mile-High Nationals event can be held this year.
453. In the personal experience of each Plaintiff, the Target Orders constitute both a specific
present objective harm and a threat of specific future harm.
454. So long as JCPH enforces the Target Orders, the Bandimeres no longer enjoy the liberty
to utilize their private property for purposes of association with family, friends and members of
the community. Meanwhile, other outdoor activities involving large numbers of people are
allowed without any enforcement actions by JCPH, e.g. hundreds of people at a park within sight
of Bandimere Speedway, Soda Lake Park.
455. The JCPH state actors forcing the Bandimeres to comply with PHO 20-28 have no
compelling state interest in prohibiting freedom of association among the Bandimeres and their
customers who freely choose to accept the risk of COVID-19 infection which is inescapable in
any contact with any other people, whether at Bandimere Speedway or elsewhere.
456. To the extent the state under strict scrutiny can articulate and defend a compelling state
interest which justifies implicating the Bandimeres’ fundamental civil rights, liberty interests,
and property rights, all state actions to effectuate that compelling state interest must be narrowly
tailored or they are unconstitutionally overbroad. Plyler v. Doe, id.
457. The Target Orders are framed around categories of entity or activity, not the conduct of
individual persons; as such, the Target Orders are unconstitutionally vague because of their very
architecture. The confusion which stems directly from that inherent vagueness is exacerbated by
the fact that there is no category remotely applicable to the unique venue and business operation
of Bandimere Speedway. So it is no wonder JCPH has refused to grant a variance or waiver or
120
otherwise accommodate larger events at Bandimere Speedway’s 23,500 seat facility on 160
acres, where even very large crowds would have ample room for social distancing. Such is the
doctrinaire approach of JCPH to forcing Bandimere Speedway into a shoe which could not
possibly fit.
458. Each Plaintiff’s right to freely associate with family, friends and members of the
community at a Bandimere Speedway event - whether small or large - is a matter of personal
choice about a form of protected expression violated by the Target Orders.
459. As a direct and proximate result of the Target Orders, Plaintiffs no longer enjoy the
liberty to exercise their God-given inalienable rights (both enumerated and unenumerated) to
which they are entitled by Article II, Section 3 of the Colorado Constitution, among them being
the right to freely associate with family, friends, and members of the community without
unwarranted state interference.
460. So long as Defendants enforce the Target Orders (and any subsequent Orders which may
replace the Target Orders), each Plaintiff has suffered, and will continue to suffer, unjust loss of
fundamental civil rights, liberty interests, and property rights in freedom of expression and
association.
461. Plaintiffs’ fundamental civil rights, liberty interests, and property rights, their inalienable
rights, and their freedom of association and expression find robust protection in the due process
and equal protection provisions of the Colorado Constitution. See the Colorado Constitution,
Article II, Section 3 (inalienable rights); Article II, Section 4 (religious freedom); Article II,
Section 10 (freedom of speech and right of association); and Article II, Section 25 (due process
and equal protection).
121
462. The Target Orders do not comply with the requirements of the Colorado Constitution in
Article II, Section 3 (inalienable rights); Article II, Section 4 (religious freedom); Article II,
Section 10 (freedom of speech and right of association); and Article II, Section 25 (due process
and equal protection); and when the JCPH state actors enforce the Target Orders, they violate 42
U.S.C. § 1983.
SEVENTH CLAIM
The Target Orders do not comply with the requirements of

the Takings Clause of the Colorado Constitution in Article 2, Section 15,
464. Article 2, Section 15 of the Colorado Constitution provides, in pertinent part, as follows.
§ 15. Taking property for public use--compensation, how ascertained
Private property shall not be taken or damaged, for public or private use, without just
compensation. Such compensation shall be ascertained by a board of commissioners, of
not less than three freeholders, or by a jury, when required by the owner of the property,
in such manner as may be prescribed by law, and until the same shall be paid to the
owner, or into court for the owner, the property shall not be needlessly disturbed, or the
proprietary rights of the owner therein divested; and whenever an attempt is made to take
private property for a use alleged to be public, the question whether the contemplated use
be really public shall be a judicial question, and determined as such without regard to any
legislative assertion that the use is public.
Colo. Const. art. II, § 15.
465. Colorado courts have routinely held that the Colorado Constitution provides just
compensation to property owners when their land is taken for public use because the law seeks to
bar the government from forcing some people alone to bear public burdens which, in all fairness
and justice, should be borne by the public as a whole.
122
466. When the People required just compensation for property taken for public use in their
Constitution, their intent was put the property owner in as good a position monetarily as he or
she would have been if his or her property had not been taken by the state.
467. The constitutional guarantee of just compensation for property taken by the government is
not only intended to protect the landowner (or business owner), but it also protects the public by
limiting its liability to losses that can fairly be attributed to the taking. Inverse condemnation is
“a shorthand description of the manner in which a landowner recovers just compensation for a
taking of his property when condemnation proceedings have not been instituted.” United States
v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373 (1980).
468. At a minimum, the effect of the Target Orders on the Bandimeres constitutes a “partial”
taking under the Penn-Central test. See Penn Central Trans. Co. v. City of New York, 438 U.S.
104, 124 (1978).
469. The Target Orders and enforcement thereof have caused proximate and legal harm to the
Bandimeres in the form of (at a minimum) a partial regulatory and physical taking of the
Bandimeres’ property without just compensation in violation of the Takings Clause of the
Colorado Constitution. Colo. Const. art. II, § 15.
470. The Bandimeres have received no compensation for the financial consequences which are
the direct and proximate result of the Target Orders and enforcement of the Target Orders by
Defendant Johnson and the other state actors at Defendant JCPH.
471. On information and belief, there is no present interest or intention on the part of Defendant
Johnson and the other state actors at Defendant JCPH in even quantifying the Bandimeres’
financial losses from the Target Orders, much less actually paying the Bandimeres for those
losses.
123
472. On information and belief, Defendant Polis, Defendant Ryan, and Defendant Johnson think
themselves free to issue draconian new public policies with no institutional accountability
whatsoever for the catastrophic direct effects of those policies upon the governed.
473. Where a state agency enters upon land or injures land within the constitutional provision
prohibiting taking or damaging of private property for public or private use without just
compensation and fails to pay just compensation therefor or to commence condemnation
proceedings to ascertain compensation due, the act of such agency is unauthorized, unlawful, and
not the act of the state of Colorado. People of Colo. ex rel. Watrous v. District Court of U. S.
for Dist. of Colo., 1953, 207 F.2d 50.
474. The Target Orders and enforcement thereof have caused proximate and legal harm to the
Bandimeres in the form of a complete and total regulatory and physical taking of the
Bandimeres’ property without just compensation in violation of the Takings Clause of the
Colorado Constitution. Colo. Const. art. II, § 15.
475. The Target Orders and enforcement thereof have required the Bandimeres to abstain from
conducting otherwise lawful business in the State of Colorado, despite the fact that the
Bandimeres have implemented numerous measures to satisfy the public health interests at stake.
(The Bandimere Speedway customers who continue to attend Bandimere Speedway events
apparently regard those efforts as sufficient, otherwise they would not pay to attend.)
476. The Target Orders and enforcement thereof by Defendant Johnson and the other state
actors at Defendant JCPH deprive the Bandimeres of liberty and property rights, and flagrantly
violates the Takings Clause of the Colorado Constitution. Colo. Const. art. II, § 15.
124
EIGHTH CLAIM
Each Plaintiff is entitled to Declaratory Relief

pursuant to Colorado Revised Statutes §13-51-101, et seq.,
and Colorado Rule of Civil Procedure 57.
478. Each Plaintiff is a “person” whose "rights, status, or other legal relations" are affected
by the Target Orders. Each Plaintiff is entitled to have this Court construe the meaning and
determine the validity or invalidity of each of the Target Orders; and each Plaintiff is entitled to
obtain a declaration of their rights, status, and other legal relations thereunder, pursuant to
Colorado Revised Statutes §13-51-101 et seq. and Colorado Rule of Civil Procedure 57.
479. Defendants’ violations of the Colorado Constitution by and through the Target Orders
have caused proximate and legal harms to each Plaintiff.
rights unless the Court adjudicates, pursuant to Colorado Revised Statutes §13-51-101 et seq.
and Colorado Rule of Civil Procedure 57, the meaning and validity of each of the Target Orders.
481. Each Plaintiff requests that the Court adjudicate, pursuant to Colorado Revised Statutes
§13-51-101 et seq. and Colorado Rule of Civil Procedure 57, the meaning and validity of each of
the Subject Orders, beginning with the Target Orders.
482. Each Plaintiff also requests such other and further relief as the Court may deem
appropriate.
125
NINTH CLAIM
(Each Plaintiff is entitled to Injunctive Relief

pursuant to Colorado Revised Statutes §13-51-101, et seq.,
and Colorado Rule of Civil Procedure 65.
484. Defendants’ actions and their Target Orders have caused each Plaintiff to incur
immediate and irreparable injury for which there is no adequate remedy at law.
485. Defendants’ violations of the Colorado Constitution by and through the Target Orders
have caused proximate and legal harms to each Plaintiff.
486. Defendants have committed Constitutional and other violations as cited above, and those
violations continue unabated.
487. Plaintiffs have no adequate remedy at law, and they have suffered and will continue to
rights unless and until the Court adjudicates, pursuant to Colorado Revised Statutes §13-51-101,
et seq. and Colorado Rule of Civil Procedure 65, each Plaintiff’s right to injunctive relief from
each of the Target Orders.
488. Each Plaintiff requests that the Court adjudicate, pursuant to Colorado Revised Statutes
§13-51-101 et seq. and Colorado Rule of Civil Procedure 65, each Plaintiff’s right to injunctive
relief from each of the Subject Orders, beginning with the Target Orders.
489. Each Plaintiff also requests such other and further relief as the Court may deem
appropriate.
490. Injunctive relief is necessary in this case pursuant to Colorado Revised Statutes §13-51-
101, et seq. and Colorado Rule of Civil Procedure 65.
126
491. The issuance of a preliminary injunction is necessary in this case. The public interest and
balance of equities favor the issuance of a preliminary injunction, as shown by Defendants’
manifestly unconstitutional actions and Target Orders which have unjustly caused irreparable
injury to each Plaintiff’s fundamental civil rights, liberty interests, and property rights asserted in
this Complaint.
492. The issuance of a temporary injunction is necessary in this case. The actions of each
Defendant and their Target Orders will not survive strict scrutiny judicial review by this Court;
thus, Plaintiffs are likely to prevail on the merits of this case, warranting the issuance of a
temporary injunction. City of Cleburne, id.; Plyler v. Doe, id.; Evans v. Romer, 854 P.2d 1270,
1275 (Colo. 1993).
493. The public interest is in favor the issuance of a permanent injunction pursuant to
Colorado Revised Statutes §13-51-101, et seq., and Colorado Rule of Civil Procedure 65.
Without regard to whether the relief is preliminary, temporary, or permanent, there is no better
way for the judicial power of this Court to find exercise than to protect and defend the
fundamental civil rights, liberty interests, and property rights of each Plaintiff by requiring
Defendant Polis, Defendant CDPHE, Defendant Ryan, Defendant JCPH, and Defendant Johnson
to submit all of their state actions to the requirements of the Colorado Constitution; no doubt
such an exercise of the Court’s judicial powers is in the public interest.
494. Likewise, the balance of equities is in favor of the issuance of a permanent injunction
pursuant to Colorado Revised Statutes §13-51-101, et seq., and Colorado Rule of Civil Procedure
65.
495. Again, without regard to whether the relief is preliminary, temporary, or permanent, there
is no better way for the equity powers of this Court to find exercise than to protect and defend
127
the fundamental civil rights, liberty interests, and property rights of each Plaintiff, by requiring
Defendant Polis, Defendant CDPHE, Defendant Ryan, Defendant JCPH, and Defendant Johnson
to submit all of their state actions to the requirements of the Colorado Constitution; no doubt
such an exercise of the Court’s equity powers finds the balance of equities in favor of the
Plaintiffs.
496. In light of the legal and equitable considerations stated in this Complaint, each Plaintiff
requests that the Court issue:
before a hearing on the merits –
an Order granting a preliminary or temporary injunction against any and all
Executive Department actions based upon the authority of the Target Statutes, the
Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., in general, and
C.R.S.§ 24-33.5-704(2) and § 24-33.5-704(7)(a) in particular, individually and
collectively;
an Order granting a preliminary or temporary injunction against any and all
Executive Department enforcement actions based upon the purported authority of
the Target Statutes and the Target Orders; and
an Order granting such other and further relief to Plaintiffs as the Court may deem
appropriate;
after a hearing on the merits of this case –
an Order granting a permanent injunction against any and all Executive
Department actions based upon the purported authority of the Target Statutes, the
Colorado Disaster Emergency Act, C.R.S. § 24-33.5-701, et seq., in general, and
128
C.R.S.§ 24-33.5-704(2) and § 24-33.5-704(7)(a) in particular, individually and
collectively;
an Order granting a permanent injunction against any and all Executive
Department enforcement actions based upon the purported authority of each of
the Subject Orders, individually and collectively, beginning with the Target
Orders, i.e. EO 123, the Eighth Amended PHO 20-28, and JCPH PHO 20-007;
and
an Order granting such other and further relief to Plaintiffs as the Court may deem
appropriate.
497. Each Plaintiff has no adequate remedy at law and will suffer serious, irreparable, and
continuing harm to their constitutional rights unless each Defendant is enjoined from any and all
Executive Department actions based upon the Target Statutes and Subject Orders, individually
and collectively, beginning with the Target Orders.
and temporary, preliminary, and permanent injunctive relief invalidating each of the Target
Statutes and Subject Orders, individually and collectively, beginning with the Target Orders.
TENTH CLAIM
Defendant’s actions under color of state law violate

Plaintiff’s fundamental civil rights, liberty interests, and property rights,
and 42 U.S.C. §§ 1983,
and Plaintiff is entitled to attorney’s fees under 42 U.S.C. § 1988.
129
500. Each Plaintiff is a United States citizen and has rights, privileges and immunities as
expressed in the Colorado Constitution and the laws of the State of Colorado, and the United
States Constitution and the laws of the United States. Each Defendant has deprived each
Plaintiff of those rights as articulated in the claims stated in this Complaint.
501. 42 U.S.C. §1983 provides, “[e]very person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects or
causes to be subject, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges or immunities secured by the Constitution and
law, shall be liable to the party injured in an action at law, suit or in equity, or other proper
proceeding for redress…”.
502. “ ‘In essence, § 1983 creates a cause of action where there has been injury, under color of
state law, to the person or to the constitutional or federal statutory rights which emanate from or
are guaranteed to the person. In the broad sense, every cause of action under § 1983 which is
well-founded results from ‘personal injuries.’ ’ Almond v. Kent, 459 F.2d 200, 204 (CA4 1972).”
Wilson v. Garcia, 471 U.S. 261, 278, 105 S. Ct. 1938, 1948, 85 L. Ed. 2d 254 (1985).
503. As set forth in this Complaint, Defendant Polis, acting as a state actor under color of state
law, has deprived each Plaintiff of their constitutional rights and fundamental civil rights, liberty
interests, and property rights and other rights, privileges, and immunities secured by the
Colorado Constitution and Colorado state law and the United States Constitution and federal law.
Each Plaintiff seeks relief under 42 U.S.C. §1983 from the unlawful conduct of Defendant Polis
and his unconstitutional Executive Orders.
504. As set forth in this Complaint, Defendant CDPHE, acting under color of state law, has
deprived each Plaintiff of their constitutional rights and fundamental civil rights, liberty interests,
130
and property rights and other rights, privileges, and immunities secured by the Colorado
Constitution and Colorado state law and the United States Constitution and federal law. Each
Plaintiff seeks relief under 42 U.S.C. §1983 from the unlawful conduct of Defendant CDPHE
and their unconstitutional Public Health Orders.
505. As set forth in this Complaint, Defendant Ryan, acting as a state actor under color of state
law, has deprived each Plaintiff of their constitutional rights and fundamental civil rights, liberty
interests, and property rights and other rights, privileges, and immunities secured by the
Each Plaintiff seeks relief under 42 U.S.C. §1983 from the unlawful conduct of Defendant Ryan
and her unconstitutional CDPHE Public Health Orders.
506. As set forth in this Complaint, Defendant JCPH, acting under color of state law, has
deprived each Plaintiff of their constitutional rights and fundamental civil rights, liberty interests,
and property rights and other rights, privileges, and immunities secured by the Colorado
Constitution and Colorado state law and the United States Constitution and federal law. Each
Plaintiff seeks relief under 42 U.S.C. §1983 from the unlawful conduct of Defendant JCPH and
their unconstitutional Public Health Orders.
507. As set forth in this Complaint, Defendant Johnson, acting as a state actor under color of
state law, has deprived each Plaintiff of their constitutional rights and fundamental civil rights,
liberty interests, and property rights and other rights, privileges, and immunities secured by the
Each Plaintiff seeks relief under 42 U.S.C. §1983 from the unlawful conduct of Defendant
Johnson and his unconstitutional JCPH Public Health Orders.
131
508. 42 U.S.C. §1988(b) provides, “[i]n any action or proceeding to enforce a provision of
[Section 1983 of this title]…the court, in its discretion, may allow the prevailing party … a
reasonable attorney’s fee as part of the costs…”.
509. Pursuant to 42 U.S.C. §§ 1983 and 1988, each Plaintiff is entitled to reasonable attorney’s
fees, costs and expenses for prosecuting these claims.
510. Pursuant to 42 U.S.C. §§ 1983 and 1988, each Plaintiff requests reasonable attorney’s
fees, costs and expenses for prosecuting these claims.
CONCLUSION
511. In Ritchie v. Polis the Colorado Supreme Court considered whether Governor Polis
could, by Executive Order, suspend the operation of Article V, section 1(6) of the Colorado
Constitution, and concluded “that the Colorado Disaster Emergency Act, §§ 24-33.5-701 to -716,
C.R.S. (2019), does not authorize the Governor to suspend a constitutional requirement.”
Ritchie v. Polis, en banc, per curiam opinion, July 1, 2020, 467 P.3d 339, 341.
512. “The Colorado Disaster Emergency Act authorizes the suspension of certain statutes,
rules, and regulations, but not of constitutional provisions. See § 24-33.5-704(7)(a), C.R.S.
(2019).” Ritchie v. Polis, id. ¶18, at 345.
513. A constitutional “… requirement cannot be suspended by executive order, even during a
pandemic.” Ritchie v. Polis, id. ¶19, at 345.
514. 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. Colorado
Constitution Art. III and Art. V.
132
515. In 1901 (25 years after the Colorado Constitution became effective in 1876), in People ex
rel. Alexander v. District Court, the Colorado Supreme Court en banc decided the case based
upon the separation of powers doctrine. People ex rel. Alexander v. District Court, 29 Colo. 182,
68 P. 242, 250.
516. In the 1958 case of Colorado State Bd. of Med. Examiners v. Dist. Court In & For El
Paso Cty., the Colorado Supreme Court en banc again decided the case based upon the
separation of powers doctrine and, as a prelude to so doing, quoted with approval the special
concurring opinion of Mr. Justice Gabbert in People ex rel. Alexander v. District Court as
follows:
When the question arises whether one department is encroaching upon the authority of
another, the courts must become the final arbiters. When this question is between the
judicial and either of the other departments, the judiciary must be just as careful in
marking the line between their authority and either of the others as if the contest was one
of power and authority between the other departments. By the constitution of the state our
government is divided into three co-ordinate branches,—legislative, executive, and
judicial. The constitution is the paramount law. Each department derives its authority
from that source. The power of each is limited and defined. Each is clothed with specific
powers. The result of this distribution of power is that each stands on an equal plane;
neither is superior to the other, and each, acting within its proper sphere, is supreme.
Hence, neither can directly call the other to account for actions within its province, nor
can one directly interfere with the other in the performance of functions delegated by the
constitution. Any other rule would be an assumption that the authority of one was
superior to the other, or that the departments were not of equal dignity. Frost v. Thomas,
26 Colo. 222, 56 P. 899; People [ex rel. Tucker] v. Rucker, 5 Colo. 455; In re Fire and
Excise Com'rs, 19 Colo. 482, 36 P. 234; Guebelle v. Epley, 1 Colo.App. 199, 28 P. 89;
People [ex rel. Engley] v. Martin, 19 Colo. 565, 36 P. 543, 24 L.R.A. 201; Lewis v.
[Denver City] Water-Works Co., 19 Colo. 236, 34 P. 993; People [ex rel. Sutherland] v.
Governor, 29 Mich. 320. To this doctrine each department must yield implicit obedience;
otherwise, the constitutional authority of the respective branches of the government
would be obliterated, and we would be confronted with the antagonisms and
complications resulting from one department assuming to directly control the other with
respect to acts within its province. It is only by a rigid adherence to these principles that
the powers of each can be fully protected, or prevented from being assumed by, or
concentrated in, one, and each limited to the legitimate functions which the people, by the
133
constitution, have intrusted to the different departments of government. The duty of the
executive department is to carry the laws into effect.
Colorado State Bd. of Med. Examiners v. Dist. Court In & For El Paso Cty., 138 Colo.
227, 231–34, 331 P.2d 502, 505–06 (1958).
517. From 1901 in People ex rel. Alexander v. District Court, to 1958 in Colorado State Bd.
of Med. Examiners v. Dist. Court, to 2020 in Ritchie v. Polis, the Colorado Supreme Court -
when called upon to do so - has enforced the primacy of the Colorado Constitution.
518. Each Plaintiff seeks judicial enforcement of the letter and the spirit of Article III of the
--the Legislative, Executive and Judicial; and no person or collection of persons charged
with the exercise of powers properly belonging to one of these departments shall exercise
any power properly belonging to either of the others, except as in this Constitution
expressly directed or permitted.
Colo. Const. Art. III.

RELIEF REQUESTED
WHEREFORE, each Plaintiff respectfully prays that this Court enter an order:
A. with findings of fact and conclusions of law in respect of judgment in favor of
Plaintiff and against Defendant on each Claim stated above;
B. striking down as unconstitutional the Colorado Disaster Emergency Act, C.R.S.
§ 24-33.5-701, et seq.;
C. striking down as unconstitutional C.R.S. § 24-33.5-704(2) of the Colorado
Disaster Emergency Act;
D. striking down as unconstitutional C.R.S. § 24-33.5-704(7)(a) of the Colorado
Disaster Emergency Act;

134
E. striking down as unconstitutional each and all of the Executive Orders
complained of by Plaintiffs, beginning with Executive Order D 2020 123;
F. striking down as unconstitutional each and all of the CDPHE Public Health
Orders complained of by Plaintiffs, beginning with CDPHE Eighth Amended
Public Health Order 20-28;
G. striking down as unconstitutional each and all of the JCPH Public Health Orders
complained of by Plaintiffs, beginning with JCPH Order 20-007;
H. granting Declaratory Relief pursuant to C.R.S. §§ 13-51-106, et seq., and
C.R.C.P 57;
I. granting Injunctive Relief pursuant to C.R.S. §§ 13-51-106, et seq., and C.R.C.P.
65;
J. awarding each Plaintiff their reasonable attorney’s fees, costs and expenses
pursuant to 42 U.S.C. §§ 1983 and 1988; and
K. any other Relief this Court deems just and proper.
Respectfully submitted via CCEF on September 3, 2020.
LAW OFFICES OF
RANDY B. CORPORON, P.C.
/s/ Randy B. Corporon

Randy B. Corporon
ATTORNEY FOR PLAINTIFFS
135
VERIFICATION
I declare under penalty of perjury under the law of Colorado that the foregoing is true and
correct.
Executed in Jefferson County, Colorado on the date stated below.
/s/ John C. Bandimere, Jr. September 3, 2020 /s/ Lorraine Bandimere September 3, 2020
John C. Bandimere, Jr. Date Lorraine Bandimere Date
Plaintiff Plaintiff
136

John Bandimere JR., Et Al., v. Jared Polis, Et Al.

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

John Bandimere JR., Et Al., v. Jared Polis, Et Al.

Uploaded by

Copyright:

Available Formats

DISTRICT COURT, JEFFERSON COUNTY, COLORADO

100 Jefferson County Parkway,

JOHN BANDIMERE JR.,

JARED POLIS, in only his official capacity as Governor of

ATTORNEYS FOR PLAINTIFFS:

John Bandimere, Jr., Lorraine Bandimere, and Bandimere Auto-Performance Center,

Inc., doing business as Bandimere Speedway, Inc. (collectively, “the Bandimeres” or

(2) Colorado Department of Public Health and Environment (“Defendant CDPHE”);

Department of Public Health and Environment (“Defendant Ryan”);

(4) Jefferson County Public Health (“Defendant JCPH”); and

Jefferson County Public Health (“Defendant Johnson”);

for clarity and brevity, collectively “Defendants.”1

Overview of the Complaint.

Orders (“PHOs”); and

“As applied” and “facial” constitutional challenges.2

Plaintiffs challenge the Colorado Disaster Emergency Act as unconstitutional.

24-33.5-704(2) and § 24-33.5-704(7)(a), as unconstitutional, both as applied and facially,

civil rights, liberty interests, and property rights of each Plaintiff.

“Target Statutes” identified.

seq., generally, and specifically § 24-33.5-704(2) and § 24-33.5-704(7)(a), may be collectively

referred to as “the Target Statutes.”

Plaintiffs challenge various Executive Orders as unconstitutional.

property rights of each Plaintiff.

Plaintiffs challenge various CDPHE Public Health Orders as unconstitutional.

The “Target CDPHE PHO” identified.

Plaintiffs challenge various JCPH Public Health Orders as unconstitutional.

liberty interests, and property rights of each Plaintiff.

attached to this Complaint as Exhibit 3.

Link to Defendant JCPH’s Public Health Order 20-007.

other JCPH PHOs are published by Defendant JCPH at this link:

A. CDPHE Public Health Order 20-20, issued March 12, 2020;

B. CDPHE Public Health Order 20-22, issued March 16, 2020;

D. Executive Order D 2020 013, issued March 22, 2020;

E. CDPHE Public Health Order 20-24, issued March 22, 2020;

F. Executive Order D 2020 017, issued March 25, 2020;

I. Executive Order D 2020 024, issued April 6, 2020;

K. Executive Order D 2020 044, issued April 26, 2020;

L. CDPHE Public Health Order 20-28, issued April 26, 2020;

M. CDPHE Amended Public Health Order 20-28, issued May 4, 2020;

Q. Executive Order D 2020 91, issued June 1, 2020;

U. Executive Order D 2020 123, issued June 30, 2020

(the Target EO);

2020 (the Target CDPHE PHO);

W. JCPH Order 20-005, issued July 14, 2020;

X. JCPH Order 20-006, issued July 16, 2020;

Y. JCPH Order 20-007, issued July 20, 2020

(the Target JCPH PHO);

Z. Executive Order D 2020 142, issued July 21, 2020;

AA. Executive Order D 2020 144, issued July 23, 2020;

BB. JCPH Order 20-008, issued July 24, 2020;

DD. Executive Order D 2020 170, issued August 21, 2020;

each, and all, as extended or amended or revised or replaced.4

Complaint and Plaintiffs’ other pleadings collectively as “the Target Orders.”

(“the Target CDPHE PHO”);

Subject Orders of like kind.

by any party or the Court.

Relief Requested by each Plaintiff.

which they seek:

(as to the Colorado Disaster Emergency Act)

33.5-704(2) and § 24-33.5-704(7)(a);

the Colorado Constitution which requires distribution of expressly enumerated powers

among the executive, legislative, and judicial departments of Colorado government;