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A Silver City-area lawyer, and two other attorneys have filed a federal lawsuit asking a U.S. District Court to invalidate the governor’s COVID-19 emergency health order, and seeking compensation for several businesses and 20 individuals impacted by it.

The order, which the lawsuit calls “unconstitutional,” mandates mask wearing, limits capacity at essential businesses, restricts restaurants to curbside pickup and delivery, and prohibits public gatherings.

Mule Creek attorney Jonathan Diener and Santa Fe lawyer Ana Garner filed the lawsuit in Albuquerque late last month, which is assigned to federal Magistrate Judge Jerry H. Ritter. They assert their goal is to reaffirm citizens’ rights under the U.S. Constitution.

The lawsuit contends that the governor, and the Department of Health (DOH) imposed arbitrary and unnecessary rules for the pandemic, that shouldn’t be deemed an emergency, and claim the coronavirus is no worse than the seasonal flu, and therefore doesn’t justify the business lockdowns, masks and other actions.

It also seeks to limit future health orders to “an extremely limited period of time,” and only when the Legislature authorizes them.

The state Supreme Court recently affirmed the governor’s authority to restrict commercial and public activities in the pandemic. At press time the state had 148,499 positive cases, with 2,594 deaths.

Plaintiffs include three Albuquerque businesses, a Silver City restaurant and around 20 individuals. One of the plaintiffs, Jalisco Café, opened for limited dine-in service last May, in defiance of Gov. Grisham’s public health order, and was fined $85,000 by the state. The New Mexico Environment Department (NMED) had Jalisco’s food service permit cancelled.

Officials with the governor’s office declined to comment on pending litigation.

Ohio attorney Thomas Renz, a co-counsel representing plaintiffs, is suing Ohio Gov. Mike DeWine in federal court on similar constitutional grounds.

The lawsuit also seeks:

  • •The state not use PCR test results as the basis for determining public health responses and restrictions unless it is proven this test is reliable and accurate.
  • •Declaratory Relief from restrictions on gatherings at houses of worship.
  • •Damages for plaintiffs in an amount determined by the court.

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