v. Polis , 2021 COA 90 ( 2021 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 1, 2021
2021COA90
No. 21CA0079, Winston v. Polis — Constitutional Law —
Colorado Constitution — Excessive Bail, Fines, or Punishment
— Separation of Powers; Jurisdiction of Courts — Subject
Matter Jurisdiction
In this proceeding, a division of the court of appeals considers
whether, under the separation of powers doctrine, the trial court
has subject matter jurisdiction to consider whether the Governor
has failed to protect medically vulnerable prisoners from the threat
of COVID-19, thereby violating article II, section 20 of the Colorado
Constitution. The division concludes that, because the judiciary
retains jurisdiction to evaluate the constitutionality of executive
conduct and the plaintiffs allege a violation of a fundamental
constitutional right, the trial court has jurisdiction to consider
whether the current conditions in Colorado prisons violate the
prisoners’ rights under the Colorado Constitution even if it cannot
direct the Governor to implement a particular remedy.
The division also concludes that, under Raven v. Polis, 2021
CO 8, ¶ 1, the Governor is a proper defendant in this case and
declines to decide whether the prisoners could be entitled to
mandamus relief under C.R.C.P. 106(a)(2).
COLORADO COURT OF APPEALS 2021COA90
Court of Appeals No. 21CA0079
City and County of Denver District Court No. 20CV31823
Honorable Kandace C. Gerdes, Judge
Gary Winston, John Peckham, Matthew Aldaz, William Stevenson, and Dean
Carbajal,
Plaintiffs-Appellants,
v.
Jared Polis, in his official capacity as Governor of the State of Colorado,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VII
Opinion by JUDGE FOX
Dunn and Graham*, JJ., concur
Announced July 1, 2021
Mark Silverstein, Rebecca Wallace, Sara R. Neel, Denver, Colorado; Maxted
Law, LLC, David Maxted, Rachel Z. Geiman, Denver, Colorado; Holland,
Holland Edwards & Grossman, LLC, John Holland, Anna Holland Edwards,
Erica Grossman, Rachel Kennedy, Dan Weiss, Denver, Colorado; Laura Rovner,
Nicole B. Godfrey, Denver, Colorado; Killmer, Lane & Newman, LLP, Mari
Newman, Darold W. Killmer, Andy McNulty, Liana Orshan, Reid Allison,
Denver, Colorado; Finger Law P.C., Bill Finger, Evergreen, Colorado, for
Plaintiffs-Appellants
Philip J. Weiser, Attorney General, Grant T. Sullivan, Assistant Solicitor
General, LeeAnn Morrill, First Assistant Attorney General, Daniel Jozwiak,
Fellow Assistant Attorney General, Denver, Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2020.
¶1 Gary Winston, John Peckham, Matthew Aldaz, William
Stevenson, and Dean Carbajal (collectively, Plaintiffs) appeal the
trial court’s dismissal of their class action suit against Governor
Jared Polis. Plaintiffs are (or were) confined1 in Colorado
Department of Corrections (CDOC) facilities, and their amended
complaint alleges that the Governor has failed to protect them from
the threat of COVID-19, thereby violating article II, section 20 of the
Colorado Constitution. On appeal, Plaintiffs argue that the trial
court erred by concluding that (1) the Governor is not a proper
defendant to their claim; (2) the separation of powers doctrine
deprived the court of jurisdiction to order injunctive or declarative
relief; and (3) they were not entitled to mandamus relief under
C.R.C.P. 106(a)(2).
¶2 We conclude that, under Raven v. Polis, 2021 CO 8, ¶ 1, the
Governor is a proper defendant in this case. Further, we conclude
that the separation of powers doctrine does not deprive the trial
court of jurisdiction to adjudicate Plaintiffs’ constitutional claim.
1The briefs assert that Gary Winston was released on parole before
Plaintiffs filed their opening appellate brief.
1
Accordingly, we reverse and remand to the trial court for further
proceedings.
I. Background
¶3 Plaintiffs assert that their medical vulnerabilities place them at
high risk of death or serious illness from COVID-19. They also
allege that the current conditions in Colorado prisons are
unconstitutional due to the excessive risk of harm posed by COVID-
19. In particular, they claim that Colorado prisons cannot provide
“the necessary physical distancing and hygiene required to mitigate
the risk of [COVID-19] transmission” and lack “adequate medical
facilities to treat serious COVID-19 cases.”
¶4 In May 2020, Plaintiffs sued the Governor and CDOC
Executive Director Dean Williams, seeking declaratory relief and an
injunction requiring them to, among other things, implement
various health and safety measures and reduce the population in
CDOC custody. After reaching an agreement with the CDOC to
alleviate some of the alleged risks, Plaintiffs amended their
complaint to seek a declaration that the Governor’s “inaction
violates” the Colorado Constitution and an injunction compelling
the Governor to reduce the prison population or “[t]ake other
2
measures to cure the Constitutional violations.” Alternatively,
Plaintiffs asked the court to issue a writ of mandamus directing the
Governor “to exercise his powers under . . . [section] 24-33.5-704[,
C.R.S. 2020,] to correct the unconstitutional conditions and fulfill
his emergency response duties.” The Governor quickly moved to
dismiss, arguing that (1) he is an improper defendant because he
does not manage the day-to-day operations of CDOC facilities; (2)
the court lacked subject matter jurisdiction to order the Governor to
exercise his discretionary powers; and (3) mandamus relief is not
available to compel discretionary actions.
¶5 The trial court agreed with the Governor and dismissed
Plaintiffs’ claim. Specifically, the trial court ruled that the Governor
was not a proper party and dismissed under C.R.C.P. 12(b)(5). It
also ruled that it lacked jurisdiction because, under the separation
of powers doctrine, it could not order the Governor to release
prisoners or take any other particular action that lies “within the
Governor’s sound discretion and exclusive authority.” The trial
court also ruled that it could not grant Plaintiffs’ request for
declaratory relief because, unlike other cases where Colorado courts
have reviewed the constitutionality of executive actions, “[t]he Court
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does not have the power to declare the Governor’s alleged failure to
act unconstitutional.”
II. The Governor is a Proper Defendant
¶6 The parties agree that Plaintiffs preserved their argument that
the Governor is a proper defendant in this case. We review de novo
a trial court’s dismissal of an action under C.R.C.P. 12(b)(5) for
failure to state a claim upon which relief can be granted. Butler v.
Bd. of Cnty. Comm’rs, 2021 COA 32, ¶ 7. We accept all factual
allegations in the complaint as true and view those allegations in
the light most favorable to the plaintiff. Id. To survive a motion to
dismiss, a complaint must plead sufficient facts that, if taken as
true, suggest plausible grounds to support a claim for relief. Id.;
see also Warne v. Hall, 2016 CO 50, ¶¶ 9, 24.
¶7 Plaintiffs argue, the Governor now concedes, and we agree that
the Governor is a proper defendant. In Raven v. Polis — issued five
weeks after the trial court’s order — the Colorado Supreme Court
held that the Governor is a proper named defendant in a lawsuit
challenging the confinement conditions at CDOC facilities. 2021
CO 8, ¶ 5. Specifically, the Raven court held that, “[b]ecause the
Governor ‘has final authority to order the executive directors of all
4
state agencies to commence or cease any action on behalf of the
state,’” he was a proper named defendant in that case. Id. at ¶¶ 14,
18 (quoting Sportsmen’s Wildlife Def. Fund v. U.S. Dep’t of Interior,
949 F. Supp. 1510, 1515 (D. Colo. 1996)).
¶8 The analysis in Raven applies equally here. Plaintiffs
challenge their conditions of confinement at CDOC facilities — an
executive agency under the Governor’s control — and thus the
Governor is a proper defendant for the claim asserted. Id. at ¶ 18.
Accordingly, we conclude that — not having had the benefit of
Raven — the trial court erred by holding that the Governor was not
a proper defendant. Id.III. The Separation of Powers Doctrine Does Not Deprive the Trial
Court of Jurisdiction to Hear Plaintiffs’ Claim
A. Preservation and Standard of Review
¶9 The parties agree that Plaintiffs generally preserved their
constitutional claim against the Governor; however, the Governor
argues that Plaintiffs did not raise their argument regarding the
Governor’s alleged failure to prioritize prisoners for vaccine
eligibility before the trial court. We need not consider this dispute
because the issue was not raised in the amended complaint and, as
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discussed below, the trial court has jurisdiction to consider whether
the current conditions in the CDOC violate Plaintiffs’ rights under
the Colorado Constitution even if it cannot direct the Governor to
implement a particular remedy.
¶ 10 We apply a mixed standard of review to motions to dismiss for
lack of subject matter jurisdiction. Wal-Mart Stores, Inc. v. United
Food & Com. Workers Int’l Union, 2016 COA 72, ¶ 6. We review the
trial court’s factual findings for clear error; they are binding unless
so clearly erroneous as to find no support in the record. Id. The
court’s legal conclusions are reviewed de novo, id., including
questions of law involving the separation of powers doctrine.
Hickerson v. Vessels, 2014 CO 2, ¶ 10.
B. Applicable Law
¶ 11 “Article III of the Colorado Constitution prevents one branch of
government from exercising powers that the constitution makes the
exclusive domain of another branch.” Crowe v. Tull, 126 P.3d 196,
205 (Colo. 2006). However, “[t]he separation-of-powers doctrine
‘does not require a complete division of authority among the three
branches, [and] the powers exercised by different branches of
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government necessarily overlap.’” Id. (quoting Dee Enters. v. Indus.
Claim Appeals Off., 89 P.3d 430, 433 (Colo. App. 2003)).
¶ 12 Under the separation of powers doctrine, the judiciary cannot
command Governors to do anything that lies exclusively within
their sound discretion. See In re Legis. Reapportionment, 150 Colo.
380, 382, 374 P.2d 66, 67 (1962). As relevant here, the Governor
has the exclusive power to grant reprieves, commutations, and
pardons after conviction. People ex rel. Dunbar v. Dist. Ct., 180
Colo. 107, 111, 502 P.2d 420, 422 (1972).
¶ 13 But “[t]he Colorado Constitution tasks the judicial branch with
construing the meaning of constitutional language,” Lobato v. State,
2013 CO 30, ¶ 17, and Colorado courts can determine whether the
Governor violated a plaintiff’s constitutional rights and order the
Governor to comply with the Constitution. See, e.g., Ritchie v. Polis,
2020 CO 69, ¶ 1 (holding that the Colorado Disaster Emergency Act
(CDEA), §§ 24-33.5-701 to -716, C.R.S. 2020, does not authorize
the Governor to suspend a constitutional requirement). Similarly,
in Goebel v. Colorado Department of Institutions, 764 P.2d 785, 800
(Colo. 1988), the Colorado Supreme Court held that the trial-court-
ordered implementation of a remedial plan to address the needs of
7
mental health patients under the state’s care would not violate the
constitutional mandate of separation of powers where “the court
would simply be interpreting the [law], determining the
requirements of that [law], and directing the defendants to spend
the funds appropriated by the legislature in accordance with those
requirements.” See also United Presbyterian Ass’n v. Bd. of Cnty.
Comm’rs, 167 Colo. 485, 494, 448 P.2d 967, 971 (1968) (The
“judiciary is the final authority in the construction of the
constitution and the laws.”).
¶ 14 Article II, section 20 of the Colorado Constitution states that
“[e]xcessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted.” This language is
identical to the Eighth Amendment of the United States
Constitution, and Colorado courts treat their prohibitions as the
same. See People v. Gaskins, 825 P.2d 30, 31 n.1 (Colo. 1992)
(assuming that the cruel and unusual punishment prohibitions in
the Colorado and United States Constitutions are the same),
abrogated on other grounds by Wells-Yates v. People, 2019 CO 90M,
¶ 10 (recognizing that article II, section 20 of the Colorado
Constitution is identical to the Eighth Amendment and noting that,
8
in the context of sentence proportionality challenges, Colorado has
“generally embraced the [United States] Supreme Court’s
approach”).
¶ 15 In Estelle v. Gamble, 429 U.S. 97, 104 (1976), the United
States Supreme Court established that deliberate indifference to
serious medical needs of prisoners is proscribed by the Eighth
Amendment. See also Brown v. Plata, 563 U.S. 493, 511 (2011) (“A
prison that deprives prisoners of basic sustenance, including
adequate medical care, is incompatible with the concept of human
dignity and has no place in civilized society.”). “If government fails
to fulfill this obligation, the courts have a responsibility to remedy
the resulting Eighth Amendment violation.” Id.
¶ 16 A medical need is serious if it has been diagnosed by a
physician as mandating treatment or is so obvious that even a lay
person would easily recognize the necessity of treatment. Ramos v.
Lamm, 639 F.2d 559, 575 (10th Cir. 1980). Deliberate indifference
to serious medical needs is shown when, among other criteria,
prison officials have prevented an inmate from receiving
recommended treatment. Id.; see also Verdecia v. Adams, 327 F.3d
1171, 1175-76 (10th Cir. 2003) (“Deliberate indifference requires
9
that the defendant’s conduct is ‘in disregard of a known or obvious
risk that was so great as to make it highly probable that harm
would follow,’ or that the conduct ‘disregards a known or obvious
risk that is very likely to result in the violation of a prisoner’s
constitutional rights.’” (quoting Berry v. City of Muskogee, 900 F.2d
1489, 1496 (10th Cir. 1990))). In class action suits, deliberate
indifference to inmates’ health needs may be shown “by proving
there are such systemic and gross deficiencies in staffing, facilities,
equipment, or procedures that the inmate population is effectively
denied access to adequate medical care.” Ramos, 639 F.2d at 575.
C. Analysis
¶ 17 In granting the Governor’s motion to dismiss, the trial court
ruled that it could not force him to reduce the prison population
across CDOC facilities because he holds the exclusive power to
grant reprieves, commutations, and pardons after conviction.
Similarly, the trial court also held that it could not direct the
Governor to release prisoners under the CDEA or section 17-22.5-
403(4), C.R.S. 2020 — which allows him to grant parole to certain
inmates if “extraordinary mitigating circumstances exist and such
inmate’s release from institutional custody is compatible with the
10
safety and welfare of society” — because deciding whether to issue
executive orders in response to a public health emergency or to
grant parole to certain inmates are decisions that lie within his
sound discretion. Lastly, the trial court concluded that it could not
provide any declarative relief to Plaintiffs because it lacked “the
power to declare the Governor’s alleged failure to act
unconstitutional.”
¶ 18 We agree with the trial court that, under the separation of
powers doctrine, the judiciary cannot order the Governor to grant
reprieves, commutations, or pardons. See McClure v. Dist. Ct., 187
Colo. 359, 361, 532 P.2d 340, 341 (1975). However, we disagree
with the trial court’s conclusion that it cannot provide declaratory
relief without violating the separation of powers doctrine. The
judiciary retains jurisdiction to evaluate the constitutionality of
executive conduct — including actions taken under the CDEA,
Ritchie, ¶ 1 — and here, Plaintiffs allege a violation of “a
fundamental constitutional right affecting [their] current conditions
of confinement.” See, e.g., Richardson v. Hesse, 823 P.2d 150 (Colo.
1992); Deason v. Kautzky, 786 P.2d 420 (Colo. 1990); see also
Powell v. McCormack, 395 U.S. 486, 489, 514 (1969) (rejecting the
11
defendants’ separation of powers argument and holding that federal
courts had subject matter jurisdiction to determine whether the
House of Representatives violated the United States Constitution by
excluding an eligible and duly elected representative from taking his
seat).
¶ 19 The Governor maintains that, unlike in Ritchie and Goebel, he
has taken no affirmative action affecting Plaintiffs’ conditions of
confinement and that the court cannot review the constitutionality
of his inaction on such discretionary matters. But the Governor
does not have the discretion to violate the Colorado Constitution,
and the United States Supreme Court articulated the “deliberate
indifference” standard specifically to address the harm of
governmental inaction in the face of known or obvious risks to
prisoners that are likely to result in a constitutional violation. See
Brown, 563 U.S. at 510. And though Colorado courts have not
explicitly recognized the concept of “deliberate indifference” under
the state constitution, the identical language of article II, section 20
to the Eighth Amendment justifies recognition of that prohibition.
See Gaskins, 825 P.2d at 31 n.1.
12
¶ 20 Further, in addition to having the power to declare a
Governor’s inaction unconstitutional, the court may order the
Governor to remedy a constitutional violation without violating the
separation of powers doctrine so long as the Governor retains the
discretion to determine what particular remedy to implement. See
Goebel, 764 P.2d at 800; see also Brown, 563 U.S. at 526 (noting
courts retain broad authority “to fashion practical remedies when
confronted with complex and intractable constitutional violations”);
Ramos, 639 F.2d at 586 (“[T]he scope of a district court’s equitable
powers to remedy constitutional violations is ‘broad’ . . . .” (quoting
Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978))); Jeffrey A. Love &
Arpit K. Garg, Presidential Inaction and the Separation of Powers,
112 Mich. L. Rev. 1195, 1230 (2014) (“The very premise for judicial
review of executive inaction is that the executive has failed to meet
the requirements of the Constitution, thereby making it entirely
proper for the judiciary to intervene. Nevertheless, it might still be
worrisome for courts to dictate that the executive act in a particular
way, especially given the complicated resource and enforcement
decisions they might have to interfere with.”) (footnote omitted);
Merrick B. Garland, Deregulation and Judicial Review, 98 Harv. L.
13
Rev. 505, 564-65 (1985) (“To be sure, because the essence of the
executive function is the exercise of discretion, a court transgresses
the separation of powers when it dictates that an agency take one
particular action instead of others within its discretionary
prerogative. Yet when a court merely orders an agency to act,
leaving the choice of action to the agency’s discretion, no trespass
occurs.”) (footnote omitted).
¶ 21 Speculation about a possible remedy is premature because no
constitutional violation has been found. Cf. Baker v. Carr, 369 U.S.
186, 198 (1962) (“[I]t is improper now to consider what remedy
would be most appropriate if appellants prevail at the trial.”). Thus,
if the court later finds that the current conditions of confinement in
CDOC facilities violate Plaintiffs’ constitutional rights, it may direct
the Governor to remedy those conditions.2 Of course, on the
present and undeveloped record, we cannot surmise whether
Plaintiffs are entitled to any relief. Many material questions of fact
remain that preclude a decision on the merits. The trial court
2The Governor invites us to look at prison vaccination rates to
conclude this case is moot. The issue can be raised to the trial
court on remand, but it is not properly before this court.
14
should not have summarily dismissed Plaintiffs’ suit. This is hardly
the first time a case has been filed before all the essential facts are
established. Our court rules contemplate a situation like this
where courts need to resolve questions of fact before deciding the
merits of a case. See C.R.C.P. 16, 56(f), 57. Instead of using these
tools and others, the trial court — invoking separation of powers
principles — dismissed Plaintiffs’ claims without meaningfully
scrutinizing whether the government is violating their basic
liberties. Conditions of confinement suits are complex civil
litigation, often involving considerable expertise by lawyers and
experts. Indeed, the federal district court for the District of
Colorado explained that one such case, Ramos v. Lamm, was
“exceedingly complicated,” entailed extensive investigation and
discovery efforts, and resulted in “volumes of evidence [being]
presented by both sides.” 539 F. Supp. 730, 743-44, 751 (D. Colo.
1982), remanded, 713 F.2d 546 (10th Cir. 1983).
¶ 22 While it is an executive branch function to decide whether,
when, and how to exercise emergency powers amidst a public
health emergency, an emergency “is not a blank check for the
[executive] when it comes to the rights of the Nation’s citizens.”
15
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004). During an
emergency, our constitutional system “envisions a role for all three
branches when individual liberties are at stake.” Id. It remains the
judicial function to declare unconstitutional that which
transgresses the rights of individuals in our state.
¶ 23 And though we agree the judiciary may not order the Governor
to pardon or commute any prisoner, we disagree with the Governor
that the only relief Plaintiffs seek is prison depopulation. While
Plaintiffs’ complaint frequently discusses prison depopulation3 as a
desired outcome, other portions of their complaint contemplate
more general forms of relief. For example, paragraph 24 of
Plaintiffs’ amended complaint states that “Medically Vulnerable
Prisoners must be prioritized for consideration for population
reduction, and where not feasible, be afforded protective measures
and safe housing such that their incarceration does not amount to a
3 Plaintiffs’ use of the term “depopulate” does not necessarily imply
that the Governor must use his power to grant reprieves,
commutations, and pardons to achieve proper social distancing.
Plaintiffs also discuss the need to reduce prison population
“density,” which suggests they believe the Governor could remedy a
constitutional violation by finding alternative placements for
inmates outside of traditional prison facilities.
16
death sentence.” (Emphasis added.) Further, their prayer for relief
asked the court to issue an injunction requiring the Governor to
“[r]educe the prison population across CDOC facilities” or “[t]ake
other measures to cure the Constitutional violations.” (Emphasis
added.) Plaintiffs also requested that the court issue “a declaration
that Defendant Polis’ inaction violates the Colorado Constitution
Article II, Section 20.” These statements sufficiently requested
general forms of relief within the trial court’s power to provide. See
Warne, ¶¶ 1, 9, 24 (a complaint must contain sufficient factual
matter, accepted as true, to state a claim for relief that is
“plausible”).
¶ 24 Accordingly, we conclude that the trial court erred by
prematurely dismissing Plaintiffs’ request for declaratory or
injunctive relief under C.R.C.P. 12(b)(1), see Ritchie, ¶ 1; Goebel,
764 P.2d at 800; see also Ramos, 639 F.2d at 586, and remand for
further proceedings consistent with this opinion.
IV. Mandamus Relief under C.R.C.P. 106(a)(2)
¶ 25 As an alternative to their request for injunctive and declarative
relief, Plaintiffs also requested that the court issue a writ of
mandamus ordering the Governor to exercise his powers under
17
section 24-33.5-704 “to correct the unconstitutional conditions and
fulfill his emergency response duties.” C.R.C.P. 106(a)(2) provides
that relief may be obtained “[w]here the relief sought is to compel a
lower judicial body, governmental body, corporation, board, officer
or person to perform an act which the law specially enjoins as a
duty resulting from an office, trust, or station.” The court will grant
mandamus relief when (1) the plaintiff has a clear right to the relief
sought; (2) the defendant government agency or official has a clear
duty to perform the act requested; and (3) no other adequate
remedy is available to the plaintiff. Rocky Mountain Animal Def. v.
Colo. Div. of Wildlife, 100 P.3d 508, 517 (Colo. App. 2004); see also
Gramiger v. Crowley, 660 P.2d 1279, 1281 (Colo. 1983)
(“[M]andamus will not issue until all forms of alternative relief have
been exhausted.”).
¶ 26 Because another form of relief may be available to Plaintiffs,
we need not decide here whether they could be entitled to
mandamus relief under Rule 106(a)(2). See Robertson v.
Westminster Mall Co., 43 P.3d 622, 628 (Colo. App. 2001) (asserting
that this court does not render advisory opinions in cases based on
“speculative, hypothetical, or contingent set[s] of facts”).
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V. Conclusion
¶ 27 The trial court’s judgment is reversed, and we remand for
further proceedings consistent with this opinion.
JUDGE DUNN and JUDGE GRAHAM concur.
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