v. Polis

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.

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 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

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 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

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 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

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 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.

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¶ 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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