The Colorado Court of Appeals has reversed a Denver District Court’s ruling to dismiss a lawsuit that asked Gov. Jared Polis to release some inmates from state prisons because of outbreaks of the coronavirus among prisoners and staff.
The ruling, dated Thursday, also found that Polis “is a proper defendant in this case.”
In May 2020, a group of medically vulnerable prisoners sued the Colorado Department of Corrections and the governor alleging the state had not done enough to protect them from the virus.
In November, prison officials entered into a legal agreement with the American Civil Liberties Union of Colorado promising to strengthen coronavirus protections.
In December, the ACLU, on behalf of the inmates, asked District Judge Kandace Gerdes to force the governor to release or transfer medically vulnerable incarcerated people who do not pose a threat to public safety in a motion for a preliminary injunction. On Christmas Eve, Gerdes excluded Polis from the class action lawsuit.
“Colorado case law does not support the Governor as a proper party to the lawsuit,” Gerdes ruled.
The governor’s office on Thursday said in a statement that it is “reviewing the Court of Appeals’ decision and considering next steps. In the meantime, we believe the Department of Corrections has put an enormous amount of effort into protecting the people in its care during the COVID-19 pandemic and has had remarkable success securing access to vaccines. Nearly 70% of Coloradans and nearly 70% of current inmates have received at least one dose of the vaccine.”
David Maxted, a cooperating attorney with the ACLU in the lawsuit, welcomed the appeals court ruling.
“Unfortunately the lower court made the wrong decision and dismissed the case,” Maxted said. “The Court of Appeals made it clear, Gov. Polis is not above the law. Courts have the power to order a remedy…and the Governor is the right defendant.”
The plaintiffs had argued that Polis has the constitutional power to take action and to release some inmates.
“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,” the Court of Appeals said. “Speculation about a possible remedy is premature because no constitutional violation has been found. 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.”
The appeal court, in remanding further proceedings back to the lower court, said it did not “surmise whether Plaintiffs are entitled to any relief.”
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