Colorado Wildfires 2021 Plan

In this March 16, 2021, file photo Colorado Gov. Jared Polis speaks during a news conference in Denver. Polis and Colorado fire officials announced the 2021 wildfire season mitigation plan Thursday, April 8, 2021, following an unprecedented 2020 wildfire season with three of the largest fires in state history. 

Judges are allowed to review whether the governor's failure to act violates the state constitution, the Court of Appeals ruled on Thursday, reinstating a lawsuit against Gov. Jared Polis that seeks to force additional COVID-19 mitigation for Colorado's prisons.

The ACLU of Colorado filed a lawsuit against Polis in May 2020, alleging prison conditions violated the state constitution's prohibition on cruel and unusual punishment due to the risk of coronavirus infection. But in December, Denver District Court Judge Kandace C. Gerdes dismissed the case, finding that a court order forcing the governor to act would encroach upon his authority as the head of the executive branch.

A three-judge panel of the Court of Appeals disagreed.

The governor "does not have the discretion to violate the Colorado Constitution," wrote Judge Terry Fox in the July 1 opinion.

"This important decision by the Court of Appeals confirms what should've been obvious," said David Maxted of Maxted Law, who argued the case to the appellate panel. "The governor is never above the law. The constitution guarantees people in prison the right to be protected from infectious disease and death. A prison sentence is not a death sentence."

The governor's office said it is reviewing the court's decision and evaluating its next steps.

"In the meantime, we believe the Department of Corrections has put an enormous amount of effort protecting the people in its care during the COVID-19 pandemic, and has had remarkable success securing access to vaccines," said Conor Cahill, press secretary for Polis.

The separation of powers principle prevents one branch of government from ordering another branch to do something that is its responsibility alone. Polis argued the governor has the exclusive power to issue reprieves, commutations and pardons to prisoners, so the judiciary had no jurisdiction in the case.

“Just as the court cannot order the legislature to enact a particular statute that it has decided not to enact, it cannot order the governor to issue a particular executive order that he has decided consciously not to issue," said Assistant Solicitor General Grant T. Sullivan to the appellate judges during oral argument.

“Our Supreme Court continues to reaffirm that courts can order the governor to comply with the constitution," Fox countered. Her opinion pointed to a Colorado Supreme Court decision from February 1, in which the justices concluded Polis was an appropriate party to sue for claims involving the Department of Corrections because he holds the ultimate authority over the executive branch.

She elaborated in the opinion that courts may tell the executive branch to fix a constitutional violation, as long as the governor retains his discretion over how to do it. Protective measures for medically vulnerable inmates, early parole and even vaccinations were all possible risk-mitigation measures outside of commutations or pardons.

The ACLU and the Department of Corrections reached a consent agreement in November 2020 to address the spread of COVID-19 in prisons, but the plaintiffs maintained in their appeal that Polis had "adamantly refused to take measures" to protect the most at-risk inmates. The Marshall Project reports 8,960 total COVID-19 cases in Colorado prisons through June, with 29 deaths. The rate of infection in Colorado is close to double that of the federal prison system.

In the lawsuit against Polis, plaintiffs argued there were two methods of curbing coronavirus spread: reduce density and vaccinate prisoners. The governor in December rejected the latter approach, saying there was "no way [the vaccine is] going to go to prisoners before it goes to people who haven’t committed any crime." 

Sullivan told the judges Polis had, in fact, expanded parole eligibility and earned time credit. All prisoners now have access to the vaccine, and the lawsuit is moot if the plaintiffs would accept inmate vaccination in lieu of prison depopulation. As of May 3, Sullivan wrote to the court, 72% of prisoners had received a shot.

The panel sent the lawsuit back to Denver District Court for further proceedings.

This article has been updated with a statement from the governor's office.

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