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Colorado Supreme Court Holds Governor Is Appropriate Defendant in Cases Involving State Constitutional Responsibility

The Colorado Supreme Court has decided “that the Governor is an appropriate defendant in cases involving ‘his constitutional responsibility to uphold laws of the state and to oversee Colorado’s executive agencies.’”

The Court’s February 1, 2021, en banc opinion was issued in an appeal filed by Gov. Jared Polis (D) to a class action lawsuit that challenged the treatment of transgender women held by the Colorado Department of Corrections (DOC). The named plaintiffs representing the class are seven transgender women currently confined in DOC prisons.

The lawsuit named the governor, DOC, its Executive Director, as well as multiple current and former DOC employees, alleging that the agency’s policies discriminate against transgender women by refusing to recognize them as women and thus subjecting them to unreasonable risks of violence, as well as failing to provide necessary accommodations and offering inadequate medical and mental health care.

The governor moved to be dismissed from the suit, arguing he was improperly named as a defendant. The district court denied the motion, concluding that the governor is always an appropriate defendant in a suit challenging implementation of statutes or regulations by Colorado’s executive agencies.

The governor petitioned for relief under C.A.R. 21. After concluding it had original jurisdiction over the matter, the Colorado Supreme Court analyzed the issue of whether the governor was a proper defendant.

The governor cited Development Pathways v. Ritter, 178 P.3d 524 (Colo. 2008) and argued it held the governor may not be sued if some other agency, official, or employee is specifically charged with administration of or compliance with the challenged state law.

The Court found the governor took out of context the statement from Development Pathways that “[t]he evaluation of whether a person or entity is a proper party in a lawsuit must be determined in light of relevant facts and circumstances.” In that case, it was essential that such a determination be made because it concerned a state commission that was not under the authority of the governor once its members were appointed.

“The circumstances presented by this case are quite different,” the Court wrote. “Here, we are faced with lawsuit challenging the actions of an executive agency that is explicitly under the control of the Governor as the state’s ‘supreme executive.’” As the Governor has final authority over executive directors of state agencies to commence or cease any action on behalf of the state, the Governor was properly named as a defendant.

Therefore, the district court’s order was affirmed. See: Raven v. Polis, 2021 CO 8, 479 P.3d 918 (CO 2021). 

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Related legal case

Raven v. Polis