DENVER (CBS4) — A Denver District Court Judge excluded Colorado Governor Jared Polis from a class action lawsuit filed earlier this year on behalf of five inmates seeking an emergency order to protect prisoners from the COVID-19 pandemic.
Judge Kandace Gerdes’s ruling was announced Christmas Eve. She concluded, “Colorado case law does not support the Governor as a proper
party to the lawsuit.”
CBS4’s messages sent to American Civil Liberties Union attorneys representing the inmates were not returned, and CBS4 has not received any statement about the lawsuit’s future.
According to a copy of the ruling, defense attorneys representing Polis and Colorado Department of Corrections Executive Director Dean Williams argued that Polis was not a party to the lawsuit because he was not responsible for the daily operations of the DOC and its facilities.
The ACLU attorneys had argued that medically vulnerable prisoners who were no longer threats to the public should be released. Not doing so subjected the inmates to cruel and unusual punishment, similar to requiring excessive amounts of bail, that violated Article II of the Colorado Constitution.
The lawsuit sought an emergency injunction forcing the state to reduce the DOC prison population and avoid the infection of thousands of prisoners and DOC staff. The ACLU, in its May press release announcing the filing, claimed hundreds of people would die if no such action was taken.
“Overcrowded prisons are proven hotbeds for transmission,” ACLU of Colorado Legal Director Mark Silverstein said in that press release. “Because the Governor and the DOC are failing to protect incarcerated people, correctional staff and ultimately the public, the court must intervene immediately to save lives.”
The ACLU experienced success this year in previous COVID-related litigation against individual Colorado counties.
The ACLU also reached a settlement with the state in November which provided an upgrade to protective gear and testing given to DOC prisoners.
In her ruling, Judge Gerdes wrote, “The decision whether or not to issue executive orders in response to a public health emergency or to grant parole to certain inmates are statutory duties granted to the Governor by the legislature. These decisions lie within the Governor’s sound discretion and exclusive authority, and this Court cannot force the Governor to make such decisions. Accordingly, the Court does not have the power to grant the injunctive relief requested by Plaintiffs.”
“In short, the complaint claims that the Governor is liable for things he has not done,” she continued, “These are not actionable claims. … This court should tread lightly in telling any Governor when or how to exercise his or her powers. It is one thing for a court to order a Governor to cease engaging in action the court has found to be unconstitutional; it is quite another for a court affirmatively to direct a Governor how to act.”
The five inmates being represented by the ACLU: Gary Winston, John Peckham, Matthew Aldaz, William Stevenson and Dean Carbajal.