The Colorado Supreme Court ruled last week that the governor may be named as a party in a case involving the rights of imprisoned transgendered women. With its opinion in the original proceeding, the court applied precedent that the governor can be named, in his capacity as a chief executive, in lawsuits over agencies under his control.
“I think the decision was important because it clarifies that the governor will be held accountable for the actions of the state agencies,” said Paula Greisen, partner at King & Greisen, who is representing the plaintiffs.
CDOC is one of the largest state agencies, and historically the governor has answered for and been held accountable for conduct, such as civil rights violations, by state agencies, Greisen said. The opinion of the court reinforced that the state’s highest elected officials will be held accountable for the conduct of their staff and agencies.
The case, Raven v. Polis, brought by seven transgender female inmates on behalf of all women in similar situations, challenges the treatment of transgender women in the custody of the Colorado Department of Corrections. The seven named plaintiffs claim violations of the Colorado Anti-Discrimination Act and the state Constitution.
The amended complaint names the Department of Corrections, multiple current and former CDOC employees, Polis and the CDOC executive director as defendants and alleges that defendants’ policies and practices discriminate against transgender women by “refusing to recognize them as women.” As a result, these women face “unreasonable” risks of violence, failing to provide necessary accommodations and offering inadequate medical and mental health care.
The amended complaint names Polis in his official capacity as governor and notes that he is statutorily responsible for appointing the CDOC executive director and for the overall administration of the laws of the state, according to the opinion.
Polis had moved for dismissal shortly after the suit was filed under the state courts’ rules of civil procedure, arguing that he is an “improper party,” according to the opinion. The district court denied the motion and concluded that the governor is “always” an appropriate defendant in suits challenging the implementation of statutes or regulations by the state’s executive agencies. In coming to that conclusion, the court rejected an argument that cited the state Supreme Court opinion in Developmental Pathways v. Ritter, a 2008 lawsuit launched against former Gov. Bill Ritter, which set a new standard for assessing when the governor was properly named as a defendant in litigation.
Developmental Pathways involved a constitutional challenge to the state Constitution’s ban on public employees accepting certain gifts. At the time of the opinion in that case, the state did not yet have an Independent Ethics Commission, and without it, the governor, as the “embodiment of the state,” was the only appropriate state agent for the litigation.
Polis argued that a plaintiff can’t sue the governor as the “embodiment of the state” if another agency, official or employee is specifically charged with administration or compliance with state law, according to the opinion.
However, the court said that the statement, in context, doesn’t carry the weight that Polis looked to put on it. As CDOC is an executive agency directly under the governor’s control, the governor “remains one of the proper defendants for the claims asserted.” The court also wrote in the opinion that the circumstances in Raven are quite different from in Developmental Pathways because the current lawsuit challenges an executive agency’s actions explicitly under the control of the state’s chief executive — the governor.
As the governor has final authority to order the executive directors of all state agencies to start or stop any action on behalf of the state, the governor was appropriately named as a defendant in this type of action, according to the opinion. The court pointed to the second section of the Colorado Constitution, which provides that, “the supreme executive power of the state shall be vested in the governor, who shall take care that the laws be faithfully executed.”
None of the cases cited by the governor convinced the court to change its mind and “abandon this precedent,” according to the opinion. “Not only are those decisions not binding on this court, but each involved unique circumstances quite different from those presented here.”
In two cases cited by the governor, the plaintiffs consented to his dismissal where remaining defendants were adequate, according to the opinion. “The fact that some plaintiffs may choose not to name the governor as a defendant does not mean that others are prohibited from doing so.” In the Raven case, the plaintiffs weren’t interested in dropping the governor from the face of the compliant and “are not required to do so,” according to the opinion.
In cases dealing with constitutional and fundamental rights, Greisen said the state must be held accountable at the highest levels. Despite the plaintiffs asking for the case to move forward, the court ruled to stay the case until the ability of the governor to be named in the case was clarified. She claimed that the government insisted the case be stayed.
Greisen said that a troubling aspect of trying to take the governor’s name off the case was that her clients have had to sit and wait in the same conditions for extended periods of time while the issue was decided.
“It is important to note that this decision does not address the merits of the case,” said Connor Cahill, Polis’ press secretary, in an email. He said CDOC and the governor believe the rights and safety of transgender inmates are important issues. CDOC has made “significant, progressive, policy changes for the benefit of this population,” he said.
“And, Colorado is one of only a handful of states that has transferred transgender women to a female correctional facility,” Cahill said, noting that these plaintiffs are able to access hormone replacement therapy with mental and medical support.