[00:00:00] Speaker 04:
Good morning, everyone.

[00:00:02] Speaker 04:
We have four cases on the docket this morning, and we'll start with Eves versus Polis, 23-11-43.

[00:00:12] Speaker 04:
And speaking for myself, we received the notice of transfer at 7.47 a.m.

[00:00:21] Speaker 04:
this morning.

[00:00:21] Speaker 04:
So please proceed.

[00:00:39] Speaker 01:
Good morning, and may it please the court.

[00:00:43] Speaker 01:
Governor Polis respects every individual's right to religious free exercise.

[00:00:48] Speaker 01:
He also respects the right of federal courts in this circuit to sit in judgment on federal question claims alleging violations of that right, like those that survived the motions to dismiss here.

[00:01:02] Speaker 01:
But with respect to the limited subset of claims at issue in this appeal,

[00:01:09] Speaker 01:
Colorado law imposes no particular duty on Governor Polis to supervise the activities of private contract prisons like BCCF or to create policies and procedures that govern CDOX operations and facilities.

[00:01:26] Speaker 02:
So if this were not a private facility, would he agree that he would be a proper party?

[00:01:32] Speaker 01:
No, Your Honor, I do believe that Colorado statutes governing the Department of Corrections also

[00:01:37] Speaker 01:
impose the same duty to supervise the activities and adopt policies and procedures on the executive director with respect to all correctional facilities, not just private contract prisons like BCCF.

[00:01:50] Speaker 02:
And you would agree, though, that if this were state court, that he'd be subject to suit?

[00:01:56] Speaker 01:
Absolutely, Your Honor.

[00:01:57] Speaker 01:
The 11th Amendment is, with very limited exceptions, not applicable here, like the Alden v. Maine case

[00:02:04] Speaker 01:
is not applicable to state law claims in state courts.

[00:02:09] Speaker 03:
Okay.

[00:02:09] Speaker 03:
Wasn't this before the district court with the 12B6 motion?

[00:02:13] Speaker 01:
Your Honor, it was both a 12B6 motion by the governor, but also a Rule 12B1 motion because under this court's precedent, sovereign immunity should be asserted as a jurisdictional defense under Rule 12B1.

[00:02:27] Speaker 03:
Well, under 12B6, though, we have to take the allegations as we see them in the complaint.

[00:02:33] Speaker 01:
Your honor, both under... That's a simple question, counsel.

[00:02:38] Speaker 01:
And I'm prepared to answer it.

[00:02:39] Speaker 01:
Yes, your honor.

[00:02:41] Speaker 01:
The court is required to take all well-pled, in other words, plausible allegations in the complaint as true.

[00:02:48] Speaker 01:
And the governor's argument is that Mr. Eves' allegations in the operative amended complaint are highly conclusory in nature and also highly implausible because they directly contradict the plain language of Colorado law

[00:03:03] Speaker 01:
which in fact imposes the precise duties he's complaining about on another set of state officials.

[00:03:10] Speaker 04:
When you say they're conclusory and they contradict Colorado law, what about the complaint on pages 17 and 22 that specifically alleged that Governor Polis participated in developing the very policy that underlies Mr. Eve's claim for religious

[00:03:32] Speaker 04:
the ability to exercise its religious rights.

[00:03:36] Speaker 01:
I'm sorry to interrupt, Your Honor.

[00:03:38] Speaker 01:
Yes, I am aware of the allegations that the court is pointing to.

[00:03:42] Speaker 01:
The defendant was able to group Governor Polis in with other prison officials, but the reason Governor Polis maintains those allegations are implausible and not well-plagued is because they directly contradict state law, which says

[00:03:58] Speaker 01:
that in fact CDOX executive director sets policy.

[00:04:01] Speaker 04:
So you're saying that it is so clear that it is impossible to believe that a governor can participate with a subordinate for whom he has an absolute right to discharge at will that it is implausible that the governor would have helped the executive director of the DOC to develop this policy.

[00:04:26] Speaker 01:
I am saying it is implausible under Colorado law, and this court's precedent, which talks about the particular duty existing under Colorado law in the Peterson v. Martinez case.

[00:04:36] Speaker 04:
All right, but follow up to Judge Balak's question.

[00:04:42] Speaker 04:
For your 12b-1 motion, this is a facial attack, right?

[00:04:45] Speaker 04:
You didn't submit any affidavits in district court in support of the 12b-1 motion, right?

[00:04:49] Speaker 01:
There were no affidavits attached in support of the motion.

[00:04:53] Speaker 04:
So we present the allegations in the complaint,

[00:04:55] Speaker 04:
favorably to the plaintiff, we credit those just as we would a 12b6 motion, right?

[00:05:01] Speaker 01:
If they are well-planned and plausible, which the governor's position is they are not.

[00:05:04] Speaker 01:
And in fact, he did, I just want to make the point that he did join in CEDAWC's rule 12b1 and 12b6 motion to dismiss, which attached as exhibits the policies adopted by CEDAWC's executive director.

[00:05:18] Speaker 01:
Those are AR-801.

[00:05:19] Speaker 01:
They are in the record in the appendix volume two before this court.

[00:05:23] Speaker 01:
And those were inserted into the record under the CDOT Defendants Rule 12-B-1 motion.

[00:05:31] Speaker 01:
So the governor did ask the court to take judicial notice of those.

[00:05:34] Speaker 04:
One last question and then I'll be quiet.

[00:05:37] Speaker 04:
If we conclude that Mr. Eaves did well plead the allegation on 17 and 22 that Governor Polis participated in developing the policy, whether or not he was obligated to or not, that it wasn't

[00:05:53] Speaker 04:
contrary to the policy, he was just helping his subordinate, is there any basis to distinguish that situation from Governor Stitt's issuance of the executive order in Fowler versus Stitt?

[00:06:11] Speaker 01:
Yes, your honor, there are two primary distinctions.

[00:06:14] Speaker 01:
First, in Fowler v. Stitt, the governor's executive order was at issue.

[00:06:21] Speaker 01:
In this case,

[00:06:22] Speaker 01:
There had been an executive order issued by Governor Polis during the COVID-19 pandemic, but the trial court dismissed all of Mr. Eve's claims related to that period of restriction.

[00:06:34] Speaker 01:
And as a result, the governor's prior executive orders, which are no longer in effect, as moot.

[00:06:40] Speaker 01:
And so those claims are no longer at issue in this appeal.

[00:06:44] Speaker 01:
But additionally, if this court were to find that

[00:06:48] Speaker 01:
Again, what plaintiff is pointing to are the governor's general executive authority under state law, including his power to hire and fire the heads of his cabinet departments, of which CDOC is one of, I believe, at least 20, if not more.

[00:07:05] Speaker 01:
We've added a couple of late.

[00:07:07] Speaker 01:
But the test for whether the ex parte young exception applies requires both a particular duty under state law

[00:07:18] Speaker 01:
and a demonstrated willingness to enforce that duty.

[00:07:21] Speaker 01:
And here, I do not understand Mr. Eaves' remaining claims, and again, those of the limited subset at issue in this appeal, to concern the face of AR-800-01.

[00:07:32] Speaker 01:
Rather, they concern the application of that policy to Mr. Eaves by BCCF prison officials, something in which the complaint does not allege that Governor Polis took a direct participation and role in.

[00:07:47] Speaker 01:
So still under this court precedent, we would argue that the test for ex parte young is not satisfied.

[00:07:54] Speaker 02:
So let me back you up.

[00:07:56] Speaker 02:
We were talking about, in fact, you brought it up, Alden v. Maine.

[00:08:01] Speaker 02:
And before that, I'd asked you if you agreed that he would be subject to suit in state court.

[00:08:07] Speaker 02:
And you agreed that the answer is yes, if this had been brought in state court, the governor would have been subject to suit.

[00:08:14] Speaker 01:
Yes, in state court under state law causes of action, not federal causes of action necessarily.

[00:08:20] Speaker 02:
I understand that.

[00:08:22] Speaker 02:
So, but do you agree that Alden stands for the proposition that the 11th Amendment immunity does not provide additional immunity than the governor would have in state court?

[00:08:34] Speaker 01:
I understand Alden v. Maine to be specific to federal question claims for

[00:08:41] Speaker 01:
money damages brought by a defendant under section 1983 in state court.

[00:08:46] Speaker 01:
And I understand part of Alden v. Maine to hold that the 11th Amendment is a bar to such claims.

[00:08:54] Speaker 01:
But I think the larger point in the trial court's reference to Colorado Supreme Court decisions is that all of those cases, and I had the privilege of litigating many of them,

[00:09:09] Speaker 01:
concern state law causes of action brought in state law forums or state court forums to which 11th Amendment sovereign immunity just was not an issue.

[00:09:21] Speaker 01:
It was not a legal issue in Ravenby Polis, in Anne's Coffee Owens, in Developmental Pathways versus Ritter.

[00:09:29] Speaker 01:
It just is inapposite and that's because under Colorado law,

[00:09:33] Speaker 01:
the governor can always be sued as the embodiment of the state for litigation purposes.

[00:09:37] Speaker 01:
That is directly the opposite of the 11th Amendment.

[00:09:41] Speaker 01:
And Mr. Eaves' assertion that it matters not whether the governor would be subjected to enormous burden to be named in literally every lawsuit brought by an inmate who felt that their rights were violated by prison officials is inconsequential.

[00:09:59] Speaker 01:
I somewhat agreed, because the truth is, the 11th Amendment is an entitlement.

[00:10:04] Speaker 01:
It's an absolute bar to the trial court's jurisdiction, and not in the nature of sovereign immunity, or I'm sorry, of qualified immunity.

[00:10:12] Speaker 01:
But rather, it is an immunity from suit, a jurisdictional bar to the exercise of jurisdiction over certain types of claims.

[00:10:19] Speaker 01:
I'd like to reserve the remainder of my time for rebuttal.

[00:10:21] Speaker 04:
Thank you.

[00:10:23] Speaker 04:
Okay, we'll stop the call.

[00:10:25] Speaker 04:
I don't want to grab my colleagues

[00:10:27] Speaker 02:
I would like, before she sits down, if you don't mind, would you go ahead and, you filed a notice this morning at about 7.45 saying that there was potential, that we had a prudential mootness issue in this case.

[00:10:44] Speaker 02:
Would you go ahead and just give us the two cent version of that?

[00:10:47] Speaker 01:
Thank you, Your Honor, I will.

[00:10:49] Speaker 01:
And I did file it yesterday evening at about, I thought, 5.45, but it probably showed up this morning, for which, you know, I am sorry.

[00:10:56] Speaker 01:
I'll just say, I entered in this case, in this appeal, two months ago, and I've been studying hard for this oral argument, and in reading plaintiff's brief, or Mr. Eve's brief, before this court, I was struck by his wording, and his references to being in the custody of a correctional facility, as opposed to BCCF, which is the prison facility where he was incarcerated at the time

[00:11:26] Speaker 01:
of the allegations and the operative amended complaint.

[00:11:30] Speaker 01:
And it just troubled me, it didn't sit right.

[00:11:31] Speaker 01:
And so yesterday I looked into it and through the inmate locator available on the Department of Corrections website, I was able to ascertain that Mr. Eves was in fact, is currently in the custody of Sterling Correctional Facility.

[00:11:47] Speaker 01:
And I then did further outreach to CDOT's legal counsel who were able to share with me that he was in fact

[00:11:55] Speaker 01:
transferred to Sterling, or I'm sorry, I should say he was no longer in the custody of BCCF as of August 23rd, 2023, well over a year ago, and well before he filed his brief in this court.

[00:12:11] Speaker 01:
And I think that this goes directly to the issue of mootness of his claims under the Jordan v. Sosa case, and that it should have been raised

[00:12:22] Speaker 01:
much, much sooner by Mr. Eaves in particular.

[00:12:26] Speaker 04:
Where is Sterling, correctional facility?

[00:12:30] Speaker 01:
It's in Colorado, your honor.

[00:12:31] Speaker 01:
So what difference does it make?

[00:12:33] Speaker 01:
Oh, it absolutely makes every difference.

[00:12:36] Speaker 01:
The claims that issue in this appeal are for injunctive relief for violations of his religious free exercise rights committed while in custody at BCCF.

[00:12:50] Speaker 01:
If he's no longer in BCCF's custody,

[00:12:52] Speaker 04:
Are you saying that the governor doesn't have any authority over DOC and the DOC has no authority over a Colorado inmate while they're at Sterling?

[00:13:04] Speaker 01:
Mr. Eaves is absolutely within the custody and control of CDOC at Sterling Correctional Facilities, but there's no allegations before this court or the court below related to any violations of his free exercise rights at Sterling Correctional Facility and the Jordan v. Sosa case

[00:13:22] Speaker 01:
on the same facts presented here show that the transfer of an inmate who is alleging constitutional claims by prison officials at one facility, who that same inmate is later transferred to a different facility, those claims are mooted, constitutionally, prudentially, and no exception to mootness applies.

[00:13:42] Speaker 04:
And so, you bear the burden on mootness, right?

[00:13:46] Speaker 01:
I believe mootness goes to jurisdiction, which usually the petitioner bears

[00:13:52] Speaker 01:
or I'm sorry, the plaintiff bears the burden on, but I recall that you might be right.

[00:13:58] Speaker 01:
So I would... Yeah, I think I am right.

[00:14:00] Speaker 04:
And so the question then is just a practical one.

[00:14:05] Speaker 04:
You're telling us, let's say the night before oral argument, that months ago, August, he was transferred to Sterling, and that we should assume that his

[00:14:21] Speaker 04:
religious rights as a member of the Second Fox tribe might be being honored at Sterling.

[00:14:29] Speaker 04:
You're not telling us that they are.

[00:14:31] Speaker 04:
You're not telling us anything one way or the other.

[00:14:34] Speaker 04:
And so we are supposed to say, well, we don't know if

[00:14:44] Speaker 04:
if he is being, if he is really getting the rights that he was complaining about, you're not even presenting evidence, you're not telling us that he is, but you're just saying, well, he might be, and so this is something you might worry about, panel.

[00:15:03] Speaker 04:
I'm not telling you that he is.

[00:15:05] Speaker 04:
I have the burden of unmoveness.

[00:15:08] Speaker 04:
And so I'm kind of at a loss about what you want us to do with this.

[00:15:13] Speaker 03:
You've got a whole different case before us now.

[00:15:15] Speaker 03:
It really irritates me to have prepared for this case.

[00:15:20] Speaker 03:
And last night or this morning early, I get a notice that we may be arguing about a completely different case.

[00:15:28] Speaker 03:
That's not right to the court, nor is it right to other colleagues or people who are arguing today.

[00:15:34] Speaker 03:
And you say you just took this case over two months ago.

[00:15:38] Speaker 03:
Is that my understanding?

[00:15:40] Speaker 01:
Your Honor, I entered my appearance on September 16th.

[00:15:43] Speaker 01:
I'm, I think, approximately the fifth counsel from this office to have entered on this case.

[00:15:48] Speaker 01:
But I do believe that Mr. Eves and his counsel were aware of this change in his custody and failed at every opportunity to inform this court.

[00:15:57] Speaker 01:
And I, as an officer of the court, could not stand before you here today and ask you to make an important ruling on the governor's sovereign immunity, knowing full well under this court's binding precedent, again, Jordan V. Sosa,

[00:16:08] Speaker 01:
that Mr. Eves' claims likely are moot.

[00:16:10] Speaker 01:
And I share this court's irritation to be perfectly clear with Mr. Eves for failing to bring the fact of his custody to this court's attention.

[00:16:18] Speaker 01:
And I believe that the governor's lack of awareness further illustrates the fact that he is not involved in the day-to-day operations of any prison in Colorado, including BCCF, and had no reason to have any knowledge as to why or when Mr. Eves was transferred well over a year ago.

[00:16:34] Speaker 01:
I was personally concluding my

[00:16:38] Speaker 01:
preparation for today's oral argument when this fact came to light.

[00:16:41] Speaker 01:
And I spent several hours both running down the factual information needed to prepare and file the notice, but then also studying up on mootness, which I agree with your honor.

[00:16:53] Speaker 01:
I'm not prepared to address at length today, nor do I anticipate that my counsel is or that the court is either.

[00:17:00] Speaker 01:
And so I think the appropriate sort of manner to address this issue

[00:17:07] Speaker 01:
is to order supplemental briefing from the parties, which has been done many times when this court has ascertained a mootness concern.

[00:17:18] Speaker 04:
Yeah, I don't... I'm not speaking to the panel.

[00:17:22] Speaker 04:
I haven't heard anything yet that you've told me any reason to have a mootness concern.

[00:17:29] Speaker 04:
But we'll keep that in mind.

[00:17:31] Speaker 04:
Yeah, Your Honor... I have not cheated you out of your rebuttal.

[00:17:33] Speaker 04:
You still have your fight.

[00:17:35] Speaker 01:
Okay.

[00:17:35] Speaker 01:
Thank you.

[00:17:36] Speaker 04:
I appreciate that.

[00:17:36] Speaker 04:
Thank you.

[00:17:37] Speaker 04:
Thank you.

[00:17:38] Speaker 04:
All right, we'll hear from the appellate.

[00:17:53] Speaker 00:
Good morning, Your Honors, and may it please the Court.

[00:17:55] Speaker 00:
Jeffrey Then for Plaintiff Appellee Ronnie Douglas Eaves.

[00:17:58] Speaker 00:
Your Honors, I was originally planning to start today by focusing on the principal question before this Court and explain why the District Court's decision was correct

[00:18:07] Speaker 00:
that Governor Poulos has some connection to the enforcement of acts that have violated my client's religious rights.

[00:18:16] Speaker 00:
And I'm happy to answer any questions that the court has on that front.

[00:18:19] Speaker 00:
But I did want to first address the governor's letter from last night, which sounds like the court received this morning, which raised the possibility that

[00:18:28] Speaker 00:
Mr. Eve's transfer in August of 2023, which I will note was six months before Governor Polis even filed their opening brief in this case, may have mooted his claims for injunctive relief.

[00:18:43] Speaker 00:
And as this court has held and acknowledged earlier today, Governor Polis bears the heavy burden of demonstrating that there is mootness.

[00:18:52] Speaker 00:
And I don't believe that Governor Polis can meet that burden, and I'd like to tell the court why, and I'm prepared to do so.

[00:18:57] Speaker 00:
As illustrated by the case that Governor Polis was just referring to and cited in their letter, Jordan V. Sosa, and if the court will permit me, I would like to read just a portion of Jordan V. Sosa.

[00:19:13] Speaker 00:
There the court said, where a prisoner brings a lawsuit challenging policies that apply in a generally uniform fashion throughout a prison system, courts have been disinclined to conclude that the prisoners

[00:19:25] Speaker 00:
declaratory or injunctive claims are moved even after transfer.

[00:19:31] Speaker 00:
Now, Mr. Eves here is challenging policies that are system-wide and applied uniformly throughout the prison system and are not specific to the Brent County Correctional Facility.

[00:19:42] Speaker 00:
And I'll just name a few, for example.

[00:19:45] Speaker 00:
Mr. Eaves alleged that he was not allowed, and is still not allowed, excuse me, to possess sacred objects, such as his personal pipe, his flute drum, all sacred objects that are fundamental to his ability to practice the Sac and Fox religion.

[00:20:02] Speaker 00:
He is not allowed, he was not allowed, and he is still not allowed to spurge and cleanse his cell, or embellish his medicine bag,

[00:20:10] Speaker 00:
or headband, which again are central tenants of his Sac and Fox religion.

[00:20:15] Speaker 00:
And he still doesn't have access to firewood due to a loophole in the policy which allows him to donate money for the purchase of firewood, but that firewood is then not earmarked specifically for the use of the tribal community.

[00:20:28] Speaker 03:
Is there a process, Council?

[00:20:30] Speaker 03:
I'm hearing what you're saying, and it's almost falling on a deaf brain.

[00:20:35] Speaker 03:
But are there procedures at the new place, the new facility,

[00:20:40] Speaker 03:
going through that he should have applied?

[00:20:43] Speaker 03:
Because they very well could.

[00:20:45] Speaker 03:
We don't know whether they have or have not.

[00:20:47] Speaker 03:
You say they have not granted him.

[00:20:50] Speaker 03:
But is there a procedure at the new place, like there are at any place, that you go through a certain procedure and ask for these things?

[00:20:57] Speaker 03:
Has he done that at the new place where he's being housed?

[00:21:02] Speaker 03:
Or do you even know?

[00:21:04] Speaker 00:
I'm not familiar yet with whether he has supported that.

[00:21:07] Speaker 00:
My understanding from

[00:21:09] Speaker 00:
conversations with my client and with trial counselors that he's still not able to do the things that he has complained of in this complaint and that he complains the governor and others are responsible for denying him at this point.

[00:21:22] Speaker 00:
And so the extent that there is a claim that the prisons are now allowing him to do those things, then

[00:21:31] Speaker 00:
Governor Polis through his council had the opportunity today when they came before this court to say he is now allowed to possess sacred objects, he is now allowed to cleanse his cell, but they did not do that and they can't and they have not done that and they bear the burden to demonstrate that under this court's precedent and it is a heavy burden and I don't believe that they have done that and I don't think that this court as the court acknowledged can assume that those violations of Mr. Eve's rights

[00:21:59] Speaker 00:
have somehow been corrected.

[00:22:02] Speaker 00:
And I just want to make one other point.

[00:22:05] Speaker 03:
I know you want to make, but what is the case that we have before us today?

[00:22:10] Speaker 03:
What is the case that we have here?

[00:22:12] Speaker 00:
Your Honor, the case that we have before us today is the same case that was briefed before this court.

[00:22:19] Speaker 00:
The governor's letter about Muniz, I don't think impacts this case at all.

[00:22:24] Speaker 00:
And I want to

[00:22:26] Speaker 00:
Demonstrate that by just pointing to Jordan V. Sosa one more time since the governor did rely on it.

[00:22:32] Speaker 00:
In Jordan V. Sosa the issue was Mr. Jordan, the plaintiff there, only sued officials at the facility where he was housed.

[00:22:42] Speaker 00:
So when he was transferred

[00:22:44] Speaker 00:
there was no defendant left that this court could enjoin or compel to grant him prospective relief because he had only sued those individuals that were at the prison where he was being transferred from.

[00:22:57] Speaker 00:
So in that matter, Jordan is not applicable at all to this case and is completely distinguishable.

[00:23:04] Speaker 03:
Well, what is applicable to this case, counsel, and

[00:23:10] Speaker 03:
I hope to not come across too disturbed, but I am in regards to this, is that the only issue then that we have absolutely to consider in this is whether or not the governor is entitled to the 11th Amendment immune.

[00:23:24] Speaker 03:
No other, based on the facts of what we have before us, it's only that issue

[00:23:33] Speaker 03:
doesn't reach where he's located now, which could be all re-litigated at another time, right?

[00:23:40] Speaker 00:
That is correct, Your Honor.

[00:23:42] Speaker 03:
Our position is that the... You won't hear from me again until you go ahead and proceed with your argument.

[00:23:47] Speaker 00:
No worries, Your Honor.

[00:23:49] Speaker 00:
And thank you.

[00:23:50] Speaker 00:
But yes, our position is that the principal question for this Court, under the ex parte young analysis, which this Court has held, is a straightforward inquiry

[00:23:59] Speaker 00:
which asks whether the complainant alleges ongoing violation of federal law and seeks a relief that is characterized as prospective.

[00:24:08] Speaker 00:
And I think one thing that is helpful of the conversation we just had, your honor, is that Mr. Eves clearly meets that standard.

[00:24:15] Speaker 00:
We've just spoken about the prospective relief that he is seeking, which is the same relief that he was seeking from when he filed his complaint and he was housed at Brent County

[00:24:27] Speaker 00:
correctional facility.

[00:24:29] Speaker 02:
Well, that's not it.

[00:24:30] Speaker 02:
I mean, it's not in dispute that you're seeking perspective relief.

[00:24:33] Speaker 02:
I mean, everybody agrees with that, I believe.

[00:24:36] Speaker 02:
The question is whether there's an exception to the ex parte young doctrine that would prevent you from bringing the governor in.

[00:24:45] Speaker 00:
And I don't think there is, Your Honor.

[00:24:47] Speaker 00:
The question that this court often asks is whether there is some connection between the defendant and the enforcement of acts that the plaintiff alleges have violated their constitutional rights.

[00:25:00] Speaker 00:
And I think that Mr. Eaves has shown that in his complaint in three ways.

[00:25:05] Speaker 00:
First, there are the allegations that Mr. Eaves has made directly connecting the governor to the deprivation of his rights.

[00:25:12] Speaker 00:
And I'll come back to that in one second.

[00:25:13] Speaker 00:
There's also the fact that Mr. Yves has pointed to Colorado law.

[00:25:17] Speaker 00:
And I think Colorado law is important because it, for the purposes of this analysis, we have to understand what is the particular duty of this state official.

[00:25:25] Speaker 00:
And Colorado law tells us that the particular duty of the governor is that he oversees the CDOC, he appoints the executive director of the CDOC, and that director serves at the pleasure of the governor.

[00:25:40] Speaker 00:
And lastly, under this court's precedent in Kitchen,

[00:25:44] Speaker 00:
it is clear that when a high ranking executive, government official, has the power to compel the actions of lower officials, that also creates the nexus.

[00:25:53] Speaker 00:
And I think when you look at all those factors taken together,

[00:25:59] Speaker 00:
the court can reach a conclusion, as the district court did, that Mr. Eaves has pled facts, which, as this court acknowledges, the court has to accept that's true at this stage.

[00:26:11] Speaker 02:
I mean, those are really high-level functions that you're talking about that are possessed by virtually all state executives.

[00:26:20] Speaker 02:
I mean, the governor of virtually every state is

[00:26:24] Speaker 02:
you know, the buck stops with them for lack of a better term with how the prison system runs in their state.

[00:26:31] Speaker 02:
What do you have that is more specific than those high level functions?

[00:26:36] Speaker 02:
Those may be enough in Colorado State Court, but what do you have that would suggest for purposes of the exception to ex parte young that there's a connection between the governor and the decisions made in this case?

[00:26:50] Speaker 00:
Yes, Your Honor, and I want to speak to the more specific allegations.

[00:26:52] Speaker 00:
I just want to make one point, which is states often do make determinations about how they want to structure the duties.

[00:27:00] Speaker 00:
So for example, in Hendrickson, which is a case that this court decided, there the governor was sued but was found to not be a proper party under Ex parte Young because the Supreme Court of New Mexico has said that the governor was to be insulated from the union board.

[00:27:14] Speaker 00:
And so the state court, the state can decide and has

[00:27:19] Speaker 00:
a lot of influence over what are the specific duties of a governor.

[00:27:24] Speaker 00:
The state of Colorado here has done the opposite.

[00:27:27] Speaker 00:
In Ravenby Polis, the state said the governor is directly responsible for the CDOC.

[00:27:34] Speaker 00:
Now to get to your question, Your Honor, about the specific allegations, there are several that Mr. Eaves makes.

[00:27:39] Speaker 00:
First, he alleges that he wrote to the governor to voice his concern over a policy that didn't allow him to, that possessed

[00:27:49] Speaker 00:
sacred objects in his cell.

[00:27:53] Speaker 00:
He then alleges that he had a conversation with CDOC official Gypsy Kelso, who informed him that he had a conversation about that conversation with Mr. Polis.

[00:28:04] Speaker 00:
Six months later, a new regulation was issued, which did not change any of the facts that Mr. Eve's alleged were burdening his rights, which as the district court found,

[00:28:16] Speaker 00:
one could make the very plausible inference that that meant that Governor Poulos was okay with the fact that this policy was the way that it was and that it was potentially violating someone's Mr. Eves rights.

[00:28:32] Speaker 00:
So that is one example, Your Honor.

[00:28:34] Speaker 00:
Another example is that when Mr. Eves is denied his request to

[00:28:41] Speaker 00:
to cleanse his cell, he has done so through a CDOC official who uses a memorandum issued by the governor.

[00:28:49] Speaker 00:
And there's another example where a different request that Mr. Eaves makes comes on the letterhead of the governor.

[00:28:55] Speaker 00:
And all of these examples show that the governor isn't simply so far removed from all of this.

[00:29:02] Speaker 00:
It's specific examples where we see CDOC officials invoking the power of the governor in denying his rights.

[00:29:10] Speaker 00:
And I think that's a very important aspect of the ex parte young analysis and shows that the government does have some, that the governor, excuse me, does have some connection here to the violations of Mr. Eve's constitutional rights.

[00:29:27] Speaker 00:
And in that way, I think that this case is in some ways similar to follow, but I think that there are also allegations here that

[00:29:34] Speaker 00:
that make this case stronger than Fowler in some ways.

[00:29:36] Speaker 00:
There isn't an executive order, but just like in Fowler, Governor Stitt was, the court pointed to the fact that Governor Stitt was directly responsible over the Oklahoma State Department of Health.

[00:29:47] Speaker 00:
Likewise, Governor Polis is directly responsible over the CDOC.

[00:29:51] Speaker 00:
The 10th Circuit in Fowler pointed to the fact that

[00:29:55] Speaker 00:
The Oklahoma State Department of Health invoked the executive order by the governor in denying the amended birth certificates that were requested by the plaintiffs.

[00:30:06] Speaker 00:
Same here, you have CDOC officials that are invoking the power of the governor in denying Mr. Eaves

[00:30:12] Speaker 00:
And in some ways the allegations that Mr. Eaves has made here are even more specific than those in Fowler.

[00:30:20] Speaker 00:
So I think Fowler is very analogous to this case and is another reason why this court can feel comfortable affirming the district court's decision and finding that Governor Polos has some connection.

[00:30:32] Speaker 00:
And I just want to reiterate that the test is literally does this person have some connection to the enforcement?

[00:30:39] Speaker 00:
This court has made clear that it doesn't require

[00:30:42] Speaker 00:
require a special connection, it doesn't matter if there are other defendants involved.

[00:30:48] Speaker 00:
And in fact, I think the conversation we've had today about mootness and about transfer shows that, especially in the prison context where transfers happen so often,

[00:30:59] Speaker 00:
why you would want multiple defendants, or why you would want all the defendants, as long as they have some connection, to be a part of the suit.

[00:31:08] Speaker 00:
And in this case, Mr. Eaves has pled sufficient facts to show that Governor Post has some connection to the deprivation of his constitutional rights.

[00:31:19] Speaker 02:
So I suggested to your opposing counsel that under Alden v. Maine,

[00:31:25] Speaker 02:
that the governor doesn't have more immunity rights in federal court than he would have in state court.

[00:31:37] Speaker 02:
Do you agree with that?

[00:31:38] Speaker 00:
Well, I think in federal court when it comes to the 11th Amendment immunity, any additional immunity they have is simply tied to this court's precedent of

[00:31:48] Speaker 00:
of needing to find that the individual defendant at issue has some connection to the enforcement.

[00:31:55] Speaker 02:
So you would disagree with that statement as a general matter?

[00:31:58] Speaker 02:
So if I said to you, if the governor is not immune in state court, he is also not immune in federal court, you would disagree with that?

[00:32:08] Speaker 00:
I think there is a difference between the state and the federal court.

[00:32:11] Speaker 00:
Yes, yes.

[00:32:12] Speaker 00:
And to be very clear with the court, I do think that in federal court, because of the 11th Amendment, this court's precedent does require a bit more.

[00:32:22] Speaker 00:
It does require showing that there is some connection between the individual and the acts here.

[00:32:27] Speaker 00:
And I believe that Mr. Eaves' complaint sufficiently alleges that connection.

[00:32:31] Speaker 03:
I have one more question.

[00:32:35] Speaker 03:
Since we have this before us for the 12b6 and 12b1,

[00:32:39] Speaker 03:
where we consider the well-planned allegation as true and all these facts now point to one prison of which he now is stationed in another prison, even though the issue is the immunity issue, wouldn't we be giving an advisory opinion because he's no longer at the prison where he was?

[00:33:08] Speaker 03:
Wouldn't it be wholly an advisory opinion to say whether those facts under 12b6 are correct before the court?

[00:33:19] Speaker 00:
I don't believe so, Your Honor.

[00:33:21] Speaker 03:
You think there's, they may be facts that applied then, but do the facts apply now to where he's located?

[00:33:29] Speaker 00:
And I believe that they do, and for that reason, I don't think it would be an advisory opinion, because again, what Mr. Eaves is complaining about, as the court in Jordan v. Sosa noted, are systemic, system-wide, uniformly applied policies that violated his rights while he was at Brent.

[00:33:49] Speaker 00:
But if he was at Sterling, it would be the same result.

[00:33:52] Speaker 00:
Thank you.

[00:33:52] Speaker 00:
Thank you, Your Honors.

[00:33:53] Speaker 00:
Thank you.

[00:33:53] Speaker 00:
Thank you for your time.

[00:33:54] Speaker 00:
Thank you.

[00:34:18] Speaker 01:
I want to respond to counsel's representations about Mr. Eves' specific allegations in the amended complaint below.

[00:34:27] Speaker 01:
In particular, what we have characterized as vague and conclusory references to a memorandum issued from Governor Polis.

[00:34:37] Speaker 01:
No facts in the complaint about the date of that memorandum.

[00:34:40] Speaker 01:
No facts about its particular contents.

[00:34:43] Speaker 01:
No facts

[00:34:44] Speaker 01:
no attachment of the memorandum as an exhibit.

[00:34:47] Speaker 01:
That memorandum may be the COVID-19 executive order that is no longer in effect and therefore relates to mooted claims.

[00:34:55] Speaker 01:
There's no way for the trial court to know that.

[00:34:57] Speaker 01:
There's no way for this court to know on the record before it on this appeal because again, Mr. Eaves did not provide some evidence of the governor's insertion of himself into the policies and procedures that were applied to Mr.

[00:35:12] Speaker 01:
Eves at BCCF.

[00:35:14] Speaker 04:
Do we liberally construe the amended complaint?

[00:35:18] Speaker 01:
Yes, because he is pro se, but you do not have to accept implausible, non-well-plied allegations.

[00:35:24] Speaker 04:
That's true.

[00:35:25] Speaker 04:
Does even a counsel litigant have to present evidence in support of allegations in a complaint?

[00:35:33] Speaker 01:
Under Peterson v. Martinez, the holding from this court is that when state law imposes the specific duty

[00:35:41] Speaker 01:
complained of on one set of officials, the plaintiff can only overcome that with some evidence.

[00:35:48] Speaker 01:
That's the word used by this court, which suggests more than, again, implausible conclusory allegations.

[00:35:54] Speaker 04:
Is there a statutory prohibition?

[00:35:56] Speaker 04:
And if so, can you cite it, that a governor cannot help his or her underling in crafting a policy?

[00:36:09] Speaker 01:
Your honor, the state law that the governor relies on is CRS 17-1-103 subsections 1, A, 8.5, and B, all of which start with the preface, the duties of the executive director of CDOC are, and then proceed to list, supervise the activities of private contract prisons.

[00:36:33] Speaker 01:
issue policies and procedures that govern CDOC.

[00:36:37] Speaker 01:
And then lastly, govern the personnel, supervise the personnel of CDOC.

[00:36:42] Speaker 01:
So that is the specific duty under Colorado law.

[00:36:45] Speaker 01:
It rests with prison officials, not with the governor.

[00:36:48] Speaker 02:
Do we have to accept the Colorado Supreme Court's decisions about the level of control the governor has over CDOC and the state prisons?

[00:37:03] Speaker 01:
Absolutely not, Your Honor.

[00:37:05] Speaker 01:
Again, state law causes of action brought in state court forums to which 11th Amendment immunity does not apply.

[00:37:13] Speaker 02:
Additionally... That's a little... I'm not sure that's responsive.

[00:37:18] Speaker 02:
I guess what I'm asking you is the Colorado Supreme Court has decided that the governor has an intimate role, my words, not theirs, in the

[00:37:33] Speaker 02:
administration of CDOC and the prisons and do we have to accept what they've found about that as far as our analysis in determining whether there's some connection?

[00:37:47] Speaker 01:
No, Your Honor, and the reason for that is twofold.

[00:37:49] Speaker 01:
One, because the Colorado Supreme Court's decision did in fact rely on the governor's general executive authority over prisons.

[00:37:57] Speaker 01:
It did not rely on any specific provisions of state law

[00:38:01] Speaker 01:
that I just referenced and cited to the court.

[00:38:04] Speaker 01:
Second, the Raven Court's statement that because the governor has, quote, final authority to order the executive directors of all state agencies to commence or cease any action on behalf of the state, was a misquote of a federal trial court's decision in Sportsman's Wildlife Defense Fund versus US Department of Interior, which,

[00:38:31] Speaker 01:
in turn, cited and misquoted the 11th Circuit's decision in Lucky v. Harris, which also said nothing about there was the Georgia governor's controller over executive directors.

[00:38:44] Speaker 01:
Lucky v. Harris contains no reference to the term executive directors.

[00:38:49] Speaker 01:
In fact, that case concerned whether the governor was an appropriate defendant to a challenge to indigent defendants' right to representation in state courts.

[00:39:00] Speaker 01:
So even the Colorado Supreme Court's decision in Raven is not grounded in state law, I would say, although I have acknowledged and do agree that the governor has the power to hire and fire.

[00:39:13] Speaker 01:
We ask the court to reverse this case or to determine that it's moot and, if needed, order supplemental briefing either before this court or to remand with limited instructions for the trial court, which this court has done recently in the InfoCision v. Griswold case.

[00:39:27] Speaker 01:
Thank you.

[00:39:31] Speaker 04:
Thank you, counsel.

[00:39:32] Speaker 04:
Well done by both sides.