¶6 We first consider whether relief in the nature of an original proceeding is appropriate for the Governor's claim that the district court should have dismissed him from this action because he is not a proper defendant. We conclude that it is.
¶7 The exercise of original jurisdiction pursuant to Rule 21 is within our sole discretion. Fognani v. Young, 115 P.3d 1268, 1271 (Colo. 2005). Any relief granted under Rule 21 is "an extraordinary remedy that is limited in both purpose and availability." Villas at Highland Park Homeowners Ass'n v. Villas at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151. We have generally "deemed such relief appropriate 'when an appellate remedy would be inadequate, when a party may otherwise suffer irreparable harm, [or] when a petition raises issues of significant public importance that we have not yet considered.' " People v. Huckabay, 2020 CO 42, ¶ 9, 463 P.3d 283, 285 (alteration in original) (quoting People v. Kilgore, 2020 CO 6, ¶ 8, 455 P.3d 746, 748 ).
¶8 The Governor argues that the exercise of our original jurisdiction is appropriate because he should not be subject to the burdens of discovery and trial and that direct appeal would be an inadequate remedy in this instance because it would come only after his participation in these processes. We agree. We have previously recognized that original jurisdiction is appropriate when "the district court's alleged error" involves a right that "would be moot after trial," rendering appellate review inadequate. People v. Tafoya, 2019 CO 13, ¶ 15, 434 P.3d 1193, 1195. That is the case here, and we therefore conclude that exercise of our original jurisdiction is appropriate.
B. The Governor Is a Proper Named Defendant ¶9 Under article IV, section 2, of the Colorado Constitution, "[t]he supreme executive power of the state shall be vested in the Governor, who shall take care that the laws be faithfully executed." Recognizing the Governor's role as "supreme executive," we have explained that
when a party sues to enjoin or mandate enforcement of a statute, regulation, ordinance, or policy, it is not only customary, but entirely appropriate for the plaintiff to name the body ultimately responsible for enforcing that law. Moreover, when that body is an administrative agency, or the executive branch of government, or even the state itself, the Governor, in his official capacity, is a proper defendant because he is the state's chief executive.
Ainscough, 90 P.3d at 858.
¶10 The Governor argues that in Developmental Pathways we moved away from the long-recognized practice of permitting plaintiffs to name the Governor in his official capacity. 178 P.3d at 529. Instead, he contends, after Developmental Pathways, a plaintiff may no longer sue the Governor as the "embodiment of the state" if some other agency, official, or employee is specifically charged with administration of or compliance with the challenged state law. His argument rests on our statement that "[t]he evaluation of whether a person or entity is a proper party in a lawsuit must be determined in light of the relevant facts and circumstances." Id. at 530. But this statement, viewed in context, does not carry the weight the Governor seeks to place upon it.
¶11 Developmental Pathways involved a constitutional challenge to the "gift ban" contained in Amendment 41 of the Colorado Constitution. 178 P.3d at 526. That amendment, which the voters passed in 2006, not only banned the receipt of certain gifts by public employees, but also created the Independent Ethics Commission ("Commission") and charged it with creating rules and hearing complaints to enforce the amendment. Id. at 526-27. At the time of the suit, however, no Commission members had been appointed, and the Commission existed in name only. Id. at 530. We thus explained, given the absence of an alternative entity, that "[t]he only appropriate state agent for litigation purposes was the Governor. As a personification of the state, the Governor was the proper party defendant in this suit at the time of its filing." Id.
¶12 In reaching this conclusion, we noted that "[h]ad the Commission been in existence at the time this lawsuit was filed, we may have reached a different conclusion with regard to this issue." Id. The impetus for this observation was the fact that the Commission was deliberately designed to be "separate and distinct from the executive and legislative branches." Id. Indeed, its members are appointed by various bodies—not exclusively by the Governor or the legislature—to preserve the Commission's independence. See id. at 527 n.2 (describing the appointment of Commission members by different entities).
¶13 Under the unique circumstances presented in Developmental Pathways , "the relevant facts and circumstances" were particularly important to an evaluation of whether the Governor was an appropriately named defendant. Id. at 530. After the Commission became functional, the Governor had no control over the Commission or the interpretation or administration of Amendment 41. At that point, the Commission itself, or its members, were appropriate defendants in challenges involving the actions of that independent body.1
¶14 The circumstances presented by this case are quite different. Here, we are faced with a lawsuit challenging the actions of an executive agency that is explicitly under the control of the Governor as the state's "supreme executive." Because the Governor "has final authority to order the executive directors of all state agencies to commence or cease any action on behalf of the state," Sportsmen's Wildlife Def. Fund v. U.S. Dep't of Interior, 949 F. Supp. 1510, 1515 (D. Colo. 1996), the Governor has appropriately been named as a defendant in this type of action on many occasions, see, e.g., Romer v. Bd. of Cnty. Comm'rs, 897 P.2d 779, 781 (Colo. 1995) (Governor named in suit challenging Department of Social Services' interpretation of statute); Dempsey v. Romer, 825 P.2d 44 (Colo. 1992) (Governor named in suit challenging salary levels set by Department of Personnel director); Urbish v. Lamm, 761 P.2d 756 (Colo. 1988) (Governor named in suit challenging constitutionality of statute and Department of Social Services rule); Colo. Ass'n of Pub. Emps. v. Lamm, 677 P.2d 1350 (Colo. 1984) (Governor named in suit challenging constitutionality of certain provisions of State Personnel System Act); Ramos v. Lamm, 639 F.2d 559 (10th Cir. 1980) (Governor named in suit challenging constitutionality of living conditions at state penitentiary). As these cases demonstrate, because he is the state's "supreme executive," with ultimate authority over the executive agencies under his control, the Governor is an appropriate defendant in an action that seeks to "enjoin or mandate enforcement of a statute, regulation, ordinance, or policy." Developmental Pathways, 178 P.3d at 529 (quoting Ainscough, 90 P.3d at 858 ).
¶15 None of the cases the Governor cites—in particular, a thirty-year-old opinion of a division of the court of appeals and two district court orders — convince us to abandon this precedent. Not only are those decisions not binding on this court, but each involved unique circumstances quite different from those presented here.
¶16 In Lucchesi v. State, 807 P.2d 1185, 1194 (Colo. App. 1990), the division affirmed the dismissal of a pro se plaintiff's complaint against the Governor in his official capacity because the Governor's "specific duties" would not be "affected" by a judicial declaration as to the constitutionality of a tax statute that was implemented by local tax officials. The government actions being challenged here are not undertaken by local officials, but instead by employees of an executive agency subject to the Governor's authority.
¶17 And in both district court cases cited by the Governor, the plaintiffs consented to his dismissal where remaining defendants were adequate to protect their asserted interests. See Order Granting Stipulation for Dismissal of Defendant Governor Polis, WildEarth Guardians v. Polis , No. 20CV32320 (Denver Dist. Ct. Sept. 22, 2020); Order Dismissing Governor Jared Polis as a Party Defendant, Turley Wine Co. v. Colo. Dep't of Revenue, No. 20CV30505 (Denver Dist. Ct. June 23, 2020). 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.2
¶18 Here, Plaintiffs are not interested in dropping the Governor from the face of their complaint. And they are not required to do so. The CDOC is an executive agency directly within the Governor's control. As such, the Governor remains one of the proper defendants for the claims asserted.