good morning your honor may it please the court michael fair hurst appearing on behalf of the talent nancy marks fundamentally this is a case about disability discrimination and failure to reasonably comedy there is strong evidence of both here regarding the intentional distance disability discrimination issue the letter describing the reason for mismarked regression from the community to community from community corrections back to prison it explicitly states that because she can't work because of her medical condition she's being regressed as her failure to recently accommodate the testimony was consistent and clear that no effort was made to a comedy miss mark's disability while she was in community corrections before she was removed from the community and place back into prison was a role that the defendants didn't even they didn't brief that here nor did they even brief that in their motion for summary judgment of whether there was actually a cause of or an a or for that matter by intervention disability discrimination or a violation of the rehabilitation that sure well regulations issued by the attorney general quote suggests that states may not avoid the responsibility to provide services to disabled prisoners by contracting their way out of those obligations prison  not make a material difference now another issue related to that that the state seems to have argued and judge made the district court seems to credit it as well is the concept that under state law the community corrections program here could perhaps have regressed miss marks without the state challenging it but the fundamental issue here is federal law and as this is key here is what federal law requires in federal law requires the state defense here the c b c j and the d o c to ensure that it's private contractors and subcontractors don't violate title to the state defendant there was arizona it was the arizona department of corrections they contracted with a private entity to provide vocational services for individuals who are still in state  still in prison and in that case the state defendants argued that title two doesn't apply because they had no authority to determine which jobs were available to inmates at this place called euro press the private it's the and they couldn't overturn your freshe  benefited from engaging in this contractual arrangement but with that benefit also comes an assumption of the riff that the state's contractors are going to violate the eighty eight dollars and if that happens then the proper defendant to hold accountable are the state entities that choose to enter into those contracts that reasoning is squarely a clickable here and as that th circuit held at the end of its passage evaluating this question once you get hell quote the law is clear the state defendants may not contract away their obligation to comply with federal discrimination laws so i'm to go back to your honor's original question why didn't the state go into the issue of the facts of this case to civically it's because they are resting their case principally on the mistaken notion that they can contract their way out of liability i've cited a few cases here i can actually go further and say that i'm unaware of a single case decided in any circuit which is how that through a set of contractual arrangement a state can contract their way out of liability under title two or the rehab act and the reason for that is likely because the regulations relevant to this issue are crystal clear and they have the force of law and what they say is that the state properly held liable under title two if it enters into these private arrangements through contractual or other arrangements or other arrangement that's a direct quote and what we've got here is an order or other reagent situation where  as this court is likely aware this c d o seen e d c day they contracted with jefferson county colorado and jefferson county colorado contracted with the nonprofit intervention now  another important issue here i think in addition to the concept of the state itself being held liable for the decisions of its private agent is whether or not work is a fundamental component of community even industry court that there was this there was not a failure to accommodate or disability discrimination by intervention they only argues that  returning to a subject that this court at least referenced to some extent a moment ago which is the concept of what what is the state you here you know i focus so far and what intervention did this da itself has engaged in deliberate indifference or at least the jury could recently find it much when it comes to the marquis for example one person in the entire world received that letter i described describing the the circumstances surrounding the marc regression under knights are a good precedent updated and i mean the name of the kate a lack of investigation alone is sufficient evidence of deliberate indifference to present the question of damages  case well let's say hypothetically the role of her killer did investigate she would have found that what intervention said was true she couldn't physically work respectfully that's actually disputed issue of material fact as miss marks testified she was willing and able able to work in certain jobs that would have comported with her physical restrictions for example in the record there's a sworn statement from a native individual name record it's mark conveyed that to intervention staff and they never followed up on it as if mark's also testified she conveyed intervention staff that he was willing to do sedentary jobs from within the city like making phone calls for example and no one offered her that either however even assuming that smart wasn't able to work which is actually now with the record show that even if doing that work itself cannot be considered a fundamental aspect of the program because as i mentioned earlier under alexander v choate the benefit itself can be defined in a way that effectively exclude people with disability if this court were to say that work has to always exist in order to being community correction that wouldn't square had objected to the way miss marks was being regressed there's a lot of evidence upon which a jury could conclude that that might have made a difference but even if it hadn't the simple fact that agent of the state engaged in this discriminatory good morning please the court i am assistant attorney general catherine smith representing the division of criminal justice the department of corrections the pivotal issue in this case is whether the colorado division of criminal justice and the department of corrections and its named employees are liable for the decision ministre her of intervention to return miss marks to prison they are not liable for four reasons the  st is that the state cannot contract away at r t it does not have the nd is that under the statutory scheme the state has no authority to do or reverse the decision made by the staff of intervention the rd reason is that there is no agency relationship between the division of criminal justice or the department of corrections and intervention and the final reason is that the real parties in interest in th case are jefferson county and intervention inc they were parties to the case they were sued and they settled with regard to contracting away the statutory scheme delineates the responsibilities of the various parties involved in providing community corrections programming in colorado statute gives authority exclusively to the administrator of community corrections corrections regulation does not overturn the statute in doesn't supersede the statute it's providing a statement of policy that the community corrections officers are using when includes if that statement but this but if you look at what that means as a practical matter is that in making that determination whether or not they will continue to place people in corrections facilit we were does it say that in the regulation or in a case of in your st argument is that this is not that that the state can't contract away author already it doesn't have and the entity that ministers the very statute state statute that you're relying on is you know if it was federal law we apply our their friends or kaiser deference but that that entity says that that you're wrong the standards that are applied statewide for the operation of community corrections the authority to enter into contracts with the local with the local authorities that are forming the community corrections boards i understand that but i don't see how a department of corrections regular internal policy statement and regulation could overturn the statutory scheme well that the colorado department of criminal justice is i understand it contracted with jefferson county which then contracted with intervention and so the whole foods a starts with the en that you're pointing to the colorado department approval just as there would be no contract had it not all stemmed from the colorado department of criminal justice so how how why is the colorado department of criminal justice contracting doesn't have there would be no community corrections program were it not for the contract is down from the color of criminal justice so the colorado department of criminal justice does not have statutory authority to actually operate a community corrections program and they don't operate community corrections programs right they contract with jefferson county credits so you so when you say cut can't contract away offshoring it doesn't have i don't i don't know i don't understand how i get from a to z with your argument so i'm distinguishing between the authority here supervisor program at a very high level and the actually conduct the actual day to day operations of a community corrections procure well let's say that you have the intervention program who sets the standards that would govern justice having the authority to set the floor with regard to the standards and then jefferson county he cannot contradict any of those standards but they can put in place more stringent j ultimately creates the minimum requirements that would guide community corrections administered by individual right correct ok legislature is a reasonable scheme that it is an act jed under federalism and it is a valid exercise of state sovereignty and the case law is clear that the state of colorado has authority to determine and be authority of the localities and here what we have this is state statute which is allocating the authority of the vocality under the statute we jefferson county is the party that has authority to either operate a community corrections program or as it did here to enter into a separate contract with another party that would operate the community corrections program so the statute itself is allocating responsibilities this scheme i think it's also important to look at the policy reasons behind the scheme and its purposes and those policies include creating a collaborative environment where the communities feel that they have a level of control over who is entering their community the scheme recognizes that we're dealing with an offender population that may pose a risk to the community and a great deal of authority rests at the communities because it's the only way this really can work as a practical matter mean intervention is contractually obligated to comply with with in his contract with jefferson county it is and jefferson county is contractually obligated to include that requirement with intervention because c d g c j makes that a condition of its contract with jefferson county yes it's an express condition the contract between city c j and jefferson county that it's any subcontractors comply with  money that comes in from the federal government to c d c right so i don't know how much of the money that the city c j allocates comes from the federal government and that information is not in the record but in general your  is correct right so the the program without regard to how much it out through a bridge or without regard to how much comes from the federal government any money that is paid from jefferson  the vast majority of the operations are i don't know and there's no information the record whether jefferson county makes any kind of matching contribution and i just don't want to mislead the court but if you look at the contract there is a contract also between the department of corrections and jefferson county for the ancillary services related primary lead to drug and alcohol testing and for those services the department of corrections also is making a nominal payment but the vast majority of the money comes from pain ends from the c d c jag which by the terms of its contract  are cases where the locality is responsible for where that where the services that are being provided ours are but isn't services as opposed to  community corrections services and those are not the same kinds of services and i also did want to let the court know that the device definition of a community corrections program includes specifically determine who would enter the program and who would leave the program here neither the division of criminal justice northern part regressions has that authority i see that i have is that right keep her ok i'm saying ok i have very little remaining time i don't know whether you have another question just became if you have any questions for the appellee no i haven't rebuttal thank you one of the state's primary arguments here seems to rely on federal or scuse me state law and the state is doing so mistakenly that the key question here is what federal law requires under federal law the state not only had the bureau fresh from the th circuit and many other well reasoned decision evaluated this question another major argument the state seems to have been making and has done so unsuccessfully is that the state wasn't involved at all moreover miss marks remained in the legal custody of the dios the throughout the time that she was in community correction her community parole officer keller monitored her throughout the times using community correction the d o t referred to community corrections th trigger back after the end of her time in any correction also the contract between the o c and jefferson county and also the c d c j endeavors and county expressly maintain an oversight role for those two entities when it comes to the community corrections program itself so it's just simply not factually supportable for the state to try to wash itself of any responsibility here and moreover as i said the law doesn't allow for it federal law does not another issue here seems to be the question of whether the fact that it's markers you claimed against everson county somehow affect our ability to all to pursue claims against the state and i that doesn't mean that there aren't other proper defendants here and ultimately in our view the buck stopped with this state because this is fundamentally this is a program to ensure that federal law was complied with any issue here relating to suing multiple defendant comes down to the question of allocation of damages which could be easily addressed in a during instruction and not to the question presented here which is whether or not  relevant to evaluating whether or not the district court's summary judgment order with respect to the d o t should be reversed that among other places in the attendance at page four hundred and forty eight dollars provides further proof that the dio the as a matter of fact  in addition the law was entwined in the community corrections program it issue here and finally i want to return to the core point a core point that the state here cannot engage in disability discrimination through quote other arrangements that comes from the pertinent regulations or the regulations that were cited with approval and phillips d t r now this is another arrangement scenario is it complicated yet is the fact that it complicated a reason for th minority with a robust historical record of being subjected to discrimination on the basis of their disability we contend that at least intermediate scrutiny should apply based on those factors however as also noted in the briefing even under rational basis review the there's a jury question here when it comes to whether or not it was rational to regress miss marks to prison without even attempting to reasonably accommodate her disability notwithstanding the fact that she didn't have any other no where the issues that arose while  client showers you're saying if it's doesn't even pay up the rational basis to say we need to get her out of this community corrections program she's going to get hurt again i mean why is that  rational reason to get her out of the corrections program that respectfully your honor none of the current or former defendant during the event underlying this case ever articulated that reason for regressing her their reason for doing so with clear which was her purported inability to work moreover even assuming perhaps this particular facility wasn't suitable for her are the fundamental basis for our equal protection claim is that mark was removed from the community and placed back into a respectfully submit it it's an argument that that we had made and basically it boils down to the fact i think this is a fair summary in any event ok that the d l c was on notice that mrs marx was being sent back to prison because of her disability