BLAKE: AG Coffman’s greatest ally is 2003-era Ken Salazar
Former Colorado Attorney General Ken Salazar is no fan of current AG Cynthia Coffman’s participation in a multi-state suit against President Obama’s “Clean Power Plan.”The suit is “out of step with the role and responsibilities of an attorney general,” Salazar told The Denver Post.
But what Salazar did as AG a dozen years ago, before he was a U.S. senator and Interior secretary, may help her prevail.
Coffman’s right to join the suit was first challenged by Salazar’s fellow Democrat, Gov. John Hickenlooper, who said he will ask the Colorado Supreme Court to rule against its legality. “The notion of everyone suing all the time every time you disagree with a specific remedy, a specific statute, is part of what makes people so frustrated with government,” Hickenlooper said.
But if the high court rules in favor of Coffman — or possibly refuses even to accept the governor’s case — it will be in part because of a precedent established by Salazar himself in a redistricting case he won in 2003. No one has more forcefully argued for the power and independence of the state’s top legal officer. (For reference, see the following brief authored by Salazar’s office from 2003, which is also embedded at the end of this story.)
Coffman has joined two dozen other AGs from states which depend on fossil fuels to try and stop implementation of the Environmental Protection Agency’s plan. It requires states to cut carbon dioxide emissions by around 30 percent from 2005 levels before 2030. The states argue that, legally, the plan conflicts with the original Clean Air Act and thus will eliminate mining jobs, threaten the dependability of the electric grid and substantially drive up energy costs.
The governor’s office maintains that Colorado statutes authorize the AG to prosecute or defend lawsuits involving the state only at the request of the governor. It’s not quite that simple. Former Attorney General John Suthers, who succeeded Salazar, joined a multi-state lawsuit against ObamaCare in 2010 on grounds it unconstitutionally imposed a penalty for economic inactivity (not signing up for health insurance). The suit wasn’t authorized by then Gov. Bill Ritter, but he didn’t try to stop it. The plaintiffs would have prevailed except for a tortured opinion written by Chief Justice John Roberts.
Suthers also defended Colorado’s prohibition on gay marriage without Hickenlooper’s support. The he went on to appeal an adverse decision despite the governor’s protests. But Hickenlooper didn’t try to stop him.
Salazar, however, takes the prize, having taken on Republican Gov. Bill Owens, Secretary of State Donetta Davidson and the GOP legislature in 2003, in a congressional redistricting case.
A divided legislature was unable to draw up new districts based on the 2000 census in time for the 2002 election, and so in January of that year the job fell to the courts, which drew up their own map.
But Republicans gained control of both Senate and House in November 2002, and — even though they won five of the seven congressional districts at that election — they rammed through a redistricting plan at the tail end of 2003 session even more favorable to them, to take effect for the 2004 elections.
Salazar — on his own, not on behalf of the state — sued Davidson, the chief elections officer, asking the Colorado Supreme Court to review the constitutionality of the legislature’s new districts.
He maintained the state constitution gives lawmakers one shot to redistrict after the decennial census. If it fails, and a judge draws a map, they can’t come back later and try again in mid-decade.
Senate President John Andrews, noting that the AG usually represents the secretary of state and other agencies in court, observed that “Mr. Salazar suing [Davidson] is like one of the Broncos tackling his own teammate.”
Indeed, the first argument that Salazar had to win was against Davidson’s and Owens’ claim that Salazar had no authority to file the suit in the first place.
Salazar made a strong case, arguing in his brief that the AG has the power “to bring any action which he deems to be necessary for the protection of the public interest.” Even if the governor and secretary of state object, he wrote, the “redistricting case embodies his highest responsibility to the people of Colorado — his protection of the public interest as expressed in the Colorado Constitution.”
The high court agreed, Chief Justice Mary Mullarkey, writing for the 5-2 majority, rejected Davidson’s argument that the AG is limited to his express statutory powers and noted he has common law powers dating back centuries. The constitutional separation of powers prevents legislators from enacting statutes restricting the high court’s exercise of original jurisdiction.
The court also rejected the argument that Salazar violated the Colorado Code of Professional Conduct by suing a sometime client. “In this case, no client confidences are involved,” it said.
An aide to Salazar, who is now in private practice, said he isn’t giving interviews on the issue. But she sent over a statement in which Salazar — who has to walk a fine line defending his redistricting suit while condemning Cynthia Coffman’s — is quoted as saying, “The only exception for the attorney general to take a position adverse to the governor is where the governor has taken a clearly unlawful position, and then only when certain traditional protocols are followed.”
Obviously Coffman believes Hickenlooper has taken a position in favor of an unlawful federal measure. She and her fellow plaintiffs may win, they may lose, but she has the right to sue on behalf of the people.
Colorado Republicans still resent the redistricting decision, but if they can salvage anything out of it, it’s Salazar’s strong defense of an AG’s right to sue on behalf of the people without gubernatorial authorization — or even approval.
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