Can the attorney general of Colorado file a lawsuit on behalf of the state if the governor doesn’t want her to? That’s something a majority of justices on Colorado’s Supreme Court said today they wouldn’t answer. At least for now.
The question was one Gov. John Hickelooper had for the High Court after Republican Attorney General Cynthia Coffman joined a multi-state lawsuit challenging a new federal EPA energy plan— a plan Hickenlooper, a Democrat, supports. The Clean Power Plan for Existing Power Plants targets coal plants and aims to cut carbon emissions in the United States by double digits in the next 15 years.
Hickenlooper, who doesn’t agree with the AG’s lawsuit, indicated he believed the attorney general of Colorado needs the governor’s permission to file lawsuits if the State of Colorado is the client. Coffman had called the governor’s petition a challenge to her independent authority.
In a statement today about the Supreme Court’s decision, Coffman said the roles of the governor and attorney general are separate and distinct. “The two executive officers must work independently to best serve all the citizens of Colorado,” she said. “I look forward to a successful working relationship with Governor Hickenlooper while always remembering my duty to Coloradans as their lawyer.”
In purple swing-state Colorado where divided government reigns, the issue is an instant classic.
Here, governors can ask the state’s highest court to weigh in on certain issues. That happened two years ago when Hickenlooper looked to the Supreme Court for answers about whether a state constitutional provision governing a recall election conflicted with the U.S. constitution. The Supreme Court ruled that it did.
The governor filed this latest petition to the Supreme Court last month. Around that time his office touted a statement of support from former Democratic Attorney General Ken Salazar. “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,” Salazar said.
Hickenlooper’s petition to the justices read in part:
“In this Petition, he requests a ruling on the Governor’s and Attorney General’s respective authority under the Constitution and laws of Colorado to determine whether the State of Colorado should sue the United States.”
The Supreme Court justices didn’t decide who is right, or answer the governor’s question— the justices merely chose not to hear the case, with two saying they wanted to hear it, including one nominated by Hickenlooper. The one-page response did state without elaborating that there was an “adequate alternative remedy.”
For now, the High Court’s punt means Colorado will stay in the EPA lawsuit against the wishes of the governor.
But following this latest news, Conservation Colorado director Pete Maysmith urged Hickenlooper to pursue all legal options to thwart Coffman’s EPA lawsuit, saying in a statement that the court had “opened the door” for the governor to “continue to fight for Colorado’s clean air and public health.”
What options are there? Perhaps a lower court.
What the Supreme Court justices basically said today was that a majority of them didn’t think the governor’s petition rose to a level where the highest court has immediate jurisdiction, said Erin Overturf, a senior staff attorney at the air and water protection group Western Resource Advocates who has argued before the Colorado Supreme Court.
“To me, that means procedurally or jurisdictionally the governor still has an opportunity to go to the district court and kind of start from square one,” she said.
Trey Rogers, who was the chief legal counsel for former Democratic Gov. Bill Ritter, said other potential avenues for Hickenlooper could be to ask the legislature to pass a bill altering the powers of the attorney general, or to intervene in the AG’s federal lawsuit and ask that judge to sort it out.
But, he added, going the district court route is more likely.
“The interesting thing about that is if the governor were to file in district court, that case very well might end up back in front of the Supreme Court,” he said.
Asked what the governor’s plans are in the context of any alternate remedy, Hickenlooper spokeswoman Kathy Green said, “We will give careful consideration to the Supreme Court’s guidance.”
Photo credit: Clyde Robinson, Creative Commons, Flickr.