AGs’ powers a subject of contention

Julia C. Martinez Denver Post Capitol Bureau

03 December 2003

Denver Post

Monday’s Supreme Court decision on redistricting affirms the power of Colorado attorneys general to battle laws they consider against the public interest.

But critics said Tuesday that the state’s top law enforcement official has been given new powers and will stampede over the legislature and the governor.

The Colorado Supreme Court ruled unanimously Monday that the attorney general has the power and duty to sue the state to protect and promote the public interest.

‘The Supreme Court has mounted the attorney general on a white horse and allowed him to charge into the middle of legislation any time they want to,’ said state Senate President John Andrews, R- Centennial. ‘I’m shocked and distressed that the court is setting up the attorney general as sort of a fourth branch of government here.’

Attorney General Ken Salazar said the fears are unfounded.

‘What the Supreme Court did was simply affirm the powers of the attorney general as an independently elected official,’ he said.

‘These are not new powers. These are powers that have been exercised by attorneys general in Colorado for 127 years. These are powers exercised by attorneys general across the nation on an ongoing basis.’

Salazar, a Democrat, had sued the state to overturn the redistricting law, but Republicans challenged the attorney general’s power to sue his own client. Salazar’s lawsuit marked the first time since 1905 that the state’s top law enforcement official had taken such action.

Professor Robert Hardaway of the University of Denver School of Law, a former deputy district attorney in Arapahoe County, said the court put too much emphasis on the fact that the attorney general is elected independently of the executive branch.

‘I think it’s a leap to say that because the attorney general has a separate electoral base, he can take positions different from the governor, which violates the basic principle of separation of powers,’ he said. ‘There are three branches of government, and when you start splitting every one of them down, you can ultimately get chaos.’

Colorado is one of 43 states where the attorney general is elected. In five states – Alaska, Hawaii, New Hampshire, New Jersey and Wyoming – the attorney general is appointed by the governor. In Maine, the legislature picks the attorney general by secret ballot. In Tennessee, the Supreme Court makes the selection.

Attorney Chris Paulson, a former legislative leader and one of the lawyers in the case who opposed the court’s ruling, said the ruling enunciates new powers for statewide office holders.

But Utah Republican Attorney General Mark Shurtleff, one of 44 state attorneys general who filed a brief supporting Salazar’s authority, said the issue is not political.

‘It’s an issue of power and duties,’ said Shurtleff’s chief deputy, Ray Hintze. ‘He is independently elected. He is the chief law enforcer of the constitution and state law. He has to have the discretion to operate without political pressure even if other elected officials including the governor disagree with his decision.’

Salazar said he has defended the state on a vast array of laws, including one passed by Republicans in the 2003 legislative session that mandated that teachers and students in public schools recite the Pledge of Allegiance daily.

‘It’s a call I made based on the law,’ Salazar said. ‘I considered it to be constitutionally defensible. In the case of redistricting, I did not think it was constitutionally defensible.’

Attorney J.J. Gass of the Brennan Center for Justice at New York University School of Law, said the chance that attorneys general will abuse their power in Colorado or other states is unlikely.

``If the attorney general is running rampant and challenging laws right and left, it’s just not tenable. It can’t last very long,” Gass said. ``The court would rule against them, or people would kick them out of office.”