Democratic attorney general candidates wrangle over Coffman’s decision to appeal Martinez ruling

Author: Ernest Luning - June 22, 2017 - Updated: June 23, 2017

The seal of the Colorado attorney general is displayed on a chair in the attorney general's conference room in the Ralph L. Carr Colorado Judicial Center in Denver. (Photo by Ernest Luning/Colorado Politics)The seal of the Colorado attorney general is displayed on a chair in the attorney general’s conference room in the Ralph L. Carr Colorado Judicial Center in Denver. (Photo by Ernest Luning/Colorado Politics)

Democratic candidates for Colorado attorney general this week tore into Republican incumbent Cynthia Coffman’s month-old decision to appeal a court ruling critics say could bring a halt to oil and gas production in the state, with two of the Democrats vowing to scrap the appeal if elected, and one of them lashing his primary opponents for not weighing in sooner.

The controversy surrounds Coffman’s move to ask the Colorado Supreme Court to reconsider a lower-court ruling in the Martinez v. Colorado Oil and Gas Conservation Commission case, which held that the commission should prioritize public health and the environment over its sometimes conflicting charge to encourage oil and gas development in the state.

The latest fracas ignited over the weekend when state rep. Joe Salazar, D-Thornton, threw down a gauntlet on social media, claiming he was the only one of the four Democrats vying to challenge Coffman in next year’s primary to declare he would cancel the appeal.

The other Democratic attorney general candidates are Phil Weiser, a former dean of the University of Colorado Law School and one-time Obama administration official; Michael Dougherty, the deputy district attorney for Jefferson and Gilpin counties and a former top prosecutor in the attorney general’s office; and Denver attorney Brad Levin, who argues that his experience running a law firm for decades sets him apart from the field.

In a Facebook post on Saturday night, Salazar noted that Gov. John Hickenlooper, a Democrat, had asked Coffman, a Republican, to drop the lawsuit and let the lower court’s ruling stand, even though the commission had directed Coffman to pursue an appeal. (Coffman told Hickenlooper she didn’t believe he has the authority to overrule the commission’s decision and called it important that the state’s high court settle the dispute.)

“As (Colorado) attorney general,” Salazar said, “I will immediately move to withdraw the appeal because the governor requested that it not be filed, the COGCC is an executive commission appointed by the governor and the COGCC’s decision to ignore the governor’s directive was outside its scope of authority.”

He called Coffman’s decision to appeal the contentious case “a breach of her ethical duties to her client,” maintaining that she was representing the governor, not the commission. (In a letter to the governor explaining her decision, Coffman cited state law and court decisions to argue the opposite conclusion.)

“My Democratic primary opponents have been silent on this issue, and that’s a shame,” Salazar added.

Not so fast, Weiser told Colorado Politics, pointing to a detailed argument he’d posted on his campaign website weeks ago breaking down why he thought Coffman’s reasoning was faulty. As for whether he would abandon the appeal, he said Salazar was huffing and puffing for no reason because it’ll be too late to do anything about the case by the time the next attorney general takes office in January 2019.

“Cynthia Coffman gave the Colorado Oil and Gas Conservation Commission bad legal advice,” Weiser said in an interview. “She gave them an incorrect reading of the statute that she relied on. The court of appeals read the statute correctly and said what she should have said, but (commissioners) refused to accept it, and she doubled down on a bad hand.”

“In the face of that,” Weiser continued, “what she should have done is allowed the case to go back to the district court with the benefit of the proper legal understanding of the statute. It was a mistake for her to appeal this case. Now, the reality is, her decision and her conduct is in the past. By the time I or anybody else will be attorney general, the Colorado Supreme Court will have ruled on this.”

Salazar and Weiser — the only two declared candidates at the time Coffman filed the appeal — both condemned the attorney general’s decision in strong terms the day she announced it, calling her “tone deaf” and “misguided.”

Weiser added this week that Salazar had raised an interesting question — “though it’s not relevant to this case,” he said — and that’s whether a newly elected attorney general might seek to switch sides on cases already pending in court.

“There are situations where a new administration does switch sides in litigation,” he said. “That can happen. Someone can decide, ‘This was a big mistake, we’re not going to double down on a bad hand, we’re going to fold.’” He noted that it wouldn’t be entirely up to the attorney general, however, as the court would determine whether the state could withdraw.

Dougherty, who headed the attorney general’s criminal division under Coffman’s predecessor, Republican John Suthers, said he would drop the Martinez appeal and, in a statement to Colorado Politics, got in some pointed criticism of Coffman’s decision to file it. (Dougherty and Levin hadn’t yet entered the race when Coffman filed the appeal last month.)

“The attorney general should not have appealed the Martinez decision — prioritizing the public health, safety, and welfare of Coloradans is the right thing to do,” Dougherty said. “Our (attorney general) should have a good working relationship with our governor, but I believe strongly that the attorney general must be ‘The People’s Lawyer.’ Protecting the environment is one of the most critical roles the attorney general has. To achieve this requires working with environmental groups, the Legislature, and the oil and gas industry to find innovative solutions to real problems — along with a strong commitment to enforcing the laws and regulations of Colorado, as I have throughout my career.”

A campaign spokesman for Dougherty also told Colorado Politics that Weiser was jumping to an unwarranted conclusion when he declared the Martinez case will be decided within the next 18 months.

Levin, for his part, had a nuanced reaction.

“This case involves a relatively straightforward matter of statutory construction. Based on my experience in handling dozens of appellate cases in Colorado, this is the type of matter that the Supreme Court may well want to review. That said, it is unfortunate that the attorney general has again made this a political issue between her and the governor, rather than working to reach a compromise approach, which would be in the best interest of everyone concerned.”

When she filed the appeal, Coffman said she wasn’t wading into the policy debate that framed the Martinez case but thought it was critical to get a definitive ruling on its issues.

“This appeal is not intended to be a statement on complex energy policy issues,” Coffman said in a statement. “Rather it is a legal challenge to a court decision that stands to have a profound effect on regulation and administrative decision making by government entities.”

Boulder District Attorney Stan Garnett — the Democrat lost a 2010 bid to unseat Suthers and briefly considered challenging Coffman earlier this year — said he agreed with Coffman that the underlying legal questions should go before the high court.

“I am 100 percent pro-environment and as concerned about fracking as anyone,” Garnett wrote in a Facebook post ahead of Coffman’s decision to appeal the case. “But as a lawyer who has practiced for 35 years and appeared many times in the Colorado appellate courts, I think it is a mistake not to seek Colorado Supreme Court review of the court of appeals decision in the Martinez v. COGC case, and the pressure being put on the Governor in that regard is misdirected. A court of appeals opinion is of some value as precedent, but not nearly as valuable as a Colorado Supreme Court opinion.”


Ernest Luning

Ernest Luning

Ernest Luning is a political correspondent for Colorado Politics. He has covered politics and government for newspapers and online news sites in Colorado for more than 25 years, including at the Highlands Ranch Herald, the Jefferson Sentinels chain of community newspapers and the Aurora Sentinel, where he was the city hall and cops reporter. After editing the Aurora Daily Sun, he was a political reporter and blogger for The Colorado Independent site. Since 2009, he has been the senior political reporter and occasional editor for The Colorado Statesman.