10 Questions for the Attorney General
Docket: Throughout the campaign, you noted some specific priorities for your office–now that you have four years in front of you, how will you tackle those priorities?
John Suthers: The priorities of the Attorney General are pretty well dictated by their statutory responsibilities. You’re always going to be involved in consumer protection. Those issues changed from last summer. The emphasis was on mortgage and foreclosure fraud and trying to fight against that, but there will be something else that comes along in the next four years that will cause us to have to put emphasis in other places also.
White collar crime has been a huge emphasis over the last couple of years. We’ve seen more Ponzi schemes in Colorado than you can shake a stick at. I have a feeling that focus will probably be continued for the next couple of years but we always want to make sure we have the expertise and capability to deal with whatever white collar crime trends there are in the state.
Environmental protection will always be a priority. We have wrapped up in the last couple of years several big, big cases: Rocky Flats, Rocky Mountain Arsenal, California Gulch. We’re just now wrapping up a settlement with the City and County of Denver on the Lowry Landfill, but there’s some other hazardous waste site cases that we’ll probably be looking at in the next couple of years.
Water’s always a huge priority of the office. Probably the most important thing the Attorney General does, and something that does get a whole lot of public attention, is protection of the state’s interest in water. That means protecting our interests under the nine interstate river compacts to which we’re a party. Eighteen other states draw water from Colorado. They always want more, we always want to give them less, and it makes for constant contention.
I’ve got two important positions to fill. Monica Márquez is leaving the State Services Section to become a state Supreme Court Justice. Tom Raynes is leaving as head of the Criminal Justice Section to become the executive director of the Colorado District Attorneys Council.
One of the things I hope—this is kind of aspirational—but I was disappointed that in the last four years we have made little or no progress as a state in addressing some constitutional, structural issues that in my opinion keep us from moving forward with a rational budgeting process. Too much of the Colorado state budget is on autopilot. About 75 percent of it the legislature basically has no discretion over. My personal opinion is the problem is not the size of the pie; the problem is the fact that three-quarters of the pie are off-limits and you can’t do any prioritizing.
D: What did you think about the midterm elections and the tone of negative advertising?
JS: How (the election) panned out for the state was a little different than how it panned out for the nation. There were huge gains for Republicans across the country. I was encouraged by that being the lone Republican in statewide office for the last two years. In Colorado, with the Democrats retaining the Senate seat and the governor’s office were much more status quo.
I was very pleased with my campaign. We went into this feeling like we had done a very good job over the last four years and that the vast majority of Coloradans recognized that, and we had some polling to that effect. I was very disappointed that my opponent (Boulder District Attorney Stan Garnett) started out talking about issues that were very legitimate and those just weren’t getting any traction for him, and so he decided to go very, very negative in his advertising. I’ve always thought it’s very important for the tenor of those campaigns to be something that the public and the legal community looks at and says, this advanced respect for the legal system as opposed to undermining it.
But, as it turned out it did not make a difference.
I can’t stand (negative ads funded by outside groups). It just so distorts the whole thing. I would much prefer the money go to the candidate, and that the candidate be wholly accountable both in terms of disclosure of where the money is coming from and the message.
D: What are the next steps in the federal health care reform lawsuit?
JS: The lawsuit is moving along quite well from a legal standpoint. The federal government’s motion to dismiss our case has been denied. The judge said that contrary to the federal government’s suggestion, this is an unprecedented use of the commerce power to punish individual Americans for not buying a product or service that Congress wants them to buy. That’s been a big part of my educational effort. I wanted to make sure that everybody in Colorado understood this isn’t about health insurance; this is about whether the federal government can use the commerce power to force individual Americans to buy a particular product or service. If the court says you can use the commerce power to punish you for not buying health insurance, then the federal government can punish you for not buying solar panels or not buying a fuel efficient car. A lot of people are all wrapped up in the health care debate, and don’t understand there’s not health care power in the Constitution.
So, both sides will file a motion for summary judgment. I think the judge will probably rule on summary judgment motions early in 2011. The loser will undoubtedly go to the Eleventh Circuit (Court of Appeals). There are about three cases at least that are progressing and I see it hitting the Supreme Court in 2012. Because the individual health insurance mandate doesn’t go into effect until 2014, we’ll have a decision from the Supreme Court by that time.
D: Can you describe some of the feelings or emotions you experience when you are forced to defend a law that you would otherwise oppose?
JS: That’s just kind of the way it is. For example, I thought that the smoking ban passed by the legislature several years ago was kind of a stupid idea. I thought the marketplace was responding pretty well; you were having non-smoking establishments, non-smoking restaurants, there were smoking bars. I really thought the market was taking care of the problem, but the legislature said, no we’re going to have a statewide smoking ban. The theater groups sued the state because they did not put in a theatrical exception and said that was a violation of their First Amendment rights because actual smoking was necessary to expression in certain types of plays. I personally argued the case in front of the Colorado Supreme Court and said acting is acting and if you can act being shot, you can act arson or a fire, you can act smoking. The Supreme Court said yes.
We do that a lot. We’re constantly defending laws that some of us probably wouldn’t have voted for. It’s only in those rare instances, and it has been rare, where we don’t think that a law is defensible, that we would refuse to defend it and if the governor still wants it defended, that he’ll appoint someone else to do it. It’s happened very seldomly.
D: What do you use as your guide to determine whether the office will file an amicus brief?
JS: The first and foremost consideration is what’s in it for Colorado? Is there a law that Colorado has on the books that’s threatened by the possible decision in the case—whether it be a Colorado Constitution provision or a statutory provision? That’s the number one criteria. We also look at if there’s a Colorado governmental function at stake.
Federalism is a big part of what we do. There’s a case now that we’re very much a part of. There was some water transfer issue down in Florida. Basically the issue was, is a diversion of water from one basin to another going to be subject to the Clean Water Act? Well, the case is on its way to the Supreme Court, and no one that was involved in that case had any clue of what would be involved if they said it was subject to the Clean Water Act with all the diversions we have in the West. And Colorado and New Mexico and other states had to run into the appellate courts and say, hey, wait a minute here. In fact, the Supreme Court remanded it to the EPA, saying, have you even thought about it? Because you would add incredible amounts of expense to our trans-basin diversions in Colorado.
Basically, our raison d’être is to protect against federal preemption over areas that are traditionally (reserved for) the states.
D: What is the role of the Colorado Attorney General in the regulation of medical marijuana?
JS: The policy has largely been shaped by our legislature and I certainly gave my two cents worth. During the legislative session, I on behalf of a coalition of law enforcement, medical providers, and drug treatment providers argued that moving from Amendment 20, (a model of) grow your own or have a primary caregiver grow it for you to a dispensary model was a huge public policy step and they really ought to let all the voters in the state vote on it before they did that. But the legislature decided not to go that direction, allowed for the establishment of dispensaries and in the backend is allowing voters or local governmental bodies to opt out.
What it is now is a lot of rule making and license regulation. We will represent our client and that is taking place in the Department of Revenue. There is a medical marijuana regulator authority and they’re having meetings and they will set the public policy. We will provide appropriate legal advice and enforcement of the policy.
D: If you were King for a Day, what would you change about the Colorado Constitution?
JS:A lot. I would have a cap on growth of revenue expenditures. I think people want that. I would not have a ratchet-down like TABOR had, but I would add some kind of cap. I’m not sure it would be inflation plus population growth, because I’m not sure that’s the best measure when you consider what government buys and doesn’t buy, but I would come up with some index that would cap the growth of government.
I would maintain our prohibition on deficit spending. I think that’s been very healthy for Colorado. Other than that, I would do away with all the constraints on legislative discretion, where you have to spend x amount on this or x amount on that and allow the legislature to set its evolving priorities as different demands come up.
We have to make it harder to amend the Colorado Constitution. I think you ought to have to have more signatures for a constitutional amendment than you do for a statutory amendment. I think you should have a higher percentage of the vote. There should be a minimum number of signatures that come from each congressional district so that you don’t have a bunch of urbanites imposing on rural residents obligations that have nothing to do with urban folks. The classic for me was Amendment 14, which had to do with animal trapping. I remember the ads, they showed a fox in a trap and everybody said, oh look how terrible. It just wasn’t good government to have a bunch of urbanites deciding how agricultural people ought to conduct business.
D: The term “transparency in government” is very popular these days; does that term have meaning for you and your role as Attorney General?
JS: Well sure it does. I don’t hide anything that goes on in this office other than grand jury investigations and criminal investigations because those are protected under the Colorado Criminal Justice Records Act, and of course grand jury investigations are protected by a lot of things.
There’s nothing non-transparent about this office. I’d be glad to tell anybody how we get to any decisions we make or anything like that. I’m a big open records guy. We encourage our client agencies to err on the side of transparency in every case.
D: If you were suddenly bestowed with supreme athleticism, which Colorado sports team would you want to play for and what position would you want to play?
JS: Despite my size, I was a heck of an outside shooter in high school basketball. One of my great regrets is we didn’t have a three-point line. I could bomb from the outside. I once scored 32 points in three quarters and we did not have a three-point line. I would probably be the world’s greatest three-point shooter.
D: Does that mean you would want to play for the Nuggets?
JS:Yeah, that’s probably what I would choose.
Interview conducted, condensed, and edited by Sara Crocker.