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Jefferson County District Court No. 17CR4491, Honorable
Philip J. McNulty, Judge
Philip
J. Weiser, Attorney General, Robert M. Booth, First Assistant
Attorney General, Jacquelynn N. Rich Fredericks, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellant
Antony
Noble, Alternate Defense Counsel, Lakewood, Colorado, for
Defendant-Appellee
OPINION
TOW,
JUDGE.
[¶
1] In this case, we are asked to decide whether an
executive order issued thirty years ago provides continuing
authorization for the Attorney General to prosecute Medicaid
fraud and patient abuse cases across the state. We hold that
it does and therefore reverse the order dismissing the
charges against defendant, Jasmine Eloisa Salgado.
I.
Factual Background
[¶
2] On March 4, 1987, then-Governor Roy Romer
promulgated Colorado Executive Order No. D 0017 87,
Continuing the Colorado Medicaid Fraud Control Unit in the
Colorado Department of Law (the 1987 Executive Order). This
executive order requires the Attorney General, through the
Medicaid Fraud Control Unit (the MFCU), to investigate and
prosecute Medicaid fraud and patient abuse cases "either
in his capacity as attorney general, or when so designated,
acting in the capacity of a special deputy district
attorney."[1] Id. The 1987 Executive Order
has never been repealed, rescinded, or modified.
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[¶
3] In December 2017, the MFCU filed a felony charge
involving neglect of an at-risk adult against Salgado, an
employee of an assisted living facility. The Jefferson County
District Attorney filed a notice asserting that the Attorney
General lacked legal authority or jurisdiction to file and
prosecute this case.[2] Specifically, the District Attorney
argued that the executive order was an unconstitutional
exercise of legislative power by the Governor, that the
executive order did not authorize the Attorney General to
prosecute cases in her own name, and that the executive order
had been superseded by legislation.
[¶
4] The district court rejected the third argument
and did not address the second. The court then reframed the
District Attorneys first argument, asking if "a former
governor [can] require the current Attorney General
to act" and, more generally, how long a governors
executive order lasts. It then found that "Governor
Romer had the authority to require the Attorney General to
investigate and prosecute Medicaid fraud and patient abuse
cases during his terms as governor" but that
"reliance on the 1987 order to confer authority in 2018
would be an unconstitutional exercise of legislative power by
the executive branch." It further found that "a
former governor cannot require the current Attorney General
to act." The district court then dismissed the charge.
[¶
5] The Attorney General appealed, and Salgado
responded. The Jefferson County District Attorney, however,
did not seek to intervene or otherwise assert its position
before this court.
II.
The Executive Order
[¶
6] No one involved in this case appears to challenge
the Governors general authority to direct the Attorney
General to prosecute certain cases. Pursuant to section
24-31-101(1)(a), C.R.S. 2018, the Attorney General must
"appear for the state and prosecute and defend all
actions and proceedings, civil and criminal, in which the
state is a party or is interested when required to do so by
the governor...." When the Attorney General is required
to prosecute a case, whether by the Governor or the General
Assembly, "he becomes to all intents and purposes the
district attorney, and may in his own name and official
capacity exercise all the powers of such officer, for he is
then, and in that case, the public ...