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People v. Salgado

Court of Appeals of Colorado, First Division

January 10, 2019

The People of the State of Colorado, Plaintiff-Appellant,
v.
Jasmine Eloisa Salgado, Defendant-Appellee.

          Court of Appeals No. 18CA0885 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

          Hawthorne and Miller [*] , JJ., concur

          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 The 1987 Executive Order has never been repealed, rescinded, or modified.

         ¶ 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order did not authorize the Attorney General to prosecute cases in her own name, and that the executive order had been superseded by legislation.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 Attorney's first argument, asking if "a former governor [can] require the current Attorney General to act" and, more generally, how long a governor's 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 Governor's 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 prosecutor." Harrah v. People ex rel. Attorney Gen., 125 Colo. 420, 427, 243 P.2d 1035, 1038 (1952) (quoting People v. Gibson, 53 Colo. 231, 244, 125 P. 531, 536 (1912)).

         ¶ 7 Instead, we are asked to determine whether the particular grant of authority in the 1987 Executive Order went beyond ...


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