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never been repealed, rescinded, or modified.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superseded by legislation.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
...