People v. Salgado

444 P.3d 829
CourtColorado Court of Appeals
DecidedJanuary 10, 2019
DocketCourt of Appeals No. 18CA0885
StatusPublished

This text of 444 P.3d 829 (People v. Salgado) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Salgado, 444 P.3d 829 (Colo. Ct. App. 2019).

Opinion

Opinion by JUDGE TOW

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 The 1987 Executive Order has never been repealed, rescinded, or modified.

*831¶ 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order did not authorize the Attorney General to prosecute cases in her own name, and that the executive order had been superseded by legislation.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 what is authorized by section 24-31-101(1)(a).

A. Review

¶ 8 As an initial matter, we note that the parties dispute what, precisely, the district court ruled. The People argue the district court incorrectly found that the 1987 Executive Order had, in fact, expired at the conclusion of Governor Romer's term in office. Salgado, on the other hand, asserts the district court found that orders directing the Attorney General to prosecute cases under section 24-31-101(1)(a) must contain a "temporal and spatial framework" and, therefore, the broad grant of authority contained in the 1987 Executive Order could not support a prosecution so long after it was issued. We need not distinguish between these diverging interpretations of the district court's order because under either interpretation, the district court erred.

¶ 9 We first ask whether an order directing the Attorney General to prosecute certain cases pursuant to section 24-31-101(1)(a) necessarily expires-either when the issuing governor leaves office or at some undefined point thereafter-or whether it remains in effect until rescinded or supplanted. We must also consider whether the 1987 Executive Order was an improper exercise of legislative authority by Governor Romer, either when it was promulgated or at some point in the future.

¶ 10 Both questions require constitutional and statutory interpretation, presenting *832questions of law we review de novo. Gessler v. Colo. Common Cause , 2014 CO 44, ¶ 7, 327 P.3d 232. We review an executive order under the same standard used to review a statute or ordinance. Stamm v. City & Cty. of Denver , 856 P.2d 54, 56 (Colo. App. 1993). "Thus, an executive order is presumed to be constitutional, and the burden is on a party attacking it to prove its unconstitutionality beyond a reasonable doubt." Id.

B. The 1987 Executive Order Did Not Expire

¶ 11 In its ruling, the district court made several references to the age of the 1987 Executive Order. It also expressed "concern" that the governor issuing the order had left office in January 1999. Finally, the district court stated that it "[took] no issue with the Executive Order and the effect of the order while Governor Romer was in office." Thus, though not explicitly stated, it appears that the district court concluded that the 1987 Executive Order expired at the end of Governor Romer's term.

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Related

Harrah v. People Ex Rel. Attorney General
243 P.2d 1035 (Supreme Court of Colorado, 1952)
Baxter v. State
214 S.E.2d 578 (Court of Appeals of Georgia, 1975)
Stamm v. City and County of Denver
856 P.2d 54 (Colorado Court of Appeals, 1993)
People Ex Rel. Witcher v. DISTRICT COURT, ETC.
549 P.2d 778 (Supreme Court of Colorado, 1976)
State of Colo. v. Asarco, Inc.
616 F. Supp. 822 (D. Colorado, 1985)
McGinness v. Hunt
111 P.2d 65 (Arizona Supreme Court, 1941)
of Daniel Brookoff, M.D. v. Clark
2018 CO 80 (Supreme Court of Colorado, 2018)
Gessler v. Colorado Common Cause
2014 CO 44 (Supreme Court of Colorado, 2014)
Kilpatrick v. Industrial Claim Appeals Office
2015 COA 30 (Colorado Court of Appeals, 2015)
People v. Gibson
125 P. 531 (Supreme Court of Colorado, 1912)

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Bluebook (online)
444 P.3d 829, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-salgado-coloctapp-2019.