Colorado Executive Branch Part 2: Attorney General Opinions ~ By Dan Cordova and Chris Hudson

The office of Attorney General has a long and distinguished history. Legal officers bearing the name were representing the interests of the English Crown as early as the thirteenth century. When English colonists arrived on North American shores, they brought with them the customs, practices and procedures of their homeland, including the office of Attorney General. The first recorded appointment of an Attorney General in the colonies occurred in 1643 when Richard Lee became Attorney General for the Colony of Virginia. He heralded from a family of great renown. Direct descendants of the New World’s first Attorney General include: Richard Henry Lee, a signer of the Declaration of Independence; President Zachary Taylor; and Confederate General Robert E. Lee. Not included in the U.S. Constitution, the office of Attorney General was created at the federal level by the Judiciary Act of 1789. A majority of the states included the office in their initial state constitutions.

The first Attorney General in Colorado was James E. Dalliba, who served simultaneously as Colorado Territorial Attorney General and U.S. Attorney General for the Colorado Territory from 1861 to 1862. When Colorado became a state in 1876, the office was one of the seven Executive Department positions created by Article IV §1 of the Colorado Constitution. In the election that occurred in the fall of that year, 36-year-old Archibald J. Sampson was elected Colorado’s first Attorney General.

Today, the Colorado Attorney General and the Colorado Department of Law (DOL) are collectively referred to as the Colorado Attorney General’s Office (AGO). The DOL’s mission is “to provide professional, ethical and independent legal services to the State of Colorado and its citizens, to promote respect for law and access to the justice system, to ensure the fair and open exercise of government and to protect and advance the public interest.” Services are provided by eight operational sections: Business and Licensing; Civil Litigation and Employment Law; Consumer Protection; Criminal Appeals; Criminal Justice; Natural Resources and Environment; Revenue and Utilities; and State Services. The statutory authority for the Department is found in C.R.S. 24-31-101, et seq., and additional specific authority is found in titles 5, 6, 10, 11, 12, 25, 33, 34, 36, 37 and 39.

Elected in November 2014, Attorney General Cynthia H. Coffman is Colorado’s 38th Attorney General. Among other duties, the Attorney General is responsible for enforcing consumer protection and antitrust laws, prosecuting criminal appeals and white-collar crimes and representing the State in civil, natural resources and environmental matters. Additionally, the AGO works concurrently with State and federal law enforcement authorities to carry out its statutory criminal justice duties. The Attorney General is also legal counsel and advisor to “each department, division, board, bureau and agency of the state government other than the legislative branch” C.R.S. 24-31-101(1)(a).

The AGO is a mostly cash-funded department (see C.R.S. 24-31-108). With a budget of just over $77 million, the AGO employs approximately 480 full-time employees. The majority of its funding comes from the provision of legal services to other state agencies and programs. Formal AG Opinions are one such service.

Formal AG opinions are governed by statute (see C.R.S. 24-31-101 et seq). They are most often requested by another governmental agency, specifically by one of the enumerated agencies statutorily empowered to seek legal opinions from the AGO. It is the duty of the Attorney General to issue a formal opinion in response to a written request from the General Assembly or either house thereof, the governor, lieutenant governor, secretary of state, executive director of the department of revenue, state treasurer, state auditor or commissioner of education. In rare situations, the Attorney General may issue a formal opinion without a request (Op. No. 05-04, August 16, 2005 and Op. No. 01-01, July 5, 2001).

Formal opinions are arranged by number and are published chronologically. It is important to note that different numbering systems have been employed over the years. A chart showing the differences is included at the conclusion of this article. At the end of an Attorney General’s elected term, the formal opinions are compiled into a set and preserved for future reference. Historically, this has been done in book form. It is left to the Attorney General’s discretion whether to include the requesting letter with the issued opinion when the final set is compiled. Currently, formal AG opinions are also posted on the AGO website.
Formal opinions represent the AGO’s collective professional opinion on a specific legal matter. In the process of issuing formal opinions, the Attorney General is assisted by the Solicitor General and/or other subject area specialists within the various legal divisions of the AGO. Formal opinions exist to harmonize the interests of the State with those of the requesting government office.

Formal opinions are considered binding on the DOL during the term of the issuing Attorney General, and potentially binding on and at least persuasive to the DOL in later years. However, the Colorado Supreme Court has ruled that a formal AG opinion is merely persuasive in judicial proceedings. Colo. Common Cause v. Meyer, 758 P.2d 153 (1988). While there is no required timeline for the issuance of a formal AG opinion once requested, they are usually released within 60 days under normal circumstances.

The process typically proceeds in the following manner:
An appropriate request is received, and the legal question to be answered is agreed upon by the requester and the AGO.
The question is assigned to a subject matter expert within the AGO who drafts an answer.
The Solicitor General works with the expert (usually an attorney) to refine the draft, conduct additional research and consult with other subject matter experts as necessary.
With the advice and consent of the Attorney General, and in consultation with other members of the Attorney General’s senior staff, the Solicitor General edits the submitted draft.
The revised draft opinion is sent to all AGO Deputies for informational purposes and for review and comment on the substantive issue(s).
The Solicitor General recommends the opinion to the Attorney General.
If the Attorney General agrees with the opinion, the Attorney General signs it.
The original hard copy is sent to the client who requested the opinion.
An electronic copy is posted on the AGO’s web page.

Public access to formal AG opinions is available through the AGO. Electronic copies of some opinions are available on the AGO’s website. Additionally, scanned copies of all opinions are available upon request. Requests should be emailed to the AGO at attorney.general@state.co.us and must include the date the opinion was issued; any other identifying information supplied assists verification and delivery.

Staff attorneys in the DOL also issue informal opinions to clients. In contrast to formal AG opinions, informal opinions are purely representational in nature and, as such, are protected by attorney-client privilege. A final point of clarification is necessary. Formal AG opinions are distinct from AG Rule opinions, which are produced in compliance with the Colorado Administrative Procedure Act (CAPA). AG Rule opinions are issued to certify the Attorney General’s opinion that a given administrative rule is within the scope of the issuing agency’s legal authority. D

Chart (3)

Colorado Attorney General’s Office official website:
Colorado Department of Law SMART Government Act Strategic Plan, July 1, 2015. Available at: coloradoattorneygeneral.gov/sites/default/files/uploads/BL/Administration/Budget/SmartAct/DOL_SMART_Strategic_Plan_Final.pdf.
Fred Yarger, Colorado Solicitor General, interview given to Dan Cordova (October 6, 2015).
Suthers, John and Terri Connell, The People’s Lawyer: The History of the Colorado Attorney General’s Office (Kearney, NE: Morris Publishing, 2007).

The authors wish to thank the Colorado Solicitor General, Fred Yarger, for his time and expertise in the preparation of this article.

Dan Cordova is the Colorado Supreme Court Librarian. Chris Hudson is the Deputy Colorado Supreme Court Librarian. They can be reached at 720-625-5100 or at library@judicial.state.co.us.