Hickenlooper v. Coffman

The Colorado Supreme Court denied Governor John W. Hickenlooper’s petition for a ruling requiring Attorney General Cynthia H. Coffman to show cause regarding her authority to sue the federal government on behalf of the State without authorization from the governor. The governor filed the petition after the attorney general joined West Virginia and other states in their D.C. Circuit challenge to the Clean Power Plan. The governor and attorney general are elected separately. Governor Hickenlooper is a Democrat; Attorney General Coffman is a Republican. In its one-page order denying the governor’s petition, the court said that the governor had an “adequate alternative remedy.” The granting of relief in an original proceeding in the Colorado Supreme Court requires that the case involve an extraordinary matter of public importance and that there be no adequate conventional appellate remedies. The governor had asked the court to declare that the governor has ultimate authority to determine whether the State will sue the federal government and that the attorney general must withdraw the State from the Clean Power Plan lawsuit. The petition also said that the attorney general’s challenges of the federal “waters of the United States” rule and federal regulations regarding hydraulic fracturing on federal and tribal lands should be withdrawn. The petition asserted that the attorney general was without statutory, common law, or other authority to sue the federal government, that the lawsuits challenging the federal environmental laws were at odds with the attorney general’s statutory obligations to be legal counsel to the State, and that the actions violated the Colorado Constitution, which the petition said grants the governor power to set executive department policy. On November 20, the attorney general responded, arguing that the Colorado Supreme Court should not invoke its “extraordinary” original jurisdiction to resolve “a political disagreement between state officials of different parties.” The attorney general contended that the governor was seeking to re-litigate issues that the court resolved 12 years earlier in a case where the attorney general sued to invalidate an act of the Colorado legislature. In that case, the attorney general said, the court ruled that the attorney general could independently seek judicial review on behalf of the people of the State.

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