"I believe the only effective remedy for Attorney General activism is action by the state legislatures to statutorily curb it." So said Attorney General of Colorado John Suthers to the Federalist Society. He is running for reelection against Boulder County District Attorney Stan Garnett.
If activism in an attorney general is a true concern, one might also be concerned about the Colorado AG who filed a brief with the United States Supreme Court in support of West Virginia's judicial system in a case in which a judge, who was helped onto the state's highest bench with $3 million of campaign effort from Massey Coal, later ruled on a case involving that company. He ruled in favor of Massey, of course.
Mr. Suthers' stand made in Colorado's name was that any state's ethics rules can handle this, and protecting any state's sovereignty means protecting Colorado's.
However Suthers' effort to protect Colorado was superfluous and therefore grandstanding. As told recently by former Colorado Supreme Court Justice Jean Dubofsky in the Denver Post, "Colorado's system of judicial selection has become the envy of the nation, retaining impartiality and integrity while functioning out of the political spotlight -- as it should."
Another issue is that Suthers' brief suggested that what goes in West Virginia should stay in West Virginia -- even as West Virginia is widely touted as a "banana republic" for the extent to which mining interests have influenced its government officials for over a hundred years. Getting that Massey case out of West Virginia was likely the only way for the due process assured by the 14th Amendment to get a chance.
In the end, the US Supreme Court ruled that Massey's judge should have recused himself. It was June of 2009, just ten months before a gas explosion in Massey's Upper Big Branch mine killed twenty-nine miners and showed the nation how Massey Coal plays the appeals game to evade enforcement on the company's thousands of safety violations. So it's all the more important that companies like Massey are not to be judged by their bought-and-paid-for justices.
Mr. Suthers' states-rights effort clearly passed him on a conservative litmus test, but his haphazard comradeship with Massey is a poor fit for Colorado. We don't tear down mountains for filthy fuel, instead, we created the nation's first voter-passed renewable energy standard. His activism would only provoke eye-rolling if Massey's total influence and its results were not so tragic.
A tragedy that is most directly Colorado's business was Suthers' approval of the release of Scott Kimball from prison so that the latter might be an informant on a drug ring. As we all know, Scott Kimball was later convicted in Boulder for four murders by District Attorney Stan Garnett, in a process of persistent sleuthing. The meticulous care of Garnett's office shut down a spree of violence that Suthers' office unleashed through mind-boggling carelessness.
Sadly, Suthers' office (then he was a U.S. Attorney) sprang Kimball even though his prior sentencing judge, John Henson, had written that Kimball had failed three opportunities at rehabilitation, was impossible to supervise in a community setting, was irresponsible, untruthful, did what he wanted regardless of the court, and was likely to commit another crime. (Click here to find a link for a PDF giving the judge's ruling against Kimball).
A fine informant that fellow would make!
And the sorry investment made for this informant also ran the risk that Kimball was violent, as documented in his ex-wife's reports to police of multiple instances of rape at gunpoint. Was it worth the risk that she was just making false statements? Ask the loved ones of those now deceased.
Mr. Suthers' partisan efforts also include (but are not limited to) weighing in against gay marriage to affect Nebraska's constitution, even though our state has relatively progressive laws protecting gays. And of course he sued in opposition to federal health care reform and its mandate for people to purchase coverage. He says it's to protect Coloradans, but from what? So Colorado can be a sanctuary state to health care freeloaders? Also annoying, Suthers has proclaimed that if the government can make us buy insurance, it can make us buy anything - a slippery slope argument about as compelling in legal proceedings as pounding on the table.
For all that John Suthers has done well for Colorado, such as helping the legislature draft a slew of new consumer protection laws as well as investigating foreclosure fraud, he does fit the pattern of one who presides at a high level with an eye out for partisan activism. And the cost of that hands-off, high-flying quality in the Kimball case is unbearable.