On March 22, Colorado Attorney General John Suthers announced that Colorado would join the lawsuit against the federal Affordable Care Act that was filed by a number of state attorneys general in the United States District Court for the Northern District of Florida. Of primary concern to Colorado Ethics Watch is that Suthers entered the litigation on behalf of the state with little planning about how much it would cost or how to pay for it, leaving us to wonder what this effort will cost Colorado when all is said and done.
The Attorney General has authority to file suit on behalf of the State of Colorado even when, as here, the Governor has not authorized the suit. In such cases, the Attorney General is not representing the Governor or a state agency, but the people of the State directly. Ethics Watch believes that transparency is critical in such cases. Therefore, Ethics Watch delivered two Colorado Open Records Act (CORA) requests seeking information about communications between the Attorney General and non-clients about the lawsuit and records of time and money spent by the Department of Law on the case as well as any litigation budgets or cost estimates made in connection with the case.
The documents show that the state entered the litigation with little preparation or planning. No attorney time was billed to the State in connection with the review of the complaint before it was filed; it appears that the Florida Attorney General's office performed most or all of the work of preparing the complaint and that Attorney General Suthers personally reviewed the complaint without billing his time. And as of April 5, the Attorney General's office had not prepared any litigation budget or cost estimate for the case. Nor does there exist any formal agreement between the State of Colorado and the other states participating in the case. Rather, Suthers signed onto the attention-getting litigation with only "verbal communication with the Florida Attorney General's office."
The apparent lack of any planning to pay for the litigation is troubling. It may well be that the Florida Attorney General is currently willing to bear most or all of the expense of the case. However, over the course of a lawsuit that may take years to conclude, that could change. The absence of an agreement among the plaintiff states means that Colorado could find itself devoting a greater share of resources used in the prosecution of the case, or facing a demand from Florida that it pay a share of Florida's litigation expenses in the case. It should also be noted that most legal scholars, including former Colorado Supreme Court Justice Jean Dubofsky, agree that the suit has little or no chance of success. Regardless, it seems clear that the case will need to proceed not only through the district court in Florida, but through an appellate court and possibly even the United States Supreme Court.
It is amazing that any Attorney General would sign on to a major constitutional lawsuit without preparing any kind of cost estimate or reaching a formal agreement with the other attorneys general involved in the case. But it's not too late for Suthers to prepare a formal budget and release it to the public at the earliest opportunity, along with an explanation of how the states that are involved plan to divide up responsibility and litigation expenses. Then and only then will the citizens of Colorado understand what we're in for.
Read Ethics Watch's CORA requests and the responses from Suthers' office here.