AG Weiser testimony: Before the Joint Committee on the Judiciary on the DOL performance plan (Jan. 8, 2025)
Chair Gonzales and Committee members, thank you for letting me join you today to present the Department of Law’s (“Department”) 2025 priorities, our annual performance plan, and an update on how we best serve Colorado. I’m very grateful for our continued work together and for your support of our important work for the State.
Today, as required by the SMART Act, I’m prepared to respond to any questions you have on our performance plan, departmental regulatory agenda, or budget request—or any other matters you wish to discuss.
Background on the Department of Law
I know we have several new members of the legislature that are now on this Committee. So, it may be helpful if I begin with a brief background on the Department and some of our core responsibilities.
It’s Department of Law’s role to serve as the State’s lawyers, protecting Coloradans’ rights, and defending the rule of law. As AG, I serve as the Department’s executive director. I also hold statutory duties to serve as the State’s chief legal representative and to enforce criminal and civil laws of the State.
- First, we are charged with defending the legal interests of the people of Colorado and our State’s sovereignty. This includes protecting consumers through actions under the consumer protection, housing, data privacy, and antitrust laws of the State. We also are charged with protecting Colorado’s water by representing the Division of Water Resources and the Colorado Water Conservation Board. And we represent Colorado’s interests in interstate river compact litigation. Other top priorities in this vein are our work to combat the opioid epidemic and address the youth mental health crisis.
- We also are charged with being the lawyers for Executive and Judicial Branch state agencies. This includes day-to-day legal counsel for all agencies, offices, boards, and commissions under the two branches, and representing them before administrative, state, and federal courts. This is an incredibly important duty that I handle with the utmost seriousness. A primary goal of mine is that our agency clients receive first-rate legal representation—both in litigation and in the day-to-day general counsel work. To do this, my core principle is that we give the legal advice not that clients want to hear, but what they need to hear. This is a principle I take very seriously—one that ensures our clients receive the best legal representation both in and out of the courtroom.
- We also have important roles in our State’s work protecting public safety. We house the Peace Officer Standards and Training (“POST”) Board which ensures that officers are properly trained and certified. We also partner with and support law enforcement organizations throughout the State—district attorneys (“DAs”), county sheriffs, police chiefs, federal law enforcement agencies, and the Colorado Department of Public Safety. And, at times, we are appointed by the Governor to serve as the State’s prosecutor and fill the role of DA during periods when a DA office may be vacant. We also are charged with handling criminal convictions on appeal and handle the vast majority of such cases, including at the Colorado Supreme Court and U.S. Supreme Court.
- Another duty we have that is particularly meaningful for the General Assembly—when laws are challenged, we defend them in court. This work is significant, especially with the recent uptick in the number of legal challenges brought to overturn laws enacted by the General Assembly—particularly new laws on reproductive rights and gun safety. These are important priorities for the State, and we take our duty to defend these laws with the utmost seriousness.
With that said, I’m happy to dive into specific updates I’d like to brief the Committee on.
Protecting Coloradans’ Rights and the Rule of Law
First, I’d like to update you on our work defending Coloradans’ rights and the rule of law.
In our discourse, in recent years we’ve seen more attempts to tear down our democratic institutions and growing numbers of hate crimes. The rule of law remains essential to our form of government and must always be our true North—to that end, we remain committed to protecting Coloradan’s constitutional rights, freedoms, and liberties. And we will confront threats to those rights.
In the last year, we’ve also taken actions to protect Coloradans’ fundamental freedoms. We continue in litigation defending access to mifepristone. And when the Pueblo City Council received requests to enact an ordinance that would have violated the State’s Reproductive Health Equity Act, we conveyed to the Council that a municipal abortion ban would place the City in violation of State law for violating Coloradans’ fundamental right to reproductive care.[1] The Pueblo Council wisely set this proposal aside.
In the last year, we also defended a 2021 law that establishes voters’ rights against gerrymandered county commission districts, and the right to an open and transparent redistricting process. Some counties, particularly El Paso, have done an exemplary job in going above and beyond in complying with the 2021 law. But when another Colorado county drew new district lines in defiance of that law—not meeting any of the legal requirements for transparency, public involvement, or protection of communities of interest—we joined plaintiffs challenging the county commission’s actions and the map they drew. This case was won at the district court. Last month, we argued before the Colorado Supreme Court to uphold the district court’s decision against the county and are awaiting a decision.
Before I move off this topic on the rule of law, I would like to speak to the transition in Washington, D.C. this month. I’ve heard from many groups throughout the State fearful they may be targeted or attacked in the coming years for who they are. Our commitment to protecting Coloradans’ rights will be especially important in the coming months and years. While I cannot predict what’s to come, we have heard members of the incoming Administration saying out loud what we should expect. And we’ve reviewed extensive transition documents made publicly available for months. It may not surprise you that not all of the concepts we’ve heard or read are within the four corners of our federal laws and constitution.
Some of you have asked me about plans we have to challenge federal government actions that are outside the law. As I have in the past, I will challenge the federal government when it oversteps. Whether or not I make this decision will be based on two principles—(1) whether our laws were broken; and (2) whether Coloradans were harmed. Those principles will guide any actions I take—not on what party or who is in the White House.
Over the last six years, I’ve been on the opposing side of the federal government several times and against different presidential Administrations. Some of you may recall that in 2019 we sued the U.S. Department of Justice to hold the federal government accountable when it unlawfully withheld needed law enforcement funds from Colorado sheriffs and police. And as I will discuss later, we are presently on the opposite side of the Biden Administration on an environmental matter before the U.S. Supreme Court that involves the Colorado River.
We have uncertain times ahead. But my Department and I will remain committed to those principles and our duty to defend Coloradans’ fundamental rights and the rule of law.
Protecting Consumers
Our work protecting consumers remains a top priority. Holding accountable those who take advantage of consumers not only protects Coloradans’ and their pocketbooks, but also the vast majority of Colorado businesses that act within the law and play by the rules, ensuring we have a fair marketplace.
First, as you all know, we’ve been challenging the proposed merger between Kroger and Albertsons. This $24 billion-dollar merger would have major impacts on Coloradans. In Colorado, Kroger operates 148 grocery stores; Albertsons operates 105. We investigated this merger and its impacts. I held 19 townhalls throughout the State to learn what this merger would mean for customers, workers, and food producers. It was clear to me that this merger was not lawful and would pose devastating impacts on grocery affordability, workers’ jobs, and farmers. And we saw that dozens of grocery stores would be at risk of closure—impacting almost every community in Colorado and exacerbating food deserts. So last February, I brought a lawsuit to challenge the merger in Denver District Court. We concluded arguments several months ago and are awaiting a decision. But in the interim, we received good news that a similar challenge in Washington state was decided against the grocery chains. That was followed by the parties calling off the merger and Albertsons suing Kroger for breach of contract.
I would add that our investigation also revealed something we did not expect—that the two companies colluded to ensure that during labor disputes that they would not hire employees or solicit pharmacy customers from one another. This conduct harms workers and consumers, and we’re in the process now of holding Kroger and Albertsons accountable for these actions.
We continue our work on addressing the opioid epidemic and holding accountable the businesses that fueled this crisis. To date, we’ve recovered roughly $800 million from these companies to fund addiction treatment, recovery, and prevention efforts. Our regional system developed with local officials to ensure the funds are spent wisely and transparently is now stood up—and was praised by Johns Hopkins University Public Health School as a model for our nation. Funds are being distributed throughout the State, and we have a public-facing dashboard showing how every dollar is spent.
On housing, the General Assembly has enacted significant new protections for tenants to ensure they are treated fairly. And last year we launched the new Fair Housing Unit in our Department. The work to be done in this field is extensive to ensure tenants are treated fairly. As you know, we’ve gone after corporate landlords for unlawfully withholding tenants’ deposits and charging improper fees. Last August, we joined a lawsuit against RealPage, Inc., a software company that offers a platform allowing landlords to collude on rent levels. Two weeks ago, the Denver Post reported that this software costs Denver-area tenants $136 extra each month—totaling over $1,600 per year. No amount of collusion is ever proper, but when it leads to tenants paying an extra $1,600 per year, there’s no question that conduct like this contributes to our housing affordability crisis. And it’s unfair to Colorado landlords that act fairly and follow our laws. That’s why I’ll stay after this issue to ensure that tenants and their pocketbooks are treated fairly.
A final point on consumer protection, we partnered with you in recent sessions in overhauling our consumer laws to ensure they work for our modern marketplace. When I took office in 2019, it was clear that many of our laws were written for a time that predated the Internet and the many ways consumers today can be taken advantage of. But together we were able to bring those laws into the 21st Century. That includes:
The most extensive rewrite of the Colorado Consumer Protection Act in decades;
- Overhauling the State Antitrust Act of 1991;
- Capping the rate on which medical debt interest can grow;
- Strengthening our vehicle lemon law, previously rated as one of the worst in the country;
- Ending agreements that put workers on the hook for training fees, and functioned as de facto non-compete agreements; and
- Creating long overdue protections for tenants and new laws protecting people who had their vehicles towed.
These are just an example of some of the improvements we’ve made together. And those new laws the legislature enacted are having very real impacts on Coloradans’ lives and wallets.
Protecting Colorado’s Water
Shifting now to protecting our water—water is without question our greatest natural resource, central to the health of our farming and outdoor recreation economies. But this resource is under threat.
The Colorado River Basin continues to face historic drought, and suffers from overuse by the Lower Basin states. The Upper Basin states, however, are living within the means of the river through strict administration of water rights through the State Engineer’s Office. Negotiations continue between the Upper and Lower Basin states. We’re continuing to work closely with Colorado’s lead negotiator, Becky Mitchell, to support her and ensure Colorado’s long-established rights are protected.
I continue to hear concerns, particularly from farming communities and those along the I-76 corridor, about Nebraska’s plans to construct a new canal in Northeast Colorado. This issue is very real, as the Nebraska legislature dedicated funds to this concept. I’m in talks with my Nebraska counterpart. I’ve made clear that not only will this project provide little to no benefit to Nebraska—but also that if Nebraska continues down this path, we are prepared to defend our rights under the 1923 agreements, even if that means going to court.
Equally important to protecting our water supply is protecting water quality. We remain involved in multiple efforts to protect our water from PFAS chemicals. In 2022, we filed a lawsuit against PFAS manufacturers for the damage it causes to Coloradans’ public health.
And, recently, I led other state attorneys general in support of a lawsuit by Eagle County to protect the Colorado River. This case, pending before the U.S. Supreme Court, is a legal dispute regarding the federal environmental laws. But the appellate decision on review has real consequences for Colorado—whether Utah oil producers can ship through Colorado millions of barrels of waxy crude oil by a train running immediately adjacent to the Colorado River and its headwaters. As we all know, train accidents are a real threat, and oil barrels can leak. I’ve heard from many on the Western Slope that this project is a dire threat to the most critical natural resource in our State—one that generates jobs in Western Slope farming and outdoor recreation. So, on behalf of the state, I joined the case in support of Eagle County—a position that puts us in opposition to the Biden Administration and the U.S. Solicitor General. The U.S. Supreme Court heard oral arguments last month, and we’re awaiting a decision.
A final point on protecting our water that I’d like to make—I continue to believe that we are falling short in devoting necessary funds to protect our water, a natural resource critical to our future prosperity. When one-time federal funds were flowing to the State, I routinely urged in my annual budget request for water to receive a major investment so we can fund the Colorado Water Plan.[2] With the budget now in its current condition and the federal stimulus funds having been largely spent, I fear we’ve missed that opportunity. But this is something I will continue to press—to secure our economic futures and ability to grow, we must do more, much more, in making the Colorado Water Plan a top-level priority in our State budget.
Protecting Public Safety
On public safety, I mentioned earlier that our Department partners with the (now) 23 elected DAs on criminal justice matters. This can range from supporting multi-jurisdictional crimes to assisting rural DAs with complex violent crime prosecutions.
As I’m sure you know, rural DAs are especially resource-stretched. And they cope with much larger recruiting challenges. When rural DAs ask us for support from our Special Prosecutions Unit to handle their most complex cases, we are happy and willing to help. But as I told you last year, this demand eclipsed the capacity we had to assist rural DAs. Last year, the JBC and legislature approved our budget request to increase our criminal justice personnel so that we may continue to offer this support for rural DAs.[3] We were very pleased that it was granted, and look forward to continue providing this support.
Our criminal justice and criminal appeals functions are some of the few parts of our budget that are funded directly by the General Fund. On that note, I understand that you have difficult decisions ahead when it comes to balancing the budget. To shoulder our part, we offered to the JBC several concepts for staff reductions to our budget. Even these reductions are quite challenging, and I am very concerned about the amount of new work coming our way—meaning that merely holding are budget constant with new work is effectively a cut to operations.
When the Long Bill comes before you later this session and you look for ideas to minimize cuts to other important needs and priorities, I encourage you not to look to further reductions to our Department—or the relatively small fiscal support the State provides to support DA offices. I say this for two reasons. One, nationwide and in Colorado, crime rates are falling. But we still have much work to do to keep this trend moving so communities are safer. And two, for reasons I discussed earlier, I expect that our litigation related to protecting Coloradans’ rights is very likely to increase in the coming year. Additional staff cuts could very well limit our ability to be active and out front in taking on litigation or even our ability to coordinate litigation with other states’ attorneys general. As you weigh these important decisions in the Long Bill, I encourage you to keep these considerations in mind.
Conclusion
Thank you for letting me join you today. As you begin your important work this session, please know that I place a high priority for our Department to support your work. To that end, my staff and I are happy to support you and be a resource on legislation.
I also will have several legislative priorities that I’m looking forward to visiting with you about during this session. I’m very proud that, to date, all of our legislative agenda bills in the last 6 legislative sessions had bipartisan support. That record underscores my belief that we do our best work when we do it together. That’s a Colorado value and one I hope we continue to hold tightly to.
You all should have received an email prior to this hearing with electronic copies of our performance plan, regulatory agenda, and budget request. We also provided required statutory reports updating on the work of the Office of Financial Empowerment and implementation of the Nonbank Mortgage Servicers Act.
I’m happy to address any questions you have on these items, or any other matters you wish to raise. And as always, thank you for your partnership and service to our State.
[1] Letter from Att’y. Gen. Phil Weiser to Councilperson Sarah Martinez, City Council, City of Pueblo (Sept. 1, 2024).
[2] Letter from Att’y. Gen. Phil Weiser to the Colo. Gen. Assemb. (Nov. 1, 2021); Letter from Att’y. Gen. Phil Weiser to the Colo. Gen. Assemb. (May 24, 2021).
[3] Letter from Att’y. Gen. Phil Weiser to the Joint Budget Comm., Colo. Gen. Assemb. (Nov. 1, 2023) available at https://coag.gov/app/uploads/2023/11/Colorado-Department-of-Law-FY2024-25-Budget-Request.pdf.