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J.D. MacFarlane

J.D. MacFarlane

J.D. MacFarlane

33rd Colorado Attorney General
Term: 1975-1982

               John Dee MacFarlane was born and raised in Pueblo, Colorado. He acquired the nickname “J.D.” at an early age. He attended Pueblo public schools. A high school track star, he attended Harvard University on a scholarship and graduated with a degree in government in 1955. He then spent four years in the Air Force, two as a civilian advisor to the Chief of Staff at the Pentagon, and two as a private first class in the signal corps. He entered Stanford Law School and graduated in 1962. After graduation he worked for two years as a Deputy District Attorney in Pueblo. An active Democrat who said he was inspired to pursue politics by Adlai Stevenson, he was elected to the Colorado House of Representatives in 1964 and served two terms. In 1968 he was elected to the State Senate. He ran for Colorado Attorney General in 1970, losing to Duke Dunbar by 20,000 votes. When he left the Senate in 1972, he became the Chief Deputy Public Defender in the Denver office. He remained there until he won the 1974 Attorney General’s race against John Moore.

               Upon his election, MacFarlane appointed his campaign manager, Jean Dubofsky, to serve as Chief Deputy Attorney General for the 40-attorney office, and Mary Mullarkey as Deputy AG for the Appellate Section. Mullarkey would subsequently serve as Solicitor General for MacFarlane and she and Jean Dubofsky would later serve on the Colorado Supreme Court. Janice Davidson would become Chief Judge of the Colorado Court of Appeals. When David Robbins replaced Dubofsky as Chief Deputy Attorney General in 1977, Greg Hobbs became the head of the Natural Resources Section. Hobbs would also become a water law expert and be appointed to the Colorado Supreme Court in 1996. MacFarlane created two regional offices. José Márquez, who manned a satellite office in Grand Junction, would subsequently be appointed to the Colorado Court of Appeals, and Joe Ulibarri headed an office in Pueblo. As attorneys who worked for Duke Dunbar left the office, the average age of the legal staff dropped dramatically.

MacFarlane’s first task was to complete the reorganization approved by the legislature in 1973. He brought all Assistant Attorneys General into one location and made it clear to the state agencies that the Attorney General would no longer be their hired hand. Agencies would no longer be able to hire outside counsel without the Attorney General’s permission. The transition was difficult. “It’s not my job to tell an agency what it wants to hear,” MacFarlane said. “They’re used to telling their lawyer what they want. It’s different when their lawyer tells them what they’re doing is wrong. They get very uptight,” he explained.[1] More than any of his predecessors, MacFarlane emphasized his role as an independent elected official.

               While MacFarlane had a reputation as a low-key personality, he did not shy from public confrontation. In his first two years in office, he butted heads with the legislature by suing the Legislative Audit Committee for violating the sunshine law. He also “fought with University of Colorado Regents, criticized the Public Utilities Commission, opposed Governor Lamm on several issues, irritated state agency heads by the way he dealt with them, and became tangled in a bitter dispute with the state’s district attorneys.”[2]

               His disputes with the District Attorneys included the Attorney General’s jurisdiction to prosecute criminal cases, which found a lasting place in the law books. MacFarlane and Denver District Attorney Dale Tooley became embroiled in a dispute after the Attorney General obtained an indictment through the statewide grand jury. Tooley brought a suit, ultimately decided by the State Supreme Court, that clarified the nature and extent of Attorney General powers. Tooley argued that the Attorney General’s organic statute was the exclusive source of the Attorney General’s power and, absent direction from the legislature or the Governor, the Attorney General lacked authority to prosecute criminal cases. MacFarlane argued that he could bring criminal cases pursuant to his broad common law powers as the state’s chief law enforcement officer. In People ex. rel. Tooley v. District Court, 190 Colo. 486, 549 P.2d 774 (1976), the Supreme Court sided with Tooley. The Tooley decision stands for the proposition that the General Assembly can take away the power of the Attorney General to handle any matter, as it did by granting criminal jurisdiction over most crimes to the District Attorneys. However, if the statutes are silent, the Attorney General can exercise common law powers.[3]

               Among the high profile cases handled by the Attorney General’s Office during MacFarlane’s tenure were a Consumer Protection Act case against Supreme Foods and a battle over whether the May D & F Tower in Denver would be torn down or preserved as an historical site. The Attorney General represented the State Historical Society in its successful effort to save the building.

               After threatening to run for Governor against incumbent Dick Lamm, also a Democrat, MacFarlane had a change of heart and decided to run for reelection as Attorney General in the 1978 election. He took on his duties by saying he was the people’s lawyer and that meant sometimes “offending powerful interest groups or government agencies.” He listed his accomplishments as greater activity in consumer protection and antitrust cases, fighting organized crime, and enforcement of health care laws and the state’s sunshine law. No fewer than five Republicans lined up to run against him. Steve Duncan beat District Attorney Bob Miller in the Republican primary and MacFarlane defeated Duncan in a close race to win a second term. When MacFarlane was sworn in for his second term, the Attorney General’s Office consisted of nine divisions: Administration and Planning, Antitrust, Appellate, Consumer Affairs, Criminal Justice, General Legal Services, Human Resources, Litigation, and Natural Resources.

At the outset of MacFarlane’s tenure the Attorney General’s Office was still located in the State Capitol building, with the appellate section located in a small building on Logan Street. When the reorganization brought more lawyers to the office, it moved to the second floor of the State Services Building, with everyone crammed into small cubicles constructed by prison inmates. MacFarlane occupied a corner cubicle.

               In the fall of 1977 a federal lawsuit was brought against the State of Colorado alleging that conditions in the state’s prisons violated inmates’ constitutional rights. Ramos v. Colorado was certified as a class action in March of 1978 and a consent decree was entered in August of 1985. The prison system remained under the scrutiny of the federal court until 1992. During the pendency of the case millions of dollars were spent to modernize facilities and improve health care for inmates.

In July of 1981 MacFarlane announced he would not seek reelection in 1982. “After 18 years in public office, it’s time to do something different,” he said. He hoped that his early announcement not to run would help him get important legislation through the Republican legislature in the last session of his term.

               In September of 1979 J.D. MacFarlane hired an assistant who would have a profound impact on the office for decades to come. Maurice Knaizer was with the office for 33 years and was its institutional memory. Knaizer had been involved in numerous cases of state and federal constitutional significance, including two U.S. Supreme Court cases.

               When he left office, MacFarlane served as a legal consultant and was involved in the computer software business in 1983 and 1984. In 1985 Mayor Federico Peña appointed him Denver’s Manager of Public Safety. According to friends, he also became a master gardener. MacFarlane lives in Denver with his wife Janet; they have a daughter and two sons.

 

[1] Denver Post, July 20, 1973, p. 3.

[2] Denver Post, January 23, 1977, p. 23.

[3] Memorandum of Deputy Attorney General Paul Farley on Legal Representation, January, 1998.