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​Creation of Independent Litigation Integrity Unit in the Department of Law
The principal responsibility of the Department of Law is to protect the people of Colorado—not the governor, other elected officials, state agencies, or prosecutors’ offices. See People ex rel. Salazar v. Davidson, 79 P.3d 1230 (Colo. 2003). Consistent with that mandate, the Department must deliberately move away from a reflexive “defend at all costs” litigation approach—both in civil litigation brought against the state and in criminal appeals.
That reflexive approach—often the default in the legal profession—allows illegality and unfairness to persist or even harden into precedent. It also squanders scarce public resources. At a moment when Colorado’s legal capacity should be focused on confronting corporate abuse, corruption, and systemic threats to our democracy, safety, and economic security, the state cannot afford to waste time and money defending indefensible positions simply because that is how it’s always been done.
Creation of an Independent Litigation Integrity Unit
As Attorney General, I will establish an Independent Litigation Integrity Unit to advise me, the Department, and relevant state agencies on how to represent the state’s interests in litigation against the state and in criminal appeals. The Unit will be staffed by attorneys who do not ordinarily represent the state agency at issue and who are not part of the Criminal Appeals Section. The Unit will be responsible for assessing whether it is worth the state’s limited resources to aggressively defend the litigation or appeal and whether the interests of justice can better be served by early resolution, policy reforms, or even conceding issues raised in the litigation.
Role of the Unit in Civil Litigation Brought Against the State
In civil litigation brought against the State, the Independent Litigation Integrity Unit will help determine whether aggressively defending the case advances the public interest and is a responsible use of state funds. The Unit will engage in a preliminary review of every filed case to determine whether it raises plausible allegations. To inform that preliminary review, the plaintiff or plaintiff’s counsel may provide an independent submission to the Unit to argue that a more comprehensive review may be necessary or to raise any concerns that the plaintiff has with how the case may be litigated.
If the Unit determines that the allegations are plausible, it will conduct a more comprehensive review. That review will include examining the claims and defenses, hearing from plaintiffs’ counsel about the evidence they expect to prove at trial, and consulting with Department of Law attorneys representing the agency. The Unit will then make an independent recommendation about how the Attorney General should advise the agency to litigate the matter.
The recommendation of the Unit will consider (1) the interests of justice and (2) the likely costs of litigation. Where the Unit determines that a violation may have occurred or where the costs of litigating the case seem to outweigh benefits to the state, the Unit will propose that the state resolve the case quickly and remedy any violation.
After considering the recommendation of the Unit, I will decide how to advise the agency about its litigation strategy. In the rare case where the agency refuses to comply with the law or decides to pursue a litigation strategy that I consider to not be in the interests of the State of Colorado, I will exercise my constitutional authority to decline to defend the state in litigation. But I expect that situation to arise rarely. In the vast majority of cases, the Unit’s role in systematically reviewing cases and advising on litigation strategy will help foster a healthy, collaborative relationship with state agencies—one grounded in a shared understanding that the Department of Law is there to support them in pursuing the interests of the people of Colorado and to ensure that limited litigation resources are focused on the most important and meritorious cases.
The Litigation Integrity Unit will also serve as a resource throughout the life of a case and will be available to hear concerns from plaintiffs’ counsel when the state’s litigation approach appears counterproductive to the goals of justice, efficiency, or compliance with the law. Where appropriate, the Unit may advise me that a shift in litigation strategy is warranted, and I will make the final determination about whether and how the state’s approach should change.
Role of Unit in Criminal Appeals
In the criminal appeals context, the Independent Litigation Integrity Unit will advise me on whether the Department should be aggressively defending all appeals brought by criminal defendants or rather conceding certain issues and pursuing early resolution in certain cases.
The Unit’s work will begin with an independent audit of cases in which the State has lost on appeal. That audit will identify recurring issues that tend to lead to reversal. Separately, I will identify and publicly communicate policy priorities for the Department’s criminal appellate work based on my team’s broader criminal legal policy priorities rooted in advancing the interests of community safety and fairness in the criminal legal system. The Unit will then bring these two streams together, using its audit findings alongside the Department’s articulated priorities to flag categories of cases and issues where an aggressive appellate strategy risks entrenching unjust outcomes, wasting public resources in cases where the state’s position lacks merit, or conflicting with the Department’s policy priorities.
The Unit will review pending appeals in light of those considerations. It may also take into account submissions from defense counsel explaining why concession of a particular issue may be appropriate. Based on its analysis and any submissions received, the Unit will identify cases in which concession may be appropriate and present those recommendations to the Criminal Appeals Section head. Where there is disagreement, the issue will be elevated to me for review and final decision.
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The work of the Independent Litigation Integrity Unit is about responsible use of the State’s limited legal resources. Colorado benefits from a strong adversarial system, but that system breaks down when “defend at all costs” becomes a default rather than a deliberate choice. Litigating weak or unjust positions wastes public money, entrenches bad outcomes, and pulls attention away from the cases where the State’s involvement is most important.
By establishing clear structures for independent review and principled decision-making, the Department of Law can preserve effective advocacy on behalf of the state and the state’s interests while avoiding unnecessary or counterproductive litigation. The Independent Litigation Integrity Unit will help ensure that the State’s lawyers focus on the cases that matter most, resolve disputes efficiently, and consistently act in the interests of the people of Colorado—not institutional habit or inertia.