April 29, 2021

Podcast: A Conversation with Colorado Deputy Attorney General Kurtis Morrison

Eyes on Washington Podcast Series - Conversations with State Attorneys General

In the latest episode of our Public Policy & Regulation Group's "Conversations with State Attorneys General" podcast series, attorney Stephen Cobb talks with Colorado Deputy Attorney General for Intergovernmental Affairs Kurtis Morrison. In this episode they dive into the ever-changing dynamic between state attorneys general and policy-making. Mr. Morrison offers a Coloradan perspective on criminal justice reform and pandemic-related legislation, two areas where his office was most active in 2020. They also touch on multistate collaboration among AGs and what their shifting roles could mean going forward.

Podcast Transcript

Stephen Cobb: Welcome back to another installment of Holland & Knight's Eyes on Washington podcast series, State AG edition. My name is Stephen Cobb. I'm a former deputy attorney general from the Commonwealth of Virginia and now a partner in Holland & Knight's public policy and regulatory team. It's great to be with you. This week, I have the deputy attorney general from the great state of Colorado, Kurt Morrison. Kurt, welcome to the podcast.

Kurtis Morrison: Thanks for having me, Stephen.

Stephen Cobb: Kurt, you have such an interesting professional background that led you into working in the Colorado AG's office that I think is interesting because it is indicative of the breadth and spread of influence that accompany state AGs. Can you tell our listeners a little bit about kind of your background and what led to you working for the Colorado attorney general?

Kurtis Morrison: I'd be happy to. I have a background that kind of spans from being a congressional staffer to being a state government level staffer. So originally, I started out as an aide in the United States Senate for a member from the Nebraska delegation. And then later on, I eventually worked my way around Colorado state government, going from being a legislative staffer to a department legislative director. And then I worked for, at the time, Governor [John] Hickenlooper as his legislative director. At the end of his second term, Attorney General [Phil] Weiser asked if I'd be willing to join the staff and be in a similar role helping him with public policy, which was an opportunity I couldn't say no to.

Changing Role of State AGs and AG Influence on Policy-Making

Stephen Cobb: And that's one of the things I find really interesting about the ever-changing and expanding role of state attorneys general, which is that, you know, 20 years ago or maybe even 10 years ago, for many, if you asked about what state attorneys general do, they would focus on whether the top cop or there would be a presumption that they do criminal prosecutions, which in many states is either limited or not part of the repertoire at all. And one of the things that we've seen, particularly in the last 10 years and somewhat in the last 20, is state AGs really stepping up to be leaders, not just as lawyers representing state agencies, not just as regulators pursuing consumer protection angles, but as leaders in a much broader policy area. So how have you seen that role and that influence kind of change over time?

Kurtis Morrison: I had the opportunity to work with, in Colorado, the past three different attorneys general in their offices. And during the time I was there, I've noticed that they've gone from being more of a career, traditional-type prosecutor from their background that you would expect, to one that also has that same expectation of their professional background but also has an interest in public policy and working to influence things at the state capitol and in the federal government as well, too. So I have noticed that it's gone from having more of an emphasis now on becoming involved through administrative regulations, through public comment, seeking public policy change through multistate litigation and then also just being more of an active participant in the legislative process on issues that are within the attorney general's traditional swim lanes, like consumer protection bills or criminal justice reform or things like that.

Stephen Cobb: I mean, one of the things interesting, kind of from a political angle that I think we've seen possibly for the first time over the last, I don't know, six years or so, is members of Congress leaving to run statewide as attorneys general. And in hearing from them, there is the sense that, there is the thought that, they can have a greater impact on the discussion around policy as a state AG than even as perhaps a member of Congress. What are your thoughts on that?

Kurtis Morrison: Well, I think that's certainly true. We've had a lot of very high-profile members of Congress return to their states to become state attorneys general, and the two who would always come to mind as some of the greatest examples are Keith Ellison of Minnesota and recently now [Department of Health and Human Services] Secretary Xavier Becerra of California. And I think you're absolutely right, Stephen, that goes to the impact that one, I think it's an interesting job that members of Congress are naturally drawn to, and two, I think when you compare that to serving in Congress, is a fantastic role for people who are legislatively attuned. But there's also some appeal as well, I think, to being in an executive role where you have not a cohort or a cabal of several hundred people with you, but you have an entire agency and you're charged with providing leadership and management to that agency to ensure that they carry out your vision for what a good law enforcement should be for your state. So I can see the appeal of why we're seeing more and more of a trend of members of Congress being drawn to these roles.

Stephen Cobb: And I would be remiss if I didn't point out that there are three members of President Biden's cabinet that were once former state attorneys general: [Department of Energy] Secretary [Jennifer] Granholm, Secretary Becerra and obviously Vice President [Kamala] Harris. What are some of the ways that you've seen state AGs influencing the policy discussions, both within their states and as national actors?

Kurtis Morrison: Within the state, I think it varies from state to state, depending on what their statutory charge is. But in general, I think the state attorneys general role, when it comes to the state legislative process, seems to be twofold. One is advocating for legislation and having an involvement in the state legislative process as an actor and not a passive observer. And that includes moving forward and pushing a strengthening of the state antitrust act or pushing for greater consumer protections related to COVID, or seeking criminal justice bills and then going and testifying in front of the appropriate committees of reference at the Capitol, too, and being more of a of a hands-on type policy advocate. The second part is, I'd say it's more of a support role than the legislative process where it's not so advocacy-oriented, but it's having an outcome and a vested stake in the products produced by the legislative process or sound. And what I mean by that is the legislative branch can produce laws that are not always defensible in court. Sometimes they don't always take a fair and full-front look at whether or not a bill is constitutionally defensible. And there's a role for state AGs to play there by ensuring that they're involved on the front end to ensure that the drafting of these measures is sound. And if there are constitutional infirmities to ensure that those are ironed out and addressed early on, because no state AG wants to be facing a bill that's challenged after it was signed into law and then explain to the legislators and those who passed it, this one really doesn't have much of a solid chance of being upheld. So almost like a quality control check is how I would describe that second half. On the national level, it's much more diverse there. So first off, there's federal legislation and involvement with Congress. We tend to keep very looped in with our members of our federal delegation, and at times we partner with them on matters of federal law. Most recently, we spoke to some members of our congressional delegation about seeking concurrent enforcement authority so federal laws can be enforced at the state level as well so we can supplement federal resources. There's also, I said earlier, weighing in on administrative policy. A tremendous amount of federal law is now done through the agency Administrative Procedures Act and the rulemaking process. We weigh in through public comments with our other colleague AGs and other states quite a bit to help inform the agencies on what would be wise policy or what would not be good for our states. And then the third, which is less policy but it can have that outcome, is multistate litigation. And by joining with our other colleagues in other states, too, we have the ability to see positive changes through the outcome, through settlement negotiations.

2020 in Review: Criminal Justice Reform, COVID-19

Stephen Cobb: Excellent, let's unpack all three of this just a little bit. One of the things that you first hit on was state-specific and working with state legislators. I remember that sometimes those can be some really awkward conversations. What were some of the issues that were top of mind for Coloradans? Over 2020, obviously COVID, but I'm sure there were many others in Colorado. And tell me a little bit about the role that your office played.

Kurtis Morrison: Sure. I think there's really two areas. If I look back on 2020 and think about how was our office involved with the state legislative process, you hit on one of them with COVID-19. The second one, which I can start with, is criminal justice reform. After the murder of George Floyd last summer, that deeply impacted Colorado, and we had weeks of community protests that were pushing for change at the state capitol. That resulted in a, I would almost call it an omnibus criminal justice reform package, at the Colorado capitol that dealt with everything from required use of body cameras by officers to use of force limitations prohibiting chokeholds and spelling out standards, decertifications for officers who violate the public trust and, specific to us, giving the state attorney general authority to investigate patterns and practices of agencies that violate a person's constitutional rights and privileges. And this bill came forward quite, quite swiftly. And what happened is we were in regular contact with the sponsors to identify components of the bill that may not have been workable and offer alternatives, so we could remain positive in helping them accomplish their goals and also to offer up ideas and suggestions. But really, our involvement there was spawned by the fact that we embraced the change of the software by the community and offered to be partners, and the legislative branch was welcoming of that. On the second component, COVID-19 really dominated all 12 months of 2020 for our department. So it shut down our state capitol. The legislative branch had to go home for several months on a temporary adjournment when the pandemic first started, before people got a grasp on how we could immediately start to live with this through masks and other preventative measures. We had the functions related to COVID-19 on the enforcement side, like defending public health orders that were issued by the governor and the state health department and pursuing bad actors that used the pandemic to defraud people or gouge prices. In terms of the policy and legislative side, when the legislative branch returned, we really pushed for stronger consumer protections that were deemed necessary as a result of the pandemic, and the two that immediately come to mind are, as I just mentioned, price gouging on COVID-19 specific supplies, particularly personal protective equipment, and those who were posting things online that were a bag of 25 masks and you could only get them for $45 and it was an increase of a percent that was just an outrageous increase.

Stephen Cobb: Was that limited to the COVID time period or COVID products, or was that an expansion generally for the price gouging statutes?

Kurtis Morrison: The Colorado law was an expansion generally, but it provided some added qualifications during times of public disasters and emergencies.

Stephen Cobb: Makes sense.

Kurtis Morrison: And the other component, too, was looking at wage garnishment. So with Congress starting to put out funds to help people who were out of work, one concern that was out there, particularly for us, was that those funds needed to go to people who had to pay rent, pay their mortgage and put food on the table, and we didn't want that to be taken away from those families in the form of debt collection actions or wage garnishment. So we worked with the legislative branch to hit pause on the current laws there that would ensure that those checks wouldn't be docked or taken away during the pandemic time.

It was amazing how COVID-19 really impacted all areas of government, and we had an all hands on deck from every state department during this time.

Multistate Collaboration and Litigation

Stephen Cobb: And, you know, that's a good segue, because I know there were times during 2020 where state AGs were singularly focused on issues affecting their states. And then there were times when they were working shoulder to shoulder with other state attorneys general on issues that affected a couple of states or the entire country. Walk me through a little bit about the role multistates play in elevating kind of the role and prominence of state attorneys general as regulators and as policy leaders.

Kurtis Morrison: Yeah, I'd be happy to. And I may need to be a little bit guarded on some of the things I say because of ongoing multilitigation, multistate litigation actions we have moving. I would say, for starters here, so in terms of elevating prominence and such, one thing that all attorneys general are really good at is one, having good partnerships with all their colleagues in other states. And as a result of that, through some of the trade groups like the National Association of Attorneys General, they really get a solid understanding of who has what expertise. And so from that, when you have certain actions that were brought, there are deliberate decisions and discussions on who would be the proper office or AG to take the helm when that litigation goes forward. So, for example, my employer, Attorney General Weiser, he's known as both an antitrust expert from his time at the Department of Justice and also an expert in the field of technology law. So with recent actions against some of the big tech companies there, he was kind of an obvious fit when people were thinking what would be the natural AG office that would be at the helm of each of those actions moving forward.

Stephen Cobb: Now, one of the things that, with those pooling of resources, you know, I think historically people saw that a lot in some of the tobacco litigation in the '90s and the role of having that increased employment power, as in having that many more hundreds of attorneys all pulling in the same direction on behalf of state AGs. But also it increases the state AGs' negotiating perspective as opposed to having 50 separate negotiations going on at one time. Would you agree with that, or do you think that time and place and that changes? Sometimes you want to be on your own versus within a multistate. Where do you see that kind of going back and forth, to the extent you can comment? If you can't, I understand.

Kurtis Morrison: Sure, sure Stephen. It's really specific to each negotiation. I mean, some attorneys general may have a completely different mindset of what's a good deal or a good settlement for their state versus others, and sometimes you see schisms as a result of that. But by and large, I've noticed that I've seen the state AGs really work together as a team on some of these issues that span across party boundaries and rural versus urban divides. And as you mentioned, it's a really good way to make better use of our resources. And it's just a more efficient way to pursue litigation, too. So we don't have 30 or 40 different offices all swimming in the same direction, but they don't have a coordinated strategy or effort. It just makes more sense for our limited staff that we have.

Looking Ahead: What to Expect in 2021

Stephen Cobb: Now, you alluded to some ongoing litigation earlier. You mentioned antitrust as it relates to your office, but kind of looking into your crystal ball for 2021 or even going into 2022, what do you see are some areas that are likely to garner increased attention from state attorneys general?

Kurtis Morrison: Sure. I think well, the answer is probably different for each person in an AG's office, as you ask them here. But my best prediction going on is several things. One is that opioid litigation is going to continue to be at the forefront for all state AG offices, just as it has been for the last two or three years or so. Holding the actors accountable who caused the opioid epidemic is one of the highest, if not the highest, priority for all state AGs. I think it's curious if we see something come from the congressional redistricting process. So this is really a state-by-state specific issue, now that we have a new census underway and we have a redistricting of some states that are going to gain or lose a member of Congress here. It's possible we might see some litigation challenging new maps. They'll probably be at the state level, but we may see that crop up and that might be something that we can track based on party differences. But it's definitely going to have heightened attention as a majority of the U.S. House is very much in play for 2022. A third thing I would add to that is a trend I've noticed quite a bit under both the Obama Administration and the Trump Administration – and I think in the foreseeable future – where state AGs feel obligated to hold the federal government accountable to acting within the four corners of its legal boundaries. And we did see significant litigation from state AGs on the prior two administrations in which states were seeking to hold federal elections and check on issues that impacted their specific states. I don't think that's likely to change any time soon. This is still very early in the new administration right now that was just sworn in in January, so it's hard to say, but I think that's probably a model that is not going to go away any time in the near future.

Stephen Cobb: Right, there are always those partisan divides. I think many would say that Democratic AGs were the primary antagonists to the Trump Administration, and vice versa, Republican attorneys general were the primary antagonists to the Obama Administration. But when we get out the antagonistic relationship, what are some areas that you see as opportunities to partner or collaborate with the new administration when it comes to areas of overlapping either policy agreement or enforcement?

Kurtis Morrison: Well, I think consumer protection is always going to be one of those areas that most state AGs will agree with the Biden Administration on. So whether that means providing concurrent authority for federal consumer laws to supplement or offset federal consumer protection agencies, that's something I think you'll see on the table. There are a number of areas that are only regulated in terms of consumer protections that only have federal oversight and not state oversight, or some that are billion-dollar industries that happen to impact millions, if not tens of millions, of customers. It really begs the question of just having one overseer, if one federal agency really is the proper way to go about things because they have limited resources like any of us, too. Updating our antitrust and merger laws is something that has a lot of state AG interest now, and once you see the Biden Administration appoint the new assistant AG for antitrust, the Department of Justice, I suspect we're going to see conversations move forward on that. Forced arbitration always continues to pop up as well from throughout the country. Civil rights will definitely be and continue to be a major issue, from preserving voting rights, protecting our access to the ballot box, criminal justice reform and tools to support law enforcement officers. And then related to that, as well, is seeking federal support so we have the money necessary to train local law enforcement officers, which is an obligation that many state AGs have with their sheriffs and their police inside their states. Marijuana and continued reform at the federal level is something we're already seeing from some state AGs, including Attorney General Weiser, pushing for opening access to banking for marijuana businesses and continued normalization of the new industry. But I think those are some of the areas that you might see a lot of consensus between the new administration, and it would probably also, many of those ideas stand party lines among the state AGs as well.

Stephen Cobb: Well, let me throw out another one and get your thoughts, which is that whenever the government puts out lots of loans or grants – and we saw that through the various funding and support through COVID, but also it is very prevalent in the potential passage of an infrastructure plan – when you're talking about hundreds of billions of dollars, is the potential false claims actions. You know, that's not something that is immediate because obviously that money has to go out into the world first before there are issues. But do you see that as a potential issue as we look two, three years down the line when there's that much money that's being appropriated out?

Kurtis Morrison: I think that's very much a good point there. The last time I read up on the issue, I think state false claims actions are, probably about 50 percent of all states have one in place. I think with this magnitude of federal money that's now going to be coming to the states, it does make sense that a lot more states would pursue a state-level corollary to the federal False Claims Act.

Community Engagement with State AGs

Stephen Cobb: Which would be an interesting thing to keep an eye on. You know, one of the things that occurs to me as we talk about the growing role that state AGs play in a policy space is that I don't think that many, be that advocacy organizations, be that industry, be that corporations or be that individual activists, are as used to going to a state AG to have their voice heard on a policy issue as much as they are on a legal issue. How do you see that role change for state AGs the more and more they take kind of broad policy positions? And what are the best ways to seek engagement to provide information and background as those decisions and positions are being formulated?

Kurtis Morrison: I think the answer to your question, it really flows from the top. Each state attorney general manages his or her department differently. And I'm sure some are far more open to collaborating and having an open door to people who want to come and talk policy than others here. Attorney General Weiser has given us the directive that we have an open door, and he would say he has a principle of stakeholder due process, which is if there's an issue out there that's at the state capitol or something related to what we do, we're not going to deny them the opportunity to be heard. And we may not come forward with a policy position or a litigation we do or don't file based on what it is they provide. But he doesn't prefer that we move forward without giving anyone the opportunity to come in and let their views be known to us too. And that's something I think is true for him both in how we pursue litigation and how we also engage with the legislative branch.

Stephen Cobb: And one of those things, I think that we touched on at the very beginning of our conversation, when it strikes at the heart of that public perception of state AG offices, is that I think people also are under the assumption that every state AG office has the same power. So if you're in Delaware, they have the same power as if it's in Illinois, as if it's in Colorado, as if it's in Arizona. And that's simply not the case. And there are some offices that have, that oversee all prosecutions in the state. There are no local DAs because they all flow up through the attorney general's office. There are some that have very limited criminal jurisdiction. There are some that represent all of the state agencies and boards, and there are some where that is the purview of the governor's administration and what they have called their in-house or their general counsels. What are some of the things in your mind that make Colorado's AG office and powers unique?

Kurtis Morrison: Well, that's a really good question. So I think unlike many other state AGs' office, our role in the criminal justice world is somewhat limited in scope. It's not nearly as broad as our role in civil litigation. But there are some powers it has, like, for example, that we can be named a special prosecutor at the behest of the governor in cases of extenuating circumstances when a district attorney is not able to take on a case. One of the most significant differences I think we have from other states is the patterns and practices obligation that I mentioned earlier. The federal government has had for some time now – the federal law gives the ability to the U.S. Department of Justice to investigate patterns and practices of violations by agencies and governments that infringe or step upon people's constitutional rights that are protected, whether they're privileges or immunities. The criminal justice reform bill that passed last year provided a state-level corollary in Colorado law for Attorney General Weiser, but it wasn't limited to law enforcement agencies. It was extended to all governments in Colorado.

So if there is any city agency or perhaps a county department that is not in the law enforcement realm but is in a regulatory realm, and they're in some way deemed to be acting out of step with what's required under the Constitution, the attorney general in Colorado now has the ability to step in and file an action to stop those patterns and practices from occurring.

I think that's a significant difference that we have from many other states there. And I can't say for certain how many others do or don't have that authority, but I don't think any of them have as broad authority as the Colorado General Assembly placed in the state laws that govern the attorney general.

Closing Thoughts: What's Happening in Colorado

Stephen Cobb: It does occur, you've been incredibly generous with your time, and before we close, I wanted to give you the opportunity to highlight one program or initiative from your office that you think our listeners might be interested in hearing or that you think needs further amplification. And I was also hoping you might give one tip or a bit of advice to those looking to engage and work collaboratively with you or with your office going forward.

Kurtis Morrison: Well, when it comes to engaging collaboratively with our office going forward, I would just say the biggest thing is just always make it known and speak up if you want to say something to us. So we try to have multiple different points of entry for someone who wants to reach the attorney general or to put something on our radar that ranges from, we have a consumer protection hotline if someone feels they've been wronged by a bad actor who took advantage of them in the business world. We have our main communication outposts at our front desk with the general public who calls that way, and we also have an Office of Community Engagement that strives to interact with our local governments and with stakeholders throughout the state on a daily basis. So we try to acknowledge that interfacing with government is not always easy, and sometimes it can be intimidating for the general public to call a main line and expect that you're going to get responsiveness. So we try to have many different ways for people to reach us and be as responsive in any which way we can. In terms of the attorney general's priorities going forward here, there are many that I could certainly put out there, but one that really matters to him a lot that is more something he's doing to support rural Colorado, a project that he calls COPPER. And the acronym I can't repeat here. But in a nutshell, what this program does is it provides funding for local community colleges that are in areas of the state that are more rural and have smaller populations, and it provides extra training opportunities for them to develop expertise in the areas of building mitigation, specifically asbestos mitigation. Because one thing that the AG learned early on from his travels around the state over the last few years is remediating asbestos-built housing in rural Colorado is a very big challenge because one, it's easy to always go to the next parcel of land that's undeveloped and develop there because you don't have any mitigation costs, and two, it's hard to get people who have the expertise to remediate asbestos and other harmful materials to come to rural Colorado, because it may not be as helpful for their business to drive two or three hours to get there, and they've lost a whole day on one job site. So this is really about trying to develop a skilled trade in the rural parts of the state and encouraging them to stay there and at the same time providing on the site, on the job training opportunities with these dilapidated housing units so we can provide more housing in rural Colorado and also provide more skilled laborers out there as well.

Stephen Cobb: Sounds like an important initiative, and Kurt, we really appreciate you taking the time to share your thoughts and perspectives with us. My name is Stephen Cobb, and this has been the Holland & Knight Eyes on Washington podcast series, our state attorneys general edition. Again, special thanks to Deputy Attorney General of Colorado Kurt Morrison for sharing his thoughts and views.

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