Colorado’s second-highest court on Thursday concluded a trial judge exceeded his authority by ordering Huerfano County to increase funding to the district attorney’s office using the elected DA’s own formula.

Henry L. Solano, the district attorney for Las Animas and Huerfano counties, argued Huerfano County commissioners were awarding him less than 50% of what he needed to run his office. The result was Solano, by himself, working upwards of 80 hours per week to prosecute cases in Huerfano County.

Although a judge initially agreed the county needed to boost the DA’s funding and stop “controlling” Solano’s office by restricting its budget, a three-member panel for the Court of Appeals ruled the directive inappropriately infringed upon the wide authority county boards have in their budgetary choices.

“We, like the trial court, must give the board’s decision great deference and may not substitute our judgment for that of the commissioners. Because there was considerable evidence that the commissioners considered available revenues, competing needs, the public’s ability to pay, and Solano’s need for additional funds,” wrote Judge Neeti V. Pawar, the law “requires that we uphold the commissioners’ decision.”

Solano, who litigated the appeal himself, said he is reviewing the Feb. 22 opinion and will decide what issues to potentially appeal.

“The issue was whether or not a county has to give a district attorney every penny they ask for. And the Court of Appeals ruled they don’t,” said Stan Garnett, an attorney who represented the Huerfano County commissioners. “It’s a small county. It’s a poor county. They have to satisfy all the competing budgetary considerations.”

Solano, who was elected in 2016 as a Democrat and who was previously Colorado’s top federal prosecutor during the Clinton administration, initially filed suit against the Las Animas County commissioners over insufficient funding for his office. Huerfano County then moved to intervene.

M. Jon Kolomitz, a retired judge from a neighboring judicial district who presided over the case, issued a series of orders in Solano’s favor after hearing evidence from the district attorney and others. Kolomitz noted it was “undenied” that two of Solano’s predecessors resigned at least in part due to underfunding, and that Solano spent in excess of 70 hours per week for years as the sole felony prosecutor for Huerfano County.

The result, according to Solano, was increased plea bargaining, a reduced ability to comply with prosecutorial obligations and a “culture where some criminal defendants know that Huerfano County is a safe haven” due to the underfunded DA’s office. Solano argued Huerfano County should fund one prosecutor for every 80-100 felony cases and one prosecutor per 800 traffic and misdemeanor cases.

In a March 2021 order, Kolomitz agreed.

“The underfunding of the District Attorney’s office in Huerfano County has created numerous legal, ethical, and operational problems,” he wrote in ordering the county to fund Solano according to his model. Kolomitz also found the county commissioners “exerted control” over Solano’s office by wrongly reducing his budget.

Although Huerfano County increased Solano’s budget by 36% from 2021-2022, which was the largest increase for any department, Kolomitz found in April 2022 that commissioners still did not follow his order.

“While these increases no doubt improved the ability of the District Attorney to meet his prosecutorial obligations, standing alone these increases do not demonstrate that the Commissioners acted to meet the overall reasonable needs and expenses of the District Attorney,” Kolomitz wrote.

He subsequently held the county in contempt and ordered it to pay an extra $162,000 to Solano’s office in 2023.

By that time, Las Animas County had exited the case, having reached a settlement with Solano to better fund his office using voter-approved revenue. Huerfano County, meanwhile, appealed Kolomitz’s orders, arguing he improperly stripped the commissioners of their budgetary authority by requiring them to use Solano’s own formula to fund his office.

“Such a ruling will have broad-sweeping public policy implications in creating precedent for any single department in any county to create its own caseload metric and then hijack county budgets to the detriment of all other departments,” the commissioners’ lawyers wrote.

Solano countered the county’s underfunding of his office affected his ability to prosecute cases, rendering Kolomitz’s intervention appropriate.

The Court of Appeals panel sided with the commissioners, noting it only had to assess whether sufficient evidence supported the county’s funding decisions. Pawar elaborated that witnesses for the county testified they evaluated Solano’s needs against deferred maintenance, natural disasters and available revenue.

“The commissioners were entitled to weigh all of these considerations when setting the budget,” she wrote, “and the record suggests that they considered all of the relevant circumstances — including but not limited to caseload — when reaching their decision.”

Because Kolomitz substituted his judgment for that of the commissioners, Pawar concluded, he exceeded his jurisdiction. The panel overturned the orders requiring Huerfano County to fund Solano’s office according to his formula.

Garnett, a former Boulder County district attorney who represented the commissioners, suggested the controversy could have been mitigated if Colorado funded its prosecutors’ offices differently.

“I think what this really illustrates, more than anything, is that district attorneys need state funding for their offices,” he said. “The system of putting the burden of funding prosecutors on individual counties doesn’t work very well because it depends on how wealthy the tax base is for each county.”

The case is Solano v. Vezzani et al.