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My view: Questions from the Swallow fiasco

By Blaine Carlton

For the Deseret News

Published: Thursday, Aug. 22 2013 12:00 a.m. MDT

Utah Attorney General John Swallow

Scott G Winterton, Deseret News

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The recent John Swallow debacle raises the question of whether the Utah Constitution should be amended to provide for the appointment by the governor of the attorney general as opposed to the current process of electing the attorney general. There is precedent for the appointment of the attorney general: seven state constitutions provide for such a process. In addition, on the federal level, the president appoints the U.S. attorney general. But before we support a change in the selection process, it is important to understand the arguments in support of and opposed to the election and appointment options.

Utah's attorney general is currently elected every four years. The attorney general typically runs by party affiliation which means that the elected governor and attorney general may be of either the same or different political parties. The arguments supporting our current process include the following:

1. Since one of the responsibilities of the attorney general is to oversee the prosecutorial power of the executive branch of government, he/she should be sufficiently independent from the other executive offices to exercise that power.

2. The appointment of the attorney general by the governor would result in a greater concentration of power in the office of governor and one less check on abuses of power by the executive branch.

3. The election of the attorney general engenders greater electorate confidence in state government which leads to better governance.

4. An election allows the public to evaluate directly the attorney general's job performance, whereas if the governor were to appoint the attorney general, his/her performance would be evaluated as part of the governor's overall performance.

5. Forty-three of the 50 states currently provide for the election of the attorney general, and none of those states has reversed course, indicating general satisfaction with this process.

The arguments supporting the appointment process include the following:

1. The executive branch of government includes both the governor and the attorney general. An effective executive branch must be united in its efforts and purposes. Therefore, the governor should appoint the attorney general so that his/her agenda is carried out. An elected attorney general could result in a fractured executive branch. This is particularly true in Utah where the attorney general may even be of a different political party than the governor.

2. Even though the governor's power would be enhanced by appointing the attorney general, there are sufficient checks and balances to guard against abuses of power. For example, if the governor were to abuse his/her power in office, the Legislature can investigate, and, if necessary, impeach that member.

3. Were the governor to appoint the attorney general, he/she would be able to enlist the services of well qualified attorneys who may not otherwise run for office, much in the same way that he/she enlists the services of attorneys to fill judgeships.

The Swallow fiasco may give us reason to consider another option in selecting the attorney general, but unless the new option can be shown to help prevent another similar problem, it should not be the basis for change. If the governor had appointed the attorney general, would the Swallow problem not have occurred? And would the governor or state Legislature have been more willing to address a Swallow-type problem if the attorney general had been appointed by the governor?

We believe that the Swallow fiasco must be more effectively addressed by adopting stronger ethics legislation which clearly outlines what conduct in office is inappropriate and what the consequences are for violation of those rules of conduct. In addition, our campaign contribution laws must be revised to eliminate a "pay to play" environment. Addressing the problem head on is clearly preferable to changing the selection process when there is no evidence that such a change would address the underlying roots of the problem.

Blaine L. Carlton, a retired lawyer and president of the Utah Democratic Lawyers Council, whose purpose is to re-establish a strong two party system in the state.

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