Eleven states have filed legal briefs in support of Vermont's legal battle to uphold a state law that prohibits same-sex marriages. But Utah isn't among them, and that has political fur flying.
Earlier this week, Attorney General Jan Graham refused a request by Gov. Mike Leavitt that Utah join with the other states in filing the friend-of-the-court brief in support of Vermont.That prompted Leavitt, Speaker of the House Mel Brown and Senate President Lane Beattie to fire off terse letters to Graham, declaring "your facts are wrong" and, according to Graham, warning her of political consequences.
That prompted a testy response from Graham in which she chastised the governor for "dishonorable" tactics and "political grandstanding" to appease the conservative Eagle Forum.
"I find your tactics unkind and unprincipled," she wrote. "I am disappointed that you would allow Eagle Forum extremists to get you to demean me, my attorneys and the processes we use in this office to represent the people of Utah. Why do you allow them to push you around?"
The current spat aside, what really has the governor's office in an uproar is that Graham refused Leavitt's "direct request" to join in the case.
"She unilaterally decided as our attorney, without consulting with her client the governor or the Legislature or anyone else outside her office, that Utah laws were not relevant to the Vermont case," said Leavitt deputy chief of staff Vicki Varela.
"What the governor expects of the attorney general is consultation and notification of what is on the horizon legally. But our office was never notified that we had this option (to file the brief) despite the fact we have a clear policy position and we exercised that option in the Hawaii case."
At issue is a case before the Vermont Supreme Court that challenges that state's ban on same-sex marriages. Utah officials, as well as those from other states, are concerned that if the Vermont ban is struck down, the "full faith and credit" clause of the U.S. Constitution would obligate all states to recognize same-sex marriages performed in Vermont.
"It is perfectly reasonable to think that if the Vermont court legitimizes same-sex marriage, the status of our Utah law on the subject is open to challenge," Leavitt wrote to Graham. "In other words, we clearly have an interest in defending our state policy" by filing the brief.
Leavitt, Brown and Beattie all pointed out to Graham that it would not have cost the state anything to file the brief. Nebraska was willing to let Utah join its brief, and "all it would have taken was a phone call. But she unilaterally decided it wasn't relevant enough," Varela said.
Graham's response to Leavitt was that Leavitt had not cared about involving Utah in the Hawaii case a year ago because he believed Utah's law would not be affected one way or another by the outcome.
"So what explains the change in your attitude?" she wrote. "Why is this somewhat remote legal issue, so unimportant to you 12 months ago, now so important to `serve the interests of the state and the people of Utah'? Is your definition of the interests of the people of Utah set by . . . Eagle Forum extremists? It is clear they have your attention now."
All three GOP state officials were critical of Graham for providing inaccurate information. Graham's office told them only four states had filed the briefs, but in fact 11 had filed briefs. Graham's office claimed it filed a brief in the Hawaii case without a request from the governor, but Leavitt's office said it had requested she file the brief.
Graham told Leavitt that the Nebraska brief did not meet her "standards of excellence," but the brief was almost identical to a brief the Attorney General's Office filed in the Hawaii case.
More than anything, Graham's refusal of Leavitt's request reopens old wounds left over from the state's battle to defend its abortion laws. Republican lawmakers criticized Graham for what they say was her less-than-aggressive approach in defending the abortion law, as well as her much-publicized feuds with the governor's office over politically volatile issues.
Graham's refusal of Leavitt's request will certainly add fuel to the long-running debate on Capitol Hill as to whether Leavitt should have his own counsel. For years, legislative leaders have discussed the possibility of dividing the functions of the Attorney General's Office, with all civil functions being shifted to the control of the governor's office and criminal prosecutions remaining with the Attorney General's Office.
Under current Utah Constitution, the attorney general is the attorney for the governor. And if the attorney won't do what the client asks, it begs the question as to whether the client can get another attorney.
Graham, a Democrat, has resisted proposed changes to the Utah Constitution, insisting party politics should not be a factor when it comes to defending state laws.
In her most recent exchange with Leavitt, she wrote "I believe decisions about legal matters should be based on the law and the facts, not political consequences." In fact, if Utah's ban on same-sex marriages is challenged, she promised her office would win and "will do so with integrity, honesty and excellent legal work, not political grandstanding."
Leavitt, Brown and Beattie have all requested that Graham reconsider her decision not to get involved and to petition the Vermont court for permission to file a brief.