Vitriolic squabbling between Gov. Mike Leavitt and Jan Graham, ignited by the incendiary topic of same-sex marriage, reiterates the importance of clarifying the role of Utah's attorney general. Voters are best equipped to do that through considering a state constitutional amendment.
Ironically, both Leavitt and Graham oppose same-sex marriage on moral grounds. Yet friction leading to heated words resulted over Graham's refusal to file an amicus curiae, or friend-of-the-court brief, in a case before the Vermont Supreme Court.That is merely symptomatic, however, of the deeper debate over the relationship between the offices of governor and attorney general.
Article VII, Section 16 of the Utah Constitution says "the attorney general shall be the legal adviser of the state officers." Leavitt and others interpret that to mean a traditional attorney-client relationship. The attorney general proffers legal counsel and advice, the governor considers it and then directs the attorney general to act in particular fashion or to do nothing.
Graham points to Article VII, Section 1, which says the attorney general is elected by the people of the state. She argues that is where her loyalties should lie, in somewhat of an independent watchdog role, and not to the chief executive.
Checks and balances are compelling, but the attorney general is part of the executive branch. There is sufficient counterbalance to the governor from the Legislature and Utah Supreme Court.
The governor-attorney general debate is not new. It also is not always partisan. Attorneys general have long butted heads with various governors regardless of shared party affiliation. Perhaps that is not unhealthy. It does not hurt in a single-party state like Utah to air spirited debate on a given issue.
But it still leaves a structural flaw that needs reconciliation. Someone must have the last word in state legal matters.
An objective reading of the state's constitution would give that nod to the governor. The rationale is simple: Utah's auditor and treasurer also are elected by statewide vote, but that does not free them to dictate their own policy. Those positions, with the attorney general, fall under the auspices of the chief executive.
If the Legislature wants to solidify that argument, it should initiate a constitutional amendment to have the attorney general appointed. A statutory fix called for by Leavitt would be ineffective and merely would end up in court.
An amendment would have to pass by two-thirds in both houses and be approved by voters. Its chance of passage would be slim, given Utahns' reticence to relinquish their direct vote for a gubernatorial appointment. But that option should be proffered to provide closure.
This matter was considered in depth a few years ago by the Constitutional Review Commission, which split the difference by giving the governor his own legal counsel while leaving the attorney general's role intact. Contrary to published reports, the CRC did not deem a switch to an appointed attorney general "chaotic."
According to a commission staff member, the group was simply split over the best approach philosophically, with former attorneys general and past governors aligned on opposite sides.
That schism has not narrowed in recent years and will not unless the Legislature resolves it. The long-festering problem should be given interim consideration and placed on next year's legislative agenda. It is a critical constitutional question best answered by the people of Utah.