Appointing versus Electing the Attorney General

By Daniel Burton
Senator Todd Weiler
Utah State Senator Todd Weiler

To avoid the influence of cash on Utah’s chief law enforcement office, Senator Todd Weiler wants the legislature to look into amending the Utah constitution to allow for an appointed attorney general. With Utah’s long history of flawed AGs, perhaps it’s an idea we should take seriously.

During the Utah Legislative Session, ended last week, members of the legislature were largely taciturn on the Swallow scandal, preferring to reserve judgement until the FBI investigation into Swallow wraps and the facts are clear. Regardless, the legislature passed two pieces of legislation addressing, if indirectly, the Swallow scandal.

The first, Senate Bill 83 sponsored by Senator Todd Weiler, addressed employees of the Utah Attorney General’s office accepting outside consulting work–as Swallow has said he did for a Nevada cement project.

The second bill, pushed through on the last day of the session, though with none of the opposition that other last minutes bills have seen in the past, was Senator Peter Knudson’s Senate Bill 289. It aimed to move investigatory power from the Attorney General to the Lieutenant Governor when elections complaints were filed against the AG. While prompted by the Alliance for a Better Utah complaint about Swallow to the Lieutenant Governor’s office, both legislators and staffers went to lengths to point out that the bill was to remove a weakness in the law, not target Swallow’s cement project after appointment by then Attorney General Mark Shurtleff.

Appointment by Supreme Court or Governor is a good idea

Even with these two changes in the law–one putting the same restrictions on political appointees as exist on state employees and the other preventing the AG from investigating himself–Weiler believes further changes may be necessary to avoid a repeat of the same problems.

“The discussion is: As an elected official in a statewide race, we’re asking these candidates to run around and ask people for political donations,”Weiler said to the Salt Lake Tribune. “If someone was appointed, we’d take that entirely out of the process. We wouldn’t have the chief law enforcement officer asking people for money.”

In an 2011 proposal for the same, State Senator Steve Urquhart said that it could get better attorneys into the AG’s office:

“[…] maybe we would get a better-qualified attorney than we tend to get and we might get an attorney with an approach that is consistently on the merits of the issues rather than on the basis of politics or something else.”

Currently, only seven states have appointed attorney generals. The Salt Lake Tribune lists those states as Alaska, Hawaii, Maine, New Hampshire, New Jersey, Tennessee and Wyoming, citing the National Association of Attorney Generals.

In Tennessee, the state Supreme Court appoints the attorney general, which I find particularly interesting, especially given how Utah’s justices join the bench. Unlike many states, Utah’s Supreme Court justices are not elected but serve ten-year renewable terms after appointment by the governor and confirmation by the state senate. As result, Utah’s Supreme Court has avoided much of the politicization that plagues other states. Not beholden to campaign donations, Utah tends to have justices who are better known for the legal acumen than their political connections.

This kind of process can prove useful for an AG appointment in two ways:

  1. Appointment by the Governor: similar to selection for the Utah Supreme Court, selection of the AG would be based on merit and subject to an “advise and consent” process by the state senate. The process could be further depoliticized by including a vetting process by the Utah Bar Association.
  2. Appointment by the Supreme Court: already less beholden by virtue of their appointment and independence as a separate branch of government, an appointment by the Supreme Court would carry additional levels of review and detachment from the political process, allowing selection of a person without need of review of political bona fides.

There’s no way that politics will be completely removed from the process, but an appointment–either by the governor with consent of the senate or by the Supreme Court–would remove the politics from the Utah Attorney General’s office.

Swallow opposes, makes “Bandwagon” argument

Not surprisingly, Swallow, with nothing to fall back upon if he loses his job, does not support the idea. To the Salt Lake Tribune

“The attorney general is the guardian of the public interest and should be independent and provide legal advice based on the law instead of political pressure,” Swallow said. “Utah is one of 43 states where the attorney general is elected by popular vote and this process ensures the attorney general is the lawyer for all Utah citizens.”

In case you missed that, Swallow implied that there’s less political pressure on someone who needs to raise hundreds of thousands of dollars to get elected (as he did) than there is on someone who is appointed. (Swallow also wins Logical Fallacy of the Day with his “Bandwagon” appeal to popularity as a validation of his position).

Not the first time…

As I noted earlier, this isn’t the first time that someone has suggested we look at moving to appointment of the AG. Given Shurtleff’s history. Urquhart proposed looking into the idea in 2011.

“I also think it’s much cleaner if the guy making prosecutorial decisions isn’t out soliciting money from people who could be impacted by those decisions,” Urquhart said in a Salt Lake Tribune article at the time.

Then Attorney General Mark Shurtleff opposed the idea, touting the independence that comes with election. Of course, he had his own problems. During his term, Shurtleff was regularly pilloried by the City Weekly for receiving contributions from questionable donors, including the same ones who helped get Swallow elected and some of which are now under federal investigation.

Paul Rolly has also in his column told a short history of Utah’s attorney generals, and few escape some kind of scandal. With Utah’s history, perhaps it is time we change how we think about the office of the attorney general. It’s cliche to talk about lawyers,politicians, sharks, snakes and leeches in the same breath, but do we need to add to the taint of corruption and make the cliche real?

In 1998, the Utah Supreme Court was moved into the Scott M. Matheson Courthouse building. (Photo credit: Wikipedia)I like Weiler’s request, echoing Urquhart’s suggestion in years past, that the legislature look into changing the Utah constitution to provide for a more independent attorney general uncorrupted by the taint of political contributions. Utahns should be able to look to their attorney general as their advocate, regardless of whether they have been able to donate to his campaign.

Swallow has been accused by three businessmen of soliciting donations in return for protection. Regardless of the truth of the accusations, changing the nature of the selection of the attorney general would remove the possibility that prosecutorial decisions are tainted by money.

PoliticIt contributor and creator Daniel Burton

Daniel Burton lives in Holladay, Utah, where he practices law by day and everything else by night. You can follow him on Twitter as @publiusdb or on his blog where he muses on books, politics and ideas. View additional posts by Daniel, here.


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