Should Utah Attorney General Jan Graham's office be split in two, with a new appointed "general counsel" representing the state on most civil matters?
The state Constitutional Revision Commission may well vote on such an amendment next month, leading Graham to publicly warn that great mischief could come with the change."I will stand firm that the attorney general's office must be independent," said Graham, "account-able directly to the people of Utah. That keeps legal advice well-grounded and separate from the politics of public policy."
While members of the Constitutional Revision Commission, especially the amendment's sponsor, Rep. Byron Harward, R-Provo, want to keep politics and personalities out of the discussion of changing the duties of the attorney general, that may be impossible.
Graham, the only Democrat in a statewide office, is not well-liked by the GOP-dominated Legislature. In fact, during debate in the 1995 session about pay raises for state elected officials, the motion was made in the House to deny Graham a pay raise in 1995. The motion failed and Graham got a raise, but just the fact that the motion was made says something.
Late last year, Harward formally presented his suggested amendment to the CRC. Last week, Graham got her chance to reply.
She brought in David Fronh-mayer, president of the University of Oregon and former Oregon attorney general, and longtime Idaho chief deputy attorney general Jack McMahon to testify that changing Utah's attorney general responsibilities is shortsighted and foolish.
But regardless of what the CRC does, Utah's Republican Legislature may want to do something with Graham's office, short-sighted, foolish or not.
If lawmakers pass an amendment by a two-thirds vote, it would go before the 1996 electorate for a vote. Graham faces re-election in 1996, so she could find herself running for office and defending the turf of her office at the same time.
Currently, Utah's elected attorney general is the chief legal officer of the state. While Graham and some lawmakers may argue over what that means, it's clear to Graham that it means she makes the legal decisions for the state - what cases to appeal, what cases to drop, what cases to negotiate.
That's led to some bitter battles, both in the past and now.
Former Attorney General David Wilkinson sued the state and Legislature over the Utah Technology Finance Corp. He in essence sued his own clients.
Former Attorney General Paul Van Dam started an antitrust investigation of University Hospital. In essence, his own office was prosecutor and defense attorney at the same time.
And Graham and GOP Gov. Mike Leavitt disagreed over whether to continue to hire a special outside attorney - Mary Anne Wood - to carry on the state's defense of a 1991 abortion law.
Why not do away with this mess, says Harward, by splitting the attorney general's constitutional responsibilities?
He wants Graham to be responsible for prosecuting criminal activity, but then give a "general counsel" the responsibility of representing the state in most civil matters. The general counsel would be appointed by the governor and confirmed by the state Senate. The general counsel would be responsible for decisions like Utah Technology Finance Corp. and the abortion appeals.
If the attorney general conducted a criminal investigation, like the antitrust case Van Dam took on, then the AG would prosecute and the general counsel - a separate office - would defend.
Graham, McMahon and Fronh-mayer said such a change would lead to the federal system - where the U.S. attorney general may not investigate or prosecute wrongdoing in the president's administration, since the president hired her in the first place.
Watergate looms big in that picture.
But Harward says he'd keep prosecutorial and other civil "watch dog" functions - like the professional-license revocation process - with the elected attorney general. Only civil representation and the legal advice aspect of the current AG's office would go to the appointed general counsel.
Graham says the change will gut her office, and Utah citizens will be the losers.