Gov. Mike Leavitt and Attorney General Jan Graham have found common ground on an issue that predates both of them: They agree the courts should decide the role of the state's top attorney.
That is one -- and perhaps, realistically, the only -- way to settle the vexing question, though other options exist including laying a constitutional amendment before voters. Any proposed change in role and scope for the attorney general would undoubtedly be litigated sooner or later. Leavitt's signing of House Bill 139 has apparently set that process into motion.The measure, which generated a good deal of partisan heat last legislative session, says that when the attorney general and Utah's 29 county attorneys deal in civil actions, their clients -- read, bosses -- are the executive branch. At the state level, that puts the governor in charge; locally, the county commission would call the shots. That is as it should be.
If the governor and attorney general disagree on a significant civil matter, somebody must be empowered to have final say. It stands to reason that person should be the chief executive. Article VII, Section 16 of the Utah Constitution says "the attorney general shall be the legal adviser of the state officers." Legal adviser certainly sounds like legal counsel.
Graham argues that she has a watchdog role whose loyalties should lie with the people who elected her. Checks and balances are compelling, but the notion pales since the attorney general office is part of the executive branch. The checks come from the Legislature and the judiciary, specifically the Utah Supreme Court.
The current crisis -- which isn't really a crisis, merely a flaw that needs correction -- has existed for decades. It sometimes arises between members of the same political party and is not purely partisan. The bottom line is that somebody must have the last word in state legal matters. An objective reading of the state's constitution gives that nod to the governor.
Utah's auditor and treasurer also are elected by statewide vote, but that does not free them to dictate their own policies. Those positions, with that of attorney general, fall under the auspices of the chief executive. The buck ultimately must stop with the person at the top. If the populace disagrees with his calls on major matters of civil litigation, the ultimate check rests with voters at the ballot box.