‘Unprecedented’ Power Struggle Puts Utah Statehouse in Spotlight

Outwardly unflappable Gov. Mike Leavitt was furious. Atty. Gen. Jan Graham had just told the Utah governor he wasn’t welcome at a November news conference to share credit for the lucrative tobacco settlement.

“You never supported the lawsuit,” she told the governor.

A red-faced, finger-wagging Leavitt replied: “I’ll ask the Legislature to take away your authority to settle cases,” recalls Graham, Utah’s only statewide elected Democrat.

Leavitt, a Republican, was true to his word.

In a breathtaking power grab, Utah’s Republicans are stripping the attorney general of control over civil lawsuits and settlements. Leavitt sealed his hostile takeover by signing a measure March 25 that relieves the attorney general of her mandate to “take charge” of civil litigation and gives that authority to the governor.

Scholars call the move unprecedented, and the nation’s other attorneys general vow to back Graham in court.

Leavitt says the November confrontation was just his latest tiff with the stubbornly independent Graham. The feuding between the popular baby-boomer politicians goes back years.

He’s a conservative, a devout Mormon. She’s a liberal and non-practicing member of the state’s predominant religion. Graham first ran for attorney general while pregnant in 1992, the same year Leavitt became governor.

Early on, Leavitt complained that Graham was unwilling to vigorously defend Utah’s restrictive abortion laws, so the governor hired his own lawyer. Most of the restrictions were later thrown out by the courts.

More recently, Graham refused Leavitt’s request to endorse Vermont’s defense of a law against same-sex marriages at the Supreme Court.

Their versions of the tobacco clash, like much of their relationship, are conflicting.

Leavitt heatedly insists he did support Graham’s tobacco lawsuit, though news accounts show him hedging in 1996 when he was supporting her Republican election challenger. He also maintains he didn’t ask for a place at the news conference where Graham announced her decision to include Utah in the settlement.

Leavitt says he voiced other quibbles with Graham.

He had been shut out of her decision to spend taxpayer money on a risky, expensive court battle. And less than two hours before she went before the TV cameras, Leavitt said, he was learning he had been shut out of the settlement negotiations as well.

“The issue was whether the attorney general, without consulting the governor, should settle the case,” Leavitt said. He said Graham has been acting as an unauthorized “fourth branch of government.”

Leavitt traces the conflict back decades, with Utah governors complaining of being pushed around by their attorneys general. The Utah Constitution makes the attorney general a “legal advisor” to the governor and nothing more, he argues.

The largely Republican Legislature based its action on the limited plain language of the Utah Constitution, ignoring the tradition in Utah and 44 other states of independently elected attorneys general, scholars say.

“I’m not aware of any state where there has been such an abrupt division of authority,” said former Oregon Atty. Gen. David Frohnmeyer, a Republican and the author of a book on the powers of the office. “It’s very unusual.”

Frohnmeyer, president of the University of Oregon, likens Graham’s emasculation to the 1535 beheading of Sir Thomas More, the head of England’s judiciary, for defying King Henry VIII.

In fact, Utah Republicans’ view of attorney general as loyal servant harks back to English tradition--”and that won’t do them any good,” said Republican Thomas G. Barnes, professor of English history and law at UC Berkeley.

“It’s a different concept here,” he said, adding that Graham answers to voters, not a governor. “She represents the people.”

Stung by charges of partisanship, GOP legislative leaders offered Graham one concession, delaying the effective date of their new law until her planned January 2001 departure from office.

But that’s little consolation to Graham.

“It would be a sad legacy for the first woman who holds this position to have the attorney general’s office weakened on her watch,” said Graham, who plans to file suit against the governor and Legislature by June 1.

Graham says voters need to know before the next election in 2000 whether they are electing “an attorney general or a rubber stamp.”

She has the “guaranteed” legal support of the National Assn. of Attorneys General, said President Mike Moore of Mississippi.

Moore was the attorney general who started the state-by-state lawsuit against Big Tobacco for public-health damages. It ended with a national settlement worth $208 billion. Utah, the 16th state to join, stands to collect $836 million from cigarette profits over 25 years.