GOP Rivals for Attorney General Differ on Scope of Job

SCHOTT: The duties as the state's lawyer are pretty simple to understand, according to University of Utah law professor Paul Cassell. He says the attorney general handles legal actions the state might bring.

CASSELL: "Probably the best known example in recent years has been the states' suit against the tobacco companies. So it's that kind of litigation, not the day-to-day small litigation, but some of the larger litigation that the attorney general would be handling."

For example, if the Department of Environmental Quality wants to take action against a polluter, the attorney general's office would handle it. The office deals with legal work for the Department of Child and Family Services and prosecutes murder cases involving children, and when the American Civil Liberties Union sued the foster care board over new rules on who can adopt children, the attorney general's office took the case.

The attorney general is also the chief law enforcement officer for the state. That suggests the attorney general has control over the police force, but Cassell says that's not the case.

CASSELL: "The attorney general cannot send police officers out into the streets to police a particular neighborhood or fight a particular type of crime. But on the other hand the attorney general does have a very very important policy-making role in the sense of using the office as a bully pulpit. The attorney general can announce particular priorities or particular problems that law enforcement should be working on; can work cooperatively with law enforcement agencies to see that somthing's done. So I think the attorney general has a crucial role in efforts for fighting crime, even if it's not a role in the day-to-day operation of the system."

Jan Graham is known for using her bully pulpit to champion efforts against domestic violence. Both of the candidates for the Republican nomination say they also would use their office as a platform to push an agenda that would be tough on crime, but their focus differs slightly. Frank Mylar says,

MYLAR: "We need a two-fold approach from the A.G.'s office, one that focuses on the root problems of crime, why children are now more dangerous than they used to be in the 40's and 50's. And on the other hand we need to start having swift consequences for criminals. That means they shouldn't be treated as victims, they shouldn't be allowed to read Playboy and Penthouse in their prison cells as some do today. They need to know they are being punished for committing a crime and not just slapped on the wrist and turned out the door."

His opponent, Mark Shurtleff, wants the office to get back to the basics.

SHURTLEFF: "The attorney general needs to do more than just take one or two pet projects and use the bully pulpit. They need to stand up and say as chief law enforcer and prosecutor of this state, 'I want to pull everybody together and get everybody in same room and sit down and create a comprehensive crime reduction plan for the state of Utah. It is a broad-based, across-the-board plan to involve the entire state and community,' and this position, this leadership position is key--to use that to say we're going to do something. We're going to do it together."

But using the bully pulpit to help shape public policy has caused problems in the past. In 1998, the Utah Legislature passed a law stripping the A.G.'s office of the power to make policy decisions on civil matters, giving that role to the governor. Gov. Mike Leavitt and Jan Graham argued famously about which official has authority over which legal decisions. The new law means, for example, that in a civil environmental violation, if the governor wanted to settle the case and the attorney general wanted to prosecute, the A.G. would have to do as the governor asks. Mark Shurtleff says he wouldn't have a problem working under those conditions.

SHURTLEFF: "The Utah Constitution's pretty clear when it talks about the attorney general: that attorney general shall be the legal advisor to the state and its agencies. That's always been there. The problem has come up where I may have to sue my own client, for example. Jan Graham's problems with the Legislature and the governor came from not doing the constitutional responsiblilty of representing the state and its agencies and started doing, making decisions on her own saying, 'I represent the people.' See, it's cost the taxpayers tons of money, because every single state agency and department has gone out and hired their own attorneys. Now that, to me, that's unconstitutional in that the constitution says the attorney general shall do that. Does that mean I won't be a, quote, watchdog of sorts? No. That's still a separate role as an elected attorney general--to make sure other officials obey the law and are ethical in that approach. So there may arise the occasion where as an attorney I might have to investigate or even perhaps sue or maybe even prosecute my own client."

Frank Mylar agrees the A.G. works for the governor, but he describes the relationship with a slightly different emphasis:

MYLAR: "I strongly believe on one hand the attorney general is an independent office and should not be told what to do as far as its legal advice it renders. On the other hand, the attorney general needs to realize that it's not the client. The client, however, is not just the state agency. The state agency is one potential client, the governor is an other potenitial client and the citizens of utah are the third potential client. And all of those clients' interests sometimes need to be balanced, in what is done in litigation. If it comes to a matter of policy, well, as attorney general I may bring out my policy. But when push comes to shove on some issues, that would be for the people in the Legislature to work out. So sometimes I might bring out policy issues where I disageree, but if there's not a legal disagreement, then i think often the attorney general does have the obligation as an attorney to follow what the client says."

On most of the issues in the race, the candidates are in agreement. Both want to reduce the skyrocketing number of rape cases. Both express a desire to protect the most vulnerable members of society, the elderly and children. Both want to fight the rising problem of substance abuse and domestic violence. But the beliefs driving their campaigns might be the biggest distinction between the two. Mylar is philosophical - he talks about an erosion in "family values" as the cause for many of society's ills.

MYLAR: "I think pornography is proliferating and children's access to it is proliferating, and that helps lead to sex crimes. It helps lead to more dysfunctional families and it also helps lead to abuse. On the other part of that is sometimes parental rights are sometimes being trampled. There needs to be a reasonable balance struck between protecting parental rights on one hand and intervening when there's abuse and neglect. When good parents appropriately spank their children, they need to know that that's okay and the state is not going to take away their children. Right now there are a lot of people who are literally afraid to spank their children, cause they feel the state may take them away."

On the other hand, Shurtleff is utilitarian. He thinks the A.G.'s office has gone astray under Jan Graham and he wants to get it back to doing its job.

SHURTLEFF: "This attorney general role is about being a leader. Law enforcement isn't going be seeing me coming in and telling them how to do their jobs. Because we've worked together, I've trained their officers, I've led committes that they've served on in law enforcement issues. And I can step right in to this role and go to work not only with legislators but with sheriffs and theres over a hundred county commissioners and other elected officials. Leadership right off the bat and going to work and changing things."

Ultimately, candidates must have a vision for what they want to do while in office. Where does Mark Shurtleff see the attorney general's office in four years?

SHURTLEFF: "The key is to make things work again. After four years people will be saying that attorney general came in here and reduced crime in this state so we no longer lead the nation in any category. I will take the lead in bringing people together working with the judges and the courts, with prosecutors, with the state, to make the changes we need to start fixing that system."

As for Mylar:

MYLAR: "I would like to see some plans that are working to deal with our youth, our troubled youth and our dangerous juveniles. I would like to see that the swift consequences for crime have actually reduced crime significantly. I would like to feel that parents feel that the state isn't the enemy trying to take away their children, but somebody that is there to literally protect like they're supposed to. I would like to see a balancing of how we understand the role of the justice system. It's become more of a focus on procedures rather than truth and justice. We've got to get back to the fact that that should be the focus of the criminal justice system."

When voters go to the polls on Tuesday, Professor Cassell says there are some important things to keep in mind when they mark their ballots:

CASSELL: "When voters are voting for an attorney general, they are voting for the lawyer for the state of Utah. And so I think that means you want a fine lawyer. And i think the most important attribute of a lawyer is judgement, the ability to look at an issue and decide which approach makes the most sense. You do want someone who's got very very capable judgement and can decide whether it makes sense to file suit against the tobacco companies. Those are very very difficult issues and they require sound judgement. That's the most important quality of an attorney general."

The winner of Tuesday's primary will face Democrat Reed Richards and Libertarian W. Andrew McCullough in November's general election.

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