Utah’s fight against same-sex marriage may not be the only case in which the state seeks outside counsel to bolster an attorney general’s office that some legislative leaders, seeing missteps in big cases, fear is in some disarray from the yearlong probe and Dec. 3 resignation of John Swallow.
"We need to sit down with the attorney general’s office and say, ‘What are you doing and what can we do to help,’ " said Sen. Lyle Hillyard, R-Logan, who is an attorney and a member of legislative leadership as the Senate chairman of the Executive Appropriations Committee.
Hillyard said he first became concerned when the state lost a case that decriminalized polygamy. His concern heightened when it also lost the case on same-sex marriage — and federal judges in both cases were critical of actions by the attorney general’s office.
Friends who read the polygamy decision noted that Judge Clark Waddoups "made a real compliment to the plaintiff’s attorneys who are challenging polygamy, and kind of a dig at the attorney general’s office for their poor response," Hillyard said.
For example, Waddoups’ decision notes "confusion" in state arguments about why it would be appropriate to prosecute people who are cohabiting after going through church ceremonies that are not legally recognized as marriage, at the same time the state argued it would be inappropriate to prosecute people who are cohabiting but never had such church ceremonies.
In the separate case that last week struck down the state’s same-sex marriage ban, the attorney general’s office neglected to file the usual request prior to a ruling for an automatic stay pending appeal should the state lose. That slip-up allowed opposing lawyers to argue the state must not care since it did not file the papers, and Judge Robert J. Shelby refused to stay the marriages.
Hundreds of couples rushed to marry and same-sex couples continue to wed after the state lost its request for stay at the 10th Circuit Court of Appeals and now prepares to seek that relief from the U.S. Supreme Court.
Hillyard said it makes him wonder about possible disarray or mismanagement because of the investigation into and resignation of Swallow. "At this time with the transition, we need to make sure they are effective. These cases are far too important."
And it’s not just cases about marriage that have him and others concerned.
"The social cases get the press, but there are some oil and gas cases hanging around out there that make me nervous when I see the caliber of the attorneys and the money they are getting paid on the other side," Hillyard said, adding the state stands to lose a lot of revenue if it botches those cases.
"I think we could be very foolish to put one or two lawyers who never had any experience in that area against a cadre like that," he said.
Sen. John Valentine, R-Orem and Rules Committee chairman, agrees.
"We lack some of the expertise that we would normally like to have in the A.G.’s office in a couple of unique areas," said Valentine, an attorney. "We’re probably going to have to give additional resources in the form of some contract attorneys for some specialized areas where we can’t develop the expertise fast enough."
Hillyard said he has asked Legislative General Counsel John Fellows to look into what kind of help the attorney general may need on some specialized cases and requested a cost estimate.
While the attorney general’s office said Thursday that it will use outside counsel in the same-sex marriage case, incoming Attorney General Sean Reyes — who expects to be sworn into office next week — said in media interviews this week that he may take steps to re-evaluate the office’s organization.
For example, Reyes said in interviews that he plans to put a transition team in place, review all aspects of the office and perhaps ask office leadership to voluntarily resign and reapply for their jobs to allow others to also be interviewed for the spots.
Hillyard said lawmakers look forward to discussions with Reyes. Concerns are great enough, however, that even if Reyes feels like the office can handle things itself, it is possible that legislators may not be persuaded to go along.
In that event, said Hillyard, "We may very well turn and say, ‘We don’t care what you think you can do’ and ‘We’re going to give you some extra help.’ "
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