Michael O. Leavitt Center for Politics & Public Service

Project Prologue

Leavitt’s Administration Relationship with Attorney General’s Office

First General Counsel

Robin Riggs was Governor Leavitt’s general counsel from 1992 to 1997.  Historically, Robin was the first governor’s general counsel in the state.  There was a proposal on the election ballot to change the constitution to allow the governor to appoint his own general counsel to be separate from the Attorney General’s office.  In the past the AG’s office was the governor’s sole representation.  That changed in 1992.  The year before Robin came into the Leavitt administration, he was the executive director of the Constitution Revision Commission and they had talked about the amendment to that portion of the constitution.  During the deliberations in arriving at that recommendation the Commission had interviewed AG and deputy AGs about that issue including Jan Graham, who at time was very much opposed to having governor be able to appoint his/her own general counsel; not knowing if that would have an impact on the relationship between Governor Leavitt and AG Jan Graham.  The real historical nuance is that being the first general counsel for a sitting governor in Utah, Robin had to blaze a trail in terms of how that relationship would in fact work with the AG going forward.  Every time there was interaction with AG’s office, there was no precedent that guided the process or the decision making.

Democratic Attorney General

Also in 1992, Democrat Jan Graham was elected as the Utah Attorney General, and she was the first woman elected to statewide office in the State of Utah.  AG Jan Graham was elected the same year Mike Leavitt was elected as a republican Governor with a huge republican majority in the Utah Legislature. Jerry Jensen remembers, “I was Speaker at the Legislature before Jan and Mike were elected.  I was chairman of the House Judiciary Committee and had run for Congress, not well unfortunately.  I had been in the legislature for four years and wanted to stay.  When Jan called and offered me the position as Director of the Legislative Affairs with the AG’s Office, I did not know her outside of my legislative duties, but we had a good working relationship with each other.  There was a Republican Legislature and a Republican Governor.  Jan thought that having me take that role as a Republican, would help her office.  The quality of the people in the AG’s Office and the Governor’s office were very capable people.  There was no contention in these two offices.  They were doing what was best for the State.”

Abortion Cases

In 1992, There was at least one abortion case that was pending in Utah that started with Governor Bangerter.  Governor Leavitt and AG Graham inherited this problem and had to decide how to defend the abortion statute and all that it entailed. This was the first real disagreement between Governor Leavitt and AG Graham. They disagreed on how vigorously they should defend a statute when personal policies might have been different.  Indeed, that issue was never resolved to the point that the AG said she would agree with the Governor.  Since they could not agree, they started to discuss how they could work together despite fundamental differences in their philosophy and approach.

With the first abortion case, Governor Leavitt thought that he could personally mediate the issue, so he brought the plaintiff to the mansion to sit at the table to help him resolve the matter without further litigation.  Plaintiffs in that lawsuit were highly impressed throughout the first few meetings, but Governor Leavitt’s attention was drawn to many other pressing issues.  After awhile, Robin Riggs was meeting with plaintiffs to resolve the matter short of litigation without the Governor present.

Progress slowly broke down, meetings were conducted less frequently, and eventually, the lawsuit proceeded to the courts.

Jerry Jensen remembers, “Governor Leavitt really did try to resolve it. . . . The Governor put together a panel to try to resolve the issue. . . . There was a big concern with the doctors at the University of Utah who may do an abortion but not because it was elective, but because abortion is a necessary remedy for a woman under a life threatening condition.  They were not doing elective abortions.  There was a tension there because Jan was perceived as trying to sabotage the [abortion] bill, which was not true.  Jan just wanted the [state’s] best defense put forward.”

In the second lawsuit, the AG’s office did not proceed aggressively with plaintiffs to find a resolution short of litigation.  Instead, the AG’s office pushed the Governor to hire a local attorney as special counsel to oversee and litigate, as needed, the abortion lawsuits.

The AG’s office pushed for local counsel to take over the first abortion case, and Governor Leavitt resisted.  But on the second case, he the Governor had extensive discussions with the AG’s office about the best way to represent the state’s interests in defending the law.  It was decided that the Governor would appoint Mary Ann Wood as special counsel.  This appointment was resisted by AG Graham, and there was much press coverage on these two women and their disagreements and political views.

Ann Wood was fired by AG Jan Graham, which caused a great deal more tension and press coverage.  Many felt that the termination was personal. AG Graham had sent notice to Robin Riggs that she was going to let her go at a time when Robin and Jerry Jensen were both out of town.  When they got back to town, Jerry got a call from Vicki Varella in the Governor’s Office who was extremely agitated and asked why the Governor’s Office had not received word about Mary Ann being terminated.  AG Graham had stated she had informed Robin Riggs about the decision.  While Governor Leavitt was holding a press conference on the issue, Jerry walked into the Governor’s office while the Governor was taking questions from the press.  Jerry raised his hand to set the record straight.  We wanted it acknowledged up front that the decision was made unilaterally by AG Graham when the others were out of town.

As it turned out, Jerry Jensen ended up arguing the second abortion case to the 10th circuit court.  There was a lot of tension between the Governor’s Office and the AG’s office following that.  It was clear that that the Republican Governor’s Office and the Democratic AG’s Office were on opposing sides of this issue, and the case, unfortunately, set the tone for the relationship between the offices thereafter.

Jerry Jensen recalls another event that caused some tension with the AG’s office and causes him some regret personally:  “In one of the abortion cases in front of the 10th circuit, there was a motion or a request for a stay or something.  When the decision came down from the court and the state had lost, Mike stated that they would have to appeal the case.  Unfortunately, I was asked by the press about an appeal, and I stated I did not think it was a good idea.  I honestly didn’t think it should be appealed, but if the Governor felt it should then, of course, I would agree with the Governor.  This did not play well with the anti abortion/pro life groups, and Mike got upset.  I requested an appointment with the Governor, and in the meeting Mike stated that he wanted to appeal.

I told the Governor I was not trying to override his decision; I was just handling the case the best I could, and I was not acting as a spokesperson for the Governor’s office.   The press, however, conflated the messages and it appeared as though there was inconsistency.

Appointment of Attorneys General

Something that caused added tension between the two offices was the petition that went to the Constitutional Review Commission on whether or not to have an appointed AG or an elected one. There were 46 AGs elected in the United States, and the rest were appointed by the governor or some state body.  Jan did not like the idea of the AG being appointed by a governor.  Governor Leavitt, however, argued a good case for an appointed AG.  The AG’s office had the deputy AG from Idaho and a former AG from Oregon, who was president of Oregon State University, to testify about the need to have an elected AG.  Robin Riggs testified at the commission and acknowledged that good arguments could be made for an elected AG or an appointed AG.  There was much open discussion over this issue and a bill was eventually generated to have the AG elected in the State of Utah.

AG Graham weighed in on this one issue: “The one comment I will offer is regarding the law the Governor asked for that severely clouded the relationship between the Governor’s office and the Attorney General’s office for a very long time.

The bill that Governor Leavitt asked the Legislature to pass (1998 I believe) sought to remove the power over civil litigation for the state from the AG to the Governor. The Republican dominated legislature acceded to his wishes and while it was not popular with the public, they passed it easily.  It attracted national attention, and the National Association of Attorneys General (NAAG) was preparing to assist our office in a lawsuit to challenge the law, but the law was so unpopular with the people of Utah, the Legislature agreed to repeal it, so happily the lawsuit was not necessary.  For several months, a top issue on the agenda of NAAG was “the Utah case”, and it was very unsettling to me and to the office to be at the center of such a negative issue.

As I recall, Greg Curtis was the unfortunate fellow in the Legislature at the time who agree to run the bill for the Governor. . . . He ended up feeling used and victimized as I recall, because the bill was so widely disliked by voters. The press was uniformly on the side of the independence of the AG’s office, as it had existed since statehood. It was a sad and difficult time for me and for the Utah Attorney General’s office. While it ended well, it was for a time a major concern and one which set back the cooperation between the offices for a long time.”

Tobacco Lawsuit

List of Lawsuits that began in 2000

http://archive.li.suu.edu/docs/ms122/NW/ms122NW19991208.pdf

http://archive.li.suu.edu/docs/ms122/NW/ms122NW19991221.pdf

http://archive.li.suu.edu/docs/ms122/NW/ms122NW20000225.pdf

http://archive.li.suu.edu/docs/ms122/NW/ms122NW20000226a.pdf

http://archive.li.suu.edu/docs/ms122/NW/ms122NW20000226d.pdf

Around the year 2000, the big tobacco lawsuits had started around the country.  Robin participated in the early discussions about a lawsuit to be filed on behalf of the state of Utah.  For the most part, AG’s around the country were the ones heading up those lawsuits rather than the governors.  So when Robin Riggs left his post, Jan Graham was in the middle of negotiations for Utah, and those negotiations ended up in a settlement with the tobacco companies that was driven exclusively by AG Graham.  Governor Leavitt had expressed to Robin Riggs that he wished he had more control over the tobacco issue, and that the negotiations would not be entirely in Jan’s control.  In particular he wanted to have more say and control over how the settlement went was to be spent.

The tension generated by the appointment issue became conflated with the tobacco industry settlements.  On this issue, AG Graham stated, “[In my view], Governor Leavitt asked for the bill [taking control of civil litigation] because he was offended that he was not included in our press conference which announced the historic settlement with the tobacco industry. He wanted to be part of the victory party but unfortunately had not supported the litigation or even been willing to be involved in any way when we filed the case. I sought his public support of the case many times and he was resolute in failing to provide that support.  After the case became a huge success, it didn’t seem appropriate to me to include him in something he was not part of. He was very upset–he wanted to stage it for the public as though I was advising him to approve the settlement and then he would announce in a press conference that he was accepting it.

But the reality was that I had already approved the settlement for the State of Utah and the press conference to announce that was going to take place the following morning without the Governor. This confrontation between us took place in his board room at a large table with most of his top staffers and mine, too. I don’t think anyone who was there will ever forget it. Governor Leavitt was very upset and the situation was rather tense. The meeting ended abruptly with an ominous statement that he would look into what authority I had to make such decisions without him. That is what sent him upstairs to Marty Stephens’ office looking for a legislative change to my authority to make final decisions about the State’s civil litigation.

I was very, very relieved when the bill [granting the governor power to make final decisions in civil litigation] was repealed. I did not intend to run for a third term, and I did not want to leave the office diminished from the powers it had when I arrived. One irony I recall is shortly after the bill was repealed, I placed a large ad in the newspaper thanking the people of Utah for preserving the independence of the AG’s office. The day the ad ran was the day of the tornado that ripped through the Capitol grounds and Memory Grove—a fitting end to troubling and fractious battle.

I wanted to offer this recollection personally because it was so important to me and to the office for which I held so much affection and respect.  Otherwise, I am going to leave the telling of other stories to others. I congratulate you for undertaking the project and wish you the very best.”

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Michael O. Leavitt Center for Politics and Public Service