House Bill 102, sponsored by many members of the Freedom Caucus, proposes to have the attorney general become an elected official. The proposal is a horrible idea.
Since statehood, the Wyoming AG has been appointed by the governor and confirmed by the Senate. For 135 years, the state AG position worked just fine.
The attorney general (“AG”) is the chief attorney for the state of Wyoming. Duties include being the chief law enforcement officer, managing the largest law firm in the state and most importantly, being lead counsel for the state on legal issue.
The Division of Criminal investigation comes under the supervision of the attorney general. DCI is a highly trained police force which investigates the most complicated state legal cases – like police shootings.
Currently, under law, the AG is charged with filing lawsuits on behalf of the state when instructed by the governor, the legislature or the supreme court. Under law as it is, filing those lawsuits when instructed are mandatory. Under this bill, the AG could tell the governor, legislature and supreme court to pound sand, or the AG could file lawsuits on the AG’s own frolic.
The attorney general, currently, is an appointed position with no personal political dog in any fight. The Freedom Caucus seeks to make the position political – in other words, the AG has a political dog in the fight.
A good attorney is not a policy maker. A good attorney represents the interests of the client. The attorney works for the policy makers – in this case the governor, the Legislature and the Supreme Court.
By making the AG a policy maker, the sponsors create an inherent conflict of interest – the choice between representing the client fully within the bounds of the law or taking populist cases to campaign for reelection.
An old adage says an attorney who represents himself has a fool for a client. By making the position a political one, the Freedom Caucus creates a situation where cases can be taken for political reasons.
The Freedom Caucus should take the lesson from the elected AG, Letita James, from New York, who has mercilessly prosecuted Donald Trump for years.
One has to be a hopelessly naïve to agree that Donald Trump was prosecuted and obtained a $450 million dollar judgment only because she thought he violated the law. This bill creates the same situation in Wyoming.
The bill also takes away the advise and consent function of the governor in hiring and firing deputies.
The AG would get its own cadre of law enforcement agents and prosecuting attorneys and if this bill is passed, the only person who could supervise this super law enforcement force would be the elected AG.
Instead of doing things to prevent the “lawfare” about which the caucus often complains, the Freedom Caucus attempts to give power to someone who is both the state’s chief law enforcement officer and in charge of litigation for the state.
If one wanted to create a situation where politically motivated investigations and prosecutions were possible, this bill is the ticket.
One of the criticisms of the position of Secretary of State is that every morning the Secretary wakes up, and sees the next governor of the state looking back. The sponsors of the bill are attempting to create another similar position – stepping stone to governor.
And, in the process, they are weakening the state. Instead of having one clear policy making executive elected by the people, the state would have three.
The carping and whining we have heard from the Secretary of State over the last couple years would be doubled, with two candidates trying to prove they are big dogs.
Wyoming would have no clear policy from the executive branch.
The bill is an attempt to weaken the executive branch by diluting clear management and authority.
The fiscal note to the bill is concerning. The fiscal note is the legislative service office’s estimation of how much the bill will cost.
The note says “Under this bill, the Attorney General is no longer required to commence an action when directed by the governor, the Supreme Court, or the Wyoming Legislature. The Attorney General’s Office indicates this change could have a fiscal impact if the elected Attorney General decides not to commence an action and outside counsel is hired by the governor, the Supreme Court, or the Wyoming Legislature.”
In other words, in addition to the office of the AG, ultimately a whole new bureaucracy is created, to represent the governor, the Legislature and the Supreme Court.
Those elected officials have to have representation and they do not. The Freedom Caucus was not elected to create a whole new high-dollar bureaucracy.
Perhaps the Freedom Caucus is drunk with power from their success in the last election, and they assume the elected AG will agree with them. One thing we can count on about politics is things next year won’t be the same as they are this year.
What happens if an AG gets elected from the opposing party? What kind of deadlock is created by having the keys to the courthouse locked up in the hands of someone who opposes the governor.
There are many other weaknesses with this poorly considered legislation like creating the possibility of deadlock on all of the important board and commissions which are comprised of the top elected officials.
This horrible piece of legislation should die an early death, never to be seen, again.
Tom Lubnau served in the Wyoming Legislature from 2004 - 2015 and is a former Speaker of the House. He can be reached at: YourInputAppreciated@gmail.com
