Olympic Poker: Part II 

You can just imagine how Mark Shurtleff felt as he was thrust into the ranks of the B Team—by the governor, no less. Wouldn’t you know, it’s your friends who hurt you most?

“They have this attitude about this office because of Jan Graham,” says Shurtleff, the hulking Republican who was elected attorney general in Graham’s wake.

Now here he is, a former Salt Lake County commissioner, political pal and all that, and his own people are letting him down.

“I know these guys well; I campaigned with them, and they said, ‘Hey it’s good to have a Republican AG,” Shurtleff says. Of course, Graham is a Democrat, so Shurtleff got quite a welcome from the governor and a lot of GOP friends in the Legislature. All of whom have been one big disappointment in the partisan support area.

The little rift became painfully public with this year’s budget challenges, which have forced the AG’s Office into some pretty big cuts and the prospect of more unless lawmakers come up with $800,000. That’s so Shurtleff can pay the high-powered outside attorneys he’s hired at the behest of his friends.

“My beef is only with the fiscal analyst for not recommending it be funded,” says Shurtleff, trying to be politic. But, in fact, he’s feeling betrayed.

Right now, there are two big cases at issue. One was the Census suit from which the state tried to extract a fourth congressional seat based on uncounted LDS missionaries. The U.S. Supreme Court rejected that argument without even discussing it. The second is to defend a new law that prevents state and local government employees from making automatic paycheck deductions for political contributions. The Utah Education Association doesn’t like that law at all because they’d have to send some kind of mafia out to collect dues if they didn’t have paycheck deductions.

Well, Shurtleff wanted to use his own attorneys, but Gov. Mike Leavitt insisted on outside counsel for the Census case and the legislative leadership wanted it for the payroll deductions.

“He seems to do anything they ask him to; you’d think they’d have great relations,” says a critic familiar with the office. Well, that was pretty insensitive.

Shurtleff was just trying to make everybody happy. Everybody who’s his client. But the sticky issue of who’s in charge keeps getting in the way. It boiled over during the Graham administration, when Leavitt pushed unsuccessfully for an appointed attorney general. Interestingly, Shurtleff agrees with Graham here.

“The reason why the attorney general is elected and not appointed is to provide independent and equitable justice in the states,” he says.

So, independently, Shurtleff agreed to the outside counsel, but not before he got assurances that there’d be some payback.

“They’ve all looked me in the eye and said, don’t worry about it,” says Shurtleff. “I told them, ‘You have a commitment.’ I was a little surprised at leadership.”

Leavitt, while requiring Shurtleff to cut his budget, also put in his own budget a nice $600,000 for the Census suit. Boy, Shurtleff is glad he capped the amount at $1 million. Who knows where this will go?

That’s because the Washington, D.C. law firm and their Tom Lee, a BYU graduate, have already lost one round. There was some “nervousness,” Shurtleff says of the defeat. “I said if the concern is about outside counsel, we’ll do it ourselves. But the governor wanted outside counsel and said something about the A Team vs. the B Team.”

Meanwhile, Shurtleff’s also got the deduction case dangling. This is one that doesn’t have the bipartisan support of the Census suit. And Shurtleff has already spent $150,000 on lawyers from a Utah law firm.

“I can’t tell attorneys that, because of a bad economy, they’re not going to get paid,” he says. So far, legislative leadership has told him it will be OK, but the legislative budget committee hasn’t been all that friendly.

“I could do both cases,” Shurtleff says. “I told them, ‘If you don’t agree to fund the $200,000, I’m going to fire the outside counsel.’ This isn’t a threat, it’s reality.”

The larger political question is not whether Shurtleff gets funded, but whether he’s a good team player. Just when you think he’s a loose cannon—like in supporting the hate-crimes bill—he steps back in line.

He also locked horns with the governor on the issue of agency counsel—whether state departments and agencies can hire their own attorneys, independent of the Attorney General’s Office. Remember in 1994 when Graham fired private attorney Mary Ann Wood from the state’s abortion case? And then how the governor got the go-ahead to hire his own counsel?

Shurtleff now has an opinion that says 24 of the state’s agency counsels are illegal. He made them all temporary AGs, thus co-opting them rather than firing them. What he wants to get from all this is a little respect from his friends.

He gets told all the time that he’s got these 200 attorneys who are all liberal Democrats and hired by Graham. Well, Shurtleff was hired by Graham, and a lot of his attorneys don’t like being called liberals—at all. But this is why Shurtleff thinks his lawyers are getting the cold shoulder treatment: Graham residue.

In fact, he needs to look farther back. Outside counsel became a hot topic back when Paul Van Dam hired them in the late 1980s for the controversial issues of cold fusion and antitrust matters concerning the University of Utah Medical Center. Graham saw the writing on the wall, and tried to steer away from hiring outsiders.

It’s a control thing, but you have to have money for control.

“It’s very clear now that if they insist we go to outside counsel, we’ll arrange to have the bills go to them,” Shurtleff says. Insist? That’s talking like a B Team.