A deconsolidation discussion with roots in Idaho history

By Melissa Davlin, Idaho Reports

It takes thirty seconds to walk between the offices of Gov. C.L. “Butch” Otter and Attorney General Lawrence Wasden on the second floor of the Idaho Statehouse.

But tensions between the two have widened the gulf between the offices.

Fights between Wasden and Otter have provided fodder for Idaho columnists and pundits for months. But the origins of the conflict between the governor’s office and attorney date back to before either man held public office.

BLAMING THE SYSTEM

During his Monday sine die press conference, Otter said while he was frustrated with Wasden himself on occasion, the bigger issue was Idaho’s consolidated state attorney system, under which deputy attorneys general represent state agencies, but answer to the elected attorney general — not those individual agencies.

“In my private life, when I go out and hire an attorney, that attorney works for me, not for anybody else,” Otter said. “He doesn’t work for that law firm. He works for me, loyal to me. Now if he wants to go back to his law firm and get some additional legal advice so that he can come back and give me the best possible advice that’s one thing, but that isn’t the case with the way we’re structured right now.”

“So I would like to see my agencies have an attorney that they’re totally satisfied with, and that they feel like they’re getting the best possible legal advice they can because of the structure of loyalty and who they’re representing and whom they’re working for,” Otter said.

In an interview with Idaho Reports, Wasden said his loyalty is with the people of Idaho and the rule of law.

“Which kind of lawyer do we want to have for the people? Do we want to have one that is a cheerleader for a state agency or for a legislative body? Or do we want an attorney general who is an independently elected constitutional officer who has the ability to tell people things they don’t want to hear but that they need to know?” Wasden said. “That’s really the most basic question we’re trying to address here.”

IDAHO HAS SEEN WORSE

The Wasden/Otter fight has roots in another feud in Idaho’s political history.

In the late 50s, Attorney General Frank Benson was elected in a statewide Democratic landslide, along with Republican Gov. Robert Smylie, himself a former attorney general.

Within a year of Benson taking office, the two men’s tensions made news across the state.

What was the cause of their rift? That depends on which source you read or which historian you talk to. Some say it was Benson’s hatred of Republicans; Others say Benson’s personality was the problem. Decades after Benson left office, journalists and historians recalled him as colorful, eccentric, and sometimes unstable.

“One day he would stand in front of you and you alone, bombastically waving his arms and talking at the top of his lungs as if giving a speech for 10,000 people. The next day, he might stand in front of you, shy, head down, voice muted, afraid to look anyone in the eye,” wrote longtime Lewiston Tribune opinion writer Bill Hall in a 1995 column. “He had only two settings: very low and over the moon.”

Bombast itself isn’t always a problem. But Benson was also paranoid. In 1959, he became convinced that Smylie had wiretapped his office. Hall wrote that at one point, Benson punched holes in the walls to look for bugs, forcing the Legislature to quietly appropriate money to repair the damage after Benson left office.

At the height of his paranoia, Benson stormed the Public Utilities Commission office — then located on the fourth floor of the Idaho Statehouse — and, upon finding it closed for lunch, broke the office window to demand answers on why the PUC was working with the governor to spy on Benson. Statehouse reporters found Benson hours later with a bandaged right hand, still raving about the wiretapping accusations.

That feud never ended. At the age of 85, Benson told the Moscow Daily News that he still hated “that son of a bitch Smylie.” 

While archived newspaper clippings document plenty of fights between Benson and Smylie, and Benson had no problem lobbing bombs at Smylie, the governor was more circumspect about the feud. In his memoir, Smylie wrote only that Benson was paranoid, and left it at that.

Though the Wasden/Otter feud has made headlines, it hasn’t resulted in property damage. Yet.

A HISTORICAL PERSPECTIVE

Benson’s paranoia didn’t just fuel gossip in the statehouse. It prompted state agencies to begin seeking legal counsel elsewhere, Hall wrote. That practice remained unchanged for decades, with some state agencies hiring lawyers to work for them, and others using lawyers from the attorney general’s office.

Though official consolidation happened in 1995 under Attorney General Al Lance and Gov. Phil Batt, former Attorney General David Leroy told Idaho Reports he and Gov. John Evans worked to begin centralizing the state’s legal office in the late 70s. That gradual process continued under the next several attorneys general, Leroy said.

“That’s one reason I feel so strongly about it,” Leroy said.

When Lance sealed the deal on consolidation, editorial writers praised the move, with Jim Fisher of the Lewiston Tribune saying it was a mistake to deconsolidate in the first place, while encouraging Lance to remember who those deputies work for.

“Although any lawyer paid by taxpayer funds should know better than to work against the taxpayers’ interest, the organizational mistake of letting lawyers become semi permanent members of an agency’s culture encourages that coziness,” Fisher wrote. “Thanks to legislation passed this year, Lance is correcting that organizational mistake. As he does that, let him make sure that all lawyers he now directs understand they have been hired not to protect the people in government, but the people government is supposed to serve.”

Fisher’s warning from 20 years ago aligns with Wasden’s concerns today. But that doesn’t alleviate the frustration that Otter and lawmakers feel with Wasden’s office.

 

“We’ve now had many years where we’ve had this centralized attorney general approach to things. There have been many conversations behind the scenes about that isn’t working,” Senate Majority Leader Bart Davis told Idaho Reports “Well, I am an attorney. I’ve practiced law for a lot of years. And if my client doesn’t like me, my client can fire me. We have a statute today that says that certain constitutional officers can use the attorney general’s office or if they would prefer they may have their own attorney. The governor’s office is a classic examples. And the statute says that that officer can even be represented in court by these individuals. Now, what that does is that encourages a good relationship between an attorney and his client, instead of an adversarial relationship between the client and their deputy attorney general.”

“Now, I understand that we have many agencies and departments that enjoy a quality relationship with their deputy attorney general, and that’s good,” Davis said. “That’s healthy, that’s appropriate. There’s an element of confidence and trust. But we have others where that is not the case.”

Still, deconsolidation would be a mistake, Leroy said.

“I am extremely distressed that anyone is considering dismembering the consolidated system of legal representation that I and several other attorneys general in the past carefully built,” Leroy told Idaho Reports. “The consolidated system is a huge advantage to Idaho’s legal structure and must be guarded at all costs.”

The fact that Wasden and Otter disagree isn’t unusual, Leroy said.

“Governors and attorneys general always have differences in opinion,” said Leroy, a Republican who worked with Democratic Evans as both AG and lieutenant governor.

But this fight is different — the worst Leroy knows of since the Benson/Smylie rift almost 60 years ago. That fight shouldn’t dictate major policy decisions.

“It shouldn’t be about politics. It can’t be about personalities. It must be about an effective system to deliver competent comprehensive coordinated legal services. There’s only one way to do that,” Leroy said. “I would urge the personalities to resolve it by means other than dismembering the gold standard system.”

Standard

One thought on “A deconsolidation discussion with roots in Idaho history

  1. Butch seems mighty confused. This is not his private life, and the Attorney General is not HIS attorney, and is not the legislature’s attorney. He’s the STATE’S attorney. And he’s doing a better job than the Governor and legislators, IMHO.

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