The Expanded History of the Attorney General:
Champion of the Public Interest
The office of the Attorney General has its roots in fifteenth century England, where the Attorney General, as the king's attorney, was considered not only the legal representative of the crown but also the guardian of the public interest. (1) The office of Attorney General as established by the colonies and later the States, no longer drew its authority from the king which made it even more clearly an office dedicated to the people. The highest court of Kentucky characterized the modern office in this way:
When this country promulgated its Declaration of Independence, the writers of that instrument in discussing the inalienable rights of man stated: That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed....Thus, the source of authority of the Attorney General is the people who establish the government, and his primary obligation is to the people. Hancock v. Terry Elkhorn Mining Co., 503 S.W.2d 710, 715 (Ky. 1973).
Following the establishment of Utah as a territory in 1850 through the Organic Act, (2) the office of Attorney General was created in one of the first enactments by the legislative assembly of 1851-2. (3) The Attorney General was elected by the joint vote of the Legislative Assembly to a term of four years. The duties of the office were set forth as follows:
It shall be the duty of the Attorney General to keep his office at the seat of government, to attend to all legal business on the part of the Territory, before the courts, where the Territory is a party, and prosecute individuals accused of crimes in the judicial district in which he keeps his office, in cases arising under the laws of the Territory, and such other duties as pertain to his office. (4)
The territorial office of Attorney General existed for 22 years. In 1874, Congress passed the Poland Law (5) which abolished the civil and criminal jurisdiction of the Utah Territory's "probate court" system and the territorial offices of Attorney General and Marshall.
In 1895 the people of Utah again created the office of Attorney General, this time in the Constitution of Utah. 1896 Utah Const. art. VII, §§ 1, 18 (now art. VII, §§ 1, 16). Since the admission of Utah as a state on January 4, 1896, the Attorney General has been an independently elected constitutional officer of the executive department.
The constitutions of 44 states establish an office of Attorney General. In 43 of those states, the Attorney General is popularly elected. (6)
Numerous courts across the country have recognized the right of state attorneys general to represent the public interest as they have throughout history. (7) The Utah Supreme Court recognized such implicit authority in the office of Utah Attorney General. In Hansen v. Barlow, 456 P.2d 177 (Utah 1969), the Utah Attorney General brought an action against members of the state legislature to declare unconstitutional a state statute that provided for payment of per diem and expenses to the Legislative Council and authorized it to employ staff. Noting that the Attorney General "is in a much more informed, duty-entrusted, and advantageous position to [bring such a suit] than the individual citizen," the Court held that it is "within the right of the Attorney General, if not his duty," to challenge the constitutionality of a state statute "if he deems it appropriate." Id. at 181. Absent this independent authority to act in the public interest, suits such as the one brought by the Utah Attorney General in January 2001challenging the U.S. Census results could only have been brought if another executive branch officer, as client, had directed the filing of the suit.
1. See Generally National Association of Attorneys General, State Attorneys General: Powers and Responsibilities, 27-31 (Lynne M. Ross ed. 1990). (hereafter State Attorneys General)
2. Act Cong. 1850, 9 Statutes at Large 453.
3. Utah Acts 1855, ch. VII, sections 1-8 (approved March 3, 1852). B.H. Roberts, A Comprehensive History of The Church of Jesus Christ of Latter-day Saints, Vol. IV, 192 (Deseret News Press 1930).
5. Act Cong., June 23, 1874, 1 Supp. Rev. Statutes 105, ch. 469 (reprinted in 1 Comp. Laws Utah 1888, at 105). See generally B.H. Roberts, A Comprehensive History of The Church of Jesus Christ of Latter-day Saints, Vol. V, 439-40 (Deseret News Press 1930).
6. State Attorneys General 31.
7. E.g., Connecticut Comm'n on Spec. Revenue v. Connecticut Freedom of Information Comm'n, 387 A.2d 533 (Conn. 1978) (real client of the Attorney General is people of the state); Commonwealth v. Paxton, 516 S.W.2d 865 (Ky. 1974) (Attorney General represents the people, not merely the "machinery" of the state bureaucracy); Superintendent of Ins. v. Attorney General, 558 A.2d 1197 (Me. 1989) (recognizing that Attorney General is the chief legal officer and may institute any action for the enforcement of laws and protection of public rights); Humphrey v. McLaren, 402 N.W.2d 535, 543 (Minn. 1987) ([The Attorney General] "has for a client the public, a client that includes the general populace even though this client assumes its immediate identity through its various governmental agencies"); State v. Public Service Comm'n, 283 P.2d 594, 599 (Mont. 1955) (Attorney General represents the public and may bring all proper suits to protect its rights); State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 347 (Mo. App. 1980) ("[i]t is for the Attorney General to decide where and how to litigate issues involving public rights and duties and to prevent injury to the public welfare") (citing State ex rel. Taylor v. Wade, 231 S.W.2d 179 (Mo. 1950)); Reiter v. Wallgren, 184 P.2d 571 (Wash. 1947) ("it has always been a paramount duty of the Attorney General to protect the interests of the people of the state").