3 The Structure of the Office of State Attorney General 3 The Structure of the Office of State Attorney General
3.1 Introduction 3.1 Introduction
State attorneys general have never fit easily into the existing framework of state government. All but two states (Alaska and Wyoming) have rejected the federal model in which the attorney general serves at the pleasure of the executive, and this “divided executive” approach results in numerous possible conflicts as the attorney general attempts to represent the “client,” which could be the state, the governor, the legislature, individual state employees or the "public interest" as defined by the attorney general. Courts are sometimes called upon to decide "who represents the state" in litigation. Finally, within an AG's office, different assistant attorneys general perform different tasks, which can lead them to define the "client" differently from other AAGs in the office.
States are quite different structurally from the federal government because most of them have adopted the divided executive model, with only two states (AK and WY) following the federal model in which the governor can select and fire the AG. The governor, the AG, and others all exercise executive power. The Feeney and Deukmejian cases are the two leading approaches on what happens when the governor and AG disagree. Reasonable people can advocate for either approach. The Marshall article describes this issue in some historical detail. The DE article shows why it matters if the AG thinks the client is the public interest instead of the state agency.
The following trio of recent cases (Cameron, Berger, and Holcomb) suggest the old ways could be changing and the notion that the AG usually gets to call the shots may not be true tomorrow. The question is not only whether change is afoot, but whether it should be.
In considering the generic AG organizational chart, the following questions for these various positions should be answered -- what type of person would take this job, what are the skills they need for that job, what is their life-work balance, what is their next job, and what are the implications for their view on "who is the client"? This new-found knowledge can be put into practice with a fast-moving hypothetical entitled "Who is the Client?"