Political appointee as solicitor general for a state?

Original link to the story – which is under a ‘paywall’ This originally appeared in Milwaukee Journal Sentinel.
I reproduced the article here to help enable discussion on reddit.

J.B. Van Hollen wants to appoint solicitor general
Attorney General working with Gov. Scott Walker on proposal
By Jason Stein of the Journal Sentinel March 16, 2013


Madison – In a reversal of one of his first actions in office, state Attorney General J.B. Van Hollen is working with Gov. Scott Walker on a nearly $1 million proposal to bring back Wisconsin’s solicitor general – as a political appointee.

In his first campaign, Van Hollen sharply criticized his predecessor for wasting money by naming a top lawyer to oversee appeals and related issues for the state and Van Hollen did away with the solicitor general job as soon as he took office in 2007. But with difficult and costly state appeals on the rise and the current possibility of naming his own political appointee, Van Hollen, a Republican, is backing a budget proposal by Walker to name not just a solicitor general but three assistants as well.

The change would bring Wisconsin in line with a majority of states and the federal government, which name a top lawyer to handle appeals and represent the interests of citizens in higher courts. It comes as Wisconsin laws have faced a number of high-profile constitutional challenges and the state has also participated in federal litigation such as a challenge of President Barack Obama’s health care law.

“Having an office devoted to appellate law or purely legal issues ultimately results in better representation for the state and its agencies,” said Dana Brueck, spokeswoman for Van Hollen and the state Department of Justice.

“With more challenges to the constitutionality of state laws, it is important that the issues be properly developed and presented at the trial court level. A solicitor general’s office can help with the briefing on these important cases, enabling trial lawyers to focus on trying cases and developing a good record,” she said.

In another provision, Walker’s budget also would create four new political appointees within his administration who would do public relations and coordinate work between different state agencies.

Peg Lautenschlager, Van Hollen’s Democratic predecessor, agrees a solicitor general is a good idea – she named one when she served as attorney general. But she was surprised to see Van Hollen back a return to that approach after he criticized it as a waste of money during his 2006 campaign and then abolished the post after taking office in January 2007.

“I’m amazed at the about-face he’s taken on his position,” Lautenschlager said.

Brueck said the reason for Van Hollen’s reversal on spending money for a solicitor general along with additional help was that under the current proposal, the position would have a broader role.

Over the past two years, the state has been involved in several high-profile constitutional challenges. In both state and federal court, Democrats, unions and others have sued with varying success to strike down laws passed by Walker and Republican lawmakers to repeal most collective bargaining for public employees, require photo IDs from voters and redraw legislative district lines.

To cope with this litigation, the state has hired law firms. Walker approved paying Reinhart Boerner Van Deuren just shy of $1 million to help defend the state against challenges to legislative maps. Additionally, Walker has retained Michael Best & Friedrich to help defend the state against a number of challenges to the labor legislation. Current figures on those payments were not available.

Walker spokesman Cullen Werwie said the proposal would respond to those outside legal expenses.

“These positions will save money on special counsel contracts,” Werwie said. “These positions will allow the state to attract and retain great legal talent to focus specifically on appellate and critical issues.”

The budget provision would come with its own costs. It would run $961,000 over two years to create a solicitor general position, two deputies and a secretary, according to Brueck and the Legislative Fiscal Bureau.

“Having a solicitor general’s office could eliminate the need for special counsel in certain cases,” Brueck said.

The proposal included in Walker’s budget bill would need to be approved by both houses of the Legislature and signed by the governor to become law.

Lautenschlager said she had created the solicitor general position by simply reassigning her existing staff, not seeking new money, and at that time, the solicitor general was filled by a lawyer who was classified as a civil servant.

Whether a civil servant or not, a solicitor general would have to take his or her direction on legal strategy from the attorney general. Still, Lautenschlager questioned whether a political appointee should have the important role of helping decide which state laws the Department of Justice would defend in court against legal challenges.

“If you’re going to do that based on your politics, that’s not a good way to run a railroad,” Lautenschlager said.

Brueck said there would be more accountability to voters if the solicitor general is a political appointee.

“Making these attorneys political appointments ensures that the attorney general is able to select individuals with whom he or she is most comfortable,” Brueck said.

Brueck said no solicitor general candidate would be named until the position is created, but noted that it might allow the state to attract more talented candidates. A solicitor general would have a hand in prominent cases and likely appear often before the Supreme Court, potentially providing a springboard for the chosen attorney’s career.

The funding also would allow for a six-figure salary for the solicitor general.

More than 30 states have a solicitor general position or its equivalent, Brueck said.

In a separate budget provision, Walker’s bill would create four regional political appointees who would do public outreach and coordinate work between state agencies and officials such as the Wisconsin Economic Development Corp., lawmakers, universities and state agencies. These appointees would earn between $69,300 and $107,400 a year. One would be based in Milwaukee, with the others in the north, southeast and southwest of the state.

“These positions will offer an opportunity to pool resources among state agencies at the local level to facilitate the running of state government services and most importantly, provide direct contact with constituents and community organizations within a specific geographic area,” Werwie said.


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