A history of Idaho’s deconsolidation debate

By Melissa Davlin, Idaho Reports | Feb. 24, 2021

This week, a trio of bills relating to deconsolidation of the Idaho Attorney General’s office has taken center stage at the legislature. On Wednesday, the Senate Resource and Environment Committee rejected a bill that would force the Department of Lands to hire outside counsel. (A similar bill passed the House Resources and Environment Committee on Tuesday.) An hour later, the House passed a bill that would allow — not mandate — all state agencies to hire counsel other than the deputy attorneys general who currently represent them.

We’ll have more on the proposals on Idaho Reports.

But this isn’t a new debate in Idaho. It made headlines in 2016, when then-Gov. C.L. “Butch” Otter’s periodic clashes with Attorney General Lawrence Wasden prompted the governor to declare his support for allowing state agencies to hire outside attorneys.

At the time, I looked into the history of the debate surrounding decentralizing the state’s legal representation. Below is an excerpt from my April 2016 story, “A deconsolidation discussion with roots in Idaho history.” You can find the full post at the now-archived former Idaho Reports blog.

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, he said.

“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.”

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