Academic journal article Journal of Appellate Practice and Process

The Evolving Role of the State Solicitor: Toward the Federal Model?

Academic journal article Journal of Appellate Practice and Process

The Evolving Role of the State Solicitor: Toward the Federal Model?

Article excerpt

I. INTRODUCTION

Appointing a state solicitor (1) enables an attorney general to turn for appellate advice to a specialist, who, like the Solicitor General of the United States, is "responsible both for determining what position the [state] will take on many important questions of [state and] federal law and often for choosing the specific cases in which to advance that position." (2) Whether that solicitor is authorized to act unilaterally, or only in conjunction with the attorney general, placing a single person over all civil (and perhaps also over all criminal) appeals yields a broader and more comprehensive vision of the ways in which the state's strategies on appeal can affect the development of the law. State solicitors are, in fact, already playing a key role in areas of the law such as federalism, where "it has been the States, and the [Supreme] Court itself," rather than the Solicitor General, "that have been trying to move the law." (3)

Since 1987, the number of states with solicitors has grown from eight to twenty-four. (4) The attorney general of California has recently announced, but not yet filled a solicitor position, while attorneys general in other states are considering whether to create the position. (5) In thirteen states, the solicitors have supervisory responsibility over even the criminal appeals unit, which gives them a breadth (though perhaps not a depth) of authority comparable to that of the Solicitor General. (6) Each state solicitor superintends hundreds of cases, rather than the thousands overseen by the Solicitor General. (7) But at least in conjunction with the state attorneys general, they, like the Solicitor General, have "the authority to decline to pursue cases solely because doing so would not promote the orderly development of the law." (8) Despite the similarities between the state solicitors' work and that of the Solicitor General, however, there are important differences in their roles and their authority.

Focusing only on the states that have established a solicitor position, I contrast in this article the roles of the state solicitor and that of the Solicitor General. I begin by reviewing the history of state solicitors, and continue by analyzing the responsibilities typically assigned to solicitors by state attorneys general, considering the manner in which solicitors supervise appellate work, and evaluating solicitors' ability to influence the development of the law. I conclude that the last is an area in which they face challenges notably different from those facing the Solicitor General, but that they are nonetheless positioned to become a potent force for change.

II. HISTORY

Today we think of a solicitor general as one dedicated to work in the appellate courts, where he devotes his time to the analysis and resolution of the sort of constitutional issues that seldom arise in private practice. But the titles "solicitor" and "solicitor general" are older than the concept of a government appellate specialist. Before there was a Solicitor General, there were solicitors in the federal government, (9) and with and without the accompanying "general," the title "solicitor" has a long history of use in the states. (10) But many of these state solicitors occupied generalist positions of the sort that we might now call county or district attorneys. For example, locally based solicitors, among them Hugo (later Justice) Black, (11) once handled criminal prosecutions in Alabama.

A few decades after responsibility for litigation involving the United States was concentrated in the Department of Justice and the office of Solicitor General was established, states started to experiment with their own versions of the position. Perhaps the first was New York, which established its position by statute in 1909; (12) its solicitor begins consistently to appear on behalf of the state in appellate decisions from the 1930s. (13) The Michigan solicitor general began to appear in reported decisions in the 1940s. …

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