Describing the State Solicitors General

By Miller, Banks | Judicature, May/June 2010 | Go to article overview

Describing the State Solicitors General

Miller, Banks, Judicature

It is well-established that the U.S. Solicitor General is among the most successful of the parties that appear before the U.S. Supreme Court.' However, scholars have paid little attention to tile recent development of state-level analogues, the state solicitors. In fact, with one exception,2 there is no scholarly exploration of these actors who are currently established in 32 states. This article describes the reasons why the states have created solicitor's offices-a process that began in earnest in the late 1980s-and sheds some light on the ways in which these offices operate. Besides being important to the states in their litigation efforts, understanding the state solicitors will also allow us to better grasp the extent to which the success of the Solicitor General is uniquely determined by the court in which the solicitor advocates and the resources available to his or her office.

The article first provides a detailed description of the state solicitors' offices based on interviews with former state solicitors and the scant literature that exists on them. Second, it analyzes the characteristics of states that led the effort to create state solicitors offices in the early 1990s in an effort to understand what leads a state to establish diese offices. In doing so it utilizes the State Supreme Court Data Project, which contains data on virtually every case heard by the state supreme courts between 1995 and 1998.s The article then discusses how solicitors may aid a state's litigation efforts and proposes an agenda for future research of diese litde-known actors.

Describing the solicitors

State solicitors are defined here as the state's chief appellate attorney with, at the very least, the authority to supervise some civil appeals by the state to the state supreme court, although in reality solicitors will also focus some of their energies on the federal appellate courts and the U. S. Supreme Court For the most part, states bifurcate the appellate process between civil and criminal cases-and in most states the attorney general has created a position that is in charge of overseeing criminal appeals that is separate from the office of a state solicitor.4

The need for state solicitors is also the result of the internal organization of most attorneys' general (AG's) offices. In most states, the AG has only appellate authority in criminal cases, and is not responsible for trying cases at the trial level, a responsibility usually delegated to a district attorney. On the civil side, the AG has much broader authority over the litigation process, being in charge of most civil cases in which the state is a party from the trial stage all the way up to the state supreme court. As Layton notes, the greater complexity on the civil side means that responsibilities are often divided along substantive lines, with individual chiefs in charge of particular appellate areas such as tax law or child support enforcement. This means that there is a greater need for the coordination of arguments on the civil side than there is on the criminal side, since, for instance, the appellate chief in the tax division may make an argument that makes victory more likely in the case at hand or in tax cases in general but that makes it more difficult for the state in other areas of law.

Given these organizational needs, one of the few consistencies among states with respect to the office of a solicitor is that they are primarily involved in civil cases. The term "state solicitor" is one that I borrow from Layton,'' who notes that states use a variety of names for the office of a chief appellate attorney ranging from state solicitor general to chief of the civil division; thus, state solicitor is an omnibus term meant to refer to all of these offices.

Most state solicitors have a background that suggests that they are or will become elite members of the legal profession.* Many are former federal appellate clerks, several have been former Supreme Court clerks, and several have served as clerks on state supreme courts. …

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