Utah Enlists Former Michigan SG For Same-Sex Marriage Appeal

Per SCOTUSBlog, the Utah Attorney General has just asked Justice Sotomayor to stay a federal district court's ruling making interim same-sex marriages "forever valid" in Utah. On the brief is John Bursch, the former Michigan Solicitor General. Bursch argued before SCOTUS 8 times during his tenure as state SG, and argued 12 times in the Michigan Supreme Court. Bursch is listed as a "Special Assistant Attorney General." He is now in private practice at Warner Norcross & Judd, where he co-chairs the appellate practice. Here's a The Salt Lake Tribune article discussing Utah's decision to bring in outside counsel to litigate the case.

This move reminds me a bit of BLAG's decision to bring in Paul Clement on Windsor, or the multiple states that have relied on former Kansas Attorney General Kris Kobach to write and defend immigration laws. This is hardly unusual in today's day and age (Florida brought in Greg Garre to litigate two criminal cases last Term), but we might wonder why states with their own SGs feel the need to bring in outside counsel. (BLAG's decision was of course different, since President Obama had ordered General Verilli not to defend DOMA on appeal--so outside counsel there was necessary). Bursch and his team reportedly cost Utah taxpayers $300,000 to litigate in the Tenth Circuit. 

I can certainly understand the decision to bring in expert counsel when a party doesn't have experts of its own (I wrote a law review note on this topic). But you'd hope that a state SG is an expert, otherwise why was he appointed in the first place? 

That might explain why in Florida v. Hall, Florida's most recent foray up to the Supreme Court, the state was represented by Florida Solicitor General Allen Winsor, not outside counsel. (For a long time, I wasn't quite sure what the Florida Solicitor General's job duties were, given that he wasn't actually arguing in the Supreme Court. As it turns out, half of the Florida SG's annual salary of $165,000 is paid by the University of Florida Law School, where the SG serves as a professor. But now we know that he is a real litigator as well.) 

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Fun Fact: Bursch has also received the dubious honor known as the Thomas M. Cooley Law Review "2014 Distinguished Brief Award." Presumably this means that he has a large library and large first-year entering class.