Legal eagles tussle over U.S. attorney appointment

By Kevin Woster, Journal Staff Writer | Thursday, January 05, 2006

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The appointment of an interim U.S. attorney in South Dakota is caught in a jurisdictional struggle between three Democratic U.S. district court judges and the Justice Department of Republican President George W. Bush.

The battle already has led to an unusual situation in which two different lawyers — one of them from Sioux Falls, the other from Oklahoma — have been appointed acting interim U.S. attorney for South Dakota, a temporary job allowing the office to operate until Bush makes a permanent nomination that can be approved by the U.S. Senate.

On Dec. 22, the Justice Department named Steven Mullins, then assistant U.S. Attorney for the western district of Oklahoma, as interim U.S. attorney in South Dakota. Mullins was sworn in the same day that former interim U.S. attorney Michelle Tapken officially resigned, according to court documents.

But U.S. District Judge Larry Piersol of Sioux Falls challenged that appointment. Piersol already had signed an order two days earlier — on Dec. 20 — appointing Mark Meierhenry, a Sioux Falls lawyer and former South Dakota attorney general, as interim U.S. attorney.

The wrangle was the talk of the legal community in South Dakota on Wednesday. And it is schedule to land in federal court in Rapid City at 1:30 p.m. Jan. 17, under an order issued Wednesday by U.S. District Judge Karen Schreier.

Schreier is ordering Mullins to show why he and not Meierhenry should serve in that position.

Meanwhile, U.S. District Judge Charles Kornmann of Aberdeen is questioning the validity of criminal matters currently being handled by the U.S. Attorney’s office, if they occur under Mullins’ name. In a document filed Wednesday in Aberdeen, Kornmann warned lawyers in criminal matters that the Justice Department’s appointment of Mullins might not be valid.

“All this brings into play some uncertainty,” Kornmann wrote. “It is entirely possible that the purported appointment of Mr. Mullins is not valid and that he has no legal authority to act as acting U.S. attorney in South Dakota.”

If Mullins’ appointment is not valid, it could compromise criminal matters handled by the U.S. attorney’s office under his name, Kornmann said.

“Agreements, indictments, stipulations, motions and even correspondence used or filed in his name could under certain circumstances be subject to challenge and may be void as a matter of law,” he wrote.

The dispute is the most recent rut in an increasingly rough road toward a permanent U.S. attorney appointment. It began Feb. 1, 2005, when Sioux Falls lawyer James McMahon resigned as U.S. attorney. McMahon said Wednesday that he couldn’t comment about the dispute over the interim appointment.

Tapken had been managing the office since McMahon left, and the Justice Department eventually named her to serve a limited term as U.S. attorney. When Mullins was appointed last month, Tapken resumed her previous position as first assistant U.S. attorney.

Tapken also continued to be the subject of speculation about whether she would be the president’s nominee.

As the state’s Republican senator, John Thune has the responsibility of recommending a candidate for that nomination to the Bush administration. Thune spokesman Kyle Downey said Wednesday that the senator was working on that recommendation.

“Discussions are ongoing with the Department of Justice,” he said.

Downey said Thune wasn’t involved in the disagreement over jurisdiction between the federal judges and the Justice Department.

“My understanding is that it is a dispute between DOJ and Judge Piersol over who has jurisdiction, and it really has nothing to do with John,” Downey said.

In her order calling for the Jan. 17 hearing, Schreier said Tapken was nearing the end of a 120-day appointment period as interim U.S. attorney when the Justice Department asked Piersol to appoint her to serve for another 120 days. Piersol informed the department that he intended to appoint Meierhenry, “a former Republican attorney general for the state of South Dakota and a well- respected trial attorney,” Schreier wrote.

Schreier said a provision of federal law gave Piersol the authority to make that appointment until a presidential nomination was made and confirmed by the Senate.

Contact Kevin Woster at 394-8413 or kevin.woster@rapidcityjournal.com