When Brian Frosh became Maryland's attorney general several weeks ago the program for the investiture ceremony informed us that he was Maryland's 46th attorney general. There are some traditionalists, however — and perhaps some querulous archival purists — who would knock Frosh down a few pegs in the ranking: to No. 43.
Here's why:
Several days prior to my swearing-in as attorney general on Jan. 2, 1979, then Attorney General Francis B. "Bill" Burch resigned his position so that each of his two deputies, Jon Oster and George Nilson, might serve as attorney general — each for one day — to fill the contrived vacancy. It was a generous gesture on Burch's part, an expression of gratitude to his aides for their outstanding public service.
Blair Lee III, Maryland's acting governor at the time, agreed to perform his constitutional duty to administer the oaths of office. But, notwithstanding his admiration for the conspicuous abilities of the two novitiates (Mr. Nilson currently serves as Baltimore's city solicitor), Lee was clearly unenthusiastic. In his view, the double barreled, short term investitures fractured tradition. But he agreed to perform the mini-ceremonies as a courtesy to Burch.
Lee was the patrician scion of a grand Maryland family whose name was synonymous with public service. All of us who knew and admired Lee did not believe for a moment that he was a comfortable participant in proceedings that inserted two "good for this day only" slots into the long line of attorneys general that reaches back (with two brief interruptions) to Maryland's Constitution of 1776.
I have some evidence — if evidence be needed — of the acting governor's jaundiced view of Bill Burch's well-intended "AG for a day" gesture. As we walked together to the courtroom for my swearing-in, Lee paused briefly to look outside at the steady drizzle that had been falling all day. He then turned to me and observed, with that mischievous grin for which he was famous, "You know, George Nilson is the only attorney general in Maryland history through whose entire term it rained!"
Whatever Blair Lee's reservations, "rules are rules," says Maryland's estimable former state archivist, Edward. C. Papenfuse, and Messrs. Oster and Nilson, having been duly sworn in, are thus officially squeezed between Bill Burch and me, as bona fide attorneys general in Maryland's Good Book of Governance — the Archives of Maryland, Historical List, new series, Vol. 1. Annapolis, Md. The Good Book underscores, however, that the Oster-Nilson presence is atypical and their temporal authority sharply limited. It carefully notes: "1979, Jan 1 only" beside Oster's name and "1979, Jan 2 only " beside Nilson's. Limitations aside, however, Messrs. Oster and Nilson are forever enshrined as the 41st and 42nd attorney generals of the state of Maryland. That makes me No. 43, and Joe Curran and Doug Gansler Nos. 44 and 45. Bingo! Brian Frosh is No. 46, as advertised.
Blair Lee III's discontent — and that of all other like-minded traditionalists — to the contrary notwithstanding.
Stephen H. Sachs was United States attorney for Maryland from 1967 to 1970 and state attorney general from 1979 to 1987. His email is steve.sachs@wilmerhale.com.