The plan was hatched by Rep. Curtis Oda, R-Clearfield, who had enlisted attorney general candidate, Sean Reyes, to work pro bono and represent the Legislature as a defendant in the HB497 case even though Gov. Gary Herbert is the only defendant named in the lawsuit.
Oda got Rep. Chris Herrod, R-Provo, onboard, and Rep. Stephen Sandstrom, HB497's sponsor, said he, too, hadn't ruled out being a party to the effort. All told, Oda said, up to 18 lawmakers had backed the plan.
It would have been an unusual step for legislators to seek being named as defendants in such a case. Of five states Indiana, Georgia, Alabama, South Carolina and Arizona embroiled in lawsuits over enforcement-only immigration measures, only Arizona's Legislature entered as a late party into the litigation with an outside party representing it.
"You would think a group of legislators who tout the Constitution as much as Herrod and these guys do," Shurtleff said, "would understand that the Utah Constitution prohibits them from doing that."
The Utah Constitution names the attorney general as the chief legal adviser to state officers.And, by statute, he is charged with representing the state in court. Shurtleff has, in the past, sought outside counsel in certain cases, but he emphasized he would not ask for or permit such help on this matter.
The legislators wanted Reyes to move quickly to file a motion to intervene in the U.S. Justice Department's challenge to the enforcement provisions in Utah's immigration law.
"If we're going to defend this thing, we want the best, and these guys are experts and they basically will help the A.G.'s Office," Oda said Tuesday afternoon.
About 45 minutes later, lawmakers abandoned their plan. "We decided it wouldn't be prudent," Oda said.
Reyes said legislators approached him because "it's something extremely important to them and they wanted to make sure they had the best defense of the bill available." Reyes has argued federal preemption issues before, including at the 10th U.S. Circuit Court of Appeals, and has expressed support for the bill as he campaigns for attorney general.
But Shurtleff, who is backing his chief deputy John Swallow to replace him and opposed the enforcement legislation before it passed, said he would have no part of it.
"I'm certainly not going to authorize some political stunt like that," Shurtleff said. " ... It's highly offensive to me."
Shurtleff said he has experienced constitutional litigators on the case who believe they have a strong argument that Utah's law is legal. He said it appears Reyes is trying to "out-conservative" Swallow.
"It's political gamesmanship," he said. "It reeks of that and not only that it's unlawful. And you would think that people maybe considering other offices would recognize that."
Sandstrom, who was in Denver, spoke with Swallow by phone and decided he wanted to retreat from the plan.
"I'm going to back away," Sandstrom said. "If they don't have the bill's sponsor supporting it, it's not going to happen."
Herrod said he liked the idea of the legislators getting their own legal counsel, especially if it was free, but backed away when it became clear they would be getting into the middle of the Reyes-Swallow race.
The measure, signed by Herbert in March, was part of a series of immigration-related bills passed by the Legislature. HB497 was the one that used Arizona's enforcement-only law as a template. It would require police to check thecitizenship status of those arrested for felonies and class A misdemeanors.
However, it differs from Arizona's measure, because it gives police discretion in checking the status ofsuspects in lower level misdemeanors.
HB497 took effect for only a few hours when a federal judge issued a temporary restraining order on behalf of the ACLU of Utah and the National Immigration Law Center (NILC), both of which sued the state in May.
On Nov. 23, the federal government joined that lawsuit against Utah. A hearing is set for Feb. 17.
Shiu-Ming Cheer, an immigration attorney with NILC, said having legislators seek to join the lawsuit would delay the casewith a wave of additional motions and briefs.
"We think, as currently defended by the governor, that's the party that would be enforcing the law," Cheer said. "The Legislature already decided to pass the law, and that's a separate function of what their position should be after the law is signed."
In Arizona, recently recalled Sen. Russell Pearce, who carried that state's immigration-enforcement law, initially tried to be named as a defendant but was ruled to not have standing.
But a law signed by Gov. Jan Brewer in 2011 allowed the Legislature to obtain outside legal representation in lawsuits. Sothe judge ruled that lawmakers did have standing in the case, which the U.S. Supreme Court is set to hear this spring.
Sandstrom said the more likely road for Utah lawmakers to take now would be to file an amicus brief in support of Shurtleff and HB497.
"I want to make sure that a bill that passed by an overwhelming number of legislators stands up in court," Sandstrom said, "and we do whatever we can do to make sure that happens."
A hearing is set for Feb. 17 in Salt Lake City before U.S. District Judge Clark Waddoups in the lawsuit against Utah's enforcement-only immigration law.