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Gehrke: The showdown between the governor and Legislature over the attorney general's opinion on special election legality

Published June 19, 2017 1:58 pm

Replacing Chaffetz • Battle erupted after attorney general was blocked from issuing opinion on governor's special-election rules.
This is an archived article that was published on sltrib.com in 2017, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Gov. Gary Herbert and the Legislature are waging a high-power, high-stakes battle after Herbert blocked the attorney general's office from issuing a legal opinion to lawmakers on whether the governor overstepped his authority when he set the rules for the special election to replace Republican Rep. Jason Chaffetz.

Herbert had spurned legislators who overwhelmingly wanted the governor to call a special session so lawmakers could clarify the vague law on how to convene special elections.

Herbert's own counsel, in consultation with the attorney general's office, concluded that the governor had the authority to set deadlines and craft the format for the election to replace Chaffetz on his own.



Lawmakers were furious, and some suggested that they sue the governor to protect their constitutional right to make the laws.

Senate President Wayne Neiderhauser and House Speaker Greg Hughes made a formal request to Attorney General Sean Reyes for a legal opinion on the matter.

That opinion was prepared and signed, but before it could be sent to the legislative leaders, the governor's counsel, Jacey Skinner, intervened.

Skinner argued that the attorney general was representing the governor and disclosing the opinion would violate attorney-client privilege. Skinner, according to sources, went so far as to threaten to file an ethics complaint with the Utah State Bar against the lawyers in the attorney general's office if the opinion was disclosed.

While the attorney general is an independently elected constitutional officer, lawmakers cited state code that says that the attorney general's office is legally required to provide legal opinions to the Legislature at the request of the leader of the House or Senate.

The State Bar's ethics office was asked for an advisory opinion on the matter and advised parties to proceed with caution because it was an area of uncertainty; ultimately, it did not provide definitive guidance on the matter, according to several sources familiar with the issue.

So, as of today, the attorney general's legal opinion is completed and signed but remains in limbo, sitting on a desk stuck in the middle while the governor and the Legislature are at an impasse.

Dan Burton, a spokesman for the attorney general, said Saturday that he could not discuss interactions with clients.

"The governor's office is being careful to preserve its attorney-client privilege with the attorney general's office because of the potential threat of challenges to the [election] process that has been laid out," said Paul Edwards, the governor's spokesman, who notes that Herbert remains confident he is on firm legal footing.

"In fact, as the days go by we feel like it's stronger because the more we learn about processes around the country and the conversations we have with Department of Justice and with the U.S. House of Representatives and so forth," Edwards said.

Attorneys from the Office of Legislative General Counsel have independently advised the Legislature that Herbert may have overstepped his legal authority by arbitrarily setting deadlines for the special election and by initiating the special election process before Chaffetz vacates his seat on June 30.

On Saturday, delegates from both parties gathered in special conventions to whittle down the field of candidates for an August primary in anticipation of Chaffetz's resignation, which is scheduled to take effect June 30.

And on Tuesday, the Legislature is expected to hold a pair of unique bipartisan meetings, where Republicans and Democrats in the House will meet, as will their counterparts in the Senate, for a full briefing and discussion on how to proceed.

All of the uncertainty stems from vagueness in the law about how to replace U.S. House members. The U.S. Constitution says that the governor is required to call a special election when a vacancy occurs, but there are no rules about how that special election will be conducted.

Republican leaders wanted an expedited process that would not have allowed candidates to gather signatures to get on the primary ballot. But Herbert wanted to preserve the signature path and implemented a structure that mirrors the normal election process, albeit with expedited deadlines.

The dispute over who the attorney general represents harkens back to Gov. Mike Leavitt's administration, when the governor clashed with then-Attorney General Jan Graham over whether Graham should act independently or whether she was obligated to do the governor's bidding. The warfare between Leavitt and Graham led to the governor hiring his own general counsel.

gehrke@sltrib.com

Twitter: @RobertGehrke

 

 

 

 

 

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