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Legislative leaders and their lawyers said Tuesday that the special-election process Gov. Gary Herbert imposed to replace outgoing Rep. Jason Chaffetz is flawed and likely will not withstand any legal challenges.
The new United Utah Party says it will file suit Wednesday.
Lawmakers also expressed outrage as they said Herbert bullied the attorney general's office into not releasing a legal opinion on that process requested by legislators — and won't waive assertions of attorney-client privilege that have stopped its release.
If "this is an absolutely sound and legal process, I don't know what the hesitation would be" to release that completed and signed opinion, said House Speaker Greg Hughes, R-Draper.
Paul Edwards, spokesman for Herbert, said the governor will not waive his privilege in order to "retain the attorney general's office as our attorney, should we end up in some litigation."
The governor has no knowledge what is in the opinion, he added — because it was written by a different set of attorneys in that office for lawmakers than those who had been working with the governor. "It could be very favorable. We expect it would be."
The governor's office also maintains that the election process is legal — and said groups ranging from the U.S. Department of Justice to Congress have signed off on it. His office also denies assertions that it made personal threats against lawyers in the Utah attorney general's office to block issuance of the legal opinion.
Meanwhile, Salt Lake County Mayor Ben McAdams wrote a letter on behalf of the state's counties to Attorney General Sean Reyes on Tuesday, seeking his opinion on the election process by Thursday, noting that "there are very real costs to the counties" if the process is rejected. Counties plan to mail primary-election ballots beginning June 30.
Hughes led an unusual joint caucus of House Republicans and Democrats on Tuesday — no members could remember ever holding such a meeting — to outline in detail how they believe Herbert violated the law.
Senators had separate caucuses on the topic.
Hughes argued that the process Herbert imposed is a much-abbreviated version of the 300-day process the state normally requires for a congressional election, and that the governor had no legal authority to do so.
Also, Herbert, a Republican, required candidates to file, gather signatures or be selected by party conventions before Chaffetz actually resigns on June 30. "There is no vacancy," so Herbert jumped the gun, Hughes argued.
John Fellows, legislative general counsel, said that, because of such problems, "A court would likely conclude that this legislative power [to alter existing processes] cannot be exercised by the governor or lieutenant governor."
Mark Thomas, state elections director for Lt. Gov. Spencer Cox, disagreed.
"We looked very closely not only at our statute, but at what other states have done … and worked with the attorney general's office and our attorneys and did really an extensive review. We felt comfortable on what we found," he said — including beginning the process before Chaffetz actually vacates the office.
He added: "It would almost be irresponsible for the lieutenant governor's office not to begin the process knowing there is going to be a vacancy."
Six other states have begun their election processes, and even held elections, Thomas said, before an actual vacancy — and the governor's office vetted the situation with the U.S. Department of Justice and Congress, which found no problems.
Legislators do not intend to sue Herbert themselves, Hughes said, "at this time." But, he added, "We're going to talk to our caucus to see what their mood is. But that's not our intent here." He noted that others, including the new United Utah Party, have said they plan to sue over abbreviated processes that barred that party's nominee from running. In a news release sent Tuesday night, the party said it would file a lawsuit Wednesday.
Hughes said he has "compassion and appreciation" for candidates who "have spent incredible amounts of money.
They played by the rules they have been given. I'm not looking to interrupt that. But I'm afraid it may be interrupted" because of lawsuits by others.
Hughes said lawmakers want to be ready to offer a new special-election process if the current one is rejected by the courts, and lawmakers will pressure Herbert to allow release of the attorney general's legal opinion — and seek to prevent him from blocking such opinions in the future.
Some legislators called for more than just words against the governor.
"It's imperative that we take action," Rep. Brian Greene, R-Pleasant Grove, told fellow lawmakers. "We cannot allow a political motivation to usurp our authority as a Legislature."
House Minority Leader Brian King, D-Salt Lake City, said, "I am concerned about what the governor has done. … There is just overreach that has to be responded to."
Bad blood between the governor and lawmakers started when Chaffetz, a Republican, announced that he would resign; legislative leaders asked Herbert to call them into a special session so they could adopt a process for that election.
Herbert declined, saying he had authority needed and that state laws already outlined how elections should proceed.
Herbert's actions came as legislators talked about possibly not allowing candidates to use a new system to qualify for a primary by collecting signatures, and they preferred allowing party conventions to choose nominees themselves. Herbert said the ability to collect signatures should be preserved.
Two Republicans have qualified for the primary by collecting signatures: Provo Mayor John Curtis and investment adviser Tanner Ainge. Former GOP Rep. Chris Herrod won nomination to the primary at a special party convention. The primary winner will meet Democrat Kathie Allen, a physician, in the general election.
Meanwhile, Hughes and Fellows said they were told that Herbert's own general counsel threatened ethics actions — including possibly leading to the rescission of the law licenses — of assistant attorney generals if they released a legal opinion they prepared about the legality of the process imposed by Herbert, because the governor was the attorney general's client and its release would violate attorney-client privilege.
They said the Utah Bar Association became involved to offer ethics guidance, and Reyes declined to release the opinion prepared for lawmakers when he believed there were even odds that his attorneys may face sanctions for doing so.
Dan Burton, spokesman for Reyes, said his office has no comment.
Edwards, the governor's spokesman, said about the allegations: "Nothing could be further from the truth."
He added: "All the attorneys involved recognized that it was a good idea to seek guidance. They approached the [Utah State] Bar for guidance on that issue, but never with any sort of threat there would be some sort of disciplinary action or concern raised."
But lawmakers were upset at Hughes and Fellows' allegations.
"To threaten a bar complaint is about as low as it gets," said Rep. Ken Ivory, R-West Jordan. King added: "The governor took the low road here."
Hughes also said statutes require that the attorney general give lawmakers legal guidance when requested, and that office has done so for decades. He said he does not want to allow assertions of attorney-client privilege by governors to block that in the future, and lawmakers will study their options to fight it.