The Utah Constitution expressly empowers the governor to fill this vacancy in the office of the attorney general, but a state statute purports to limit the governor's constitutional powers by forcing the governor to select from a small slate of candidates chosen by the central committee of a political party.
Utah's state constitution states, "If the office of …. Attorney General be vacated by death, resignation, or otherwise, it shall be the duty of the Governor to fill the same by appointment, from the same political party as the removed person."
This means that Herbert must fill the current vacancy with the only restriction on the governor's discretion being that his appointee must come from the same party as the previous office-holder.
Because Swallow is a Republican, his replacement must share this political affiliation, presumably to respect the wishes of the voters who chose a Republican for this office in the last election.
We both believe that Herbert will best serve the state by making clear that his search for a replacement will not be dictated by narrow partisan interests.
The governor should scour the state for the most credible and capable Republican attorney available for this post. Herbert should not bow to political considerations, and he should not yield to a statute that violates the separation of powers established by the Utah Constitution.
Contrary to the broad power of appointment assigned to the governor by the state constitution, the Legislature enacted a statute that attempts to force the governor to select the replacement from a short list provided by the Republican Party.
Utah Code Section 20A-1-504 states, "The governor shall fill the vacancy until the next regular general election by appointing a person who meets the qualifications for the office from three persons nominated by the state central committee of the same political party as the prior officeholder."
This statute unconstitutionally shifts the power of choosing the next attorney general from the governor to the Republican central committee, a body that is not elected by the citizens of Utah. This restriction would keep the governor from considering a broad range of candidates and would instead put him on the sidelines while a partisan group somehow puts together its own short list of candidates from which the governor would pick.
Herbert should not accept this unlawful attempt to weaken the constitutional powers of his office.
We think the appointment statute is unconstitutional because it infringes on the governor's broad power of appointment. Because the statute purports to transfer some of the governor's power to serve Utah's citizenry to a political organization whose interests are solely partisan, the statute could leave the incumbent vulnerable to unfair political pressures as well as potential accusations that the replacement was chosen in a backroom political deal rather than through a search for the best candidate to restore public trust in the Office of the Attorney General.
We believe that Herbert should not shirk from his duty to protect the express powers of his office. Herbert should set the right precedent for the future by taking action to invalidate the statute and affirm the express terms of our state constitution.
The people of Utah deserve to know that the next attorney general is the person that the governor believes is the best person for the job, not someone who emerged from backroom politics with a spot on a short list.
We encourage Herbert to defend the constitutional prerogatives of his office, to honor the Utah Constitution, and to appoint the best attorney general he can find for our state.
Republican Brett L. Tolman served as U.S. Attorney for Utah from 2006 to 2009. Democrat Paul C. Burke was the Utah State Bar's Pro Bono Lawyer of the Year in 2012.