Lawmakers set to meet Tuesday to discuss special election rules, separation of powers

When Utah legislators – both Republicans and Democrats – meet in party caucuses Tuesday noon, look for their own attorney, John Fellows, to give his opinion on whether GOP Gov. Gary Herbert followed proper procedure in declaring a special election to replace retiring U.S. Rep. Jason Chaffetz, R-Utah.

Regardless of Fellow’s opinion – remember, Herbert blocked GOP AG Sean Reyes from giving the Legislature his official legal opinion on the matter – Capitol Hill leaders tell UtahPolicy the Legislature itself doesn’t want to be an official party to legal challenges to Herbert’s election writ.

Leaders don’t plan to sue in court, don’t now plan to file a “friend of the court” brief in any upcoming lawsuits.

The Deseret News reports that Utah’s new third-party – United Utah Party – will sue in court to get on the special election ballot.

And whether Herbert’s election writ is legal or not may well be part of any court’s decision on the UUP matter.

Other interested individuals or groups may also file lawsuits, UtahPolicy is told. One or more may include unhappy GOP or Democratic candidates who were eliminated from the 3rd District race in Saturday’s special delegate votes.

Ten Republicans were eliminated by about 750 delegates in a long convention in Timpview High School, while two Democrats were eliminated in a special delegate vote in Ogden.

As it now stands, there won’t be a Democratic Party primary in the 3rd District, Dr. Kathie Allen won that nomination outright Saturday.

There will be an Aug. 15 GOP primary in the 3rd District, however. New internal GOP rules said there would be only one candidate to come out of the special convention, and former state House member Chris Herrod got 55.11 percent of the delegate vote.

However, two candidates – Provo Mayor John Curtis and Tanner Ainge – have been certified to the GOP primary ballot by successfully gathering 7,000 Republican voter signatures. So three candidates will be on that ballot.

GOP and Democratic leaders in the Legislature want to know why Reyes believes he shouldn’t give lawmakers his opinion in this matter.

UtahPolicy is told that Herbert’s top staffers went so far as to threaten Reyes’ drafting attorneys with action before the Utah Bar if they released the AG’s opinion.

Certainly, says Herbert spokesperson Paul Edwards, the governor told Reyes that Herbert claims attorney/client privilege on the matter – and Herbert, anticipating a lawsuit, didn’t want to reveal his own attorney’s legal strategy publicly beforehand.

At the very least, lawmakers want to clarify via law in the 2018 general session, which starts in January, that the AG DOES represent the Legislature in many legal matters, and should give his opinion when asked.

Next year lawmakers also will take up how to run a special U.S. House election. There was a bill outlining that process introduced in the 2017 Legislature – Rep. Chris Stewart, R-Utah, was rumored to be in line to be named Air Force secretary by President Donald Trump (it didn’t happen).

But that bill failed in the final days of the session.

Legislative staffers say state law requires the AG to give the Legislature and other state offices opinions, when asked, dealing with their “respective offices.”

Here is the citation in Utah Code: 67-5-1(7):


. . . give the attorney general’s opinion in writing and without fee to the Legislature or either house and to any state officer, board, or commission, and to any county attorney or district attorney, when required, upon any question of law relating to their respective offices;


House Republicans and Democrats will meet together at noon Tuesday. Legally, they can take no joint action – Herbert has not called them into a special session, in fact he refuses to do so.

Leaders don’t plan to ask for any caucus positions – just want to tell members what is going on. But there can always be motions made from the floor by caucus members.

Fellows is scheduled to meet with the House caucuses. (Senate Republicans will be meeting separately in a closed session, Senate Democrats hold open caucuses, and will meet separately).

Watch for lawmakers to take up a constitutional amendment in January which, if adopted and passed by voters, would allow the Legislature to call itself into special session on specific matters.

Currently, only the governor can call lawmakers into a special session (outside of the regular 45-day general session), and only he can set the agenda.