Lawmakers blast Herbert’s secrecy surrounding special election process

So, Gov. Herbert, what are you trying to hide?

In a few short words, that is what Republicans and Democrats in the Utah Legislature are saying to GOP Gov. Gary Herbert – concerning Herbert’s client/attorney privilege claim over an opinion by Republican Attorney General Sean Reyes.

Herbert refuses to release the AG’s opinion – specifically asked for by House Speaker Greg Hughes and Senate President Wayne Niederhauser.

Paul Edwards, Herbert’s deputy chief of staff for communications, says in this case Reyes is acting as Herbert’s attorney, and to release the opinion does two things:

— Violates the attorney/client privilege by making public (for the Legislature likely would do so) advice to a client (Herbert).

Edwards said Herbert and his executive branch will “jealously” guard that right.

— In case of a lawsuit over Herbert’s special election process (which is likely), releasing the AG’s opinion would tip the state’s legal defense of Herbert’s actions in calling the election.

“We don’t know what the memo” – what he calls it, legislative leaders call it a signed AG opinion – “says. And we don’t care,” Edwards told UtahPolicy Tuesday night.

The issue, he restated, is that Herbert must continue to have “competent” legal advice from the election expert attorneys in the AG’s office.

And no matter what lawmakers do, Herbert is not going to waive his attorney/client privilege – in essence allow the AG’s opinion to lawmakers to be released.

But, with bipartisan support in both the House and Senate, it is clear GOP legislative leaders are not going to let this go.

There will be separate Democratic and Republican caucuses on Wednesday.


And while Hughes reiterated after Tuesday’s unprecedented joint meeting between House Republicans and Democrats that the Legislature will not sue Herbert over the special election process – there could be other actions that the caucuses approve Wednesday:

— They could officially call on Herbert to step back and change his mind, and tell Reyes to release the opinion (waiving the attorney/client or “executive” privilege).

— They could decide to seek an “extraordinary” writ from the Utah Supreme Court – not asking to overturn Herbert’s special election process, for that would hold all kinds of political and financial pitfalls – but only to force Reyes to give the Legislature his opinion.

— And while this likely would not happen, the Legislature could threaten Reyes with impeachment or other political actions to get him to “man up” and release the opinion over Herbert’s objections.

Remember, the Legislature has the power of the purse – and both Reyes and Herbert could see angry lawmakers hitting their budgets if they keep this stuff up.

Hughes and half a dozen other speakers said during the unprecedented joint meeting – no one can remember when both the House Republican and Democratic caucuses met together outside of general-session floor action – that this issue is bigger than just a routine political fight between the Legislature and governor’s office.

“We can’t look the other way,” said Rep. Brian Greene, R-Pleasant Grove. “We have to protect the constitutionally protected authority of the Legislature.”

Niederhauser tells UtahPolicy that the GOP Senate caucus – meeting Tuesday, as it does, behind closed doors – is not that aggressive, even if Republican senators take this issue seriously.

“We don’t want to do anything” that would harm the current special election process, nor go to court now in any form that could end up with the Utah Supreme Court upsetting the election process set up by Herbert.

In the 2018 general session, says Niederhauser, Senate Republicans will look to enact laws that will deal with a number of these issues.

The Legislature’s general counsel, John Fellows, and his staff did an “exhaustive” legal review of Herbert’s positions – both in regards to the governor’s claim that he has legal authority to call the special election and set the process, and that Herbert has “executive” and/or client/attorney privilege to keep Reyes’ opinion secret.

You can read Fellow’s opinion here.

You can’t read Reyes’ opinion because UtahPolicy – like the rest of the world – doesn’t have it. And Reyes’ folks told Hughes et al. that if someone tries to GRAMA it, they will refuse to turn it over to the public.

Fellows’ opinion says:

  • Herbert didn’t have the legal authority to set up the current special election process, for several reasons.
  • U.S. Rep. Jason Chaffetz, R-Utah, may have written a letter saying he intends to resign his 3rd District seat June 30, but he has not legally vacated the seat yet. So any special election process is premature, even illegal.

(Herbert has arguments against all of the complaints lawmakers/Fellows makes – and those have been detailed by UtahPolicy in previous stories.)

  • Only the Legislature can set the “time and place” of elections – special or regular. True, the Legislature has not set up a process for a U.S. House vacancy special election.

But instead of just doing all of that himself – along with Lt. Gov. Spencer Cox, the state’s chief elections officer and Cox’s Utah Election Office – Herbert should have called the Legislature into a special session to set up that process.

  • The AG’s office is – by law – the officially attorney of not only the Legislature, but for state agencies, local governments and many more.

Edwards said the lawmakers’ argument that different assistant attorneys in Reyes office worked on Herbert’s legal advice and on the Legislature’s opinion “does not satisfy us” – as far as Herbert letting the AG opinion go.

That’s because Herbert needs “expert” advice – and if some of the civil election attorneys are diverted into the Legislature’s work, then they wouldn’t be available for Herbert’s work – and that’s not proper, Edwards argues.

Since 1945, the AG has given the Legislature more than 6,000 official opinions, and many more informal opinions.

Fellows says over the last 15 years, the AG gave the Legislature and/or its presiding officers two to three official opinions over a two-year time frame.

  • Thus, Reyes’ refusal to give his opinion on Herbert’s actions to lawmakers is, basically, unprecedented in and of itself, and a violation of Reyes’ legal duties.

Lawmakers say Herbert’s folks threatened to bring a Utah Bar complaint against any assistant AG who gave the Legislature the opinion.

“That is the low road,” said House Minority Leader Brian King, an attorney himself.

But Edwards says there was no such threat – “that is completely incorrect.”

Rather, said Edwards, Reyes’ folks and Herbert’s own in-house counsel decided “jointly” to seek advice from the Bar on what would be appropriate and proper – and that advice basically was don’t break attorney/client privilege, for there could be harsh ethical consequences for the assistant AGs.

“This issue of the AG’s conflict of interest” in refusing to give the Legislature his opinion of Herbert’s special election process “is more troubling to me” than Herbert’s separation-of-powers perceived violation in the special election process itself, said King.

Threatening assistant AGs with Bar actions “is unwarranted and unwise,” said King.

When some other representatives said maybe the Legislature should threaten those assistant AGs with the same Bar action if they DON’T release the opinion, King said that would be wrong – warning that there are other routes to getting Reyes to release the opinion.

  • A special complaint to the Supreme Court to force that release?
  • Maybe some kind of legislative action against the AG?

Stay tuned.

After Wednesday’s individual caucus meetings in the House and Senate – be prepared for some kind of jointly-approved action by Republicans and Democrats (or maybe just House Republican) to knock Herbert upside the head politically.

The battle over separation of powers and the governor’s office taking over special election processes that are (they claim) reserved for the legislative branch is too important, lawmakers say.

However, House and Senate Republicans won’t be suing Herbert over the special process at this late date:

  • In special 3rd District delegate conventions last Saturday, both Democrats and Republicans picked convention nominees – Kathie Allen (Democrat) and Chris Herrod (Republican).
  • In addition, following Herbert’s process (following SB54 for general elections) both Tanner Ainge and Provo City Mayor John Curtis are on the Aug. 15 GOP primary ballot via signature-gathering.

GOP lawmakers don’t want to upset that now set election process – although perhaps court suits by non-lawmakers may do just that.

Better to force Herbert – one way or another – to release Reyes’ opinion – which will likely show that Herbert acted wrongly in ignoring lawmakers warnings of bad stuff happening down the road, and demands to call them into special session this spring to set up a special election statute process to pick Chaffetz’ replacement.

Again, Edwards says the governor is very confident that if taken to court he would win, that he has strong constitutional, statute and policy arguments in his favor.

All this, aside from a court order, may get Herbert to call lawmakers into a summer special session, some lawmakers hope.

Then, legislators could “legitimatize” Herbert’s special election process and/or approve monies so counties can pay for special election costs.