The Republican-controlled Utah Legislature will sue GOP Attorney General Sean Reyes in an attempt to get an opinion on whether Gov. Gary Herbert violated law in not calling a Legislature-requested special session earlier this year.
Both GOP and Democratic legislative leaders wanted Herbert to call a special session so they – not he – would set up a special election process as U.S. Rep. Jason Chaffetz, R-Utah, prepared to resign his seat. He left office June 30, but had said publicly for several months he intended to resign.
Herbert declined to call a special session.
Instead, he and Lt. Gov. Spencer Cox – the official state election’s officer – set up a dual-path/SB54-like process where candidates could go before a delegate convention, or gather voter signatures, or both, to make a party primary election.
President Wayne Niederhauser, R-Sandy, and House Speaker Greg Hughes, R-Draper, officially asked Reyes – who is supposed to be the attorney for all state agencies, including the Legislature – if Herbert’s actions were legal.
Reyes’ staff prepared the opinion last spring. But before he could release it, Herbert’s legal counsel asked Reyes to hold it, claiming attorney/client privilege.
Some sharp words went back and forth between majority legislative leaders, Reyes and Herbert – all Republicans.
Meanwhile, The Salt Lake Tribune, UtahPolicy.com and other entities petitioned Reyes asking for a copy of the opinion. He declined to give it, claiming attorney/client privilege.
Niederhauser and Hughes both told UtahPolicy Tuesday afternoon that it was their intent months ago – after the primary election process laid out by Herbert and Cox ended – to ask a court to rule on the issue.
“We want a resolution” to the issue, said Niederhauser, “because we have policy issues” scheduled for debate, perhaps action, in the 2018 general session, which starts the end of January.
They will ask the courts for abbreviated hearings, UtahPolicy is told – but it may not be possible to go directly to the Utah Supreme Court for a decision.
A special meeting of the Legislative Management Committee is called for Wednesday night to vote on proceeding with the lawsuit against the AG.
But in comments to UtahPolicy, it was clear Niederhauser and Hughes’ intent is to sue.
“We (the Legislature) did not want to interfere” with the Herbert/Cox 3rd District primary process, said Niederhauser. That process ended Aug. 15 with the primary election.
Hughes has been especially outspoken concerning Reyes’ refusal to release the opinion. “We want to see it,” he reiterated Tuesday.
Earlier this week, the State Records Committee (in a Tribune GRAMA appeal) voted unanimously to release the opinion – over objections by Herbert and Reyes’s staff.
Paul Edwards, Herbert’s communications chief, urged the AG to appeal the committee decision to state court.
And now the Legislature will be there in any case, seeking the opinion’s release.
While Herbert has said the opinion really doesn’t matter at this point – he will argue vehemently to keep his attorney/client privilege with the AG.
But GOP legislative leaders are preparing separation of powers issues for the 2018 general election – including the AG’s opinion actions.
Main on that list is lawmakers approving some kind of constitutional amendment that would allow lawmakers to call themselves into a special session – which they would have done, but couldn’t, in the Chaffetz’ replacement case.
Herbert said in a recent press conference that he would oppose such an amendment – although under state law the governor doesn’t get to sign or veto amendments – using his bully pulpit to warn voters it would be unwise to change current practice.
Under the Constitution, only the governor can call the part-time Legislature into special session; only he sets the agenda.
Herbert said some state legislatures are allowed to call a special session right after their general sessions’ expire – so difficult budget decisions, for example, are just pushed into the SS.
Utah lawmakers must adjourn after 45 calendar days, and that deadline leads to efficient, good general session, the governor said.
Hughes recently told UtahPolicy that he, too, wouldn’t want the Legislature to call itself into a special session for just any reason.
But he supports changing law so lawmakers could, under certain circumstances, call themselves into session to deal with issues/processes the governor refuses to call a session for.
In any case, the Legislature will sue Reyes.
And in the 2018 session lawmakers, will look at changing statute and/or amend the Constitution to make it clear when the Legislature asks for an AG opinion, they will get it.