All sides – GOP Gov. Gary Herbert, Republican Attorney General Sean Reyes and GOP legislative leaders – are talking down a possible/likely lawsuit the Legislature may file against Reyes seeking a written-but-never-delivered opinion on whether Herbert overstepped his authority in setting up a special 3rd Congressional District election process this year.
UtahPolicy first reported Tuesday afternoon that legislative leaders – Republicans and Democrats alike – planned to sue Reyes in state court unless he turned over to them the disputed opinion, asked for last spring.
After Reyes’ staff attorneys wrote the opinion, and Reyes signed it, Herbert interceded. He demanded that Reyes not give the Legislature the opinion, saying it would be a violation of attorney/client privilege.
Wednesday night, the Legislative Management Committee unanimously voted to sue Reyes, unless the opinion could be given to them in some way.
All of a sudden Herbert and Reyes are talking compromise – as an expensive court fight between Utah’s top state Republicans looms.
Herbert, speaking Thursday morning at his monthly KUED Channel 7 press conference, said all sides are talking. And even if something can’t be worked out, there could be a friendly lawsuit initiated to see if the Utah Supreme Court could settle the issue.
Legislative GOP leaders said they would even be satisfied if Reyes would give the opinion to The Salt Lake Tribune – which won a State Records Committee ruling telling the AG to turn it over to the newspaper.
As House Speaker Greg Hughes said, “We just want to see it.”
Herbert said he has not seen the opinion, and really doesn’t care what it says – since the 3rd District election process he set up with Lt. Gov. Spencer Cox, the state’s official election officer, is running its course. The final election is Nov. 7.
But, Herbert added, he does want some “resolution” on the issue of whether the AG must give the Legislature opinions if the AG is already representing the governor on an issue.
As reported previously by UtahPolicy, regardless of how this all turns out (especially if Herbert sticks to his attorney/client argument), look for the GOP-controlled Legislature to address this topic – and other separation of powers concerns – in the 2018 Legislature, now just three months away.
Herbert’s conciliatory language may be walking back some of his top aides, who have been especially feisty on this issue – telling Reyes not to release the opinion to the Tribune and to appeal the records committee’s ruling in state court.
Herbert said no one is mad at anyone over the Legislature’s threatened lawsuit.
Said Herbert Thursday: “I expect this will be fine. We are talking. It may not be a bad option, the courts. We could lock arms” and go to the high court together.
But such kumbaya talk from the governor was not indicative of GOP legislative leaders’ rhetoric last spring with Herbert first refused to let Reyes release the opinion they thought was legally theirs.
And several separation of powers issues – like lawmakers calling themselves into special session and a law mandating Reyes give lawmakers opinions – will be dealt with by lawmakers come January.