Lawmakers introduce bill requiring AG’s office to give them legal opinion, setting up possible separation of powers fight with the governor

As expected, the GOP-controlled Legislature is aggressively going after Attorney General Sean Reyes for his decision last year not to give lawmakers his opinion on whether Republican Gov. Gary Herbert acted appropriately in deciding on his own the U.S. House special election process.

Rep. Merrill Nelson, R-Grantsville, introduced HB198 on Tuesday, just the second day of the 2018 Legislature.

The bill says Reyes MUST give the Legislature as a whole, or the House or Senate separately, any legal opinion lawmakers ask for.

If he doesn’t, the bill says the Legislature can immediately appeal to the Utah Supreme Court, which no doubt would order him to do so – since HB198 says he has to.

Nelson said he has not, as yet, talked to Reyes about the bill.

The AG’s office reaction to

Says Ric Cantrell, Reyes’ chief of staff: “For separation of powers junkies, Rep. Nelson’s HB198 is the most interesting bill of the session.

“These decisions are important and should be made very carefully. We look forward to the discussion.”

Should HB198 pass over Reyes’ objections, Herbert could veto it. If so, lawmakers would have to rally two-thirds of the Senate and House to override such a gubernatorial veto. 

This story has wheels within wheels, but at its core is Herbert’s demand last spring that Reyes NOT give House Speaker Greg Hughes and Senate President Wayne Niederhauser an already-written opinion on the 3rd District special election process, citing attorney-client privilege.

Lawmakers asked for the opinion way back in May, even before Rep. Jason Chaffetz resigned his seat in June.

But Herbert told Reyes he couldn’t give lawmakers the opinion, with an attorney in Herbert’s office getting an ethical/attorney-client directive from the Utah Bar Association. In essence, threating Bar action if Reyes or his assistant AGs gave the opinion to legislative leaders. and others, including The Salt Lake Tribune, asked under GRAMA for the opinion, which Reyes refused to hand over.

The Tribune kept at it, and last fall the Open Records Committee ordered Reyes to give the newspaper the opinion. Reyes said no, and he prepared to take the matter to state court.

Last week, however, Herbert relented – saying it really didn’t matter anymore since the 3rd District special election process resulted in the election of former-Provo Mayor John Curtis, a Republican.

And the opinion said Herbert and Lt. Gov. Spencer Cox, the state’s official election officer, were right in saying the governor could decide the special election process – because the Legislature had not outlined such a process in law.

But hard feelings remained – which include some internal politicking as Hughes, Cox and Reyes could all be running for the GOP gubernatorial nomination in 2020.

Hughes and Niederhauser (but especially Hughes) have said for months that lawmakers would take some actions because of the Herbert/Reyes kerfuffle – including clearly saying the AG has to give lawmakers opinions if they ask for them.

HB198 outlines several actions the AG must take:

  • He has up to 30 days to deliver a lawmaker-requested opinion.
  • If he doesn’t, lawmakers have a direct legal route to the Utah Supreme Court.
  • The AG must “wall off” his office so if the governor and Legislature both are seeking legal advice, different assistant AGs work on the Legislature’s opinion and different assistant AGs work on the governor’s opinion.
  • Thus, there can’t be a conflict of interest (which Herbert claimed) in the AG giving legal advice to two different clients on the same subject or issue.
  • The AG must comply with the Legislature’s opinion request “in good faith.” In other words, he can’t stall or claim other reasons for not giving the Legislature the opinion it wants.

Hughes told UtahPolicy that he sees HB198 as clarifying what lawmakers already believe are in law.

“We have a statute” on this issue “that has been followed for years; but not last year,” said Hughes. HB198 should make matters clear.

Nelson, a respected attorney with the leading law firm of Kirton McConkie, said his bill is a clear instruction to the AG that a legislative-requested opinion must be given, and that if it is not then there is a direct “remedy” – the Utah Supreme Court – to get it.

It is a balance of powers issue, said Nelson, whereby the Legislature needs to stand up.

In a way, said Nelson, HB198 “gives cover” to the AG should the governor or someone else in the executive branch claims the AG can’t give the Legislature a legal opinion.

Whether Reyes wants that “cover” or not remains to be seen.