As expected, the Utah Attorney General’s Office has denied UtahPolicy’s GRAMA request to see the office’s opinion written and signed, but held, on whether GOP Gov. Gary Herbert had the proper authority to set up the current 3rd U.S. House District’s special election.
UtahPolicy will appeal that GRAMA denial, says UPD Managing Editor Bryan Schott.
UtahPolicy had believed that House Speaker Greg Hughes, R-Draper, and Senate President Wayne Niederhauser, R-Sandy, were “clients” of Attorney General Sean Reyes when they asked for an official opinion.
As such, once UtahPolicy was denied by the AG for the request, Hughes and Niederhauser could ask to waive their attorney-client privilege, and the opinion would be made public.
But after the official denial on Thursday, House chief of staff Greg Hartley told UtahPolicy that they had been informed by their own attorneys that they are not “clients” of the AG in this complicated case.
And so they have no standing in the AG’s GRAMA request denial – further muddying the already murky legal waters.
In his monthly KUED Channel 7 media news conference last week, Herbert reiterated that his office would not allow Reyes to release the opinion – even though Herbert did not ask for it and the legislative branch did – because to do so would violate his (Herbert’s) attorney-client privilege.
And such privileges will be in this, and all such, cases jealously guarded.
Considering that Hartley now tells UtahPolicy that Reyes doesn’t even consider the Legislature a “client” in this matter – even though statute says that the AG will give opinions to all state agencies, the Legislature, and local government’s upon request -- it is unclear if a GRAMA appeal will do any good.
It has been generally considered that the AG’s opinion will say that Herbert should have sought legislative approval – likely through a special session – before going forward this spring with adopting a special election process for replacing U.S. Rep. Jason Chaffetz, who plans on resigning Friday and has already announced he’s going to work for national Fox News as a paid commentator.
The Utah Republican and Democratic state parties have already held 3rd District delegate conventions, each party sending out delegate-selected nominees – former state legislator Chris Herrod for the Republicans and Kathie Allen for the Democrats.
In addition, two GOP candidates, Provo Mayor John Curtis and investor Tanner Ainge, have been certified to the Republican Aug. 15 primary election via gathering at least 7,000 voter signatures.
Hughes and Niederhauser say they don’t want to foul up the current Herbert-selected special election process – for that would just delay 3rd District constituents having a representative in the U.S. House.
But the pair still demand that Reyes give them the legal opinion they requested in May – because state law says he needs to indeed issue such an opinion.
Herbert’s in-house attorneys say the Utah State Bar advises that the AG’s office shouldn’t do so.
But UtahPolicy has published a 1994 Bar ethics advisory that shows the Bar back then said that large, government legal agencies – like the Attorney General’s Office – can internally “wall off” different attorneys doing work for legally warring agencies or government entities – like the governor on one side and the Legislature on the other – and give legal opinions and/or represent two differing agencies at the same time.
Still, Reyes and Herbert decline to do so – with the UtahPolicy GRAMA request just the latest example of their steadfast refusal to release the opinion.
Meanwhile, GOP and Democratic legislative leaders say they are preparing bills/constitutional amendments that will be addressed in the 2018 Legislature.
The outcomes could well be legislators asking voters in November 2018 to change the state Constitution to allow lawmakers to call themselves into special session under certain circumstances, and new laws written to direct the AG to give the Legislature legal opinions whenever asked for, regardless of what the governor may say.
In any case, UtahPolicy has specifically asked, via a Dan Jones & Associates poll, citizens whether they like the dual-candidate route Herbert has used in his 3rd District process or whether party delegates alone (as some lawmakers’ desired) should decide the party nominees.
Overwhelmingly, voters say they like Herbert’s special election process over the delegate-only route.
Herbert, in fact, says he doesn’t care what Reyes’ opinion says, he did the right thing in moving forward alone with the special election process, which will allow more voter choice in Chaffetz’ replacement.