Legislative leaders decided Tuesday to pursue legal action to seek a secret legal opinion by the attorney general’s office about whether Gov. Gary Herbert exceeded his legal powers in unilaterally setting procedures and timelines for the 3rd Congressional District special election.
Senate President Wayne Niederhauser said that decision came in part because of discussions among leaders that began after The Salt Lake Tribune last week won its case before the State Records Committee seeking that same document.
The panel found that the legal opinion was rightly protected as a “draft” document, but then ruled 6-0 that the public interest in its disclosure outweighed any privacy interest.
The attorney general’s office hasn’t said whether it will appeal, but the governor, who it considers the attorney general’s client, is openly pushing to go to court.
Niederhauser and House Speaker Greg Hughes said Tuesday they are in the process of authorizing attorneys to study legal options — and scheduled a special session of the Legislative Management Committee on Wednesday evening to formally approve the move.
Niederhauser said options may include the Legislature filing its own lawsuit, or perhaps supporting or joining any legal action The Tribune may pursue. Hughes said a variety of options are likely to be considered.
If the attorney general’s office decides to release the document to The Tribune as ordered by the records committee, Niederhauser said, the need for any legal action would be moot.
“We’d read it in the paper, I guess. We’re fine with that,” Niederhauser added.
The fight involving the Republican governor, attorney general and legislative leaders began when former U.S. Rep. Jason Chaffetz announced he was retiring early from Congress.
Herbert contended he had power not only to call a special election to replace him, but to order the detailed procedures and deadlines necessary — because the law was silent on them.
Hughes and Niederhauser disagreed, as did legislative attorneys, and said the governor should call a special session of the Legislature to enact those election procedures. Herbert refused, noting several legislators talked about running for Chaffetz’s seat and he worried openly that rules could be made that would benefit them.
Legislative leaders asked Attorney General Sean Reyes for a written legal opinion on the matter. That document was completed and signed, legislative leaders were told, but it was never delivered because of ethics concerns raised over a potential conflict of interest.
The attorney general’s office said it, along with Herbert’s lawyer, approached the Utah State Bar and said they were told there was a 50-50 chance of a conflict of interest because the attorney general is constitutionally bound to advise the governor.
While frustrated because Utah law says one of the AG’s official duties is providing written legal opinions to the Legislature, Hughes and Niederhauser said they delayed any legal action to avoid interfering with the special election.
“We didn’t want to interrupt the election in any way. But we felt like that letter is going to direct policy, and we ought to get that letter,” Niederhauser said. He adds any legal action would likely come after the Nov. 7 election, and he doubts that anything in the opinion could invalidate its results.
Hughes said, “We’ve always wanted that letter. It is finished and signed. It is not a draft. There was no litigation pending.” that it could affect.
He adds the opinion “will help inform the process” as the Legislature possibly addresses how to organize special elections in the future.
Niederhauser said, “We think the attorney general’s opinion on this issue is very valuable to policy questions…. The attorney for the state of Utah really needs to have input on this.”
Niederhauser said legislative leaders have made clear to Herbert and Reyes that they want the opinion and that they have the ability to provide it. As they have not done so, lawmakers are left to pursue court action. “We’re hoping we’ll get that information.”