ST. GEORGE – The Utah Attorney General’s Office released a secret legal opinion earlier this week stating Gov. Gary Herbert was within his authority set procedure for the special election last year replacing former U.S. Rep. Jason Chaffetz.
In the wake of Chaffetz’s pending resignation from Congress last year, the governor called a special election and the outlined the mode by which is would be handled. This sparked a feud with the Legislature. While Herbert is able to call a need for a special election, House Speaker Greg Hughes, R-Salt Lake City, and others argued he did not have the authority to set “the times, place and manner” of how it was to be done.
Such is the purview of the Legislature, Hughes argued.
As the Legislature and governor clashed, Hughes and Senate President Wayne Niederhauser, R-Sandy, asked Utah Attorney General Sean Reyes for a legal opinion on the matter in May 2017.
They didn’t seen the document until its release late Tuesday.
According to document, Reyes’ office said the governor “has the discretion to set the time, place or manner of the election … so long as the terms are not contrary to state law or any individual’s constitutional rights.”
Part of what played into the governor’s favor was that “Utah’s statutory law on this issue is not specific. … Because the Legislature has not prescribed the time for or manner of holding a special election, it ‘leaves room for executive discretion’ to set the election’s time, place and manner.”
While state lawmakers had called on the governor to call a special legislative session to hammer out the rules for a special election last year, the matter overall is now considered “moot” by Hughes, Niederhauser and Herbert due the election of Rep. John Curtis, Chaffetz’s replacement.
When initially written last year, the legal opinion was not released despite Hughes and Niederhauser pushing for it. The Salt Lake Tribune also fought with the Utah Attorney General’s Office for the document’s release via open record laws.
In this case, Herbert’s office was treated as a client of the Attorney General’s Office, with Reyes arguing that releasing the document at the time could damage his office’s ability to defend the governor’s office.
“At its core was our ability to effectively represent the executive branch, and not be compelled to potentially harm,” Reyes said. “Inappropriately providing analysis that would be used by a possible opponent, especially over the objection of our client, would damage our ability to defend him.”
However, Herbert ultimately waived his client privilege, allowing the document to be released. Making the document public also curtails the potential for a lawsuit from lawmakers over access to it.
In a joint letter to Reyes asking to the document’s public release, Herbert, Hughes and Niederhauser said the legal opinion “may be of use to the legislative process as lawmakers contemplate the process of elections to fulfill congressional vacancies.”
Rep. Jeremy Peterson, R-Ogden, has already proposed a bill for the upcoming legislative session aimed at revising the rules for special elections.
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