In Utah, a power struggle between the Legislature and the governor

Sunday , May 06, 2018 - 4:00 AM

E. KENT WINWARD, special to the Standard-Examiner

Power. We want it. We rebel against it. We revel in exercising it, so when we gain a little bit, it is tempting to exercise some unrighteous dominion over those without it. Our laws and governmental institutions are designed to control power in its many unwieldy forms. No one wants tyranny, but anarchy isn’t so hot either.

The law is power’s playground. Judges rule. Governors and presidents veto. Supreme courts overturn. Legislators override.

I've always enjoyed the power struggle in the national and local arena between the branches of government, particularly when there is a legal angle — the warped lawyer version of spectator sports. I also try and stay current on what is happening in our community. However, I completely missed the Utah Legislature's vote in mid-April to overturn Gov. Gary Herbert's veto of two bills, House Bill 198 and Senate Bill 171. Both addressed the legal powers of the executive and legislative branches of the Utah government.

HB 198 added to the Utah Code provisions outlining the responsibility of the Utah Attorney General’s Office. The attorney general’s position is set forth in Article VII, Section 16 of the Utah Constitution: “The Attorney General shall be the legal adviser of the State officers, except as otherwise provided by this Constitution, and shall perform such other duties as provided by law.” HB 198 is adds duties “as provided by law.”

So why did Herbert veto HB 198, and why did the Legislature override that veto? The bill is in response to Attorney General Sean Reyes refusing to release a legal opinion on the governor’s ability to call a special election due to the sudden resignation of U.S. Rep. Jason Chaffetz. The opinion was withheld at the request of the governor, who claimed it was protected by attorney-client privilege. The governor seems to have a good constitutional basis for the claim, since the Utah Constitution designates the attorney general as the legal adviser of the state officers, arguably making the state officers the actual clients.

HB 198 is a legislative temper-tantrum that reads like something designed by the client of every attorney's nightmares. The new law requires the attorney to follow all ethical rules. The law then states, in the classic, having-your-legislative-cake-and-eating-it-too: “The attorney general may not invoke the potential conflict of interest or attorney-client privilege as grounds to withhold or refuse to provide the legal opinion required [by the Legislature].” So basically, "comply with the ethical rules — unless it's inconvenient for us." And like any good tantrum, the Legislature says if the attorney general refuses to comply, it can get an extraordinary writ with the Supreme Court to force the AG to comply, the legislative equivalent of, “or I’m going to tell Mom.” Oh, and remember: under the Utah Constitution, "Mom," (aka the Supreme Court), has the final authority to write all the ethical rules that the attorney general must follow.

At this point, I mostly feel sorry for Sean Reyes. The whole thing may end up being just some scratchings in the code book, but when future conflicts arise, there's a good chance this will end up in court, with the Supreme Court of Utah ruling on the constitutionality of HB 198.

Senate Bill 171 is going to be the more costly veto override this year, to the tune of about $700,000. One thing for which you've got to give our lawmakers credit: they love to spend money on attorneys. That $700,000 they've allocated for SB 171 is for three lawyers, a paralegal and a legal secretary to defend laws passed by the Utah Legislature if the attorney general’s office refuses to defend the laws the way the Legislature wants them defended.

While the attorney general has a duty to defend legislation passed into law, the legislative branch apparently doesn’t feel like its interests are being protected. The bill raises the interesting possibility of the attorney general and the attorneys for the Legislature being on opposite sides of a bill in court, which could give rise to a case ridiculously entitled State of Utah v. State of Utah. Reyes’ job just keeps getting harder.

Maybe the question to ask this November, when you're deciding for whom to vote as your state legislators, is this: how much power do they think the Legislature should have? Maybe even more important, how much of your tax dollars are they willing to spend to gain that power? Because unrighteous dominion can be expensive.

E. Kent Winward is an Ogden attorney. Twitter: @KentWinward.

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