Separation of Powers and Constitutional Concerns

The special election to replace Congressman Jason Chaffetz has led to a number of serious questions regarding separation of powers, executive authority and the role of the Attorney General. This is not about the special election itself; the Utah Legislature is not interested in disrupting it. The media has done all of us a disservice by calling this a political fight between the legislature and the governor, rather than articulate what it really is—a real concern over fundamental constitutional and legal principles.

Utah Constitution Article V, Section 1 states, “The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of those departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.”

The separation of powers is one of the most fundamental principles of our government. The House and Senate, both Republicans and Democrats, agree that Governor Herbert has blatantly overstepped his authority.

The Legislature Shall Prescribe the Process:

U.S. Constitution Article 1, Section 4 clearly states, “The Times, Places and Manner of holding an Election for Senators and Representatives, shall be prescribed in each state by the Legislature thereof.”

The only Utah law related to a special election for a vacancy in the U.S. House of Representatives is Utah Code 20A-1-502(1) which states, “When a vacancy occurs…in the office of representative in Congress, the governor shall issue a proclamation calling an election to fill the vacancy.”  

That state code does not prescribe the “times, places and manner of holding an election.”

A Vacancy:

U.S. Constitution Article 1, Section 2 states, “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.” 

Utah State Code 20A-1-502(1) states, “When a vacancy occurs …” 

On May 18, Congressman Chaffetz sent a letter to the governor to announce his “intent to resign from office…on June 30, 2017.” 

On May 19, Governor Herbert signed an Executive Order issuing a writ of election and Lt. Governor Cox issued an order setting the special election process for “the June 30, 2017 vacancy.” That process began the same day.

The filing period for interested candidates closed on May 26. The Lt. Governor certified candidates who collected signatures on June 16.  Major political parties held their nominating conventions on June 17.

The entire election process began, candidate filing period closed and party nominations all happened prior to a vacancy actually occurring. The U.S. Constitution and Utah State Laws are clear—none of this can happen until a vacancy occurs. Therefore, the entire special election has been put in legal jeopardy.

Preparing to Fix a Potential Legal Challenge:

Legislators are concerned about a legal challenge and have been preparing to step in, if needed, to define the process into law so there is no delay in this election.

On May 23, legislative leaders asked for a formal legal opinion from Utah’s independently-elected Attorney General related to concerns about the process and seeking clarity in an attempt to inform their lawmaking process.

Utah Code 67-5-1(7) says the Attorney General shall, give his opinion in writing and without fee to the Legislature or either house and to any state officer, board, or commission, and to any county attorney or district attorney, when required, upon any question of law relating to their respective offices;”

On May 26, the office of Attorney General Reyes completed and signed the legal opinion requested by the Legislature. However, in a further attempt to overstep his authority, Governor Herbert and his office blocked the Attorney General from releasing it to the Utah State Legislature, claiming a conflict of interest and stating that to do so would be a violation of attorney-client privilege.

These claims made by the Governor and his office are erroneous and fly in the face of state law and established procedure, especially when the duties of the Attorney General are clearly defined.

By constitutional design, the Attorney General is accountable directly to the people. This accountability is a fundamental part of our system of checks and balances and separation of powers between the three branches of government.

Additionally, in seeking a legal opinion from the Attorney General’s Office, as allowed by law and which they are REQUIRED to provide, the Legislature is not a client. The opinion is simply that – an opinion – and not legal advice. Therefore, the claim of a conflict of interest and concerns related to attorney-client privilege are not justified.

That said, assuming those concerns are real, situations like these are allowed per state law and State Bar rules.

1990 attorney general memorandum contains a plethora of information related to the role of the Attorney General in giving opinions to agencies in conflict and ensuring that those conflicts are walled off – referencing the American Bar Association Rules and National Association of Attorneys’ General Rules and Recommendations. The arguments as to why the Legislature can’t be given the opinion that the Attorney General’s Office completed back in May are arguments already answered with decades of rules, opinions and laws. In fact, we can’t seem to find anything that would allow the denial of the release of this opinion.

To further emphasize this, in 1994, the Utah State Bar issued an opinion stating that government lawyers, including the Attorney General, are not viewed the same as private attorneys and that laws and rules governing attorney-client privilege either don’t apply at all or simply require firewalls to be created within an office.

In 2013, this opinion was codified in the Utah State Bar Rules. These very rules are the ones referenced as to why the attorney general won’t release his opinion. This raises the question of how a concern over the issuance of an opinion from the Attorney General’s Office to the Legislature even exists.

Unfortunately, the Attorney General, chief legal advisor of the state, is unwilling to fulfill his constitutional and statutory duty and provide the Legislature with a legal opinion on these matters because of concerns about the individual attorneys within his office being harmed by ethics violations due to these claims by the Governor’s Office. Exercising executive authority over an attorney general opinion is not a power held by the Governor. This entire fiasco makes us wonder what the Governor’s Office is trying to hide. Could it be he fears the process he has gone through is not on solid legal ground?

In addition to requesting a legal opinion from the Attorney General, legislative leaders also asked for a legal analysis to be completed by the Office of Legislative Research and General Counsel and they received it. The conclusion states, “Establishing an election process is a power that may only be exercised by the Legislature and that the Legislature has not, and cannot, delegate to another branch of government.” Read the entire opinion here.

Additional information with the complete timeline of events, letters, memos and constitutional provision, related laws and the OLRGC legal opinion are below.

OLRGC Legal Opinion

According to Office of Legislative Research and General Counsel (OLRGC) legal opinion, “The best interpretation of the scope of that authority [to issue a writ of election to fill a midterm congressional vacancy] is that the Governor’s authority is limited to calling and establishing the date of the election based on the times, places, and manner prescribed by the Legislature.” And, “A court would likely conclude that this legislative power [to prescribe election process] cannot be exercised by the Governor or lieutenant governor.” Further, “The Lieutenant Governor lacked the authority to issue the document, dated May 19, 2017, establishing his own ‘special election process’ for filling a vacancy …” what he called the “June 30, 2017 vacancy”.

Regarding the timing of the writ of election, “The Governor only has the authority to issue a writ of election to fill a vacancy in Congress: ‘[w]hen vacancies happen.’ Because Utah’s Third Congressional seat is still occupied and its occupant may have the ability to withdraw his resignation, the Governor was likely premature in his issuance of a writ of election …”

Read the formal legal opinion from OLRGC here.

 

The Attorney General has a duty to release its opinion to the Legislature

The duties of the Attorney General are clear. The governor’s claim of attorney-client privilege is erroneous and flies in the face of statute and established procedure.

In the letter from the Attorney General Office to the Legislature on May 30, it states that the Attorney General’s office must, under Rules 1.7 and 1.10, avoid conflicts of interest and it claims the Governor and Lieutenant Governor as “our clients by virtue of the Utah Constitution and the Utah Code.” Read the entire letter here.

According to Section 67-5-1 (7) Utah Code Ann.: “The attorney general shall: (7) give his opinion in writing and without fee to the Legislature … when required, upon any question of law relating to their respective offices[.]” And from the 1990 AG’s Memo, “State agencies with conflicting or unclear views about state law may seek clarifying advice from one source.”

 

The role of the AG’s office is to clarify the law as a representative of the people, not of the governor. According to that same memo, “The Attorney General should not be a delegate of the state executive (governor) …”

The very rule, 1.10(f), regarding conflicts of interest, used by the AG’s office to claim their inability to ethically share the legal opinion sought by the Legislature, states, (f) “An office of government lawyers who serve as counsel to a governmental entity such as the office of the Utah Attorney General . . . does not constitute a ‘firm’ for purposes of Rule 1.10 conflict imputation.”

Information

Timeline of Events

  1. April 19 – Chaffetz announces he’s not running again
  2. May 19 – Chaffetz announces his intent to resign
  3. May 19 – Governor Herbert Executive Order/Proclamation – Writ of Election
  4. May 19 – Lt. Gov Cox Issues an “order” detailing election process
  5. May 19 – May 26 – candidates file for office
  6. May 19 – Joint bipartisan op-ed from House & Senate Leaders
  7. May 20 – Speaker Hughes has a conversation with Sean Reyes about potential legal opinion on questions we have.
  8. May 23 – John Fellows requests a legal opinion from the AG Reyes per Utah Code 67-5-1(7).
  9. May 23 – Parker Douglas, AG General Counsel responds that their office will get us the opinion by May 26.
  10. May 25 – The United Utah Party submits signatures to become a qualified political party in Utah.
  11. May 26 – Jim Bennett files for office as a candidate for the United Utah Party but his application is rejected because the signatures to become a qualified political party were not certified. Bennett indicates he will legally challenge the election office’s determination regarding the United Utah Party and his request to be a candidate for them.
  12. May 26 – AG’s office (Spencer Austin) informs us, via phone call, that their opinion was drafted and signed by noon, but due to potential conflicts of interest related to attorney-client privilege and indications of complaints to the State Bar Office of Professional Conduct, they can’t provide the opinion on the date requested.
  13. May 27 – Follow-up letter from John Fellows to the AG that re-states the request for a legal opinion per Utah Code 67-5-17(7).
  14. May 27 – Letter from John Fellows to Billy Walker of the State Bar Office of Professional Conduct explaining that our request of the AG’s office is authorized by statute and allowed within the Rules of Professional Conduct.
  15. May 30 – Official letter from AG’s office (Spencer Austin) explains the concerns related to the Bar Office of Professional Conduct but indicates they anticipate being able to reach a decision by the end of the week.
  16. May 31 – Conference call with AG Reyes and members of his office further discussing the concerns around the potential ethical complaints to the State Bar and informing us that they will not be proceeding until they have those resolved.
  17. June 1 – Chia-Chi Teng announces he will sue in an attempt to get on the ballot.
  18. June 7 – Speaker and President request the same legal opinion from the General Counsel of the Utah Legislature.
  19. June 13 – Utah Legislature General Counsel provides the requested legal opinion.

 

CONSTITUTIONAL PROVISIONS, RELATED LAWS & INFORMATION

United States Constitution Article 1, Section 2:

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

Utah Code 20A-1-502(1)

(1) When a vacancy occurs for any reason in the office of a representative in Congress, the governor shall issue a proclamation calling an election to fill the vacancy.

Utah Constitution Article V, Section 1 [Three departments of government.]

The powers of the government of the State of Utah shall be divided into three distinct departments, the Legislative, the Executive, and the Judicial; and no person charged with the exercise of powers properly belonging to one of those departments, shall exercise any functions appertaining to either of the others, except in the cases herein expressly directed or permitted.

United States Constitution, Article I, Section 4: 

The Times, Places, and Manner of holding Election for Senators and Representatives, shall be prescribed in each state by the Legislature thereof; but the Congress may at any time by law make or alter such Regulations, except as to the Places of chusing Senators.”

United States Code Title 2, Section 8:

“(a) In general

“… the time for holding elections in any State, District, or Territory for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected, may be prescribed by the laws of the several States and Territories respectively.”

Utah Constitution Article VI, Section 32(2)

The Legislature may appoint a legal counsel which shall provide and control all legal services for the Legislature unless otherwise provided by statute.

Utah Constitution Article VII, Section 5(4)

The Governor may appoint a legal counsel to advise the Governor

Utah Constitution Article VII, Section 16 [Duties of Attorney General.]

The Attorney General shall be the legal adviser of the State officers, except as otherwise provided by this Constitution, and shall perform such duties as provided by law.

Utah Code 67-5-1(7)

(7) give the attorney general’s opinion in writing and without fee to the Legislature or either house and to any state officer, board, or commission, and to any county attorney or district attorney, when required, upon any question of law relating to their respective offices;

Utah Code 67-5-17. Attorney-client relationship.

(1) When representing the governor, lieutenant governor, auditor, or treasurer, or when representing an agency under the supervision of any of those officers, the attorney general shall:

(a)  keep the officer or the officer’s designee reasonably informed about the status of a matter and promptly comply with reasonable requests for information;

(b)  explain a matter to the extent reasonably necessary to enable the officer or the officer’s designee to make informed decisions regarding the representation;

(c) abide by the officer’s or designee’s decisions concerning the objectives of the representation and consult with the officer or designee as to the means by which they are to be pursued; and

(d) jointly by agreement, establish protocols with the officer to facilitate communications and working relationships with the officer or agencies under the officer’s supervision.

(2) Nothing in Subsection (1) modifies or supercedes any independent legal authority granted specifically by statute to the attorney general.

Utah Code 20A-1-203(3)

(3) The governor may call a statewide special election by issuing an executive order that designates:

(a)  the date for the statewide special election; and

(b)  the purpose for the statewide special election.

Excerpt from Congressman Chaffetz letter to Governor Gary Herbert

“I write to inform you in advance of my intent to resign from the office of U.S. Representative at the close of business on June 30, 2017…”

 

 

 

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