Legal Opinion

Earlier this year, several serious questions regarding separation of powers and the role of the Executive Branch arose after the Governor overstepped his constitutional duty and set the time, place and manner of a special election to replace Congressman Jason Chaffetz.

The Legislature requested a legal opinion from the Attorney General regarding the process to fill a vacancy when a Utah Congressperson resigns.

The opinion was completed, signed and ready to be delivered. But the Governor’s Office urged the Attorney General to not release the opinion claiming a conflict existed due to an attorney-client relationship, though, according to Section 67-5-1 (7) Utah Code: “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[.]”

On several occasions, the Legislature requested the legal opinion completed earlier this year be provided by the Attorney General and several media outlets requested the document be released under the Government Records Access and Management Act (GRAMA). The Attorney General’s Office denied those requests.

The Salt Lake Tribune appealed their denial to the State Records Committee, and that committee voted in favor of the Tribune getting access to the opinion. The Attorney General’s Office is now deciding whether to appeal the records committee ruling.

On Wednesday, October 18, the Legislative Management Committee unanimously passed a motion to “authorize legislative legal counsel to initiate litigation, as necessary, to obtain the requested legal opinion from the attorney general and to address any other legal issues that could arise or have arisen from that request.”

The Legislature believes that the Attorney General is required by law to provide the Legislature the legal opinion. The Legislative Management is seeking clarity as to the role of the Attorney General and whether court rules pertaining to attorney-client privilege exist, and if those rules trump the statute that has been defined in law directing the Attorney General to give the Legislature an opinion. Having this clarity will help to avoid similar situations in the future should they arise. Obtaining the legal opinion will be useful to have when drafting and considering legislation to establish a process for filling potential Congressional vacancies during the upcoming session.

Listen to the entire committee here.

Additional information:

Separation of Powers and Constitutional Concerns

Legislative Leaders Issue Statement on Separation of Powers

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