Category: Blog Post

Balanced Budget Amendment

Reps. Ken Ivory, Kim Coleman and Kay Christofferson joined delegates from across the nation in Phoenix, Arizona at the Balanced Budget Amendment Planning Convention on September 12-15, 2017. This assemblage is the first national convention of the states convened since 1861 when states met to discuss an amendment they hoped would avert civil war. The purpose of the convention is to recommend a set of rules to govern a convention convened under Article V of the U. S. Constitution to propose a balanced budget amendment.

The Article V process offers a state-driven way to propose constitutional amendments. Since actions of this kind have seldom been warranted, conducting a well-ordered convention under rules established by historical precedent in Phoenix will produce a model of what a potential Article V balanced budget convention may look like.

“It is an honor to join the Utah delegation this week in Arizona to prepare rules and plans for a possible convention of states authorized under Article V of the U.S. Constitution for States to rein in the out of control federal spending and overreach,” said Rep. Ivory, who was elected to serve as vice president of the convention.

With the national debt approaching the $20 trillion mark, representing a dangerous 105 percent of GDP, many Americans are calling for accountability in Washington through a Balanced Budget Amendment.

“Our Founders always intended the strength of our nation and most of the power to lie with the states,” said Rep. Coleman. “The U.S. Congress has proven over and over that it will not control the debt and deficit it creates. One tool the Founders gave states to counter this tendency was the ability to come together and make amendments to the U.S. Constitution.”

The attempt to head off a sovereign debt crisis is not a new one. Ronald Reagan championed the cause of a balanced budget amendment in the 1980s.  In his 1982 Address Before a Joint Session of the Indiana State Legislature, he stated, “The Federal Government has taken too much tax money from the people, too much authority from the States, and too much liberty with the Constitution.”

“A balanced-budget amendment will help bring an end to our country being driven further into debt at an astronomical pace,” said Christofferson. “Constitutional or statutory mandates require a majority of states around the country to balance their budgets each fiscal year; the Federal Government should be expected to do the same.”

Currently, 27 of the required 34 states have passed applications for an Article V balanced budget convention. Reps. Ivory, Coleman and Christofferson will help prepare the nation for an exercise of the states’ constitutional liberty, which will begin to restore the balance of power between state and federal governments and limit federal spending that is quickly becoming an overwhelming burden on the U.S. economy.

National Day of Service and Remembrance

Utah House members and various organizations chose to honor the memories of lives lost in the 9/11 terrorist attacks by participating in Patriot Day and National Day of Service and Remembrance. More than 50 volunteers came together to serve 360 meals, prepare food for 1200 sack lunches, install 80 shelves, organize donations of art supplies and scrape rust off a fence at Catholic Community Services. This was just one of many service projects that took place to commemorate  9/11 Day in Utah and around the country.

 

Operation Rio Grande Update

In an unprecedented manner, state, local and federal leaders; law enforcement agencies; and public, private and non-profit organizations came together to address the lawlessness occurring in the Rio Grande district in Salt Lake City.

The 3-phase Operation Rio Grande plan is a result multi-jurisdictional collaboration to improve public safety and restore order in anticipation of the Road Home closing and new resource centers beginning operations in July of 2019. The purpose of this operation is to address the lawlessness in the Rio Grande area, bring criminal activity to a halt, get individuals treatment they might need and connect them with employment and housing opportunities.

The 3-phases consist of:

  • Phase 1 – Public Safety and Restoring Order: Focus is on law enforcement, identifying and arresting dangerous criminals who are preying on the most vulnerable.
  • Phase 2 – Assessment and Treatment: Provide assessment and treatment for addiction and behavioral disorders to those in the Rio Grande District.
  • Phase 3 – Dignity of Work: Public and private organizations are working together to increase employment opportunities and training to this population.

Operation Rio Grande started on August 14. The goal is to lock up dangerous criminals who have preyed on our most vulnerable citizens. Since then, 852 arrests have been made, of which 72 were felony arrest, 82 were felony arrest with warrants, 155 were misdemeanors and 543 were misdemeanor arrests with warrants.

The Rio Grande area has already seen improvements since the operation began two and a half weeks ago. Law and order is being restored, resulting in greater safety and access to homeless services for individuals in need. Additionally, those in need are being directed to available services.

The state is committed to maintaining and enhancing the law enforcement presence in and around the Rio Grande area for the next two years. This process will restore the civil liberties and personal security of those who live and work around Pioneer Park and those experiencing homelessness. It will also connect those in need with social services available in the area.

The next vital step is to create a secure area for those experiencing homelessness to be protected from the criminal element. Developing a safe space is critical to the immediate and long-term goals of the operation to increase public safety and reduce criminal activity that plagues the area. It will also help service providers identify and understand each individual seeking services in the area, in order to tailor and enhance services for each individual. Examples of enhanced services include outreach and engagement, housing connection resources, directing individuals to employment opportunities outside of the area, and enabling individuals to exit homelessness on a pathway to self-sufficiency.

In anticipation of this safe space, a minimal section of Rio Grande Street, between two existing facilities, is recommended for closure. This closure will not prevent access to any business or organization in the area. In fact, those currently receiving services are required to cross the street daily – with beds on one side of the street and meals, employment and ID services on the other.

This safe space has always been a part of the Operation Rio Grande strategy in an effort to reduce homelessness and improve public safety in the area. Diverse stakeholders – the State of Utah, Salt Lake County, service providers in the area and the Pioneer Park Coalition – agree that closing the street is critical to achieving both the immediate, medium and long-term goals of the operation.

Shelters are not long-term solutions for the homeless. Plans are being implemented to increase housing, residential rehabilitation, healthcare and behavioral healthcare. This will reduce and prevent the length of homelessness, as well as keep individuals exiting homelessness on a path of self-sufficiency.

Components of the operation include law enforcement (28%), jail beds (22%) treatment beds (28%) and housing and services (22%). The initial estimated cost of Operation Rio Grande is $67 million over two years. The three primary jurisdictions—State of Utah, Salt Lake County and Salt Lake City—are working to secure funding for the areas that make up the operation.

Nearly one-third of the total cost, $20 million, will be absorbed within existing budgets. Partners have identified offsets and sources to cover more than another third, $27 million. We are working with the private sector and other government entities to identify the funding and resources available for the remaining one-third needed, approximately $21 million.

Citizens have expressed concerns about the scattering of the Rio Grande population into surrounding neighborhoods. Dispersal was anticipated and has always been part of the operational budget and law enforcement strategy. Law enforcement officials will pursue and arrest criminals as they move throughout the state.

If you are aware of illegal activity, please report it to your local police department. If it is an emergency, call 911.

Visit OperationRioGrande.utah.gov for additional information including FAQs, details of the operation, previous press conferences, articles and more. Updated information is continually added.

Missing and Exploited Children’s Day

During the 2017 General Session, Rep. Steve Handy sponsored H.B. 53, Missing and Exploited Children’s Day. It passed the Utah Legislature and was signed into law by the Governor. The purpose of the H.B. 53 is to call attention to missing and exploited children in Utah.

“I was very pleased to lead this effort and appreciate the support of my many colleagues and Governor Herbert,” said Rep. Handy. “The exploitation, abduction and abuse of children is intolerable and anything we can do to stop this evil is in the best interests of everyone.”

Utah’s first official Rachael Runyan Missing and Exploited Children’s Day was held at the Rachael Runyan Memorial Park in Sunset on Saturday, August 26.

“Anything and everything we can do to call attention to this effort and save the lives of innocent children is critical and we in the Utah Department of Public Safety applaud this effort,” said Gina McNeil, Utah Amber Alert and Utah Missing Person’s Coordinator.

Rachael Runyan was abducted from a playground in Sunset, Utah and subsequently murdered in 1982.

The notification system to alert the public when a child has been abducted in Utah started with Elaine Runyan, mother of Rachael, as well as others who played significant roles to create an alert system, was referred to as the Rachael Alert.

“During those awful days, there was little coordination and no way to alert the public. said Runyan. “Who knows if we would have found Rachael had there been an Amber Alert in 1982. We can only hope to prevent what our family experienced to ever happening again with the designation of this special day.”

In 2003, U.S. Congress passed a national alert system – AMBER Alert. Not wanting to have any confusion when working to save a child who has been abducted, the state changed the name of the notification system from the Rachael Alert to the AMBER Alert to coincide with national efforts.

Utah’s AMBERAlert is tested twice yearly –January 13 and August 26 – a date chosen specifically calling attention to the abduction date of Rachael.

News story:

Fox 13 News:  Murdered Sunset girl honored on Utah’s first Missing and Exploited Children Day

 

Newest Citizens

On July 19, 125 people from 38 countries such as the People’s Republic of China, Mexico and Philippines, filled the Capitol Rotunda. Though these newly-minted Americans path towards citizenship vary, they united today as each of them took an oath of allegiance to the United States.

The naturalization ceremony was organized by Representative Norm Thurston, in partnership with the United States Citizenship and Immigration Services (USCIS).

 

Utah Attorney General Sean Reyes congratulated the new citizens and those who helped them, achieve their goal of becoming U.S. citizens. He encouraged the citizens as they live the American dream to give back and help people along the way because that is what makes America great and strong.

“The American dream isn’t a guarantee of success but a guarantee of opportunity,” said Attorney General Reyes.

He then led the new citizens in the Pledge of Allegiance.

Viviane Quintela, anchor and producer for Noticias Univision 32, who became a U.S. citizen two years ago, shared her experience and dream of becoming an American.

“You are not only dreamers, you are also doers and that’s why you are standing here becoming citizens of a country where dreams can come true,” said Viviane.” There is freedom and opportunity in every corner. I’m here to congratulate you and to remind you the dream goes on.”

Three new citizens spoke at the ceremony.

“I would like to say congratulations to everyone,” said Ejlaa Ahmed Alhaj from Sudan. “I would like to say thank you to my teacher and all the staff of Women of the World and my family. I’m so happy to be here.”

“I can now proudly say ‘hello my fellow Americans,’” said Daniel Souza from Brazil. “We may have taken different paths, but we all get here, we all come with the same purpose – looking for a better life and for being so graciously welcomed by this great country. I’m grateful for the privilege that you and I now have now. May we all, current and new citizens, become one indivisible nation under God.”

“So grateful to be an Americancitizen,” said Eniko Mason from Hungary. “We can all live here in this beautiful country.”

The U.S. National Anthem was performed by Cytel Schults, who has been singing since she was a little girl and enjoys helping others incorporate music into their lives.

Jerold McPhee, immigration services officer for USCIS, presided over the call of countries and presentation of candidates for citizenship. Laura McNeer, field office director for USCIS, administered the Oath of Allegiance.

The new citizens also heard a welcome message from Secretary of Homeland Security John Kelly.

“This is a fabulous day and it such a privilege to be a part of this experience,” said Rep. Thurston. “We welcome our newest citizen

s and hope they enjoy their new found citizenship.”

Following the ceremony, on-site voter registration was available to encourage the new citizens to be actively engaged in local, state and national matters as well as voice their opinion in future elections.

See additional photos here.

 

Sunscreen & Public Schools

Did you know it was prohibited to bring sunscreen to school? Public schools didn’t allow students to possess and use sunscreen while at school though kids were outside during recess and certain field trips. During the 2017 General Session, Rep. Craig Hall sponsored legislation to correct this surprising wrong.

The Utah Legislature passed H.B. 288School Sunscreen Provision, that made it legal for kids to bring and use sunscreen at school. Read the bill here.

National Articles:

Huffington Post

USA TODAY

Congratulations Rep. Gardiner

Congratulations to Rep. Adam Gardiner for being one of 50 state legislators selected from across the nation to participate in the State Legislative Leaders Foundation 2017 Emerging Leaders Program.

During his first session, Rep. Gardiner illustrated his passion, dedication and willingness to collaborate with his colleagues to find public policy that would benefit his constituents and citizens of this great state. He has been an effective voice for his constituents sending more than 50,000 emails to his constituents and posting regular video updates via social media during the general session.

The press release fromState Legislative Leaders Foundation:

 

 

Rio Grande

Over the Fourth of July weekend, Utah made local and national headlines after a minor-league baseball player was attacked by a homeless man in an attempted robbery, and a driver jumped a curb that killed one person and injured five near Pioneer Park.

The violence and lawlessness in the Rio Grande area are increasing. Businesses are considering hiring armed security guards to protect their employees and patrons. Citizens, elected officials, community leaders and stakeholders should not accept this as the new standard for Salt Lake City.

Though there are plans in place to help deal with this matter in the future, including new resource centers to assist those who are going through a trying time get back on their feet. However, we must look at what is happening on the streets right now to figure out a plan that will quickly change the trajectory we are on.

The State is in a position to take on a stronger role and make difficult decisions that will help bring immediate solutions. And Utahns must be committed to rallying together to be part of the solution to proactively and successfully resolve this issue.

News Articles:

KSL: Speaker Hughes wants state czar overseeing homelessness issues

Fox 13 News:  House Speaker suggests state takeover of Rio Grande neighborhood problems

ABC 4 Utah: Speaker Hughes angry over continued Rio Grande crime problem

Salt Lake Tribune: Escalating violence around homeless shelter has Utah House speaker asking: Is this a job for the National Guard?

FOX News U.S.: The Latest: Suspect arrested in deadly Utah hit-and-run

ABC News: Woman suspected of driving into Salt Lake City crowd found

 

 

Laws

Below is a list of laws from the 2017 General Session that go into effect July 1, 2017.

HB0001S01 Higher Education Base Budget Grover, K. 2/7/2017 7/1/2017 GSIGN 2/16/2017 001
HB0004S01 Business, Economic Development, and Labor Base Budget Webb, R. C. 2/7/2017 7/1/2017 GSIGN 2/16/2017 002
HB0007S01 National Guard, Veterans’ Affairs, and Legislature Base Budget Sanpei, D. 2/7/2017 7/1/2017 GSIGN 2/16/2017 005
HB0008S01 State Agency and Higher Education Compensation Appropriations Last, B. 3/7/2017 7/1/2017 GSIGN 3/28/2017 438
HB0028 Public Employees Long-term Disability Act Amendments Duckworth, S. 2/17/2017 7/1/2017 GSIGN 3/17/2017 034
HB0109S02 Public Utility Regulatory Restricted Account Amendments Pitcher, D. 2/17/2017 7/1/2017 GSIGN 3/25/2017 396
HB0113S01 Nursing Care Facility Amendments Gibson, F. 3/7/2017 7/1/2017 GSIGN 3/28/2017 443
HB0195S01 Dissolution of Local Districts Fawson, J. 3/7/2017 7/1/2017 GSIGN 3/22/2017 248
HB0250S02 Driving Under the Influence Program Amendments Fawson, J. 3/7/2017 7/1/2017 GSIGN 3/28/2017 446
HB0344S01 Utah Agriculture Code Amendments Perry, L. 3/9/2017 7/1/2017 GSIGN 3/24/2017 345
HB0393S01 Vehicle Towing Amendments Maloy, A.C. 3/9/2017 7/1/2017 GSIGN 3/23/2017 298
SB0001S01 Public Education Base Budget Amendments Hillyard, L. 2/7/2017 7/1/2017 GSIGN 2/16/2017 006
SB0003 Appropriations Adjustments Stevenson, J. 3/9/2017 7/1/2017 GOVLVETO 3/28/2017 457
SB0005S01 Natural Resources, Agriculture, and Environmental Quality Base Budget Hinkins, D. 2/7/2017 7/1/2017 GSIGN 2/16/2017 007
SB0006S01 Executive Offices and Criminal Justice Base Budget Thatcher, D. 2/7/2017 7/1/2017 GSIGN 2/16/2017 008
SB0008S01 State Agency Fees and Internal Service Fund Rate Authorization and Appropriations Van Tassell, K. 3/7/2017 7/1/2017 GSIGN 3/28/2017 458
SB0016 Sales and Use Tax Exemption Changes Bramble, C. 2/21/2017 7/1/2017 GSIGN 3/22/2017 264
SB0018 Firefighters’ Disability Retirement Benefit Amendments Mayne, K. 2/10/2017 7/1/2017 GSIGN 3/17/2017 093
SB0019 Retirement Systems Payments to Survivors Amendments Dayton, M. 2/8/2017 7/1/2017 GSIGN 3/17/2017 094
SB0021S01 Retirement Systems Amendments Hemmert, D. 2/1/2017 7/1/2017 GSIGN 3/20/2017 141
SB0034 Competency-based Education Funding Millner, A. 3/8/2017 7/1/2017 GSIGN 3/21/2017 202
SB0113S01 Natural Resources Modifications Dayton, M. 3/7/2017 7/1/2017 GSIGN 3/25/2017 421
SB0130S05 Universal Service Fund Amendments Hinkins, D. 3/9/2017 7/1/2017 GSIGN 3/25/2017 423
SB0132S02 Tax Provision Amendments Bramble, C. 3/1/2017 7/1/2017 GSIGN 3/22/2017 268
SB0155 Alcohol Beverage Control Budget Amendments Mayne, K. 3/8/2017 7/1/2017 GSIGN 3/20/2017 159
SB0194S05 Utah Data Research Center Act Anderegg, J. 3/8/2017 7/1/2017 GSIGN 3/24/2017 375
SB0198S03 Utah Communications Authority Amendments Harper, W. 3/9/2017 7/1/2017 GSIGN 3/25/2017 430
SB0220S01 Student Assessment and School Accountability Amendments Millner, A. 3/8/2017 7/1/2017 GSIGN 3/24/2017 378
SB0237 Servicemembers Custody and Visitation Amendments Hillyard, L. 3/9/2017 7/1/2017 GSIGN 3/21/2017 224
SB0238S01 Higher Education Governance Revisions Millner, A. 3/9/2017 7/1/2017 GSIGN 3/24/2017 382
SB0276S01 Transportation Funding Modifications Van Tassell, K. 3/8/2017 7/1/2017 GSIGN 3/21/2017 234
SB0277S01 Highway General Obligation Bonds Authorization Harper, W. 3/7/2017 7/1/2017 GSIGN 3/25/2017 436

 

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…”