DOUGLAS FOXLEY, FRANK PIGNANELLI, AND STEVE FOXLEY, J.
One of the implied fundamentals of American democracy is that the legislative branch enacts laws in reaction to forces and dynamics impacting their constituents. The lawmakers also readily respond to events that affect their institutions and perceived individual political prowess. This was on full display during the 2018 General Legislative Session. Because some of these bills had a direct influence on the legal profession, your Utah State Bar was involved in their deliberations and progress.
may recollect the battle between the legislature, Governor
Gary Herbert, and Attorney General Sean Reyes last summer.
Third Congressional District Congressman Jason Chaffetz had
resigned, triggering the need for a replacement. The United
States Constitution, article I, section 2, and Utah Code
section 20A-1-502 mandate that in the event there is a
vacancy for the United States House of Representatives, the
governor shall call a special election.
Utah has never before had a special election for a vacancy in the United States House of Representatives, and therefore there was no precedent for how it should be administered. Furthermore, the state was in the midst of a well-publicized fight with the Utah Republican Party over whether it could require access to a party primary by gathering signatures, in addition to the longstanding caucus and convention system. The legislature and governor differed on how the special election was to be implemented and whether to include the new signature-gathering option allowed under a general election.
Despite having its own counsel pursuant to Utah Constitution article VI, section 32, the legislature requested an opinion regarding this issue from the attorney general under Utah Code Subsection 67-5-1(7). The governor and lieutenant governor were already being advised by the attorney general. At this point, both branches of government could be considered clients of the attorney general, pursuant to Utah Code Subsection 67-5-1(7) and Utah Constitution article VII, section 16, on an issue where they were adverse to one another.
The attorney general did construct an opinion for the legislature but refused to release it to any party. This prompted swift reactions from the legislature, which considered legal action. In the meantime, the lieutenant governor...