Legislative Update: June 2017
Separation of Powers
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.”
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.
A 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 can be found here.
Brian Head Fire
Utah’s Brian Head Fire is the largest active fire in the United States. It has burned nearly 85 square miles, over 54,000 acres and 13 homes. The current cost of this effort is around $11 million and is projected to exceed $20 million with 1,700 firefighters currently deployed.
At a press conference on Monday, June 26, Rep. Mike Noel expressed his frustration:
“We had bark beetles here in 1993. The Forest Service tried to take those bark beetles out, to cut those trees, to stop the progression of bark beetles. They were stopped by The Friends of Dixie. Where are The Friends of Dixie Now? Where’s the Grand Canyon Trust? Where’s the Southern Utah Wilderness Alliance? They’re not here when this disaster happens. … When you have 70 million board feet of timber being grown every single year and you’re allowed to harvest 6 million board feet, that’s 64 million board feet of fire. When you allow trees to die from bark beetle, and you build them up, you get a catastrophic fire. … When we turned the Forest Service over to the bird and bunny lovers and the tree huggers and the rock lickers we turned our history over. And the fire is going to do more damage because we are going to lose our watershed, we are going to lose our soils, we are going to lose our wildlife, and we are going to lose our scenery—the very things you people wanted to protect. It’s just plain stupidity.”
We encourage you to watch the full video here.
The Utah State Legislature continues to work to preserve our lands through increased local management. Local control renders communities with the ability to enhance their economies in a sustainable way and adequately support residents and their families, provide a better education system, protect historic and culturally significant sites and reduce restrictions on recreational use of the land.
While Secretary Ryan Zinke’s interim report on the Bears Ears National Monument does not recommend rescinding the monument, it is a step in the right direction. Secretary Zinke requested that Congress authorize tribal co-management, review optimal land use designations for the Bears Ears area and clarify intent where national monument and wilderness designations seem to conflict.
Utahns’ input concerning alternatives to preserve our lands, while providing economic opportunities for those living in the area, is well received by this new administration. This was demonstrated during Secretary Zinke’s recent four-day listening tour of Bears Ears and Grand Staircase-Escalante national monuments.
Earlier this year, the Utah Legislature led efforts to encourage the federal government to allow more state control in the management of our lands. H.C.R. 11, Concurrent Resolution Urging the President to Rescind the Bears Ears National Monument Designation, urged the administration to rescind the 1.35-million-acre monument created by the previous administration in December 2016. H.C.R. 12, Concurrent Resolution Urging Federal Legislation to Reduce or Modify the Boundaries of the Grand Staircase-Escalante National Monument calls for allowing greater use of the lands for locals and recreationists.
The status of Grand Staircase-Escalante National Monument is still under review. Public comment to the Department of the Interior is open until July 10.
On June 8, 2017, Secretary Ryan Zinke signed Secretarial Order 3353, which aims to improve sage-grouse conservation and increase collaboration, cooperation and communication between federal and Western state governments. One-size-fits-all protection of sage grouse does not work because of the vastly different habitats in which the bird can be found. The review of the sage grouse plan provides states, and those closest to the issue, the opportunity to devise solutions that protect the ground-nesting bird without hindering local economic opportunities.
We appreciate the Trump administration for taking steps to reduce federal overreach and bring some control back to state and local governments.
The Utah Legislature significantly increased education funding during the 2017 General Session, with 60 percent of new revenue dedicated for that purpose. This was done without raising taxes. Some highlights include:
- 4% increase in weighted pupil unit (WPU), amounting to $115,452,200, putting money where it can allow for greater flexibility and local control
- 7% funding increase over last year
- Funding for Schools for the Deaf and Blind to build a new campus in Utah County
- $5 million teacher supplies and materials reimbursement, shifted from one-time to ongoing funds
- Bonuses of up to $5,000 (through HB 212) for highly effective teachers in schools in high poverty areas
Even prior to these funding increases, U.S. News recently ranked Utah 9th in the nation in overall education. Read more here.
Leaders and Achievers Scholarship Program
The Utah Legislature recognized 36 students from around the state who received the Comcast Leaders and Achievers Scholarship for their academic achievements and leadership. Congratulations to these students for their hard work and dedication!
We celebrate Flag Day to commemorate the adoption of the Stars and Stripes as the official flag of the United States, which happened on June 14, 1777. Throughout our history, the American flag has served as a symbol of freedom and opportunity that exist in this great democracy.
Both President Woodrow Wilson, in 1916, and President Calvin Coolidge, in 1927, issued proclamations of national observation of Flag Day. Though, it didn’t become official until President Harry Truman signed the joint resolution approved by the U.S. Congress August of 1949 proclaiming June 14 as Flag Day.
The U.S. Army also celebrates its birthday on this day as well.
FOR IMMEDIATE RELEASE
June 12, 2017
UTAH LEGISLATIVE LEADERS REACT TO INTERIOR SECRETARY ZINKE’S ANNOUNCEMENT ON BEAR EARS NATIONAL MONUMENT
SALT LAKE CITY – Today, Utah legislative leaders expressed support for U.S. Secretary of the Interior Ryan Zinke’s initial review and recommendations on the Bears Ears National Monument. Speaker of the House Greg Hughes and President of the Senate Wayne Niederhauser issued the following statement:
This year, in response to President Obama’s devastating unilateral overstep declaring the Bears Ears National Monument, the Utah Legislature encouraged the federal government to give the state more stewardship of our lands. We sponsored H.C.R. 11, which asked the new administration to rescind the 1.35-million-acre monument designated in December of 2016. While today’s announcement does not rescind the monument, it is a movement in the right direction.
The people of the American West are frustrated with heavy-handed land management decisions from Washington D.C. The priorities and local knowledge of Western people have too often been ignored. It is incredibly refreshing to interact with an administration that values collaboration with those closest to the land.
We also commend Secretary Zinke’s recognition of the limits of executive power. He asked Congress to authorize tribal co-management, review optimal land use designations for the Bears Ears area, and clarify intent where national monument and wilderness designations seem to conflict. In doing so, Secretary Zinke appropriately recognized that the executive branch is not a monarchy, and that the legislative branch has a vital role to play. We value our working relationship with Utah’s congressional delegation and appreciate their willingness to partner on land use solutions. We encourage them to follow up quickly on the secretary’s request, and stand ready to assist.
We also encourage Congress to narrow future presidents’ ability to misuse the Antiquities Act for purposes beyond its original intent. We hope congressional action will put an end to the abuse of executive power that has been used as a weapon against the people and economy of the American West.
We look forward to the ongoing partnership with the Department of the Interior to preserve our lands, protect traditional use, increase local management, and secure economic opportunity for all Utah citizens.
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House Chief of Staff
Senate Chief of Staff
See the Utah House Leaders statement here.
See the U.S. Department of the Interior press release here.
Legislative Update: May 2017
Separation of Powers
The United States Constitution clearly states that it is the role of the legislative branch to establish election procedures in Article 1, Section 4: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by a Legislature thereof.” The executive branch does not have the authority to establish the process for a special election; the governor’s role is to declare that an election will take place.
The separation of powers is one of the most fundamental principles of our government and protects all of us from abuses inherent in concentrations of power. The governor’s decision to call an election without allowing the Legislature to fulfill its legal and constitutional duty is disappointing and exposes the vacancy election process to unnecessary legal risks.
The Speaker of the House, Senate President and both minority leaders signed a bipartisan op-ed defending the separation of powers and urging the governor to call a special session and partner with the Legislature to ensure Utah citizens do not go unrepresented in the U.S. House of Representatives longer than necessary. It is the role of the legislative branch alone to lay out the parameters of an election and in the case of a special election mid-term to replace a representative in Washington, time is of the essence. In these historic times, as Congress is tackling issues of great consequence, one vote could make all the difference.
Utah is one of only three states with no statutory provisions prescribing the process for a U.S. House of Representatives special election to fill a vacancy, and we have been fortunate not to have needed it at any time in recent memory. But now we do. And now is the time, through the process established both in the Constitution and federal statute, to take up this issue and allow the Legislature to fulfill this important mandate.
Secretary Ryan Zinke Visits Utah
U.S. Secretary of the Interior Ryan Zinke visited Utah for a four-day listening tour regarding Bears Ears and Grand Staircase-Escalante national monuments. The visit was part of an effort to provide local communities a voice in federal land management decisions.
During Secretary Zinke’s visit, he met with federal, state, local and tribal leaders, community members and residents. While touring Grand Staircase-Escalante Monument and the recently designated Bears Ears National Monument, he was able to listen to the concerns and ideas of various groups and community members.
President Trump recently tasked Secretary Zinke with a review of the national monument designations under the Antiquities Act over the past two decades. The intent of the Antiquities Act was to set aside only the smallest area necessary to protect significant archaeological or historical sites, yet it has been used in recent years to lock up vast swathes of land with little or no archaeological or historical value. As these lands, our lands, become little more than the playgrounds of the rich from around the world, it becomes increasingly difficult for our own people to sustain and support families and viable communities.
Though there are differing opinions about how to best manage public lands, one thing all sides can agree on is that there is a need to protect these historic and culturally significant sites. The question is one of what ought to be done with the millions of acres that do not contain important artifacts or history, yet are locked up in monument designations.
During the tour of Bears Ears, representatives were able to witness a search and rescue operation for a sweet dog named Badger that had been stuck at the bottom of a cliff for days. See pictures here.
Clean Air Legislation
One of the top concerns of many of our constituents is the quality of Utah’s air. Lawmakers, stakeholders and community members continue to take positive steps to reduce air pollution across the state.
On May 16, members of the Utah Legislature joined Governor Gary Herbert at Ensign Elementary School for a ceremonial bill signing of nine pieces of legislation that passed the 2017 session. During the event, it was also announced that Utah would receive an additional $7.5 million from the Volkswagen settlement to replace approximately 100 diesel school buses with natural gas buses.
Members of the Utah Legislature have engaged in a significant bipartisan effort to improve air quality, and we remain dedicated to working together to continue to find innovative solutions.
HCR 5, Concurrent Resolution on Clean Fuel School Buses, supports the dedication of a portion of the state funds from the Volkswagen settlement to replace many of our dirty diesel school buses with clean fuel buses.
HCR 8, Concurrent Resolution Regarding the Volkswagen Settlement, helps establish the framework necessary for Utah to receive its share of the funds from the Volkswagen lawsuit settlement.
HCR 18, Concurrent Resolution Encouraging Utahns to Consider Smog Rating When Purchasing a Vehicle, encourages citizens purchasing a vehicle to consider smog rating and other environmental impacts.
HB 96, Petroleum Vapor Recovery Amendments, creates a requirement for operators of gasoline cargo trucks to prevent the release of petroleum vapors into the air.
HB 183, Emissions Settlement Amendments, establishes the Environmental Mitigation and Response Act, including establishing an expendable special revenue fund administered by the director of the Department of Environmental Quality.
HB 392, Air Quality Policy Advisory Board, establishes the Air Quality Policy Advisory Board to identify legislative actions to improve air quality, identify and prioritize potential legislation and funding to improve air quality and make recommendations to the Legislature on improving air quality in the state.
HB 405, Hydrogen Fuel Production Incentives, provides potential incentives for the production of hydrogen fuel.
SB 24, Heavy Duty Tax Credit Amendments, extends the heavy duty vehicle tax credit to include heavy duty vehicles with hydrogen-electric and electric drivetrains.
SB 154, Solar Access Amendments, prohibits community associations from denying owners the ability to install solar systems under certain circumstances, while still allowing restrictions of size, location or manner of placement of such systems in certain circumstances.
Our legislative fiscal analysts are constantly searching for new and better ways to illustrate the state budget and offer some perspective for citizens. Check out one of the new tools at Utah Budget Dataviz to see where new money went, filter by subcommittees, search a particular item or view previous years. These are just a few of the ways you can break down and view the copious amounts of data that go in to making up the Utah State budget.
The basic concept of federalism has never been political; rather, it is a fundamental structural principle meant to protect our liberty. An understanding of its purpose and meaning has become, tragically, lost for all too many of our citizenry today.
The Commission on Federalism, in connection with Utah Valley University’s Center for Constitutional Studies, recently created a course on federalism to help provide citizens and state and local government officials with a better understanding of America’s unique constitutional system. The one-hour course is taught in a series of six videos by constitutional professors and scholars from around the country and can be viewed here.
Utah Law Enforcement Memorial – May 2017
Law enforcement officers from across the state solemnly gathered at the annual memorial service outside the Capitol to add the names of three fallen officers to the Utah Law Enforcement Memorial on Thursday, May 4.
The ceremony honored two officers killed in the line of duty in 2016, Utah Highway Patrol Trooper Eric Ellsworth and West Valley Police Officer Cody Brotherson, and Salt Lake Special Officer Rollin R. Tanner, who died in 1927.
The Utah Law Enforcement Memorial Wall has 142 names.