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.
“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!