Secret legal opinion on Utah’s special election for congress made public

SALT LAKE CITY — A legal opinion kept secret that became the source of a Capitol Hill feud between the governor and leaders of the Utah State Legislature has finally been made public.

Governor Gary Herbert (seated) signs a resolution in February 2017 as Senate President Wayne Niederhauser (left) and House Speaker Greg Hughes (right) watch. (Photo courtesy Utah Governor’s Office)

Late Tuesday afternoon, Governor Gary Herbert waived his attorney-client privilege and allowed a legal opinion prepared by Utah Attorney General Sean Reyes’ office to be made public. The opinion was drafted over who had the authority to call a special election to replace Jason Chaffetz.

According to the legal opinion, Reyes’ office determined that the governor “has discretion to set the time, place or manner of the election through the proclamation, so long as the terms are not contrary to any state law or any individual’s constitutional rights.”

The legal opinion was originally requested back in May after Chaffetz quit congress to work for FOX News Channel. House Speaker Greg Hughes and Senate President Wayne Niederhauser believed the legislature, not the governor, had the authority to call for a special election. They asked the attorney general for a legal opinion.

Congressman Jason Chaffetz speaks to reporters after announcing he will not seek re-election in 2018. (Image by Pete Deluca III, FOX 13 News)

However, Gov. Herbert blocked the release of the opinion arguing that he — not the legislature — is the client and it’s protected by attorney-client privilege. The Salt Lake Tribune fought for the release of the opinion under open records laws, but Reyes was prepared to take them to court to keep it under wraps.

After John Curtis was elected to the 3rd Congressional District, a joint letter by the governor and legislative leaders waived the privilege and allowed for it to be released.

“The legal opinion… may be of use to the legislative process as lawmakers contemplate the process to fill Congressional vacancies,” the joint letter reads. “Therefore, we jointly agree that this legal opinion should be released to the Legislature.”

Utah Attorney General Sean Reyes takes the oath of office on Monday, Jan. 2, 2017. (Photo by Ben Winslow, FOX 13 News)

In his own letter to the Speaker and Senate President, Reyes defended his refusal to release the opinion to anyone citing a core “ability to effectively represent the executive branch, and not be compelled to potentially harm a client.”

The Utah Attorney General’s Office serves many masters, while also acting as its own independent entity in the executive branch of government. It not only provides legal advice to the governor, but also at times to the legislature.

In a joint statement to FOX 13, Speaker Hughes and President Niederhauser said they would address the mechanisms for a special election for future congressional vacancies. They also suggested the attorney general’s powers might be reviewed as well.

“We appreciate Governor Herbert’s willingness to work with us and grant the Attorney General a waiver to release this opinion. However, this process has made it clear the need for constitutional and statutory clarity in regard to the duties of the Attorney General and its role with the Legislature,” they wrote.

In their own statement, Gov. Herbert’s office said the opinion that the governor was correct speaks for itself.

“We worked alongside attorneys from the Attorney General’s office to conduct a special election that matched as closely as possible the procedures for a regular general election in Utah. The result was a transparent election that preserved the participation and voice of the people of the 3rd Congressional District,” Herbert spokesman Paul Edwards said.

Read the legal opinion here: