Senator says attorney in gay marriage case has conflict of interest
Legislature • Dabakis says Schaerr has conflict of interest, played a role in killing bill against bias.
Published: February 6, 2014 10:32AM
Updated: February 6, 2014 03:51PM
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Francisco Kjolseth | Tribune file photo Sen. Jim Dabakis, D-Salt Lake City.

A Democratic state senator called for the immediate resignation of the attorney hired to defend Utah’s ban on same-sex marriage, saying a reported deal with a conservative think tank has created a serious ethical breach that makes it impossible for him to represent Utahns with fidelity.

Sen. Jim Dabakis said that the advice from Gene Schaerr to Republican legislators played a key role in killing a statewide non-discrimination bill before it got a hearing and questioned whether Schaerr did so at the behest of The Sutherland Institute, which has said it has hired Schaerr as a fellow.

“It’s a very serious conflict of interest and I think he should resign immediately and the attorney general’s office should disclose [what the arrangement was],” Dabakis said in an interview Wednesday with The Tribune.

Schaerr is the outside counsel hired to represent Utah before the 10th Circuit Court of Appeals after U.S. District Judge Robert Shelby on Dec. 20 struck down the state’s constitutional ban on same-sex marriage. The attorney general’s office and The Sutherland Institute argue Schaerr isn’t being paid by the think tank — although he may be later — and contend there is no conflict.

Dabakis and Sen. Steve Urquhart, R-St. George, met with Attorney General Sean Reyes Tuesday night to voice concerns about Schaerr’s role in defeating SB100, the non-discrimination bill that Urquhart sponsored.

Legislative leaders said that Schaerr, in closed-door meetings with Republicans in the House and Senate, suggested that they not consider any bills related to LGBT issues this session out of fear that it could show “animus” that might harm the state’s defense of its gay-marriage ban.

Despite broad public backing and a high-profile show of support that included hundreds of notes taped to the door urging senators to hear SB100, Republican leaders smothered debate on that bill, as well as bills aimed at clarifying that churches don’t have to perform gay marriages and other religious protection legislation.

Private vote • On Tuesday, Senate Republicans in a private meeting voted overwhelmingly not to consider Urquhart’s anti-discrimination measure, with Urquhart casting the only vote to hear the bill and more than 20 Republican senators voting against him.

Urquhart acknowledged that the Senate vote likely means his bill is dead for the session, “barring some significant, unforeseen event.”

“When the lawyers are saying that no bills should go forward because it might affect the litigation,” Urquhart said, “that’s pretty determinative of what the Legislature is going to do.”

However, Urquhart said he disagrees with the attorneys’ assessment.

“It’s bad lawyering,” said Urquhart, who is an attorney. “The best thing to do to show a lack of animus is pass a nondiscrimination law that is favored by 60 percent of the state.”

Several hundred blue notes were stuck to the Senate doors demanding lawmakers “Hear SB100.”

Senate Majority Leader Ralph Okerlund, R-Monroe, said, given the debate on the issue in the past week, leadership “wanted to make sure the caucus was still with us, and that was very, very clear.”

But Dabakis says the justification for not hearing the bills — that it might hurt the lawsuit — is “baloney.”

“This whole ‘animus-in-the-lawsuit’ is the biggest smokescreen,” said Dabakis, who is the only openly gay member of the Utah Legislature. He argued it was wrong for the Legislature to take advice from a lawyer who has such a clear conflict.

“We have this guy who has come here from Washington for $200,000 to handle these appeals, and apparently he has a deal with The Sutherland Institute, and apparently he is also lobbying Republicans against statewide non-discrimination,” Dabakis said. “Is he lobbying them with the hat on from The Sutherland Institute because he’s getting a paycheck, or a promise of a paycheck?”

No conflict • Missy Larsen, spokeswoman for the attorney general, said Schaerr doesn’t have a conflict.

“There is no contract between Gene and Sutherland. Gene is totally employed by the state right now,” she said.

Paul Mero, president of The Sutherland Institute, said he has a verbal agreement for Schaerr to come to work for the organization after he finishes writing the state’s appellate briefs, probably sometime in March, and write two policy papers for attorneys and legislators around the country dealing with the same-sex marriage issue.

Schaerr will be paid for his work, but Mero would not disclose how much he would receive.

“As far as our relationship with Gene, yeah we’re going to bring him on as a fellow. I do not have a letter of agreement signed with him and I have not paid him a nickel, a penny,” Mero said. “Maybe you don’t need to know the facts to string together whatever his concern is, but if the facts are important to his concern, then those are the facts I know.”

From a larger perspective, however, Mero noted that the advice Schaerr gave to Republican lawmakers also scuttled numerous religious-freedom bills that Sutherland supported.

“I’m glad Urquhart’s bill is dead, but that’s because I think it’s a bad bill and I wish we’d have a full debate on religious-freedom bills,” Mero said. “In other words, I’m no fan of the moratorium. The fact that the moratorium killed Urquhart’s bill? Hooray. But I’m not fan of it. I want to have debate on good bills.”

Dabakis said, in light of the recent scandal that drove then-Attorney General John Swallow from office, and the role that conflicts of interest played in that saga, he’s surprised the attorney general’s office wouldn’t be more careful — although he praised Reyes for being more sensitive to such issues.

Senate President Wayne Niederhauser said lawmakers are hearing from people on both sides — supporters of the non-discrimination bill and the religious-liberty bills — who want their issues heard this year.

“I guess, unfortunately for SB100, the issue was intensified by Judge Shelby’s decision” overturning Utah’s same-sex marriage ban, Niederhauser said. “I’m confident the non-discrimination bill will get a fair hearing and a fair process at a time when it is not as charged as it is today.”

gehrke@sltrib.com

Twitter: @RobertGehrke