Despite questions about its constitutionality, panel advances plan to let Legislature directly defend state laws in court

Rick Egan | The Salt Lake Tribune Sen. Stuart Adams says a few words during a ceremony to complete improvements in Layton including a ThrU Turn, a single-point urban interchange and additional lanes at Hill Field Road and I-15, Wednesday, August 31, 2016.

Despite warnings from the Utah Attorney General’s Office that it may unconstitutionally infringe on the power of the executive and judicial branches, senators advanced a bill Thursday to make it easier for the Legislature to directly defend in court the laws it passes.

The Senate Government Operations Committee voted 5-1 to pass SB171, and sent it to the full Senate. It appears to be part of an ongoing campaign to reset the balance of power between the legislative and executive branches. This comes after legislators were angered by Gov. Gary Herbert and Attorney General Sean Reyes over how they hobbled legislative involvement in a special congressional election last year.

Herbert refused to call lawmakers into a special session to set rules for that election. Legislators asked Reyes for a legal opinion about the governor’s authority to do that unilaterally. But after his office prepared the opinion, Reyes withheld it until months after the election because Herbert argued Reyes was essentially his attorney and releasing it would violate his attorney-client privilege.

SB171, sponsored by Senate Majority Whip Stuart Adams, would give the Legislature “an unconditional right to intervene” in any lawsuits that challenge a state law, or any action of the Legislature.

Adams said the Legislature now has the right to file friend-of-the-court briefs in such lawsuits, but the bill would give it the clear right to intervene and make oral arguments before judges.

Tyler Green, solicitor general for Reyes, questioned the bill’s constitutionality. It could “potentially interfere with the executive branch’s power to defend the laws,” Green said, and may also “infringe on the judicial branch’s prerogative to define what parties may be participating in a particular case.”

The proposed legislation could lead to situations where the attorney general and the Legislature are taking different positions in the same lawsuit, so it would be difficult for the judge and other parties to “actually identify what is the position of the state.”

Jacey Skinner, now the deputy administrator for the Utah Administrative Offices of the Courts, who formally was Herbert’s attorney during the dust-up with the Legislature last year, testified the bill would create confusion.

“Any party who has an interest can already intervene” in lawsuits, she said. “So adding this language doesn’t necessarily add anything to the rights of the Legislature.… What it does do is cause a lot of confusion, and I think as you are hearing, a lot of uncertainty and a lot of fear.”

Adams said his bill does not diminish the power of the attorney general to defend the state, but allows legislative attorneys who helped draft laws and often know their history and details to help defend them.

Legislators are considering other balance-of-power measures this session, including creating a super-committee to oversee and investigate state and local agencies; removing the ability of the governor to appoint U.S. senators to fill mid-term vacancies and diminishing his authority in calling elections for mid-term vacancies in the U.S. House. Lawmakers also are expected to consider a proposal to allow the Legislature to call itself into special session.

House Speaker Greg Hughes set the tone on the first day of the session when he called for part-time lawmakers to shore up and expand their governance role.

“We have to stay vigilant,” Hughes declared in his opening-day speech. “You are going to see some bills this session that will address our separation of powers.”

Despite the push-back bills, Herbert insisted during a press availability on Thursday that he and legislative leaders are working well together. “There seems to be a good spirit of collaboration and cooperation.”