Utah Legislature to call veto override session — extending battle with Gov. Gary Herbert over separation of powers

(Rick Egan | The Salt Lake Tribune) Gov. Gary Herbert talks about his recent trip to Washington, Thursday, March 1, 2018.

After polling their rank and file, legislative leaders said Wednesday that they have enough support to call themselves into a veto override session — extending a yearlong turf war with Utah Gov. Gary Herbert over whether he is grabbing too much control.

In that yet-to-be-scheduled session, legislators aim to overturn two Herbert vetoes that he says encroach too far into the dominion of his executive branch. But both cleared by veto-proof majorities.

SB171 — which passed 61-8 in the House and 20-3 in the Senate — would allow lawmakers to intervene in court to defend the laws they pass, not having to depend on the state attorney general’s office to do so. Herbert complains that it could create separate state positions on lawsuits challenging bills.

HB198 — which passed unanimously in both chambers — would force the attorney general to provide the Legislature written legal opinions when requested, as already allowed by law. But Herbert blocked one such opinion last year by saying it would violate his attorney-client privilege with the A.G.’s office.

The governor vetoed both bills last month.

Soon-to-retire House Speaker Greg Hughes, R-Draper, opened this year’s 45-day general session by calling for lawmakers to take back powers he says the executive branch has grabbed. On Wednesday, he praised the decision to hold a veto override session — as approved by the required two-thirds of members through a poll.

“Because we are part-time with a 7½-week session, we are not treated the same way as the executive or the judiciary,” he said. “We need to look at issues that would strengthen the existing powers of the legislative branch.” He said the two vetoed bills are a key part of that.

Tussles between the two branches began a year ago, when Herbert refused requests to call the Legislature into a special session to set rules for a special congressional election after then-Rep. Jason Chaffetz announced that he would resign. Instead, Herbert set rules for the election himself.

The Legislature requested an opinion from Attorney General Sean Reyes about the legality of that move. His office prepared the opinion, but Reyes refused to release it when Herbert said it would violate his attorney-client privilege — because others in the attorney general’s office had already provided legal work for him on the issue.

Herbert said the attorney general — or even different arms within his office — should not provide legal advice to opposing parties on the same issue.

Upset lawmakers later passed the two vetoed bills as part of their response.

They also passed HJR18 — a constitutional amendment that, if approved by voters, would allow the Legislature to call itself into special session. That is a power it has now, but only to attempt to override vetoes. Because HJR18 is a proposed constitutional amendment, Herbert could not veto it, and it will go directly to voters Nov. 6.

In earlier written veto messages, Herbert argued that the bill to allow the Legislature to defend in court the bills it passes would “disrupt judicial proceedings” by having the state potentially take different stances on the laws and that it would illegally grab power that belongs to the executive branch.

“The Legislature may not exercise executive authority even when the Legislature believes the executive is not performing its role properly,” Herbert wrote. He added that it appears lawmakers planned to do so often, appropriating $700,000 a year to hire three attorneys, a paralegal and a legal secretary.

Hughes, however, said: “If you have a statute that was not vetoed and the attorney general’s office decides it does not want to defend it, it amounts to a soft veto — if there isn’t an opportunity for legislative attorneys to intervene if necessary. We’re just putting a process to it.”

Herbert’s earlier veto message on the other bill said that requiring the attorney general to provide legal opinions to the Legislature might force him to violate attorney-client privilege as the governor’s primary attorney.

Hughes countered that the attorney general is not just the governor’s attorney but, under the constitution, serves all state officers, including the Legislature. He said the office can build walls between different sections so they can serve different officials ethically.

That already happens, he said, using the example of The Salt Lake Tribune’s appeal to the state’s Records Committee last year, seeking a copy of the legal opinion that Reyes had prepared but not released for the Legislature.

The attorney general’s office represented itself in that case and served as the legal counsel to the Records Committee. “There were assistant attorneys general on both side of that debate,” Hughes said.

Herbert’s spokesman, Paul Edwards, said Wednesday that the governor is not surprised by calls for the override session, since the bills passed by large margins. Still, “we continue to believe that both bills imprudently stain the constitutional balance between the branches of state government.”

While the veto override session has not been scheduled, Hughes said he hopes it will occur within a week or so. It must take place within 60 day of when the Legislature adjourned, on March 8.

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