Balance-of-power struggle set for next showdown in veto override session Wednesday

(Steve Griffin | Tribune file photo) Speaker of the House Greg Hughes and his wife Krista, left, and Senate President Wayne Niederhauser and his wife Melissa, stand and applaud as Gov. Gary Herbert and first lady Jeanette Herbert enter the Utah House of Representatives prior to the governor's State of the State address in Salt Lake City, Jan. 24, 2018.

The Utah Legislature is now scheduled to hold a veto override session on Wednesday beginning at 1 p.m., according to a call issued by House Speaker Greg Hughes and Senate President Wayne Niederhauser.

Legislative leaders had announced last week that they would call the session soon, after polling of their rank and file showed they had the two-thirds majority support needed to do so.

They aim to override two vetoes by Gov. Gary Herbert of bills that are part of a yearlong turf war between him and lawmakers over proper separation of powers.

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, no longer depending 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 required 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 call also allows lawmakers to consider overriding some budget line-item vetoes by Herbert affecting the two bills.

Soon-to-retire Speaker Hughes, R-Draper, opened this year’s 45-day general session by calling for part-time lawmakers to take back powers he says the full-time executive branch has grabbed. The two bills were part of that pushback.

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 conducted 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.

As part of their turf war, legislators this year also 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.

Brigham Young University political science professor Adam Brown has noted that the Legislature has overridden vetoes only five times in the past 20 years.

The last time was 2011, when the Legislature overrode two vetoes by Herbert. One was a bill that returned state agencies to a five-day workweek instead of four days. The other increased the amount of sales tax that goes to fund transportation.