Utah voters are nearly evenly split on whether to allow the Utah Legislature to call itself into special session — a power that it seeks after a recent bitter turf battle with Gov. Gary Herbert, who now has exclusive authority to initiate a special session.

Constitutional Amendment C on the ballot is trailing by a 42 percent to 39 percent margin — a 3 percentage point difference — with a large 18 percent undecided, according to a poll by the Hinckley Institute of Politics in partnership with The Salt Lake Tribune.

A special session is when the Legislature is formally convened outside the annual 45-day general session that begins in January and ends in March.

“Amendment C has been something of a sleeper in the public arena,” says Herbert spokesman Paul Edwards. The governor opposes the measure.

“I haven’t seen organized campaigns for or against it,” so he says many voters may see it for the first time when they vote.

House Majority Leader Brad Wilson, R-Kaysville, who is pushing the amendment, agrees. “It’s the least-talked-about issue on the ballot,” he said.

(Christopher Cherrington | The Salt Lake Tribune)
(Christopher Cherrington | The Salt Lake Tribune)

But it is part of a fight that has roiled for two years between Herbert and the Legislature.

It began when Herbert refused to call the Legislature into session to set rules for a special congressional election last year when then-Rep. Jason Chaffetz, R-Utah, announced he would resign his congressional seat.

Herbert contended that laws on the books allowed him to set rules for that special session. Legislative leaders said that was murky, and wanted the governor to call them into special session so they could set the rules.

(Francisco Kjolseth | The Salt Lake Tribune) Supporters and opponents of Utah’s medical marijuana initiative joined with Utah Gov. Gary Herbert and legislative leaders Thursday, Oct. 4, 2018, at the Utah Capitol to announce a “shared vision” for cannabis policy.

Herbert refused to do so, noting that several legislators were potential candidates — and he didn’t want “anyone gaming the system” by setting rules to help themselves.

The Legislature then requested an opinion from Attorney General Sean Reyes on the legality of Herbert’s moves. His office prepared the opinion, but Reyes refused to release it when the governor said it would violate his attorney-client privilege since it had already done some legal work on the question for him.

The turf battle led the Legislature to put Constitutional Amendment C on the ballot, and it pushed other bills seeking to limit executive branch power.

That included passing HB198 to force the attorney general to provide the Legislature with written legal opinions when requested (as the law already requires). Herbert vetoed the bill, but the Legislature overrode that veto.

Lawmakers also passed SB171 to allow the Legislature to intervene in court to defend the laws they pass, not having to depend on the state attorney general to do so. Herbert also vetoed that but again was overridden.

Now voters will decide whether the Legislature also prevails on the battle to gain the power to call itself into a special session.

Edwards said Herbert opposes that because “one reason that Utah is so well managed is that the Legislature has to finish its work within a specified number of days. That has really focused attention on what is most important,” and prompts timely action on the budget and policy decisions.

Wilson said that legislators in “35 other states have this power” to call themselves into session, at least in some circumstances. He adds, “We don’t want to be a full-time Legislature, but we need to be a coequal partner with the governor. Under this narrowly defined amendment, we could do that better.”

(Steve Griffin | The Salt Lake Tribune) Rep. Brad R. Wilson, R-Kaysville, talks about HB456, a bill that modifies provisions related to the regulation of alcoholic beverages, during the House Business and Labor Standing Committee meeting at the State capitol in Salt Lake City Monday Feb. 26, 2018.

He notes two-thirds of the Legislature would need to agree to a special session under the provision, and it would be reserved for a persistent financial crisis, war, natural disaster or other emergency. “If this passes, I think use of it would be rare.”

Sen. Lyle Hillyard, R-Logan, the longest-serving member of the Legislature who has been there for 38 years, said he remembers only one time when the Legislature and governor have been unable to agree on whether to call a special session — last year’s battle over the special congressional election.

“I oppose this because there is just more and more pressure on us to become full time,” Hillyard said. Also, he said special sessions tend to be so quick — usually just a day — that legislation often is not fully vetted by the public, increasing the possibility of bad decisions.

“Of the 10 votes that I wish I could change over my past 38 years here, probably eight of them have been in special sessions,” he said. “Personally, I think we do enough damage in 45 days” when lawmakers meet in their general session each year.

(Scott Sommerdorf | Tribune file photo) Sen. Lyle Hillyard, R-Logan, has concern about whether the attorney general's office has the expertise to handle some of the state's high-profile cases. There are discussions about relying more on outside counsel.

The new poll interviewed 607 registered voters between Oct. 3-9. The margin of error is 4 percentage points, plus or minus.