Defending the Legislature’s political posturing is costing taxpayers millions, Robert Gehrke writes

In November, Utah lawmakers issued an emergency, no-bid contract to a law firm brought on to help it defend against allegations of gerrymandering.

(Francisco Kjolseth | The Salt Lake Tribune) Robert Gehrke.

A few weeks ago, the Utah Legislature inked a contract hiring an outside law firm to help fight a lawsuit alleging that congressional boundaries lawmakers passed earlier in the year are an unconstitutional gerrymander. The plaintiffs say districts drawn by lawmakers deprive a significant portion of Utahns of meaningful representation.

It is the fourth time in less than a year that the state has brought in outside lawyers to defend a high-profile bill passed by the Legislature — with the same law firm, Consovoy McCarthy, now representing the state in three of those instances.

The Virginia-based firm has a Salt Lake City office, led by Tyler Green, who spent 2015 to 2020 doing much the same thing — defending laws passed by the Legislature — as solicitor general at the Utah Attorney General’s office, a significantly less lucrative position.

Since joining Consovoy, Green’s new employer has become the leading outside law firm hired by the Attorney General to help defend cases. Just since March of this year, the Attorney General has paid Consovoy nearly $444,000, just for the monuments case and the abortion litigation.

The latest addition to Green’s caseload came not long before Thanksgiving when Green signed on to help with the redistricting lawsuit. The judge in the case had rejected the Legislature’s attempt to dismiss the lawsuit.

At that point, Fellows wrote in an emergency procurement document, “it became necessary for [the Office of Legislative Research and General Counsel] to immediately retain outside counsel to assist in responding to the claims in the Redistricting Lawsuit within the fast-approaching court deadlines to protect the legal interests of the Utah Legislature.”

Under the terms of the agreement, as many as 10 attorneys could be available to work on the case, with hourly rates ranging from $595 for associates up to $700 an hour for partners like Green.

The fourth major case the state has outsourced — the defense of the ban on transgender girls competing in high school sports — is being handled by Lee-Nielson. That firm is led by former Utah Supreme Court Justice Tom Lee, who is also the brother of Utah Sen. Mike Lee, and John Nielson, a former assistant solicitor general in the Attorney General’s office.

The topic of the case was broached with Lee at his farewell party on June 30 and offered during a meeting the next day, according to KUTV and the attorney general’s office. When the contract was signed, it was retroactive to July 1. In September, we (taxpayers) paid Lee and Nielson’s firm $249,000 for its work on that case thus far.

It’s easy to see those payments climbing in the coming year, particularly with the addition of the redistricting case, where the state and Green have asked the Utah Supreme Court to step in.

Last year, the Legislature set aside $5 million to cover public lands litigation, including the monuments cases. Green’s pitch to the body is not just rolling back the boundaries like former President Donald Trump did during his administration, but gutting the Antiquities Act by getting a U.S. Supreme Court ruling prohibiting large-scale monument designations in the future.

All of these cases are still in the relatively early stages, with document production and notification of potential witnesses just ramping up. As taxpayers, it’s relatively easy to see that we are going to be on the hook for millions of dollars sent to these law firms.

By comparison, Green made about $141,000 (plus benefits) when he worked on cases in the Attorney General’s office. It’s a problem.

And before anyone chalks this up to politics, I’ll acknowledge I disagree with Green’s politics. He’s a member of The Federalist Society, a powerful cabal of conservative lawyers and administrator for the Marble Freedom Foundation, a nonprofit controlled by right-wing activist Leonard Leo and bankrolled by a massive $1.6 billion contribution of stock shares from electronics mogul Barre Seid, believed to be the largest such donation ever.

At the same time, I’m not questioning his ability. I don’t doubt he’s a capable attorney, even if he does seem to be reaping the benefits of his political connections — the abortion case and redistricting case were handed over on a sole-source contract, without competition. The monument case went through the normal procurement, and Consovoy won fairly easily.

The larger issue is that Attorney General Sean Reyes has at his disposal — he frequently says — one of the largest law firms in the state with more than 250 attorneys on staff. Yet, when not one, not two, not three, but four major cases arise thanks to some ill-considered and unpopular actions by the Legislature, taxpayers end up paying outside lawyers 10 times what state attorneys make to swoop in as backup.

There are two possible solutions.

One is for the Legislature to rein in its compulsion to score political points by passing bills they know won’t benefit Utahns, will get the state sued and may not end well. Or, if they insist on passing these laws, they need to pony up the money to keep enough skilled lawyers on staff at the Attorney General’s office so that they don’t have to scramble for reinforcements every time a major case comes down.

Either way, they should be honest with themselves and us about the millions of dollars that we, as voters and taxpayers, will ultimately end up paying for their political posturing.

ClarificationDec. 20, 10 a.m.: This story has been revised to clarify the timeline of the contract offered to Tom Lee’s firm.