Utah’s lawmaking season isn’t over with the Legislature’s brief 45-day session. The suspense continues after the session, as we wait for the governor to decide whether he will use his veto or not. And the climax, of course, is whether the Legislature will override him.
Because there are few things more fascinating than one branch of government telling the other one to go take a hike.
The Utah Legislature is calling itself into an override session for two of the 2017 bills Gov. Gary Herbert vetoed — SB171, which gives the Legislature an automatic right to intervene in court to defend the laws they pass, and HB198, which would force the attorney general to provide the Legislature with a legal opinion when requested, as the law already requires.
Does the Legislature recognize the internal inconsistency in seeking to override vetoes on a bill that allows the Legislature to bypass the AG’s office, and another one that requires the AG to give the Legislature an opinion?
Apparently not.
The Legislature passed the two bills this past session in an effort to “strengthen the existing powers of the legislative branch” against the executive branch.
In response to this power grab, Herbert said, “The Legislature may not exercise executive authority even when the Legislature believes the executive is not performing its role properly.”
Former United States District Judge for the District of Utah and current University of Utah law professor Paul Cassell wrote an op-ed for this paper that eloquently explained the deficiencies of SB171. As Cassell said, SB171 “makes the Utah Code perpetually subject to here-is-what-we-really-meant revisionism. And that threatens to undermine Utahns’ respect for the law. There’s little fairness in asking the people to honor a bill’s enacted text when the Legislature holds a residual “intent” trump card.”
As we opined in February, “Legislators can stand outside the courtroom and tell the cameras what they meant when they passed it, but only their law speaks for them in court.”
SB171 is duplicative. The executive branch houses the attorney general’s office, which is constitutionally required to act as counsel for the state and its entities. It’s also costly. The Legislature set aside $700,000 to hire an office staff of lawyers. And that doesn’t include the money it will use defending the law in court, because it’s likely unconstitutional.
What a waste of time, money and goodwill.
But it makes for a good news story.