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Lawmakers review legal position, consider options in special election dispute

SALT LAKE CITY — After listening to more than 1 ½ hours of legal analysis Tuesday, legislators will meet again to consider what to do next in their ongoing dispute with Gov. Gary Herbert over control of the special congressional election.

But both House Speaker Greg Hughes, R-Draper, and Senate President Wayne Niederhauser, R-Sandy, made it clear they don't want to disrupt the election process already underway by taking legal action against the governor.

"It's not our intention, but we worry," Hughes said after a rare joint meeting between House Republicans and Democrats that included a briefing from the Legislature's general counsel on what's being seen as a separation of powers issue.

Hughes cited a threatened lawsuit by the newly created United Utah Party, as well as concerns that Rep. Jason Chaffetz, R-Utah, is "well within his right to change his mind" about resigning from Congress on June 30.

Hours later, United Utah Party leaders announced they would seek a temporary restraining order in federal court Wednesday, claiming their constitutional rights had been violated because the party didn't make the special election ballot.

Chaffetz, who announced last month he would leave office for a position in the private sector believed to be with Fox News, told the Deseret News via text that talk that he might reconsider his decision is "not true."

"June 30 last day," the text read.

Lawmakers are also frustrated that the governor's office stopped Attorney General Sean Reyes from releasing a legal opinion on the special election process sought by the Legislature, citing attorney-client privilege.

Reyes' spokesman, Dan Burton, said the attorney general's office had no comment.

Niederhauser said senators, who met in separate Republican and Democratic caucuses, "feel very adamant about protecting the authority we have" but don't want to get in the way of the election at this point.

"So any legal challenge from the Legislature, I think we've agreed, and I think the House has concluded the same, that's not going to come from us. That's going to come from outside, and we're going to be prepared to address that if necessary," he said.

During the House meeting, Rep. Brian Greene, R-Pleasant Grove, urged lawmakers to take action to overrule the governor's decision to withhold the attorney general's opinion.

"Let's be real about what we're talking about here. We cannot allow a political motivation to usurp our authority as a Legislature," Greene said. "In this instance, we cannot look the other way."

That discussion, however, will wait until Wednesday, when Republicans and Democrats in the House and Senate are scheduled to caucus in between interim day meetings.

Hughes suggested another outcome to the two-thirds of the representatives there, calling on the governor to waive the privilege cited and turn over the attorney general's legal opinion to the Legislature and the public.

"I don't know what the hesitation would be," the speaker said.

But Paul Edwards, the governor's deputy chief of staff, said he doubts that will happen.

"It isn't as simple as it sounds. And, we admit, this is a very interesting ethical issue," Edwards said, because the law allows lawmakers to seek opinions from the attorney general, who under the Utah Constitution provides counsel to the governor.

"The Legislature is absolutely right to raise questions about separation of powers, for them to guard their powers very carefully and jealously. We are doing the same," Edwards said.

If there is someone who "believes that the governor has truly overstepped his constitutional authority, we actually would like to have that resolved as soon as possible" in court, he said.

Otherwise, Edwards said, the governor's office "is willing to sit down and work this out" with lawmakers in the next general session.

"We don't want a future governor to have the burden that we've had to try to craft a special election," he said.

The special election allowed candidates to gather voter signatures for a place on the primary ballot in addition to competing at party conventions, something GOP legislative leaders preferred to avoid to speed up the timeline.

But Herbert chose not to call lawmakers into a special legislative session and instead called for a special election that includes an Aug. 15 GOP primary and a general election in November.

"We feel pretty confident where we're at," state Elections Director Mark Thomas told reporters, noting that state law gives the governor the authority to call a special election and the lieutenant governor's office supervisory authority over the election.

Thomas, also chief deputy to Lt. Gov. Spencer Cox, said no one in the governor's office has seen the opinion written for the Legislature but it has worked with the attorney general's office to set up the special election.

House Majority Whip Francis Gibson, R-Mapleton, outlined the agenda for Wednesday's House GOP caucus. Republicans hold a supermajority in both the House and Senate.

Gibson said lawmakers need to be ready to address the special election process when the 2018 Legislature begins meeting next January, as well as whether the attorney general represents the governor's office "or the people of Utah."

He said leadership is "preparing what's next. We will discuss this in our caucuses. We will also discuss this with legal counsel, how we move forward. This isn't something to just sit on. But today's a lot to digest."

House members were given a hefty bound book, "House Meeting on Separation of Powers," that included a formal legal opinion from legislative counsel that concluded the order from Cox establishing the election process is invalid.

They were also told the governor's office had referred ethical concerns about the attorney general's opinion to the Utah State Bar, but Edwards said at no time was there any threat of any action against anyone in the attorney general's office.

Hughes said the Legislature's concerns, shared by Democrats, are being portrayed in the media as "petty bickering" and trivialized. He told the House that leadership has "gone to great lengths to show you the magnitude of the issue and our efforts."

House Minority Leader Brian King, D-Salt Lake City, sat next to Hughes at the meeting and said he's "concerned about what the governor has done" to keep lawmakers from seeing the attorney general's opinion.