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Lawmakers put brakes on action against governor over special election — for now

Speaker Greg Hughes, R-Draper, center, is joined by Minority Leader Rep. Brian King, D-Salt Lake City, left, and Senate President Wayne Niederhauser, R-Sandy, right, as they talk with members of the media at the Capitol in Salt Lake City on Tuesday, June
Speaker Greg Hughes, R-Draper, center, is joined by Minority Leader Rep. Brian King, D-Salt Lake City, left, and Senate President Wayne Niederhauser, R-Sandy, right, as they talk with members of the media at the Capitol in Salt Lake City on Tuesday, June 20, 2017. Lawmakers met to discuss the special election to replace Rep. Jason Chaffetz.
Scott G Winterton, Deseret News

SALT LAKE CITY — Lawmakers put the brakes on taking action Wednesday in their ongoing dispute with Gov. Gary Herbert over the special election process to replace Rep. Jason Chaffetz, R-Utah.

"We could give you a bunch of different options today, but I think it's more important we give you a plan," House Majority Whip Francis Gibson, R-Mapleton, told the House GOP caucus, promising they'll see something "relatively soon."

Even an attempt by Rep. Keven Stratton, R-Orem, to have the caucus vote to encourage Chaffetz to rescind his intent to resign on June 30 was shot down by Gibson, who conducted the caucus.

"Given the circumstances of where we are, he may want to say, 'Look, I can see the problems here. I may not want to resign here,'" Stratton said, warning that the state could be at risk of not having the seat filled.

Chaffetz announced last month he was stepping down from Congress to take a position in the private sector, believed to be with Fox News. He told the Deseret News on Tuesday that his last day is still June 30.

Stratton said after the caucus he would personally ask Chaffetz to stay in office through the remainder of his two-year term that ends in 2018. He said other officials have also made similar pleas.

During a special joint meeting of House Republicans and Democrats Tuesday, the possibility of legal action against the governor was raised and GOP lawmakers had expected to discuss that in their party caucus Wednesday.

But Gibson said after meeting with legislative counsel Wednesday, leaders need time to continue to work on a plan.

"To give you a direct plan right now we felt like would be inappropriate. I do not believe this is an issue we should take lightly, or it's something we should take half-heartedly," the majority whip said.

Senate Majority Leader Ralph Okerlund, R-Monroe, said there was little discussion about the issue during Wednesday's Senate Republican caucus, which is closed to the media and public. Republicans hold a supermajority in the House and Senate.

Okerlund said the Senate wants to focus on coming up with a proposed special election process for filling future congressional vacancies that could be heard in an interim committee and voted on during the 2018 Legislature.

"We don't want to blow up the election that's going on right now," Okerlund said.

Both House Speaker Greg Hughes, R-Draper, and Senate President Wayne Niederhauser, R-Sandy, told reporters Wednesday there is no interest in taking the governor to court over the process established to fill Chaffetz's seat.

Still at issue, however, is a legal opinion from Attorney General Sean Reyes on whether the governor exceeded his authority by not calling the Legislature into special session to establish the election process for a congressional vacancy.

That opinion, requested by legislative leaders a month ago, was withheld by the attorney general after the governor's office declined to waive attorney-client privilege because of potential lawsuits over the process.

Elections are overseen by the lieutenant governor's office, which worked with the attorney general's office to put together the special election that includes an August Republican primary before the final vote in November.

House Minority Leader Brian King, D-Salt Lake City, who participated in the leadership meeting with legislative counsel Wednesday, said he'd like to see the case go to the Utah Supreme Court.

Other House leaders, however, may not be so sure about asking the high court to force the release of the attorney general's opinion against the governor's wishes. Reyes and Herbert are both Republicans.

Gibson told the caucus the attorney general is "caught between two sides."

He also said it's not clear whether the attorney general came to a different conclusion than the Legislature's legal counsel, who declared the special election process invalid because it was established by the executive branch.

However, Gibson suggested if they "look at the way it's ferociously being denied being shared," they might well believe the attorney general's opinion agrees that the details of an election have to be set by the Legislature.

The Senate is also "very interested" in seeing the opinion, Okerlund said, but has "no appetite for a lawsuit at this point." He said Senate leaders prefer using political persuasion to get the opinion released.

Salt Lake County Mayor Ben McAdams has also asked the attorney general for a "separate formal legal opinion" on the election, citing the "very real costs to the counties" if there are changes to the process as a result of legal action.

"With respect to the direct fiscal impact to Salt Lake County, it is our expectation that the state will be responsible for any additional fiscal burden that may result from the issue," McAdams said in a letter to Reyes dated Tuesday.

The attorney general continued to have no comment Wednesday, his spokesman, Dan Burton said. Burton said there will be a response to the mayor's request this week.

On Wednesday, the newly formed United Utah Party filed suit in federal court seeking to get its candidate, Jim Bennett, on the general election ballot even though the party has not yet been certified by the state and the filing deadline has passed.

The 3rd District includes portions of Salt Lake and Utah counties, as well as Carbon, Emery, Grand, San Juan, and Wasatch counties. The primary and general election dates coincide with municipal elections.