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Gov. Gary Herbert acted properly in calling 3rd District special election, A.G. says

FILE - Utah Attorney General Sean Reyes speaks at a press conference at the Boys and Girls Clubs of Greater Salt Lake Sugar House Club in Salt Lake City on Wednesday, Nov. 8, 2017.
FILE - Utah Attorney General Sean Reyes speaks at a press conference at the Boys and Girls Clubs of Greater Salt Lake Sugar House Club in Salt Lake City on Wednesday, Nov. 8, 2017.
Spenser Heaps, Deseret News

SALT LAKE CITY — Gov. Gary Herbert acted within his bounds when he called a special election last year to replace former Congressman Jason Chaffetz, according to a closely held legal opinion the Utah Attorney General's Office released Tuesday.

Attorney General Sean Reyes made the seven-page document public after months of wrangling between legislative leaders and the governor's office.

"The opinion indicates that Gov. Herbert's actions appeared to be within his statutory and constitutional authority to call the election as he did," according to the attorney general's office.

The attorney general delivered the document to Senate President Wayne Niederhauser, R-Sandy, and House Speaker Greg Hughes, R-Draper, on Tuesday.

Lawmakers sought the opinion last May during their battle with Herbert over what the Legislature's role should be in setting up the special election to fill the vacancy in the 3rd Congressional District created when Chaffetz stepped down.

The governor, who set up the election without calling lawmakers into special session to approve the process, blocked the release of the opinion by declining to waive attorney-client privilege. Reyes cited ethical concerns over a potential conflict of interest because his office had advised the governor and Lt. Gov. Spencer Cox, who oversees elections, on how the vacancy should be filled.

Legislative leaders voted last October to sue the governor to force the release of the opinion, though they didn't pursue any legal action.

Now that the threat of litigation has passed, and the governor has issued a waiver, the ethical barriers to sharing the opinion have been removed, Reyes wrote in a Tuesday letter to Niederhauser and Hughes.

The State Records Committee, hearing a media request, voted to order release of the opinion last fall. The attorney general's office decided to appeal the decision but now says it anticipates dropping the case.

Neidherhauser and Hughes said in a statement that the opinion would be useful for lawmakers in drafting legislation for the 2018 general session to set up a process for filling midterm congressional vacancies. The leaders said they appreciate Herbert's willingness to work with them and grant a waiver to release the document.

In the opinion, the attorney general's office found that the U.S. Constitution gives the Legislature the authority to set the time, place and manner of elections, including special elections. However, it also requires the governor to issue a writ of election to fill the vacancy.

"The governor … therefore has the discretion to set the time, place or manner of the special election through the proclamation, so long as the terms are not contrary to state law or any individual's constitutional rights," the opinion states.

The opinion also found that vacancy occurs when the incumbent no longer occupies the office. But nothing in state law precludes the state from starting the election process before the vacancy occurs.

The attorney general's office notes that the document is not legal advice but an analysis of the questions lawmakers posed in requesting the opinion. The office also says the opinion is not protected by attorney-client nor does it take into account preferred policy considerations.

Herbert spokesman Paul Edwards said the opinion speaks for itself and affirms the governor is obligated to order a special election and has some discretion in doing so.

"In short, we worked alongside attorneys from the attorney general’s office to conduct a special election that matched as closely as possible the procedures for a regular general election in Utah. The result was a transparent election that preserved the participation and voice of the people of the 3rd Congressional District," he said.

Voters in the district elected former Provo Mayor John Curtis in November to replace Chaffetz.