Gov. Herbert hasn't supported $2M plan to defend Amendment 3

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SALT LAKE CITY — Gov. Gary Herbert has yet to sign off on the new attorney general's plans to spend as much as $2 million to hire outside counsel to defend the state's voter-approved constitutional definition of marriage.

Support for the expenditure "depends on the amount, but as a principle, the A.G.'s office should do what it can to make the best case it can," said Derek Miller, the governor's chief of staff.

Herbert is scheduled to meet to discuss the proposal with newly named Attorney General Sean Reyes on Monday, after Reyes' 2 p.m. swearing-in ceremony at the state Capitol.

House Speaker Becky Lockhart, R-Provo, and other House GOP leaders gave Reyes the go-ahead Friday to bring in lawyers to fight the Dec. 20 federal court ruling that has resulted in same-sex marriages being allowed in Utah.

Senate Republicans have yet to discuss the proposal with Reyes but Senate President Wayne Niederhauser, R-Sandy, predicted there would plenty of support among members of the Legislature's majority party.

The attorney general's office would need a supplemental appropriation to cover the cost of the outside counsel from the 2014 Legislature, which begins meeting on Jan. 27.

But the governor's office has asked for details, including the objectives and costs of an appeal. Monday's meeting is expected to also include Miller and Brian Tarbet, acting attorney general since John Swallow's resignation from the post.

Under Tarbet, the attorney general's office unsuccessfully sought a stay of U.S. District Judge Robert Shelby's ruling on Amendment 3 from both Shelby and the 10th Circuit Court of Appeals in Denver.

A request for a stay from the U.S. Supreme Court has been delayed pending the hiring of outside counsel. A spokesman for the attorney general's office, Ryan Bruckman, said the stay should be filed Monday.

Reyes said last week he is "looking for outside help to bolster our application to the Supreme Court and potentially for an appeal that will proceed with or without a stay."

Bruckman has declined to name the lawyers the state is attempting to hire or other details. A spokesman for Reyes, Lee Rech, said Sunday he would not be available to answer questions until after being sworn in.

Reyes will be sworn in by Utah Supreme Court Justice Thomas Lee, brother of U.S. Sen. Mike Lee, R-Utah, in the rotunda in what a press release described as a "quiet ceremony" intended "to celebrate a fresh start for the A.G. office."

Reyes, who lost to Swallow in the 2012 Republican primary election, and Tarbet were among the three candidates nominated for the post by the GOP State Central Committee.

The governor had named Tarbet, the retired adjutant general of the Utah National Guard and general counsel to the attorney general's office, as an interim attorney general to replace Swallow.

Just days after the federal court decision, Herbert announced that he had chosen Reyes as attorney general over Tarbet and Robert Smith, the managing director of the BYU International Center for Law and Religion Studies.

Reyes has asked Tarbet to stay on and has said he will run for the remaining two years of Swallow's term in next year's general election. Swallow continues to be the subject of probes into allegations that include influence peddling.

The Sutherland Institute, a Utah-based conservative think tank, has already publicly called for Reyes to hire outside counsel, expressing disappointment in how the case has been handled so far.

The institute's president, Paul Mero, said the organization would even be willing to foot the bill — under the right conditions. "We would be willing to relieve taxpayers of that burden if it's the right counsel," he said.

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Lisa Riley Roche


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