Utah lawmakers override Herbert's vetoes of bills expanding legislative power


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SALT LAKE CITY — Utah lawmakers one-upped Gov. Gary Herbert on Wednesday in the ongoing power struggle between the state's legislative and executive branches.

The Republican-dominated House and Senate voted overwhelmingly to override the GOP governor's veto of two bills that give the Legislature authority to go to court and clarity for obtaining legal opinions from the attorney general.

It was the Legislature's first override session since 2011 and only the second in Herbert's nearly nine years as governor.

"This really goes to our constitutional separation of powers as well as legislative prerogative," House Speaker Greg Hughes, R-Draper, said afterward. Though the Legislature serves part time it is not a part-time branch of government, he said, adding it did not to seek more power, but to better define the power it has.

Herbert spokesman Paul Edwards said in a statement that clearly the governor and the Legislature disagree about the appropriate roles and functions of their respective branches of state government.

"We would encourage the Legislature to intervene in a court case as soon as possible so that the Utah courts can quickly resolve these important constitutional issues," he said.

SB171 allows the Legislature to intervene in lawsuits filed against the state and allocates $700,000 a year for three new attorneys, a paralegal and a legal secretary. Lawmakers said the bill is not about usurping constitutional authority but about giving the Legislature a say in cases where state laws are challenged in court.

"If the attorney general were to refuse to defend a law we pass, our hands are tied. We have no remedy. We have no voice. The law goes undefended in the court," said Rep. Merrill Nelson, R-Grantsville.

In vetoing SB171 last month, Herbert argued that it is inherently and exclusively the executive branch's job to enforce and defend laws. Allowing the Legislature to wade into lawsuits, he said, would unnecessarily complicate cases and muddy the separation of powers.

Attorney General Sean Reyes agrees, saying the Legislature enacts laws, the executive branch enforces them, and courts interpret them.

"When one branch upsets that equilibrium, it threatens the harmony and integrity of the whole and erodes public confidence in the institutions," he said in a statement.

Reyes said his office would continue "to do our duty and defend state laws, unless and until there is a decision from the courts requiring us to do otherwise."

Rep. Tim Hawkes, R-Centerville, said the bill is simply about giving the "author of legislation" a say when a law faces a court challenge.

"This is not about undermining checks and balances, separation of powers but reiteration of those fundamental principles," he said.

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But Rep. Justin Fawson, R-North Ogden, opposed the bill, saying it appears to subject the Utah code to "here-is-what-we-really-meant revisionism."

HB198 clarifies how the Utah Attorney General's Office provides legal opinions to lawmakers upon request and provides the Legislature a recourse through the Utah Supreme Court if the attorney general fails to comply.

Nelson said the governor mistakenly considers the attorney general his lawyer exclusively, and that if the attorney general provides an opinion to the governor, he can't give an opinion on the same issue to the Legislature.

"That is a misreading of the law," he said.

Nelson said the attorney general's office can provide "zealous" representation for both the executive and legislative branches.

In vetoing HB198, Herbert said the Utah Constitution directs the attorney general to advise the executive branch. He noted the Legislature has its own office of roughly two dozen attorneys who prepare legal opinions.

The legislation grew out of the fight lawmakers had with Herbert last year over how to conduct the special election to replace former Utah GOP Rep. Jason Chaffetz, who resigned last June.

Legislators were frustrated that the governor wouldn't call them into session to set up the process, which they contend is their prerogative. They also tangled over a legal opinion on the special election that legislative leaders sought from the attorney general, who then refused to turn it over citing the governor as his client.


This is not about undermining checks and balances, separation of powers but reiteration of those fundamental principles.

–Rep. Tim Hawkes


A resolution the Legislature passed earlier this year will allow voters to decide in November whether to give lawmakers the power to call themselves into special session. Only the governor may call the Legislature into session under current state law.

Both the Senate and House had spirited debates on SB171 before passing it.

Some GOP critics worried the measure, sponsored Senate Majority Whip Stuart Adams, R-Layton, goes too far or is overly vague.

"It goes further than what would be good public policy," said Sen. Curt Bramble, R-Provo.

Bramble noted the measure, as written, would give the Legislature the ability to intervene in any court case where a state law is under challenge.

Others said they believe the bill rightfully restores power to the Legislature, power that is necessary.

Rep. Jake Anderegg, R-Lehi, wondered aloud what recourse lawmakers had when they disagreed with the process established by Herbert to hold a special election to replace Chaffetz.

"What recourse did we as a Legislature have to intervene in court?" Anderegg said. "I see this as completely in line with the constitution."

Contributing: Amy Joi O'Donoghue

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Dennis Romboy
Dennis Romboy is an editor and reporter for the Deseret News. He has covered a variety of beats over the years, including state and local government, social issues and courts. A Utah native, Romboy earned a degree in journalism from the University of Utah. He enjoys cycling, snowboarding and running.

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