Separation of Powers

Overreach by the Governor in Connection With the Prospective Vacancy for Congressional District 3

June 20, 2017

This summary is provided from the House Democratic leadership to the members of the Utah House of Representatives on June 20, 2017, regarding the issues the Legislature is grappling with in connection with the prospective vacancy for Congressional District 3, the U.S. House of Representative seat currently held by Representative Jason Chaffetz.

The state of Utah has no process to hold special elections or make a temporary appointment for a vacancy that occurs in the U.S. House of Representatives. A vacancy such as the one that may occur for Representative Jason Chaffetz has not happened in Utah since 1930.

The language of the United States Constitution matters a great deal here. According to the Constitution, the Governor is required to call a special election when a vacancy happens in the U.S. House of Representatives. The Constitution also gives to state legislatures the power to determine the “times, places, and manner of holding elections.” The Constitution does not restrict this power to just regular elections. Utah has no law addressing the time, place, or manner of carrying out an election to fill a vacancy for the U.S. House of Representatives. It is proper for the Legislature to be called into a Special Session to address that lack of process in our statutes. However, the Governor is the only individual who can call the Legislature into Special Session. Despite the Legislature’s request that he do so, the Governor has refused to call the Legislature into Special Session to address this issue.

The Governor has assured the public and leaders in the state that he is within his legal authority to not simply issue the writ of election. He has gone further and claimed the authority to determine the specifics of the process and timing of that election. Legislative leaders believe this encroaches on the Legislature’s authority.

There is a second way in which legislative leaders believe the Governor has overreached. When the Legislature requested a legal opinion from the Attorney General’s office (something the legislature is entitled to receive) about the scope of the Governor’s and the Legislature’s power to establish the details of the process and timing of the election, the Governor stepped in and told the Attorney General that the Governor believed providing the opinion the Legislature asked for was a violation of the attorney-client privilege between the Governor and the Attorney General. The Governor has gone so far as to threaten to file a complaint with the Utah State Bar against the Attorney General or any member of his office who provides a legal opinion on these issues to the Legislature. The OLRGC believes that, assuming any conflict exists at all, the Attorney General can put in place protections to ensure that privileged attorney-client communications between the Attorney General’s and the Governor’s office are not disclosed to the Legislature. Nevertheless, the Attorney General has bowed to the Governor’s threats and is not willing to provide any legal opinion on these matters to the Legislature.

Given the resistance of the Attorney General to providing a legal opinion to the Legislature, the Speaker and President requested a legal analysis to be completed by the Office of Legislative Research and General Counsel. The opinions of our OLRGC are below.

OLRGC Opinions Summarized

  1. A vacancy occurs when the elected official leaves office or tenders an irrevocably worded letter of resignation with a definitive effective date. Rep. Chaffetz’ May 18th letter identified an “intent” to resign on June 30th. It did not irrevocably express as of that date his resignation effective June 30th. In other words, he could change his mind between now and June 30th. There is no vacancy of his seat until he either irrevocably resigns effective June 30th or that day comes and he steps down.

  2. Because Rep. Chaffetz’ seat is still occupied and he can withdraw his resignation before or on June 30th, the writ of election is premature.

  3. The Governor’s power is limited to the calling of the election. Establishing the time, place, and manner of the election is a Legislative, not Executive, function.

  4. Likewise, because the Lieutenant Governor operates under the Executive, not the Legislative, branch of government, the time, place, and manner outlined by the Lieutenant Governor for the election are beyond the scope of his authority to provide.

  5. According to the U.S. Constitution, the legislature is the only body with the authority to define the election process for a midterm Congressional vacancy.

The differences of opinion between the Legislature and the Governor have been aggravated by the Governor’s efforts to keep the Attorney General from providing his legal opinion to the Legislature about the powers allocated to the Governor and the Legislature to establish the time, place, and manner of the election to fill the prospective vacancy in the U.S. House.  When the Governor inserted his office between the Legislature and the Attorney General’s office, he again overstepped his executive authority. Both the Utah Constitution and Utah Code clearly describe the role of the Attorney General as the “legal adviser of the state officers” to provide the Attorney General’s “opinion in writing and without fee to the Legislature...upon any question of law relating to their respective offices.” Utah Code Ann. §67-5-1(7).

The OLRGC and legislative leaders believe the Governor has overstepped his authority both in establishing the time, place, and manner of the election to fill a prospective vacancy in the U.S. House of Representatives and in interfering with the right and ability of the Legislature to obtain the legal opinion of the Attorney General on the proper balance of power between the Governor and the Legislature.

 

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A message from Democratic Leader Brian King on the close of the 2016 Legislative Session

A message from House Democratic Leader Brian King

 

Our members made significant gains this year with the issues they presented to the Legislature and to the people of Utah.  We had successes in the areas of homelessness, gun research and safety, and government transparency. We’ve moved the dial on issues dealing with wages, paid family leave, and the rights of individuals to make their own healthcare decisions. The legislature faced progressive issues that are seemingly inevitable - things like medicinal marijuana and eliminating the death penalty. Utah is moving forward, and, as Democrats, we are happy to lead the charge.

Here are some hot topics we addressed in the 2016 legislative session:

Medicaid Expansion

Since last year’s legislative session, we made direct appeals to our colleagues to be involved in the discussion about how to proceed forward. However, our Republican colleagues shut Democrats out of the process of meaningfully participating in putting together a Medicaid expansion proposal.

During the last two weeks of the session multiple lobbyists asked Democrats if we were going to be voting for HB 437, Representative Jim Dunnigan’s “Medicaid Improvement” bill. There was some suggestion that the Republicans might need Democratic votes to pass that bill. However, before the bill came to the House floor for a vote, we learned that Rep. Dunningan had 39 Republican co-sponsors, one more vote than would be necessary to pass the bill. House Republicans needed to “own” the Medicaid issue according to the Speaker. Democrats were free to vote in a way that allowed us to clearly draw attention to our preferred alternative: full Medicaid expansion as contained in SB 77 sponsored by Senator Davis. As a clearly inadequate substitute for Medicaid expansion, House Republicans do “own” HB 437.

We want to make sure Utahns know the difference between what House Republicans and House Democrats want for our constituents. HB 437 is not Medicaid expansion. Rather, it was a modest extension of our existing Medicaid program that had nothing to do with Medicaid expansion as envisioned by the Affordable Care Act. It did not use any of the funds made available by the ACA. Compared to full Medicaid expansion or even the Governor’s Healthy Utah plan, it was a gross waste of taxpayer dollars and disregard of the needs of the least among us. Will it help the 16,000 people who will gain additional coverage under that bill? Yes. But doing so may actually hurt our ability to expand Medicaid in the future to cover all who currently fall in the gap.

Environmental Issues

Democrats are at the forefront of clean air, water, and the environmental and economic development issues they present.

The legislature accomplished some good things in this session. Among other things, we increased the statute of limitation for environmental code violations, moved forward with incentivizing the conversion of older vehicles to clean fuel alternatives, acted to phase in ultra-low NOx water heaters, created a Clean Air Fund to which taxpayers can contribute on their tax returns, improved our electric vehicle infrastructure, and acted to help companies in nonattainment areas install the best available air pollution technology. Democrats supported each of these bills.

Having said that, the legislature failed on some important bills. We refused to provide funding for the Clean Air Retrofit, Replacement, and Off-Road Technology (CARROT) fund. We refused to authorize funds to replace the nearly 50% of the air quality monitors that are beyond their useful life. We refused to fund conversion of diesel to clean fuel busses. We refused to increase penalties for environmental crimes that have not changed in 35 years. Democrats supported each of these bills. But despite our best efforts, these bills and budget appropriation priorities failed.

Elections and Voting Rights

For years now, the legislature has made the process of voting more difficult. By making it harder to get issues on the ballot or simply confusing voters with numerous new laws, Utah voters have a hard time feeling like their vote, and their voice, matters.

Democrats have been fighting to make sure elections are fair, transparent, and accessible. The power of being an elected official should not also be the power to manipulate elections. With that in mind, Representative Chavez-Houck argued for an independent redistricting commission to draw legislative lines with balance, not partisanship, in mind. To spark the interest of young Utahns in elections and government and encourage their lifetime participation, Representative Joel Briscoe authored a bill expanding who can participate in primary elections. Representative Patrice Arent knows the qualifications of individual candidates are more important than party labels. That is why she sponsored a bill that would do away with straight ticket voting.

Money in politics is a dirty trend that has only grown since the Supreme Court’s decision in Citizens United v. FEC. In Utah, Democrats do not believe pay-to-play is the way representative government should work. I have continually sponsored a bill on campaign finance reform that would cap the amounts given to any candidate by any individual or organization. Representative Patrice Arent has been working on closing loopholes in our finance laws to ensure that all candidates for office follow the same rules. Government should be focused primarily on serving the interests of regular people of Utah rather than to fill the pockets of shareholders or enhance the bottom lines of corporations.

Wages

True economic success only comes when we decide to invest in the most important resource we have - the people of Utah. That’s why Representative Lynn Hemingway sponsored a living wage bill that would allow working Utahns the room to grow in a changing economy. The minimum wage does not reflect the worth of the worker, and Utah needs to show it recognizes that by requiring businesses to pay employees an hourly amount that allows a regular person to live without having to rely on government assistance.

The family friendly state that we live in too often fails to protect employees from disruption in income when they have events that require leave from work for family issues that we all welcome of realize are inevitable. This year, Representative Angela Romero sponsored a bill that would support Paid Family Leave by the state of Utah. This would give Utahns the time to bond with a new family member or grieve for a lost one without fear of losing their job. Representative Mark Wheatley also worked on a bill that would make it illegal for an employer to keep employees from discussing their salary. Piece by piece, Democrats are working their way toward equal opportunity in the workforce.

Education

We can clearly see the difference between Republicans and Democrats when it comes to public education. We have leaders throughout the state on the Republican side demanding that the U.S. Department of Education be dismantled and that all control go to the individual states. Meanwhile Republicans in state government whittle away at public education funding year by year. And many of our Republican colleagues belittle the education professionals in our schools across the state and second guess decisions about curriculum, teaching methods, and professional development requirements. All the while, our dedicated teachers work long hours doing their best to help prepare our children with the information and skills they need to live productive lives and compete in a global economy. 

As House Democrats, we do not accept the fundamental ideological disconnect that we see at the Legislature regarding public education. That is why our caucus members, led by Representative Joel Briscoe on this issue, identified funding alternatives to increase our public education budget. Rep. Briscoe pushed and pulled in budget negotiations, in committees, and on the House floor to increase the amount of money that goes into our schools. Representative Marie Poulson worked to get SAGE scores out of our teacher evaluations, citing that the test often has little to do with how effectively our teachers do their jobs. Democrats continue to support our teachers and schools. Like Malala Yousafzai, we know that “One book, one pen, one child, and one teacher can change the world.”

 

This brief list of all the work Democrats put forth in the most recent legislative session is only a small glimpse into the efforts your elected officials. We hold only 16% of the legislature, but are able to provide a strong voice for the beliefs and priorities of so many Utahns. I’m very proud of every one of my Democratic colleagues.