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.