Exclusive: Sean Reyes, the disputed special election letter and the ethical path forward

Much attention has been focused on a draft legal opinion prepared by my office regarding Utah’s special elections process. Some of the related conjecture is true. Some of it merits clarification.

Despite attempts to characterize this as an open records issue, or a choice among political favorites, this has always been solely an issue of legal ethics. The core discussion is whether an attorney general can represent the state without being compelled to harm the very client he or she is bound by the constitution to defend.

Should the Legislature, the press and the public be able to examine the draft opinion? I believe so. When the credible threat of litigation has passed and our ability to defend our client is not compromised, releasing the opinion would be appropriate. To be clear, I would not release our communications or advice to the client without its consent. However, once ethical guidelines permit, we can comply with the original request from the legislature clarifying its own special election duties.

Conflicting responsibilities

Let’s rewind to May of this year when Jason Chaffetz announced he would resign from Congress. At that point, the State faced an unprecedented situation. Governor Herbert felt that state law had already given the executive branch control of the nature and timing of a special election to replace the congressman. The governor and his team consulted with my office in making that determination. The Utah Legislature, consistent with advice from its own legal counsel, disagreed, feeling that the new situation required new legislation. Reasonable arguments could be made on either side. The Governor proceeded to set the terms of the election without calling a special legislative session. The Legislature indicated that it may seek legal redress. Other parties hinted at or openly threatened litigation based on the Governor’s chosen course as well.

Around this time, the Legislature requested my office prepare an opinion letter regarding duties of the Legislature in a special election. To comply with the tight timeframe of the request, attorneys in our office prepared a response while our executive team examined the propriety of the request. The request came through a seldom used law, the practice of which has become disfavored by courts and attorneys general around the country over the past decades. In Utah, only a handful of such opinions have been rendered over the past twenty years as they have no binding weight and often cause more confusion than clarity.

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Source:: Deseret News – U.S. & World News

      

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