While it’s usually the purview of the Attorney General to defend legal challenges to state law, the Utah Legislature may create their own legal team to defend constitutional challenges to laws they pass.
SB171, sponsored by Senate Majority Whip Stuart Adams, R-Layton, gives the Legislature the “absolute right” to intervene in any lawsuit that challenges “any action of the Legislature.” That’s relatively broad language, but Adams says lawmakers need the flexibility to defend what they do against a lawsuit.
“I think it’s the prerogative of the Legislature to defend those issues that come under litigation,” says Adams. “The premise is we need to defend the statutes we pass. If we’re going to maintain a balance of power, this gives us flexibility.”
Adams says the bill wasn’t prompted by any particular lawsuit, just a sense that lawmakers need to protect their interests in the courts. In practical terms, it means the legislature could take over duties usually performed by the AG’s office when litigation is file against the state.
The bill, if it passes, would likely create a need to set up a whole new litigation team to handle the additional legal responsibilities.
“Right now, I supposed our existing legislative lawyers might be able to do this, but they simply don’t have the manpower,” says Adams. “We would have to appropriate the money and hire new people to handle that.”
According to a chart provided by the Attorney General’s office, their lawyers have put in thousands of working hours defending legal challenges to the constitutionality of statutes passed by the legislature. For example, the legal challenge to Utah’s constitutional ban on same-sex marriage consumed more than 3,900 hours of legal work and nearly a half-million dollars in fees. The chart (below) covers work by the AG’s office defending the constitutionality of Utah laws over the past decade.
Adams does not discount the work done by the AG’s office, but it appears legislative leaders are set on having their own lawyers defend the bills they pass.
“This is something the leadership in both houses feels very strongly about,” he said. “This is just the first step, and I think it will be a process that we will have to build on if it passes.”
