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AG’s Office Releases Draft Opinion on 3rd Congressional District Special Election

Controversial request spotlights conflict between state law and legal ethics

SALT LAKE CITY – Today, the Attorney General’s Office received a waiver from Governor Herbert allowing it to release a legal opinion to the legislature on issues related to the special election in the Third Congressional District.

The opinion was drafted in May, 2017, but not disclosed due to ethical concerns with its release. Now that the threat of litigation has passed, and the governor has issued a waiver, the ethical barriers to sharing the opinion have been removed. The opinion was hand-delivered to the President of the Senate, Speaker of the House, and Governor.

The opinion indicates that Governor Herbert’s actions appeared to be within his statutory and constitutional authority to call the election as he did. The opinion letter, while in draft, was the subject of controversy– not due to its content, but because conflicting interpretations of the law, constitutional responsibilities, and legal ethics provided no clear ethical path for immediate release of the document. 

Now that the opinion is public, the Attorney General’s Office anticipates this will negate the need to pursue a petition for judicial review of the State Records Committee’s decision on this matter.

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NOTES:

  1. Find a PDF copy of the letter and related documents at https://attorneygeneral.utah.gov/wp-content/uploads/2018/01/2018-01-16-CD3-Ltr.pdf.
  2. Attorney General Reyes penned an op-ed in November regarding the elections opinion letter and finding an ethical path forward. You can read that here: https://attorneygeneral.utah.gov/featured-content/op-ed-the-disputed-special-election-letter-and-the-ethical-path-forward.

AG Reyes Presents Utah Declaration on Human Trafficking Prevention Month

Governor issues declarationAttorney General recognizes the work of key citizen groups  

SALT LAKE CITY  –  Today, Attorney General Sean Reyes, in partnership with the Governor’s Office, presented a gubernatorial declaration recognizing January as National Slavery and Human Trafficking Prevention Month and awarded several groups, including visiting Haitian dignitaries, that are working to combat human trafficking locally and globally.  

 “It’s critical that every American understands that human trafficking can be found in every community, robbing victims of innocence, dignity, and hope,” said Attorney General Reyes. “It is indiscriminate in its predation of people of all backgrounds, regardless of wealth or station. The groups here today deserve our gratitude for protecting the liberty and worth of our innocent children and most vulnerable citizens.”   

 The Declaration for National Slavery and Human Trafficking designates January in Utah as the month to remember victims and commend all groups, individuals, and public servants for their diligent efforts to educate themselves, inspire others, rebuild lives, and to protect the inherent worth of each citizen and human being.  

 Notable among those honored was Haiti’s Attorney General, Clame Ocnam Dameus, his Chief of Staff, Jim Petiote, as well as their wives and several staff members, for their work combatting human trafficking in their home country. AG Ocnam and his team are visiting Utah due to their partnership with AG Reyes and Operation Underground Railroad to discuss efforts abroad.  

 In addition, the following eight groups were given special commendation for their efforts to combat human trafficking within the State of Utah. 

  • Asian Association of Utah Refugee Immigrant Center  
  • Operation Underground Railroad  
  • SHEROES United  
  • Grace House  
  • The Junior League of Salt Lake City
  • Backyard Broadcast  
  • Standing Together  
  • Fight the New Drug  

 AG Reyes has been a leader and an international voice in the fight against human trafficking and continues to lead Utahns to aggressively fight through education campaigns, support of anti-human trafficking legislations, victim recovery and advocacy. This is accomplished through grassroots and NGO efforts, partnerships with local law enforcement officers and agencies, as well as work initiated by the AG Office through the Utah Trafficking in Persons (UTIP) Task Force and prosecutors of the Utah SECURE Strike Force.  

 

 

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Related Material: 

  1. Read a copy of the Declaration here: Utah Declaration on National Slavery & Human Trafficking Prevention Month.
  2. Find more information aboutUTIP and the SECURE Strike Force at:
    Utah Trafficking in Persons (UTIP) Task Force & SECURE Strike Force 

Utah Attorney General’s Office Files Amended Complaint in Gold King Lawsuit

Amended complaint adds EPA and other parties to list of defendants

SALT LAKE CITY January 5, 2018 – The Utah Attorney General’s Office filed an amended complaint yesterday in the Gold King Mine blowout lawsuit. The amendment adds the U.S. Environmental Protection Agency (EPA) and the United States, and Weston Solutions, Inc., one of EPA’s contractors, as defendants.
 
Triggered on August 5, 2015, by the EPA and its contractors, the uncontrolled blowout of the Gold King Mine dumped over three million gallons of acid wastes and toxic metals, depositing hazardous wastes along the Animas and San Juan Rivers. The plume reached Lake Powell in Utah just nine days later on August 14, 2015.

“We will continue to work closely with the EPA and the U.S. Department of Justice to assess and monitor damages, devise a remediation plan or other remedies, and attempt to settle this case,” said Attorney General Sean Reyes. “The amended complaint was necessary to preserve the legal rights of Utah and its citizens and should not be interpreted as a breakdown in settlement discussions. Those negotiations are on-going to work out a settlement unique to Utah and commensurate with the harm.”
 
“The Gold King Mine blowout was an avoidable disaster, and it is critical that those responsible clean up the wastes and compensate Utah for the damages,” said Spencer Austin, Chief Criminal Deputy of the Utah Attorney General’s Office. “We are in talks with the EPA and hope to reach a resolution soon. Settlement in cases of this magnitude often takes years. If litigation should become necessary, the Utah Attorney General’s Office is ready for a fight. But our hope is to reach an agreement to work together with the EPA to protect our environment.”
 
With the amended complaint, the lawsuit names ten parties as defendants, including three EPA contractors and four mine owners.
 
Throughout the process, the State of Utah has been cooperative with the EPA, yet aggressive in holding that agency responsible for its actions. This cooperative approach has already paid dividends for the State of Utah and its people. For example, more than a million dollars has been reimbursed by the EPA to Utah for expenditures related to initial emergency response and monitoring. The EPA under the Pruitt Administration has been particularly responsive and willing to take responsibility for the mining blowout. 
 
A copy of the First Amended Complaint can be found through this link.
 
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AG Reyes Statement on the Passing of LDS Church President Thomas S. Monson

Attorney General Sean Reyes released the following statement regarding the passing of President Thomas S. Monson, President of the Church of Jesus Christ of Latter-day Saints.

“I love President Thomas S. Monson, and I will miss him. Throughout my life, he has been an example of selfless service and visionary leadership. When I was a young leader of a Latter-day Saint congregation, I looked to President Monson for inspiration and was blessed by his example, and I have continued to look to him for spiritual guidance. His life was a living illustration of individual ministry to the lonely and the downtrodden. His example moved me then, as it does now, to come to the rescue of those in need and to lift those who are weary.

“I will always treasure the quiet interactions we shared together. In his presence, I knew I was speaking to someone intimately familiar with the Lord. Beyond his talks, teachings, and testimony, his service and charity towards his fellowmen were unsurpassed. His love for the human family, like his love for God, was unbounded.

“As a community leader, President Monson was peerless, and yet, he never sought the accolades of the world. His sights were set on a more lasting and transcendent goal of lifting the human spirit and condition to a higher plane. He was blessed with a wry sense of humor and a seemingly bottomless well of stories, a gift for language that he used to touch the lives of millions, as well as to lift each person that he met individually.

“Saysha and I express our sincere and deepest condolences to President Monson’s family, as well as to the members of the LDS Church who are mourning the passing of their prophet. We are all better because of President Monson’s service, and it is my hope that we might all, as he did, come to the rescue of those who are in need around us.”


AG Reyes Thanks Utah National Guard on Deployment to Afghanistan

Attorney General Sean Reyes thanked members of the National Guard for their service as they prepared to deploy for Afghanistan this week:

“We are grateful for members of the Utah National Guard who will deploy today to begin training for a mission to Afghanistan later this year. Our prayers are with each of them, as well as with their families, as they carry out their mission on behalf of our country. Similarly, our thoughts and prayers go out to all our men and women in uniform at home or deployed throughout the world.

“We are reminded of the sacrifice of Soldiers, Sailors, Airmen, and Marines, many from our own staff, who have contributed to the Nation’s defense over many years of service.

“Our own Major Chris Earl will also be deploying soon, although on a different critical mission, and we express our support for his efforts on behalf of our country and send our love to his family.”


Quinlen Atkinson Sentenced for Human Trafficking

Weber County, Utah  December 20, 2017 –Attorney General Sean Reyes today announced the guilty plea and sentencing of Quinlen Atkinson to human trafficking.  Atkinson pled guilty to Human Trafficking, a second degree felony. Atkinson was arrested and charged by the Utah Attorney General’s Office, SECURE Strike Force, last year as part of its ongoing commitment to eradicate human trafficking in Utah. He will serve up to fifteen years in prison.
 
“Exploiting and abusing young people in this way is one of the most repulsive acts imaginable,” said Attorney General Reyes. “I want to thank the brave men and women of our Attorney General’s Office, especially Assistant Attorney General Dan Strong who brought the charges and to our elite investigative unit, the Utah SECURE Strikeforce, for bringing this predator to justice. I also want to invite the community’s prayers on behalf of the victims and their families for a recovery that will help them reclaim their lives and their innocence.”
 
Atkinson came to the attention of authorities after they received reports that he had recruited two high school students—one 17 years old and the other 18 years old—to work as part of his commercial sex operation. Witnesses reported that Atkinson substantially managed the commercial sex operation, including transporting both girls within and outside of the state for the purposes of commercial sex. Atkinson was alleged to have kept most or all money earned in this operation, despite promising the girls he recruited that he would invest the money and purchase them a house.
 
Atkinson was sentenced to prison by the 2nd District Court for Weber County. He will serve between one and fifteen years in prison, as determined by the Utah Board of Pardons and Parole.
 
The Utah Attorney General’s Office administers and coordinates the SECURE Strike Force partnership with the Utah Department of Public Safety and county, federal and city law enforcement agencies to combat violent and other major felony crimes associated with illegal immigration and human trafficking.
 
If you believe you have a tip about human trafficking, please call the tip line at 801-200-3443.
 

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EDITOR’S NOTES: 
 
1. The mission of the Utah Attorney General SECURE Strike Force is to carefully target major fraud, organized gun, drug and human trafficking, detect creation of fraudulent government identification and other documents, and prosecute these crimes with specialized investigators and resources and a dedicated Assistant Attorney General prosecutor.
 
2. The SECURE Strike Force is an integral part of the Utah Trafficking in Person’s Task Force.
 
3. Read more about the SECURE Strike Force here.


AG Reyes Fights to Protect Utah Egg Farmers and Low-Income Families from California Regs

Utah Attorney General Sean D. Reyes today announced his office will challenge in the United States Supreme Court an attempt by the State of California to impose agricultural regulations on the State of Utah and Utah’s egg farmers.

Utah is challenging a California law requiring Utah egg producers to comply with California’s new and much more restrictive farming regulations in order to sell eggs in California. The suit claims that California’s regulations violate both a federal law prohibiting states from imposing their own standards on eggs produced in other states and the Commerce Clause of the U.S. Constitution, which gives Congress exclusive authority to regulate commerce among and between states.

In 2016, a three-judge panel of the Ninth Circuit Court of Appeals ruled that Utah and other plaintiff states could not prove harm beyond the effect on individual farmers. lacked standing to pursue their claims. Last week’s filing in the United States Supreme Court addresses the lower court’s concerns by providing a careful economic analysis establishing the impact of these burdensome regulations on American households, including those living below the poverty line. The lawsuit also asks the Supreme Court to take up the case directly instead of requiring that it first move through the lower courts.

“This restriction is a great example of the job-killing regulations that have sent so many Californians fleeing to more business-friendly states, like Utah,” said Attorney General Reyes. “Authority to regulate interstate commerce rests with Congress, not California bureaucrats. And the practical effect of this protectionist regulatory scheme is increased egg prices nationwide. Eggs are one of the top sources of protein for families living below the poverty line. While affluent families may be able to absorb higher egg prices, many poorer families cannot. I believe this is having a disproportionate impact on lower income families.”

The state of Utah is joined in the challenge by 12 other states: Missouri, Alabama, Arkansas, Indiana, Iowa, Louisiana, Nebraska, Nevada, North Dakota, Oklahoma, Texas, and Wisconsin. 


AG Reyes Statement on President Trump’s Modification of Bears Ears and Grand Staircase-Escalante National Monuments

SALT LAKE CITY December 4, 2017 – Utah Attorney General Sean Reyes released the following statement on President Donald J. Trump’s modification today of Bears Ears National Monument and Grand Staircase-Escalante National Monument. 

“Today, with the designation of five new monument units, President Trump has taken a historic step to correct the hubris of past administrations. The new designations are much closer in scope to the “smallest areas compatible with proper care and management” of protected objects, as required by the Antiquities Act. These corrections were made after extensive input from local citizens and interests, including tribal members, conservationists, ranchers, hunters, business owners and elected representatives. President Trump and Secretary Zinke have found a balance that considers the needs of our local communities and still protects the singular, stunning, and sacred lands of our state for future generations.

“Over the history of the Antiquities Act, national monuments have been reviewed and modified by subsequent presidents. It is no surprise, given the disproportionate original designations, that President Trump would reduce these monuments to be more consistent with the intent of the Antiquities Act. Such remedial measures would not be necessary if Congress would clarify the limits of initial monument designations. I echo the statement of Secretary Zinke that executive power under the Act is no substitute for congressional action. We are hopeful that our elected representatives in Washington, D.C. will pass legislation that makes political games with Utah’s public lands less likely in the future.

“The Utah Attorney General’s Office will continue to monitor the process with interest and will continue to protect Utah, its people, and its lands, from federal overreach.”
 

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Attorney General Sean Reyes’ 2017 Thanksgiving Message

November 23, 2017 — Attorney General Sean D. Reyes released the following Thanksgiving Day message:

In 1863, President Abraham Lincoln first proclaimed a national day of thanksgiving shortly after a Union victory at Gettysburg. During one of our country’s most divided times, Lincoln was able to recognize the strength of our republic and the hand of divine providence as he called for healing and unity of a tired and depleted nation. 

Today, at a time when so many Americans are divided, there are heroic individuals working valiantly to make our state and country a better and safer place. Whether in the fight against human trafficking, opioid addictions, or crimes against children, it is these Utahns who quietly go about doing the work of angels that make me even more grateful to live in this state.

A few examples from the thousands in our state doing heroic work includes: Sgt. Elle Martin, who over decades has trained tens of thousands of emergency responders, law enforcement, and medical personnel; Sam and Dr. Jennifer Plumb, who have fought tirelessly to provide Naloxone to save lives from opioid overdoses. Then there is Victor Cox and the Americas Council, advocates who spend countless hours serving the Hispanic and other minority communities. 

Similarly, Tim Ballard, Operation Underground Railroad, and other modern-day abolitionists risk their lives to save innocent children from sex trafficking worldwide. I am thankful for Celeste Gleave’s SHEROES team that supports female crime victims and other vulnerable women. Clay Olsen and Fight the New Drug educate the world on the perils of pornography, including child exploitation. And artists like Geralyn Dreyfous, Jenny Mackenzie and Hale Center Theater Sandy performers educate through high-quality film, music, and drama. 

In my own office, Director Tracey Tabet leads a network of Children’s Justice Centers and hundreds of professionals trying to break the cycle of abuse for Utah families while Ruthie Pedregon overseas our victim advocacy efforts. Unsung heroes in the Utah AG Office do everything from taking down violent criminals, protecting land and natural resources to prosecuting non-payment of spousal or child support. 

I am also deeply grateful to servicemen and women who give so much in defense of our country; and to the many first responders—police officers and investigators, firefighters, emergency medical technicians, nurses, and rescue personnel—who are often the first to rush to the aid of fellow Utahns. Utah is rich with examples of sacrifice and giving by many selfless individuals.

And while this is a time for many of us to celebrate with family and friends, some among us are spending Thanksgiving alone—isolated by depression, addictions, homelessness, deployment, or other circumstances. I hope we are mindful of their situations and do everything we can to lift them to a less lonely place.


Op-ed: The disputed special election letter and the ethical path forward

In an op-ed published in the Deseret News, Attorney General Sean Reyes discussed the ethical problems around the draft-opinion on the CD 3 special election. 


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.

In the rare instances when such opinions are rendered, attorney general offices consider a number of practical and ethical factors before issuing one. No attorney general in the nation would issue an opinion where the request relates to current or threatened litigation. Another disqualifying factor, in many cases, is when separate branches of government are in conflict over the subject matter. In this instance, both disqualifiers were present and the prudent ethical course was to withhold the draft opinion despite having prepared one.

In addition, because the Legislature requested information so closely related to privileged advice already provided to the Governor, this created an added layer of concern. In fact, when my office consulted the State Bar Office of Professional Conduct, the director indicated that sending the opinion to the Legislature over the objection of our client, the Governor, could constitute a violation of our own ethical duties as lawyers. Our responsibility to respond to the Legislature could be viewed as directly in conflict with our duty to protect confidences of our client and could impact our ability to defend litigation brought against our client.

In normal situations, information requests from multiple agencies doesn’t create a problem. In this case, with the Legislature at odds with the Governor over a special election in process, the problem was unsolvable. Advising both on the same legal matter creates a conflict of interest, that neither the rules of professional conduct, legal precedent, nor state statutes can safely remedy or avoid. There was no ethical path forward.

The attorney general’s decision

My attorneys and I are public servants who have taken an oath to uphold the law and to do so in an ethical manner. Rather than place the office in an untenable ethical position, I made the conscious decision to honor our client’s wishes and do what any other ethical attorney general would do when disqualifying circumstances exist, and withhold the opinion. No one in the Governor’s office has seen the proposed opinion nor has any idea what it contains.

I’m confident my decision is the right one. We have worked diligently, for nearly four years, to restore public trust in this office. In the fog of conflicting standards, I was unwilling to risk an ethical mark on our record. Releasing the draft letter would put our office too close to the line of violating standards we have sworn to uphold.

If we made a mistake, it was in beginning to work on the opinion while the issue was still unresolved. On the other hand, as Attorney General I need to retain independence to exercise my lawful duties and had I deemed it proper, we wanted to have the opinion prepared as requested.

Seeking clarity

So where to from here? The bottom line is that we need precision in the law and rules regarding Utah’s independent Attorney General’s office. I plan to partner with stakeholders to provide the definitions needed so when this issue rises again, we have clear standards. We can achieve this clarity along four paths.

First, the Utah State Bar can clarify the standards that apply to the attorney general’s office as a unique law practice. This is already in process. My office has submitted the issue to the Bar and eagerly awaits their carefully considered recommendations.

Second, the Legislature can seek a writ of mandamus from the Supreme Court or other action to clarify the duties of an independent Attorney General’s Office. I would welcome this action.

Third, we can work with our partners in the Legislature to address the issues through legislative action.

Fourth, the attorney general can continue to make decisions — as I have here — limited by conflicting rules, statutes and constitutional responsibilities. This is probably the least desirable option.

It’s worth noting that none of the core issues were addressed by the recent records committee decision, nor could they be. This issue is larger than curiosity about a single draft opinion. Someday, that letter will be released. I believe that day should be soon, after reasonable danger of litigation has passed.

In the meantime, let’s begin to resolve the larger issues that led to the impasse.


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