DAVID P. BILLINGS 
Attorney 
Direct Dial: 801.323‐2205 
Facsimile: 801.596‐2814 
dbillings@fabianvancott.com 

August 17, 2022

Lt. Gov. Diedre Henderson

Ryan Cowley, Director of Elections
Lieutenant Governor’s Office
Utah State Capitol, Suite 220
Salt Lake City, UT 84114
Via hand delivery

RE: Acting Director and State Representative Joel Ferry

Dear Lt. Gov. Henderson and Mr. Cowley,

We represent HD-1 candidate Joshua Hardy and the Utah Democratic Party and write
regarding Mr. Ferry’s refusal to resign from the state legislature or remove his name from the
ballot despite being disqualified from continuing to hold office in the legislative branch once
he accepted Governor Cox’s appointment. We ask that Mr. Ferry either resign and ask that
his name be removed from the ballot, or that the Lieutenant Governor’s Office disqualify him
from appearing on the November ballot because he has rendered himself ineligible to hold
that a legislative seat.

“No person holding any public office of profit or trust under authority of . . . this
State, shall be a member of the Legislature” Utah Const. Art. VI, Sec. 6. “[T]he obvious and
usual means of complying with the said constitutional provision would be for the successful
candidate to simply resign from one office upon assuming another.” Jenkins v. Bishop, 589
P.2d 770, 773 (Utah 1978) (Hall, J., concurring). While we appreciate Mr. Ferry’s position is
that because he is declining his legislative salary he is not in violation of this provision, he is
incorrect. Ample authority shows that holding an office in the executive branch, not the
accepting of two different wages, is the triggering event.

In an analogous situation 44 years ago, Assistant Attorney General H. Wright Volker

opined to Governor Scott M. Matheson “that when Senator [Edison J.] Stephens accepted the
position of Director of the Division of Weights and Measures that his office as a State
Senator became vacant, since he could not hold his new position and also be a member of the
Legislature.” Informal Op. No. 78-217, 1978 WL 25744, at *1 (Utah A.G. Jul. 6, 1978).
Accord Romney v. Barlow, 24 Utah 2d 226, 229, 469 P.2d 497, 499 (1970) (holding members
of the Legislative Council became ineligible for legislative office once they accepted an

 
Lt. Gov. Diedre Henderson
Director Ryan Cowley
August 17, 2022
Page 2
 
 
 
appointment to the Council). “The provisions of this Constitution are mandatory and
prohibitory, unless by express words they are declared to be otherwise.” Utah Const. Art. I,
Sec. 26.

The separation of powers provisions of our state constitution requires that legislators
perform only legislative duties. Mr. Ferry cannot perform executive duties while holding
legislative office, even if he is working for both offices for free.

The status quo is not only unconstitutional, it is also fundamentally undemocratic and
unfair to the other candidates for House District 1, who cannot campaign against an unknown
future appointee. The voters in House District 1 deserve to be able to choose between
candidates who are eligible to serve and not have party bosses foist yet another unelected
person onto them by Mr. Ferry’s name remaining on the ballot.

Please let us know by August 31 whether you will remove Mr. Ferry from the ballot
or whether he will remove himself. If not, Mr. Hardy reserves his rights and remedies and
may be forced to exercise them.

Very truly yours,

David P. Billings

cc: Joshua Hardy (via email), Diane Lewis (via email)

 
4875-7629-0094, v. 1 

 
Honorable Scott M. Matheson, 1978 WL 25744 (1978)

1978 WL 25744 (Utah A.G.)

Office of the Attorney General

State of Utah
Informal Opinion No. 78–217
July 6, 1978

*1 Honorable Scott M. Matheson

Governor, State of Utah

This is in response to your inquiry concerning the status of Senator Edison J. Stephens who has accepted a position as the
Director of the Division of Weights and Measures in the Utah Department of Agriculture. It is my understanding that Senator
Stephens’ term expires January 1, 1979, and that he is not a candidate for reelection.

There would appear to be little question that the office Senator Stephens has accepted is an ‘office of profit and trust’ under
Article VI, Section 6, of the Utah Constitution, which provides:
‘No person holding any public office of profit or trust under authority of the United States, or of this State, shall be a member
of the Legislature: Provided, That appointments in the State Militia, and the offices of notary public, justice of the peace,
United States commissioner, and postmaster of the fourth class, shall not, within the meaning of this section, be considered
offices of profit or trust.’

It also seems clear under this section that when Senator Stephens accepted the position of Director of the Division of Weights
and Measures that his office as a State Senator became vacant, since he could not hold his new position and also be a member
of the Legislature.

With respect to the filling of a vacancy in the State Senate, Section 20–1–5, Utah Code Annotated, 1953, provides:
‘When a vacancy occurs for any reason in the office of senator in the legislature of the State of Utah, it shall be filled for the
unexpired term, if any, at the next general election. The governor, however, shall fill the vacancy for the period from the time
the vacancy exists until the next general election. The appointee shall be selected from the same political party and be a
resident of the same senatorial district and shall have the endorsement of the central political committee or committees of the
senatorial district as the last person duly elected to the office in which the vacancy exists; provided, that if there be no session
of the legislature between the happening of a vacancy and the next general election, occurring 45 days or less thereafter, the
vacancy shall be filled at the general election.’

While the last portion of this section is not a model for clarity, the way I read it is that the vacancy should be filled unless the
vacancy occurs within 45 days preceding the general election and there is to be no session of the Legislature between the time
such vacancy occurs and the general election. Inasmuch as the general election is approximately four months away, it appears
that a person should be appointed to fill the vacancy until the general election.
Yours truly,

H. Wright Volker
Assistant Attorney General

1978 WL 25744 (Utah A.G.)

End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works.

© 2022 Thomson Reuters. No claim to original U.S. Government Works. 1