A judge’s ruling in a lawsuit over Mark Shurtleff’s $1.1 million legal fees may not have resolved the ex-Utah attorney general’s debts, but it may provide his successor John Swallow with a way to get his own $1.5 million bill paid.
Shurtleff and Swallow wracked up the bills defending against criminal public corruption charges filed against them in 2014.
Shurtleff’s case was dismissed in 2016 and a jury acquitted Swallow of all charges in March. Both have since sought reimbursement of their legal fees under a state reimbursement law.
The office of current Utah Attorney General Sean Reyes has sought to block any payments, saying the law doesn’t apply if the accused state officer or employee is no longer in public service when exonerated.
Third District Judge Bruce Lubeck disagreed in the Shurtleff ruling issued Tuesday, and Swallow says that should clear the way for Utah to pay up or at least negotiate a settlement.
The “not in office” argument was the primary argument state attorneys cited in denying Swallow’s reimbursement demand.
In his decision, Lubeck said the law applies to the timing of the conduct that resulted in charges brought against a state officer or employee, not the employment status of that public servant at the time they win an acquittal or dismissal on the basis of a defense motion.
“Contrary to the state’s reading [of the law] I was indeed an employee at the crucial time and satisfy the terms of the statute,” Swallow said. “I hope the [attorney general] will reconsider his earlier rejection.”
Reyes’s spokesman Dan Burton declined to comment Wednesday on how the ruling might impact Swallow’s reimbursement request and would not say if the office was now inclined to engage in settlement talks.
Unlike Shurtleff, who filed his lawsuit in March after failed settlement talks, Swallow’s attempt to secure reimbursement has so far been limited to a demand letter sent by his criminal attorney, Scott C. Williams.
Lubeck’s ruling should be “the end of the story,” with respect to Swallow’s demand, Williams said, because the only other argument raised by the state was that the attorney general’s office lacked the funds to pay the bill.
But “the statute doesn’t provide an out for not having money,” said Williams, who no longer represents Swallow. “That’s provided for by legislative appropriation.”
Despite Lubeck’s ruling, Shurtleff’s will not get his fees paid — at least not now — because his criminal case was dismissed at the request of a prosecutor. But his civil lawsuit on fees will move forward, with Shurtleff alleging breach of a cooperation agreement he had reached with the prosecutors.
Swallow remains undecided about filing suit, and said he’s hopeful that Reyes’ office is willing to talk. A settlement, he said, would save the state time and the expense of any additional legal fees, he said.
“I’ve sat in the chair of the attorney general and I understand the considerations involved in important decisions,” he said. “However, this is an easy one. The statute was designed to protect public officials from spurious prosecutions and the touchstone definitional test in this context is an acquittal.”
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