January 23, 2018

Is Swallow planning on bringing a civil rights claim against the state?

SwallowCould Utah Attorney General John Swallow be preparing to sue the state for civil rights violations if he is impeached?

Despite his comments to the press on June 19, it’s becoming increasingly clear that Utah Attorney General John Swallow does not welcome the House investigative process to look into allegations against him.  Though he continues to assert that he will be exonerated and though the Utah House has given him a temporary reprieve from impeachment, all signs are that Swallow does not welcome the bright light of an investigation.

On the contrary, the signs seem to indicate that Swallow wants the public to believe that the House investigative committee is outside the bounds of the law.

In a letter from his attorney this week (embedded below), Swallow’s attorney appeared to imply a threat of a a law suit against the state federal civil rights violations because of the investigation. The letter states, in pertinent part that

The impeachment process, including an investigation related thereto, should not be used to override the decision of the electorate unless a high crime, misdemeanor and malfeasance in office, has occurred while the elected official is in office. The mischief of an investigation that exceeds this constitutional mandate is readily apparent. It opens the door for all types of inquiries regarding any elected official and could allow the Legislature to not only attempt to override the election process, but unduly interfere with another branch of government in violation of the separation of powers doctrine so fundamental to our democracy. And such a process could violate the federal Civil Rights Act, since the Legislature will be acting under color of law.

[Emphasis added by myself.]

In the days after the letter was published, several legislators, when asked about the letter, raised many concerns, but nearly all of them pointed to this line and wondered what Swallow’s attorney was intimating.

Was this a threat to sue the state for loss of his office, if he is impeached and the Senate finds him guilty of the impeachment charges?

Could this be how Swallow’s attorney was planning on getting his fees paid? After all, other than the $1.5 million he raised for his election, Swallow is not a wealthy man, and the attorneys’ fees in the last six months must be racking up as allegations mount, multiple government parties investigate, and the legislature takes steps towards impeachment.

 A Civil Rights Act claim?

ImpeachCould Swallow bring a case against the state under the Civil Rights Act if the House investigation leads to impeachment and impeachment leads to removal from office?  It’s an area legal practice slightly outside of mine, but given the repeated mention by multiple legislators, I decided to ask a few attorneys whose practices included civil rights litigation.

Stewart Gollan of the Utah Legal Clinic, whose practice primarily in this area, thought that the comments were probably more of bluster than serious threat.

First off, he said, citing  Tenney v. Brandhove, 341 U.S. 367 (1951), legislators are probably immune from any claim for money damages. There, the Supreme Court found that a California legislative sub-committee investigating Communism subversion was absolutely immune from damages claims under Section 1983 of the Civil Rights Act.

Further, if Swallow seeks only injunctive relief  (in other words, to prevent the legislature from impeaching and removing him from office by a court order),  it would seemed to Gollan that a federal court would likely hold that impeachment (and a related legislative investigation) is a non-justiciable political question, an issue addressed in Nixon v. United States (1993) (not to be confused with United States v. Nixon (1974)). In Nixona federal district judge with life tenure was impeached by the House of Representatives, tried by a Senate committee, and, based on the Senate committee’s findings, convicted by Senate. The judge, Walter Nixon, appealed the conviction on the basis that the process failed the constitutional requirement that the case by ‘tried by the Senate.’ The Supreme Court, however, held that Nixon’s challenge presented a nonjusticiable political question and dismissed the case.

Utah CapitolThe issue of whether the process through which the House is investigating the allegations against Swallow, then, would fall under what in constitutional law is referred to as a “political question.” A political question is an issue which is not resolvable by the court system. Under the US Constitution, the responsibility for impeachment is vested in the House of Representatives (Art.1, sec. 2) and the US Senate retains the power to try all impeachments (Art. 1, sec. 3).   As a political question, then, the judicial branch–i.e. the courts–retain no right of review, then, and a Civil Rights claim by Swallow might be easily dismissed as without merit.

However, as another attorney I spoke with said, it remains only a clever threat.  In his letter, Swallow’s attorney says that the legislature is acting under color of law, implying thereby that this is a legal question, not a political question.  But what right does Swallow have that is being infringed by the legislature?

The right to hold office?

The right to not be impeached?

To my knowledge, neither is a right, which led multiple attorneys that I spoke with to speculate that this meant that Swallow would make a Due Process claim (which, as Nathan P. pointed out in comment to a previous post, may require more definition that I’m willing to get into in a post of an op-ed nature, especially since it is out of my specific practice area, but suffice to say: Due Process is the requirement that the government must follow all the procedures of law. Mentioned twice in the US Constitution, both in the Fifth Amendment and Fourteenth, its concern is with the legal procedures necessary before the government acts to deprive a person of, broadly speaking, life, liberty or property. If you wish to learn more, please see the Legal Information Institute’s article on the topic, after all, this is not a legal blog).  A Due Process claim in this situation would assert that the Utah legislature is not following the procedure proscribed by law.

And there’s the rub. The Utah legislature is proceeding under the law on the books, and the dispute in interpretation, per Swallow’s lawyer, emerges in whether the House can bring impeachment charges for actions taken before Swallow took office.

However, by going through the process of investigation with an eye towards whether impeachment is merited, the Utah House is complying with the legal process required. Not only that, it is probably providing more process than is required.

As such, a due process claim may be found to be, especially since it is a political and not a legal question at issue in the Swallow case, without merit. Most federal courts, if I understand Gollan, are going to defer to the legislature on political issues.

If you think about it, Swallow’s lawyer putting it in the letter actually makes Swallow sound a little desperate. Kind of a “throw everything but the kitchen sink at them” type of move.

Last comment: it was suggested by a commenter to a previous post that Swallow might have a liberty interest if his “good name, reputation, honor, or integrity is at stake because of what the government is doing to him.”  Unfortunately for Swallow, there’s almost complete immunity for legislators for legislative debate. As one attorney pointed out, it’s why Harry Reid could get away with claiming Mitt Romney hadn’t paid his taxes. Additionally, because Swallow is a public figure, the standard for defamation–when legislative immunity doesn’t apply–is actual malice.

Good luck proving that, especially when truth is an absolute defense.

All too often, Swallow has not denied the allegations, but excused them away (see, for example, his conversation with Aaron Cristner, for an example, of which he later said he was proud, even as the Utah Bar was evaluating an ethics violation complaint against him for it). If the allegations are true, then, it’s going to be hard to claim defamation or a due process claim for a loss of “reputation, honor, or integrity” due to his own actions.

Letter to Lockhart-Niederhauser from Swallow’s attorney, 7-15-13 

About Daniel Burton

Daniel Burton lives in Salt Lake County, Utah, where he practices law by day and everything else by night. You can follow him on his blog PubliusOnline.com where he muses on politics, the law, books and ideas. He is active on social media, Republican politics, and has been named to PoliticIt’s list of the “Top-50 Utah Political Opinion Leaders” on Twitter. You can reach him directly at dan.burton@gmail.com

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