Sie sind auf Seite 1von 3

ClydeSnow

ATTORNEYS AT LAW
CLYDE SNOW & SESSIONS
A
ONE

CLARK W. SESSIONS. RODNEY G. SNOW

KEVIN A. TURNEY ROBERT D. ANDREASEN

STEVEN E. CLYDE
EDWIN C. BARNES NEIL A. KAPLAN" D. BRENT ROSE CHARLES R. BROWN s J. SCOTT HUNTER PERRIN R. LOVEDEAN C. ANDREASEN ANNELI R. SMITH

KATHERINE E. JUDD
DIANA L. TELFER

JONATHAN S

CLYDE

SHANNON K. ZOLLINGER

TIMOTHY R. PACK
JACOB L. FONNESBECK1

PROFESSIONAL
UTAH 201 SALT CENTER SOUTH CITY.

CORPORATION
THIRTEENTH STREET 84111-2216 801.521.6280 FLOOR

of counsel:

MAIN UTAH FAX

WALTER A. ROMNEY. JR.


MATTHEW A. STEWARD

nathan b. wilcox REAGAN LB. DESMOND -a

LAKE

T. MICKELL JIMENEZ
JENNIFER A BRENT R. JAMESi CHRISTOPHER B. SNOWBAKER"

EDWARD W. CLYDE (1917- 1991)


t

TEL

801.322.2516

SENIOR COUNSEL
ALSO ADMITTED IN WASHINGTON. D.C.

www.clydesnow.com

ALSO ADMITTED IN IDAHO


!
0 0

July 15, 2013

D.

LOREN WASHBURN.n

ALSO ADMITTED IN COLORADO


ALSO ADMITTED IN NEW YORK ALSO ADMITTED IN MASSACHUSETTS ALSO ADMITTED IN CALIFORNIA ALSO ADMITTED IN NEVADA

AARON D. LEBENTA
MARK L. SMITHo WAYNE Z. BENNETT

A ALSO ADMITTED IN OREGON

BRIAN C. WEBBER

BY EMAIL AND HAND-DELIVERY

Rebecca D. Lockhart, Speaker of the House Wayne L. Niederhauser, President of the Senate
do John L. Fellows, General Counsel

Office of Legislative Research and General Counsel Utah State Capitol Complex House Building, Suite W210 Salt Lake City, Utah 84114
Re: Attorney General Investigation

Dear Speaker Lockhart and President Niederhauser:

We have followed with interest the activities of the Legislature regarding the investigation of the Attorney General, John Swallow. We understand the entire Legislature will be in session this week to enact legislation that may seem to be necessary to conduct an investigation.

As we have expressed before, all three branches of our government are subject to the
Constitution of this State, as well as the United States Constitution. Each member of the

Legislature has taken an oath to uphold our Constitution. We are a nation of laws and the
Constitution is the cornerstone of our laws.

Critical to our democracy is the separation of powers into three independent branches of government. One branch may not exercise power over another except as authorized by the Constitution. Impeachment is a legislative process, but it is confined by the language of the Constitution as interpreted by our Supreme Court. We have advised your counsel of the law in that respect and sent him copies of the case law which supports our position. We have asked for his authority that "you can do anything you want" and none has been forthcoming. A nation of laws is not grounded on the principle that one branch can "do anything it wants" with respect to another branch, particularly if not authorized by the Constitution. Thus far it appears that the scope of the investigation, which is to make a recommendation as to whether an impeachment proceeding should be initiated in the House, far exceeds the definition of "high crimes, misdemeanors, and malfeasance in office," as that phrase

(00398411-1

ClyddSnow
ATTORNEYS AT LAW

Rebecca D. Lockhart

Speaker of the House Wayne L. Niederhauser


President of the Senate

July 15, 2013 Page 2

has been interpreted by our Supreme Court. The fact that your potential efforts will be legislative as opposed to judicial is a distinction without any significant difference. The language in the Utah statute for removal of elected officers not liable for impeachment (removed by judicial proceedings) is identical to the language in the Constitution for removal by impeachment. Clearly, the judicial removal language was adopted from the Constitution so as to not contradict the constraints imposed by the Constitution. Our Supreme Court has, in its opinions, made reference to the language in the Constitution. In one particular case an elected County Auditor was convicted of failure to file his tax returns - a federal misdemeanor. The crime occurred during a prior term of office. The Court found this did not interfere with the Auditor's current term of office and found that removal then was inappropriate.
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. These risks seem to make little sense in light of the independent and thorough investigation now well under way by the Public Integrity Section of the United States Department of Justice. Sparing the expense, trauma and time attendant to such an
investigation seems to make sense, under these circumstances.

We have noted with interest the RFP sent to many lawyers, both within the State and outside our State. Three lawyers in my firm have been contacted. Respectfully, we must decline this opportunity. Moreover, the former Washington, D.C. law firm of Mark Shurtleff has also been contacted and they asked if we might be interested in associating as local counsel - which privilege we also declined. If you proceed, we hope you will retain counsel that has the integrity, experience and good judgment not to take an untenable position for political reasons or purposes. Whoever you choose, we look forward to working with them.
Finally, if you are considering what you think might be necessary procedures, we respectfully request you provide for the ability of the Attorney General to subpoena witnesses on his behalf to testify and to be present at the taking of witness statements or sworn testimony. We have little doubt the investigative committee will be interested in the entire truth, even if the scope of the inquiry may exceed the legislative constitutional limits.

(00398411-1

ClyddSnow
ATTORNEYS AT LAW

Rebecca D. Lockhart

Speaker of the House Wayne L. Niederhauser


President of the Senate

July 15, 2013 Page 3

Thank you for your consideration of these important matters. We remain available for further discussion, if you so desire.
Very truly yours,
CLYDE SNOW & SESSIONS

-VpW
Rodney G. Snow Neil A. Kaplan
Jennifer A. James

RGS.dh
cc: John A. Pearce Office of the Governor

{00398411-1 }