Case 1:18-cv-00015-RJS-EJF Document 2 Filed 01/31/18 Page 1 of 24

Karra J. Porter, 5223

J. D. Lauritzen, 14237
CHRISTENSEN & JENSEN, P.C.
257 East 200 South, Suite 1100
Salt Lake City, Utah 84111
Telephone: (801) 323-5000
Karra.Porter@chrisjen.com
JD.Lauritzen@chrisjen.com
Attorneys for Plaintiffs Samuel P. Newton

IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, NORTHERN DIVISION

LAW OFFICE OF SAMUEL P. NEWTON,

P.C. and SAMUEL P. NEWTON, an COMPLAINT
individual,
AND JURY DEMAND
Plaintiffs,

v. Civil No.
WEBER COUNTY, a political subdivision of
District Judge
the state of Utah; JAMES H. HARVEY,
KERRY W. GIBSON, and CHARLES J.
EBERT, in their official and individual
capacities,

Defendants.

Plaintiffs Law Office of Samuel P. Newton, P.C., and Samuel P. Newton (hereinafter

collectively “Newton” and “his” unless otherwise indicated) hereby complain against the

defendants as alleged below.

PRELIMINARY STATEMENT AND INTRODUCTION

Few things have greater import in our society than guaranteeing a citizen his right to

due process before the government takes his life. The death penalty is the harshest and most

controversial punishment in the American justice system. As such, public discourse about

the death penalty is especially deserving of protection under the First Amendment to the
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United States Constitution. This case is about the defendants’ termination of an attorney’s

contract for calling attention, through petitions to a court and communications with the

media, to important issues in how Utah handles death penalty cases.

PARTIES

1. Plaintiff Samuel P. Newton is an attorney licensed in Utah, Colorado, and

Montana.

2. Plaintiff Law Office of Samuel P. Newton, P.C., is a law firm incorporated

by Samuel P. Newton in the state of Montana.

3. Defendant Weber County is a political subdivision organized under the laws

of the state of Utah.

4. James H. Harvey is an individual who resides in Weber County, State of

Utah. Defendant Harvey currently is, and at all times relevant to this Complaint was, a

Weber County commissioner.

5. Kerry W. Gibson is an individual who resides in Weber County, State of

Utah. Defendant Gibson currently is, and at all times relevant to this Complaint was, a

Weber County commissioner.

6. Charles J. Ebert is an individual who resides in Weber County, State of

Utah. Defendant Ebert currently is, and at all times relevant to this Complaint was, a Weber

County commissioner.

JURISDICTION AND VENUE

7. This action raises questions under the Constitution of the United States and

42 U.S.C. § 1983, and thus this Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343.

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8. Venue is proper in this Court under 28 U.S.C. §§ 1391(a)(2) and 1391(b), as

the events or omissions alleged occurred in Weber County, Utah, and all defendants reside

in this District and the State of Utah.

FACTUAL BACKGROUND

9. Sam Newton is a well-known and respected appellate attorney who has

practiced in Utah and surrounding states since 2003. During his career, Newton has worked

for federal and state prosecutors and as a public defender. He is a former professor of

criminal justice at Weber State University and, in addition to co-writing a criminal law

textbook and other academic publications, regularly speaks on criminal law topics. In 2017,

the Utah Association of Criminal Defense Lawyers gave Newton its Distinguished Service

Award.

10. Under the Sixth Amendment to the United States Constitution, criminal

defendants, both at trial and on the first appeal of right, are entitled to the basic tools of an

adequate defense. Weber County is one of only five counties in Utah that does not fulfill its

Sixth Amendment obligation by contributing to a statewide indigent defense fund. Instead,

Weber County self-funds indigent defense appeals. Accordingly, it is both the entity

obligated to fund a constitutionally proficient defense and the entity out of whose budget

that funding comes, dollar for dollar.

11. In furtherance of its Sixth Amendment obligations, for several years Weber

County contracted with Newton to handle indigent defense appeals. Newton’s Agreement

for Indigent Defense Attorney Appeals (hereinafter “general appellate contract”) was last

renewed on January 1, 2017. A copy of the general appellate contract in effect at the time of

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the events herein occurred is attached as Exhibit A. The contract was to pay $81,900

annually, and run through December 31, 2019.

12. On October 26, 2017, Weber County terminated Newton’s contract. The

County’s termination notice did not cite any dissatisfaction with Newton’s performance.

Rather, the notice stated that Newton’s termination was in retaliation for unspecified

statements Newton had made during the past year “to the media and to the court.”

13. Although the notice did not identify specific statements, Newton is unaware

of any potential statements to which it could be alluding to other than discussions relating to

a death penalty case involving Douglas Lovell as well as Utah’s death penalty in general,

discussed further below.

14. On April 1, 2015, a jury sentenced Douglas Lovell to death for the murder of

Joyce Yost. As is common after a trial, Lovell was appointed new counsel (Newton) for his

appeal. This representation was pursuant to a separate, case-specific contract entered into

with Weber County (hereinafter “the Lovell contract”).

15. In May 2016, Newton submitted an 89-page Motion for Remand to the Utah

Supreme Court. The motion alleged that one of Lovell’s court-appointed trial attorneys had

failed to prepare (and in some cases even to contact) critical trial witnesses, as required for

an adequate defense under the Sixth Amendment. Newton asked for an evidentiary hearing

to address the allegations, and submitted two dozen affidavits in support thereof.

16. The affidavits included testimony from mitigation expert Marissa Sandall-

Barrus. Among other things, Ms. Sandall-Barrus testified that she had been hired late in the

process to replace a previous mitigation expert who had quit for non-payment, that financial

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constraints prevented Sandall-Barrus from following her standard practice, and that she had

agreed to work on the case “against my better judgment … because Weber County has a

reputation for non-payment.”

17. In his motion to the Supreme Court, Newton asked for “the opportunity and

the funding to conduct an investigation into all potential claims of ineffective assistance of

counsel.” Newton asked “that the court order funding to conduct constitutionally adequate

investigations, without which Mr. Lovell may not be able to entirely show on appeal the

prejudice from the defense team’s ineffective assistance.”

18. In December 2016, the Utah State Bar issued a preliminary determination

that Lovell’s court-appointed trial counsel had violated several rules of Professional

Conduct, including Rules 1.1 (competence), 1.3 (diligence), 1.16(d) (declining or

terminating representation), 8.4(c) (misconduct (dishonesty, fraud, deceit or

misrepresentation), and 8.4(d) (misconduct; conduct prejudicial to the administration of

justice). The Bar later filed a formal complaint against counsel on May 17, 2017.

19. In March 2017, the Utah Supreme Court remanded Lovell’s case to the

district court for an evidentiary hearing to determine whether Lovell’s court-appointed trial

attorney performed deficiently by failing to adequately prepare witnesses, by not calling

certain witnesses to testify on Lovell’s behalf, and by not objecting to purported interference

by lawyers representing some of those witnesses. The Supreme Court’s ruling was the

subject of media coverage. See, e.g., “Ineffective trial attorney? Appeal for Utah death row

inmate sent back to trial court for evidence hearing,” The Salt Lake Tribune, March 12,

2017.

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20. On March 20, 2017, Newton filed a Motion for Payment of Attorney Fees

and Litigation Expenses in the Second District Court in and for Weber County, State of Utah

(hereinafter “the Lovell court”). The motion followed various emails on the subject between

Newton and Weber County personnel.

21. Weber County successfully moved to intervene and filed an opposition to

Newton’s motion on March 31, 2017, including attaching the emails between Newton and

county personnel. Newton filed a reply memorandum on April 17, 2017, along with an

additional exhibit on May 1, 2017.

22. The parties’ briefings laid out their competing factual and legal arguments

for the court’s review. Among other things, the parties set forth varying interpretations of

emails received by Newton from County personnel. The parties’ filings included arguments

(by Newton) that courts have a constitutional responsibility to guarantee that indigent

defenses are adequately funded, and (by Weber County) that a county has no obligation to

ensure adequate funding beyond entering into a contract with a qualified attorney. This was

an issue of first impression in Utah.

23. On May 24, 2017, the trial court ruled that it lacked subject matter

jurisdiction to address the merits of Newton’s motion. The court ruled that neither Utah’s

Indigent Defense Act nor the Utah constitution confers jurisdiction upon a trial court to

ensure adequate defense funding if a contract exists between counsel and the funding entity.

24. On June 9, 2017, Newton filed a motion to withdraw as counsel for Lovell in

the Second District Court. In connection with the motion, Newton submitted affidavits to

the court. Among other things, Newton opined that Weber County was underfunding Mr.

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Lovell’s case in light of the Utah Supreme Court’s ruling, that the County had threatened to

terminate his appellate contract in response to his expressions of concern about the adequacy

of Lovell’s defense, that the County had created conflicts of interest in the case, and that his

health had been compromised as a result of these circumstances.

25. Weber County disputed Newton’s assertions regarding funding, but did not

oppose the motion to withdraw.

26. On July 16, 2017, The Salt Lake Tribune published an article regarding the

funding issues in Lovell’s and other cases. The article’s headline read, “Attorney

representing Utah death row inmates says he’s not being paid adequately – and he’s not the

first to raise concerns.” The Tribune noted that Newton was citing this and prior funding

disputes to urge abolition of the death penalty:

Newton… said that defense attorneys are not being given enough money to support
thorough death penalty case reviews – and in the cases for two Utah death row
inmates Newton represents, he said he has had trouble getting paid.

Newton points to a 2008 Utah Supreme Court opinion for death row inmate Michael
Anthony Archuleta in which the high court expressed concern that there was a
diminishing pool of competent attorneys to work on capital cases. The justices wrote
then that if qualified attorneys could not be found, the court might be forced to
overturn death penalties and send the cases back to district court for imposition of
life-without-parole sentences.

“This court should end the punishment [of execution] in this state once and for all,”
Newton wrote in his motion on behalf of Lovell.

27. The July 16, 2017, Tribune article discussed funding issues in other Utah death

penalty cases. For example, the article stated:

Newton is not the first attorney to raise concerns about payment in Utah death
penalty appeals. A decade ago, as an appeal for death row inmate Ralph Menzies
was underway, no qualified attorneys would take the case for the amount of money

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offered. It got to the point where a judge briefly appointed defense attorney Richard
Mauro to represent Menzies, though the lawyer said he took the case unwillingly.

In an amicus brief filed by the Utah Association of Criminal Defense Lawyers in

Menzies’ case in 2007, several well-known defense attorneys wrote affidavits
detailing the financial difficulties they encountered by accepting death penalty
appeals. One lawyer wrote that his hourly wage came to under $17 an hour, though
he normally bills at a rate about ten times higher than that. Another said he made
$19 an hour representing a death row inmate in a state appeal ….

28. The Tribune article discussed other calls for abolition of the death penalty

due to funding issues. For example, it stated:

Robert Dunham, executive director for the national non-profit organization Death
Penalty Information Center, said underfunding for defense in capital cases happens
in every state where the death penalty is used – especially in places where counties
are expected to foot the bill, as in Utah.

When county budgets are tight, Dunham said, officials generally want to spend
money earmarked for public safety on police and fire services, not on defense
lawyers and experts for those accused of capital crimes.

“Underfunding defense lawyers is bad for the criminal justice system,” Dunham said.
“Not just because it risks unfair and unconstitutional trials, but because it costs
taxpayers in the long-run when the cases have to be re-done.”

29. The July 16, 2017, Tribune article discussed estimated overall costs to Utah

of its death penalty, and recent steps toward abolishing capital punishment:

Legislative fiscal analysis estimated in 2012 that it costs an additional $1.6 million to
handle all the appeals and costs of a death sentence over 20 years, compared to a
sentence of life without parole.

During the last legislative session, lawmakers considered studying the costs of the
death penalty more in-depth – but the bill never came up for a final Senate vote.
State lawmakers came close to abolishing capital punishment altogether in 2016, but
the bill never reached the House floor before the midnight deadline on the last night
of the session.

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30. On August 29, 2017, the trial judge in Lovell’s case (the Hon. Mark DeRida)

granted Newton’s motion to withdraw. No subsequent filings were made by Newton in the

Lovell case. Newton’s withdrawal related only to his representation of Lovell (the Lovell

contract); Newton’s general appellate contract with Weber County remained in effect.

31. On September 2, 2017, following the order granting Newton’s motion to

withdraw from the Lovell case, The Salt Lake Tribune published an article regarding the

case, Newton’s withdrawal, and the underlying allegations of ineffective assistance of

counsel. In that article, the following statements were attributed to Newton:

Newton told the Tribune on Friday, “It is unfortunate that I was placed in a position
where I had to cho[o]se between supporting my family and representing Mr. Lovell.”

“I hope that the state of Utah and Weber County will commit in the future to
adequately and fully paying for these necessary appellate reviews in such serious
matters.”

* * *

“On appeal, we discovered that Mr. Lovell’s trial attorney committed serious errors
when he failed to interview and call dozens of witnesses who would have testified
that Mr. Lovell has tried to change his life,” Newton said, “that he feels tremendous
remorse, and that he has tried, to the best he is able, to repay some of the debt he
owes to society and to the Yost family.”

32. On September 18, 2017, The Salt Lake Tribune published an article

headlined, “Two death row inmates need new attorneys – but will anyone sign up?” The

article discussed the need for replacement counsel for death row inmates Floyd Maestas and

Lovell. The article cited a public exchange that had occurred in court between Lovell and

the trial court judge at the August 29, 2017, hearing on Newton’s motion to withdraw:

At an August hearing, Lovell asked the judge in his case to order the county and
Newton to renegotiate the contract. But Judge Michael DiReda said he couldn’t
involve himself in a contract dispute.

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In his remarks to the judge, Lovell echoed a sentiment that critics of Utah’s public
defender system have been voicing for years: [f]lat-fee contracts incentivize
attorneys to do less work.

“It’s to his advantage to do as little work as possible, to talk to me as little as

possible,” Lovell says in an audio recording of the Aug. 29 hearing. “Because it’s
getting into that money thing. That’s happened time after time after time on this
case. That’s why I was hoping the court would ... ”

Lovell takes a long pause before the judge says: “Step in and —”

“Say enough’s enough,” Lovell finishes.

“Well, it’s not that I don’t feel enough is enough,” DeRida tells Lovell. “There is a
difference between feeling it and being able to articulate it in terms of an order. I
don’t think this scenario is a good scenario. But it is the statutory scenario that our
Legislature has created.”

33. The September 18, 2017, Tribune article included a discussion of the state of

Utah’s handling of death penalty cost and whether the penalty should be abolished in Utah,

including the following:

Funding for the defense in death penalty cases has been a problem in Utah for
decades, according to attorney Ralph Dellapiana, who is the chairman of UACDL’s
capital case committee. Experienced attorneys aren’t going to work for free, he said,
and oftentimes those who do take the contracts don’t understand the complexity of a
death penalty review.

“That’s a problem, the state refusing to pay qualified counsel to do the necessary
work for appeals in death penalty cases,” Dellapiana said. “And the solution is either
to pay for it or end the death penalty.”

34. This September 18, 2017, Tribune article included one statement attributed

to Newton:

Newton and others have expressed concern that state and county officials so far have
disproportionately funded prosecutors’ offices who are seeking an execution and
have not done the same for the defense.

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“The state gives enormous resources to the prosecution,” Newton told The Tribune
in an email. “The state must similarly commit to equally and adequately support
criminal defense attorneys, which is a right guaranteed by the United States
Constitution. The defense attorney, especially a solo practitioner, should not have to
personally bear and front the financial cost for the enormous review required in a
capital case.”

35. On September 26, 2017, Weber County contracted with another attorney to

represent Douglas Lovell in the appeal and post-trial evidentiary hearing ordered by the

Supreme Court. The appointment of replacement counsel for Lovell generated further

public interest. See, e.g. “Weber County officials pick new defense lawyer in Lovell death

penalty case,” Standard-Examiner, September 26, 2017.

36. On October 2, 2017, the Standard-Examiner Editorial Board gave a “thumbs

down” to the Weber County Commission and the Weber County Attorney’s Office “for their

slow, clumsy handling of funding for Doug Lovell’s capital defense case.” The editorial

stated:

Capital defense cases are expensive. But the Sixth Amendment guarantees the right
to counsel.

Sam Newton was on Doug Lovell’s case for more than a year, amassing thousands of
pages of research, interviews and case material. He was initially given $75,000, with
a clause to request more but the money ran out in December. He removed himself
from the case after saying Weber County was not paying him enough – or at all.

Now, newly selected Colleen Coebergh, a Salt Lake City attorney, has to study that
material and effectively start over on the 32-year-old case.

Court documents show Newton was asking for an additional $37,000, which would
have brought the county’s total to a little over $100,000. Instead, the county will be
spending at least $174,000 with no guarantees Coebergh will be able to catch up with
and surpass Newton’s work before the money runs out.

This is inept management of tax dollars and bad stewardship of the Constitution.

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37. On October 21, 2017, The Salt Lake Tribune published an editorial

advocating for abolition of the death penalty. The Tribune editorial, quoted herein in its

entirety, mentioned Newton and the Lovell case in the context of this larger issue:

“Many that live deserve death. And some that die deserve life. Can you give it to
them? Then do not be too eager to deal out death in judgment.”

― J.R.R. Tolkien, The Fellowship of the Ring

Criminal justice reform has been a worthwhile, bipartisan effort by both state and
federal officials over the past few years. In 2014 state lawmakers passed the Justice
Reinvestment Initiative, which reduced penalties for drug crimes. The reforms have
led to a significant reduction in the state prison population.

Next up on the chopping block for reform advocates: the death penalty.

The Legislature heard a bill during the 2017 legislative session that would have
ended capital punishment in Utah, but it failed to reach the House floor before the
session ended. Similar legislation will be renewed during the 2018 session.

We have argued previously that eliminating the death penalty would save money and
save souls.

At a hearing Tuesday night, advocates for abolishing the death penalty argued that it
is “too expensive,” it “unfairly targets minorities,” is “too risky,” and “too arbitrary”
as applied.

We agree. Capital cases are expensive. Stephen Crutcher, whose trial is in

November, has already pleaded guilty to aggravated murder, yet will go to trial next
month so that a jury can determine whether he will receive the death penalty. If
there was no death penalty, a judge could simply, and efficiently, sentence Crutcher
to life in prison, what many call “the other death sentence.”

Complicating that cost analysis is the fact that there are too few attorneys in Utah
competent and willing to try them. Attorney Samuel Newton recently withdrew
from representing Doug Lovell when he developed stress-related heart problems
from battling with the county over inadequate payment.

Utah has executed seven people since 1976, and currently has nine inmates on death
row. The last prisoner to be put to death in Utah was Ronnie Lee Gardner, who
chose to be executed by firing squad. Utah is the only state in the modern era to use
the firing squad. It’s not a great quirk to be known for.

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Pope Francis recently reiterated the Catholic Church’s strong stance against capital
punishment and said it was “inadmissible” under any circumstances. Pope Francis
said, “It’s necessary to repeat that no matter how serious the crime, the death penalty
is inadmissible because it attacks the inviolable dignity of the person.”

Nineteen states have abolished the death penalty, as well as most of Europe and
South America. It’s time for Utah to become the 20th.

38. Five days after this Tribune editorial was published, Weber County fired

Newton. On October 26, 2017, Weber County Commissioner James Harvey sent Newton a

letter terminating the county’s general appellate contract with him, firing Newton from all

other pending and future appeals.

39. Harvey’s letter did not cite any issues with Newton’s performance. (To the

contrary, the letter asked Newton to continue handling appeals for another three months

until a new attorney would start on February 1, 2018.) The County’s sole reason for

terminating Newton’s contract was punishment for “statements” made by Newton “to the

media and to the court.” No statements had been attributed to Newton in the media

regarding appeals that Newton was handling under the general appellate contract. Newton

was thus, fired for comments attributed to him regarding an unrelated case and contract.

40. Harvey’s October 26, 2017, letter terminating Newton’s general appellate

contract stated, in its entirety:

Over the past several years, you have provided representation to indigent defendants
on behalf of the County. While we have appreciated your hard work and dedication,
this past year you have made various representations to the media and to the court
that have been untruthful and harmful to the County’s reputation. As a result, we
have made the decision to terminate your contract and seek new appellate counsel.

This letter constitutes notice under paragraph 27 of your contract that we intend to
terminate the contract. We would like you to continue your work as appellate
counsel for indigent defendants through January 31st with the expectation that the

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new attorney will begin work on February 1st. Please let me know if you are willing
to continue through January 31st or if we will need the new attorney to start sooner.

We wish you the best in your future endeavors.

41. The letter was cc’d to the other two Weber County Commissioners

Defendants Kerry Gibson and James Ebert, and to Weber County Attorney Christopher

Allred.

42. Harvey told The Salt Lake Tribune that the decision to terminate Newton’s

general appellate contract was a “team effort” between the Weber County Commission and

the county’s lead prosecutor, Weber County Attorney Allred. At the time of Newton’s

firing, Allred was the prosecutor in two of Newton’s pending appeals.

43. On October 29, 2017, The Salt Lake Tribune published an op-ed by Newton

titled, “Capital punishment system unfair to defendants and attorneys.” Citing funding

issues on another death penalty case (Maestas), Newton criticized the effect of such issues

on the capital punishment system overall. Among other things, Newton wrote:

In capital cases, states provide counsel to the lowest bidder and encourage attorneys
to do little work and then get out. And courts don’t fix the problems either. They
have refused to find that a defendant was deprived an effective attorney, even if he
sleeps or is drunk during trial. In my case, the state believes my client has no right to
an effective attorney at all and that he should be grateful they even gave him
someone.

The system is full of errors. Since 1976, we have executed 1,452 nationally but
exonerated 159, a shocking number for so serious a penalty. An astonishing 47 of
100 death sentences are reversed at some point. These reversals happen because of
good lawyering, but this safety net is often lacking. Nationwide, public defenders
work under enormous pressure, with massive caseloads and have seen little sign of
reprieve.

Our capital punishment system is a charade. We provide a “defense lawyer” but

either give someone with no experience or refuse to give the necessary resources to
experienced attorneys. In Utah, a state with one of the lowest death penalty

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populations in the United States, which has not executed a defendant since 2010,
almost every attorney to take a death penalty case has suffered extreme personal loss.
The result is a crisis-level lack of qualified attorneys willing or able to take on capital
cases.

If we have the death penalty, we must commit to protecting the innocent from
execution. We must also commit to adequately support the attorneys who are called
upon to perform these difficult tasks.

44. On November 6, 2017, The Salt Lake Tribune published an article regarding

the termination of Newton’s general appellate contract that was headlined, “Appellate

attorney fired for speaking about lack of funding in Utah death penalty case.” As with other

coverage, the article addressed the Lovell case in the context of the death penalty debate

generally. For example, after discussing the termination of Newton’s contract, the article

stated:

Anyone who is charged with a crime that includes a possibility of time – in Utah,
that is anything more serious than an infraction – is entitled to an attorney, even if
they can’t afford one. For death penalty cases, those attorneys must be experienced
and qualified under court rules.

Utah is one of several states in the nation that delegates the responsibility to provide
defense lawyers to individual counties and cities.

Most counties in Utah pay into a state-managed fund for death penalty cases, a sort
of insurance policy from which officials can request if they have a death-penalty
eligible case in their county.

Weber County, however, is one of five counties that does not participate in this fund
– instead, it uses its own money to contract with individual attorneys.

According to a 2015 report by the Sixth Amendment Center, which was contracted
by the state to review its public defender system, this setup can oftentimes lead to a
number of conflicts. First, flat-fee contracts incentivize lawyers to do less work. But
in can also cause problems when the lawyers are selected by, and contract directly
with, county officials.

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In Weber County, while a civil attorney drafts contracts and a criminal attorney
prosecutes a case, they are all employed by the county attorney’s office – and
ultimately have the same boss: Weber county Attorney Christopher Allred.

* * *
Lawmakers in 2016 created an Indigent Defense Commission to help address these
and other problems with the state’s public defender system. The commission was
also given money to dole out to counties in need, to help them fund indigent defense
properly.

But because Weber County has not asked for any of that grant money, neither the
Indigent Defense Commission nor any other state entity has authority over how it
contracts with its public defenders.

“This situation stresses the importance of having independent in the public defender
function,” said Joanna Landau, executive director of the Indigent Defense
Commission. “[It is] a constitutional obligation that should not be funded or
controlled by prosecutor or judiciary.”

Newton said his contract illustrates the problems with public defenders being funded
at a county-level.

“Criminal defendants are entitled to independent attorneys who aren’t afraid they
will lose their livelihood if they advocate for their clients,” he told The Tribune.
“We can’t have a fair system of justice unless both sides are totally independent of
each other.”

45. The Standard-Examiner, a daily newspaper covering Weber and surrounding

counties, also published an article about the termination of Newton’s contract. See

“Attorney fired for making statements in death penalty case,” November 6, 2017.

46. On November 9, 2017, The Salt Lake Tribune published an editorial,

illustrated with a photograph of Newton, titled “Indigent defense should be independent of

county pursestrings.” The Tribune editorial discussed the termination of Newton’s contract

in the context of the ongoing death penalty debate. Among other things, the Tribune stated:

Weber County only has itself to blame for the bad publicity it’s about to receive.
County officials recently terminated a contract with Samuel Newton, an appellate
attorney who had represented indigent defendants in the county for the past seven

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years. Why? Because Newton had the gall to publicly complain that the county
wasn’t sufficiently funding the appeal of a capital murder case. Newton withdrew
from the case after he suffered stress-related health problems caused by handling the
capital murder case with inadequate funding….

In the letter that terminated Newton’s contract, Weber County Commissioner James
Harvey wrote, “While we have appreciated your hard work and dedication, this past
year you have made various representations to the media and to the court that have
been untruthful and harmful to the county’s reputation.”

It is not Newton’s duty to protect Weber County’s reputation, especially if the

county’s actions are making it harder to provide fair and competent representation.
The county bemoans Newton’s efforts to build relationships with his clients.
Commissioner Harvey admitted the county just “wants to know ... if the appropriate
decision has been made.”

The very fact that the county doesn’t want its defense lawyers to create relationships
with clients reveals the need for attorneys to do just that. The appellate process is
not a rubber stamp. At least it shouldn’t be.

Even worse, the county commission consulted with the county attorney before
ending Newton’s contract. There is an inherent conflict of interest when the
prosecution gets to choose who it goes up against.

The fact that a county can micromanage a defense attorney’s case by limiting
interaction with the client and placing a cap on hours spent demonstrates the
problems created when cities and counties fund their own indigent defense programs.

The Constitution requires that criminal defendants have access to adequate

representation. Utah delegates that responsibility to cities and counties. The
Legislature attempted to improve the system by creating the Indigent Defense
Commission in 2016, which aims to provide adequate funding to severely
underfunded county indigent defense programs across the state. But Weber county
didn’t ask the commission for funds to help with its program. Perhaps the Legislature
needs to re-imagine the commission’s role for counties that prefer quick and easy,
and cheap, indigent defense representation.

Joanna Landau, executive director of the Indigent Defense Commission, says that the
public defender function is “a constitutional obligation that should not be funded or
controlled by prosecutor or judiciary.”

She’s right.

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47. Shortly thereafter, the Standard-Examiner mentioned the Lovell funding

issues again in a discussion of death penalty costs in Utah. Among other things, an article

headlined “Layton lawmaker wants deeper look at Utah death penalty costs,” published

November 27, 2017, stated:

A legislator is proposing an in-depth study of death penalty costs so the state will
have unambiguous answers at hand as Utah’s capital punishment debate continues.
A bill filed by Rep. Stephen Handy, R-Layton, for the 2018 legislative session would
order research of all costs associated with the prosecution and execution of a death
penalty case and an expected 25 years of appeals. The data would be compared with
the costs of a capital murder convict serving life without parole.

* * *

Handy’s proposal comes as Wasatch Front counties continue to wrestle with the
costs of death row appeals, such as Doug Lovell’s ongoing battle against his
sentence in the 1985 murder of Joyce Yost of South Ogden.

* * *

The U. S. Bureau of Justice Statistics says 33 states and the federal Bureau of Prisons
held 2,881 inmates under death sentence at the end of 2015. Utah has nine inmates
on death row today, said Maria Peterson, Utah Department of Corrections
spokeswoman.

Handy said he realizes his request for a cost study may run against the grain in the
capital punishment-friendly Utah Legislature, which reinstated the firing squad
option for executions in 2015. Lawmakers also have rejected periodic bills that
aimed to drop the death penalty.

Most law enforcement officials support the death penalty, Handy said, recalling an
occasion when Weber County Sheriff Terry Thompson “came at me like a house
afire,” during a public discussion of capital punishment….

48. Newton raised these important issues as a citizen and not pursuant to his

ordinary job responsibilities. The speech was not commissioned by the county, was not a

routine act, and was outside any potential “chain of command.” Newton sought to bring to

light actual or potential malfeasance by public officials, including their violation of Sixth

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Amendment rights of a third party (Lovell), along with constitutional infirmities of the

state’s capital punishment system. As stated in the defendants’ termination letter, the speech

for which Newton was punished was not internal communication with county personnel;

rather, the defendants cited court filings, which included sworn testimony (affidavits), and

communications with news media. Newton had no contractual obligation to make these

communications, nor was he speaking on behalf of the defendants. News coverage on the

issues included statements from a wide range of concerned citizens unassociated with the

Lovell case, including other lawyers, law enforcement officials, death penalty abolitionists, a

state legislator, and Tribune and Standard-Examiner editors. The Lovell court itself made

public statements expressing concerns about the statutory system. Furthermore, any

statements attributed to Newton after August 29, 2017, regarding Lovell would have been

after Newton’s withdrawal as counsel, when Newton had no role beyond that of a concerned

citizen.

49. The speech for which Weber County punished Newton was on a matter of

public concern, relating to matters of political, social, and economic concern to the

community. Newton’s speech raised important issues regarding the constitutional rights of a

third party (Lovell), operation of the courts, and perceived deficiencies in the system by

which Weber County and the State of Utah impose the death penalty. Newton’s speech was

on a subject of legitimate news interest, as evidenced by media coverage not only of

Newton’s speech but the writing of editorials by local media outlets. Newton’s speech was

valuable in the ongoing public discussions of the death penalty and its associated costs,

sparking a renewal of efforts to study those costs by a state legislator. Statements attributed

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to Newton were true, were opinion and/or competing interpretations of identified

documents. Furthermore, as stated by Standard-Examiner editors, Newton’s and the

county’s court filings raised questions not only about the county’s “stewardship of the

constitution,” but also its “management of tax dollars.” Newton’s filings pointed out the

additional costs resulting when convictions or sentences are reversed, citing such economic

inefficiency as one reason to abolish the death penalty.

50. Defendants did not claim, and could not show, that the county’s interests in

promoting efficiency of the public service would outweigh Newton’s right to speak on

issues of public concern and to petition courts for redress of grievances. Newton is an

independent contractor with no confidential relationship or duties of loyalty to the county

and no role in the county’s internal operations. Unspecified “harm” to a county’s

“reputation” would not outweigh the importance of an independent contractor’s First

Amendment rights, particularly when the speech involved rights of a third party and a case

unrelated to Newton’s general appellate contract. The county was able to respond to the

speech and Newton’s petitions, including offering differing interpretations of events,

communications, and the law. The court (and other members of the public and media) were

thus fully informed of the parties’ views on the issue. The county was similarly able (when

it chose) to respond to inquiries from the media. The defendants were able to hire

replacement counsel on the Lovell case despite any speech by Newton or adverse media

coverage.

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51. Defendants’ October 26, 2017, letter admitted that Newton’s protected

speech was a motivating factor – indeed, the only motivating factor – in terminating

Newton’s contract.

52. Defendants do not claim, and could not show, that they would have reached

the same decision in the absence of Newton’s protected conduct. Not only was the

termination letter clear as to the sole motivating factor, but Newton had been handling

Weber County’s indigent appeals for several years, and county officials had stated earlier in

2017 that they were not unhappy with his job performance.

53. Newton’s First Amendment rights were clearly established at the time of his

termination. See, e.g., Pickering v. Board of Education, 391 U.S. 563 (1968); Board of

County Commissioners v. Umbehr, 518 U.S. 668 (1996); Garcetti v. Ceballos, 547 U.S. 410

(2006); Borough of Duryea, Pa. v. Guarnieri, ____ U.S. ____ (2011); Eisenhour v. Weber

County, 744 F.3d 1220 (10th Cir. 2014); and Lane v. Franks, ____ U.S. ____, 134 S.Ct. 2369

(2014).

54. As a result of the defendants’ unconstitutional retaliation, the Law Office of

Samuel P. Newton was deprived of an appellate contract that had provided a substantial

portion of Newton’s income. Samuel P. Newton has also suffered emotional distress and

other personal injury from the violation of his personal constitutional rights.

55. Newton has been required to retain the services of an experienced civil rights

attorney to vindicate these constitutional harms.

FIRST CLAIM FOR RELIEF

(First Amendment – defendants Harvey, Gibson, and Ebert)

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56. The foregoing allegations are incorporated by reference as though fully set

forth herein.

57. Defendants violated Newton’s clearly established right under the First

Amendment not to be penalized for exercising their right to speak on matters of public

concern as described above.

58. Defendants violated Newton’s clearly established right under the First

Amendment not to be penalized for exercising their right to petition the government for

redress, which includes a right of access to the courts as described above.

59. Defendants operated in concert to violate Newton’s rights, both among each

other and in concert with the Weber County Attorney.

60. Defendants are jointly and severally liable for these constitutional violations

under 42 U.S.C. § 1983 and 42 U.S.C. § 1985(2).

61. As a result of these violations, Newton has suffered economic and other

harm described above.

SECOND CLAIM FOR RELIEF

(First Amendment - Weber County)

62. The foregoing allegations are incorporated by reference as though fully set

forth herein.

63. Defendants Harvey, Gibson, and Ebert, as members of the Board of County

Commissioners of Weber County, made the decisions complained of herein and were final

policymaking authorities for Weber County on said decisions.

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64. Weber County is liable under 42 U.S.C. § 1983 for the actions taken by its

Board of County Commissioners described herein, and the harm resulting therefrom.

PRAYER FOR RELIEF

WHEREFORE, plaintiffs request the entry of a judgment in their favor and against

defendants as follows:

A. A declaratory judgment, pursuant to 28 U.S.C. § 2201, declaring that

defendants’ actions violated plaintiffs’ First Amendment rights to speak on matters of public

concern and to petition the government for redress.

B. A judgment awarding compensation to plaintiffs for their economic loss,

emotional distress and other personal injury resulting from the violation of their

constitutional rights.

C. A judgement assessing punitive damages against the individual defendants if

so found by the jury.

D. A judgment awarding plaintiffs their costs of suit, including reasonable

attorney fees and litigation expenses, under 42 U.S.C. § 1988.

E. A judgment awarding plaintiffs interest on economic losses to the extent

permitted by law.

F. A judgment awarding such other and further relief, including equitable

relief, to which plaintiffs may be entitled.

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DATED this 31st day of January, 2018.

CHRISTENSEN & JENSEN, P.C.

/s/ Karra J. Porter

Karra J. Porter
J. D. Lauritzen
Attorneys for Plaintiffs Samuel P. Newton and Law
Office of Samuel P. Newton, P.C.

JURY TRIAL DEMANDED

Plaintiff’s requests a jury trial under the
Seventh Amendment of the United States Constitution.

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