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Judge rejects state's attempt to deny ex A.G. John Swallow legal fees in failed criminal case

FILE - Attorney General candidate John Swallow in Salt Lake City Thursday, June 14, 2012.
FILE - Attorney General candidate John Swallow in Salt Lake City Thursday, June 14, 2012.
Jeffrey D. Allred, Deseret news

SALT LAKE CITY — A 3rd District judge rejected the state's argument Monday that former Utah Attorney General John Swallow isn't entitled to $1.6 million in legal fees incurred in the failed criminal case against him.

The ruling allows Swallow, a Republican, to continue the lawsuit he filed against the state, contending that as a public official who was exonerated, he should be reimbursed for attorney fees and costs.

"I was erroneously prosecuted and it got so expensive I borrowed money to defend myself, which costs me more in interest every day. Just as disturbing is that because the state pays for my new attorneys' fees to collect, every hour my attorneys spend will likely be charged to taxpayers," he said.

The attorney general's office declined to comment on the ruling or whether it would appeal.

FILE - Former Utah Attorney General John Swallow speaks to media at the Matheson Courthouse after being found not guilty on all accounts in Salt Lake City on Thursday, March 2, 2017.
FILE - Former Utah Attorney General John Swallow speaks to media at the Matheson Courthouse after being found not guilty on all accounts in Salt Lake City on Thursday, March 2, 2017.
Jeffrey D. Allred, Deseret News

The state argued that Swallow was not an officer or employee of the attorney general's office when he was acquitted of public corruption chargers so he isn't eligible for reimbursement under Utah law. And even if Swallow wins in court, the attorney general's office says it doesn't have the money to pay him.

Judge Andrew Stone said the law is "clear and unambiguous" and the called the state's interpretation "excessively narrow."

"The court is not persuaded that the Legislature intended that an officer or employee remain employed through the entire criminal proceeding until the point of acquittal in order to qualify for reimbursement fees," Stone wrote.

Swallow resigned under pressure after 11 months in office.

State prosecutors later alleged that Swallow was part of a conspiracy with former Attorney General Mark Shurtleff and the late Tim Lawson to extort money and favors from wealthy businessmen.

A jury acquitted Swallow on all charges, prosecutors dropped the case against Shurtleff, and Lawson died before going to trial.

Stone also rejected the state's argument that Swallow must file a reimbursement claim with the Board of Examiners, which would recommend to the Legislature whether it should appropriate money to pay him. The governor, state auditor and attorney general make up the board.

The attorney general's argument that the office doesn't have the money to pay Swallow is premature, the judge said.

"The amount of fees has yet to be determined, just as the amount of future appropriations is not yet known," Stone wrote.

Swallow's attorney, Rod Parker, called the ruling "fairly straight forward."

"If the official is charged for acts while in office and wins an acquittal, which is what happened here, then the fees incurred are owed as a reimbursement," he said.