OGDEN — Douglas Lovell’s former death penalty attorney has won a major round against Weber County for firing him after he complained publicly about stingy funding.
Samuel Newton, who specializes in capital punishment appeal cases, sued Weber County in U.S. District Court after the county canceled his public defender contract in 2017.
The county asked Judge Howard Nielson Jr. to throw out Newton’s suit, but the judge refused to do so in a Sept. 30 decision and said the case deserves to continue toward trial.
“The court rejects the proposition that the government can terminate an attorney whom it has engaged to represent indigent criminal defendants based on his or her official communications without further First Amendment scrutiny,” Nielson wrote.
“When such an attorney speaks on behalf of the client he is emphatically not the government’s speaker,” he said.
The dispute came to a head following a contentious period in which Newton sought additional funding for Lovell’s appeal of his 2015 conviction.
Newton withdrew as Lovell’s appellate attorney in 2017 after the county would not meet his requests.
The county, among other things, accused him of overbilling, questioned the need for contacting and interviewing numerous witnesses in the case, and complained he was meeting with Lovell too often.
The county later terminated his basic public defender contract after Newton criticized county officials for allegedly refusing to fund an adequate defense of Lovell’s death penalty appeal, a constitutional requirement.
The county denied his allegations, and a contract cancellation letter from Commissioner Jim Harvey accused Newton of making false statements detrimental to the county.
In June 2019, the county filed a motion asking the court to dismiss Newton’s suit. It said Newton’s contract was canceled for “misrepresentations and falsehood,” not because he sought more money to defend Lovell and complained to a judge and the media.
Newton’s federal suit, filed in 2018, said the county violated his freedom of speech.
“The communications for which Mr. Newton was fired were bound up with his representation of Mr. Lovell and reflected disputes with the county regarding matters that implicated Mr. Newton’s exercise of independent judgment on behalf of the client,” Nielson wrote.
The judge said a jury reasonably could conclude that Newton correctly understood the county was pressuring him to reduce billings, limit the scope of interviews and quit meeting so much with Lovell, not merely to justify them.
The case spotlights long-running controversy over how Weber County handles funding of death penalty appeals.
Several other counties belong to a pool from which capital defense cases are handled, removing the possibility of direct conflict between a funding county and an adversarial attorney.
“It is the constitutional obligation of the (county) to respect the professional independence of the public defenders whom it engages,” Nielson said. “The governmental interests that may justify terminating or disciplining the attorney are much more limited than in the case of other government employees or independent contractors.”
However, Nielson ruled against Newton on two other elements of the case.
He granted Harvey and the other county commissioners qualified immunity from legal liability.
He said based on some earlier court rulings, commissioners may have reasonably believed they could pull Newton’s contract based on communications he made as part of his official duties.
The judge also dismissed Newton’s claim that the county’s actions amounted to a conspiracy against him.
Kristen VanOrman, a Utah Counties Indemnity Pool attorney representing Weber County in the case, said discussions now will continue with Newton’s attorneys.
“We’re just going to work together to attempt to find some sort of resolution,” VanOrman said.
In 2015, Lovell was convicted a second time in the 1985 murder of Joyce Yost of South Ogden. The first conviction had been overturned.
Appeal proceedings continue in Ogden’s 2nd District Court and the Utah Supreme Court.
Weber County hired another appellate attorney for Lovell after Newton withdrew.