Law Office of Samuel P. Newton v. Weber Cnty.

• Decision Date: 30 September 2020
• Docket Number: Civil No. 1:18-cv-000015-HCN-DAO
• Citation: 491 F.Supp.3d 1047
• Parties: LAW OFFICE OF SAMUEL P. NEWTON; and Samuel P. Newton, Plaintiffs, v. WEBER COUNTY; James H. Harvey ; Kerry W. Gibson; and Charles J. Ebert, Defendants.
• Court: U.S. District Court — District of Utah

491 F.Supp.3d 1047

LAW OFFICE OF SAMUEL P. NEWTON; and Samuel P. Newton, Plaintiffs,

v.WEBER COUNTY; James H. Harvey ; Kerry W. Gibson; and Charles J. Ebert, Defendants.

Civil No. 1:18-cv-000015-HCN-DAO

United States District Court, D. Utah.

Signed September 30, 2020

Karra J. Porter, John D. Lauritzen, Christensen & Jensen PC, Salt Lake City, UT, for Plaintiffs.

Kristin A. VanOrman, Matt W. Harrison, Strong & Hanni, Salt Lake City, UT, for Defendants.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT.

Howard C. Nielson, Jr., United States District Judge

Plaintiffs, Samuel P. Newton and his law firm, the Law Offices of Samuel P. Newton, sued Defendants Weber County and its three Commissioners, alleging that Defendants’ termination of Mr. Newton's contract with the County violated his First Amendment rights and that Defendants conspired against him to obstruct justice in violation of 42 U.S.C. § 1985(2). Defendants have moved for summary judgment. For the following reasons, Defendants’ motion is granted in part and denied in part.

I.

Samuel Newton is a criminal defense attorney who specializes in handling appeals. He has extensive experience in his field: among other things, he worked with the Salt Lake Legal Defenders Association for seven years.¹

Weber County contracted with Mr. Newton to represent indigent criminal defendants on appeal, and it renewed that contract on January 1, 2017. Under the contract, Mr. Newton "agree[d] to provide competent legal counsel to any person convicted of a felony or a misdemeanor who is deemed by a district or justice court in Weber County to be indigent." Dkt. No. 33-3 at 2.

Weber County separately contracted with Mr. Newton to represent Doug Lovell, a capital defendant. See Dkt. No. 33-4. Mr. Lovell's case has a protracted history. The murder with which he was charged occurred 35 years ago, and his prosecution has involved multiple trips to the Utah Supreme Court. See, e.g. , State v. Lovell, 262 P.3d 803 (Utah 2011) ; State v. Lovell , 114 P.3d 575 (Utah 2005) ; State v. Lovell , 984 P.2d 382 (Utah 1999).

After his previous conviction and sentence were vacated, Mr. Lovell was again convicted and sentenced to death in 2015. The County hired Mr. Newton to represent Mr. Lovell on appeal to the Utah Supreme Court. The contract contemplated that Mr. Newton would be paid $150 per hour for up to 500 hours of work—for a potential total of $75,000—though the contract provided that Mr. Newton could obtain additional compensation "upon showing of good cause to both the court and the County." Dkt. No. 33-4 at 3.

Mr. Newton's initial advocacy was successful. The State did not oppose his motion to remand the case for an additional fact-finding hearing regarding the constitutional adequacy of Mr. Lovell's representation during his 2015 sentencing proceedings. And the Utah Supreme Court "temporarily remanded for an evidentiary hearing" regarding trial counsel's decision not to call various potential witnesses, his allegedly inadequate preparation or examination of several witnesses who did testify, and his allegedly insufficient preparation of a mitigation specialist during the sentencing stage. Dkt. No. 33-8 at 2–3. Prior to obtaining this relief, Mr. Newton filed both an opening brief and an 89-page remand motion. See Dkt. No. 33-5 (motion to remand).

After the remand order issued, Mr. Newton informed the County that he had already worked more than the allotted 500 hours on Mr. Lovell's representation, and he requested more money both to represent Mr. Lovell on remand and then to file a reply brief in the Utah Supreme Court addressing the issues developed at the evidentiary hearing. See Dkt. No. 33-12 at 3; see also Dkt. No. 33-6 (letter prior to remand). Mr. Newton estimated that completing Mr. Lovell's case would take 500–750 additional hours. See Dkt. No. 33-12 at 2. Among other things, Mr. Newton indicated that he needed to interview each of the witnesses that trial counsel had failed to call. See id.

Defendant Commissioner Harvey responded, indicating that "the county [was] prepared to provide [Mr. Newton] with an additional $15,000 to finish this appeal." Dkt. No. 33-12 at 2. Commissioner Harvey explained:

While we recognize that the remand of the Lovell case was unanticipated in the original contract and will cause you additional work, we don't agree that it will take an additional 500 to 750 hours to complete that work. It is highly likely that the majority of the witnesses you wish to call will have little to no helpful information. As such, we estimate that it will only take approximately one week, or 40 hours, to conduct the hearings, 40 hours to prepare for the hearings, and another 20 hours to revise your initial brief. The total additional hours of work should in no way exceed 100. At $150 per hour that would equal a total of $15,000.

Id. The County offered this additional money for the remand proceeding only, explaining that "[t]he $75,000 that was provided to you initially was intended to cover the Reply brief which shouldn't be impacted by this remand, so we are not offering additional compensation for that." Id. Mr. Newton later testified at his deposition that he understood from this email that "[the County was] going to take a pretty hard line on $15,000"—that is, the 100 additional hours of work the County had approved for the remand. Dkt. No. 33-2 at 52.

The same day Mr. Newton responded:

The Supreme Court's remand contemplates over two dozen witnesses. It names 22, but I think I will have to call three or four other witnesses for much closer to 25 or 26 witnesses. I don't think their testimony is insignificant. I have interviewed most of them personally and find that their testimony would have been compelling in Mr. Lovell's case. I wouldn't have raised the issue if I did not think it meritorious. Indeed, I think it's important to consider that the Supreme Court deemed the issues I raised worthy of remand and required the trial court to consider that evidence.

Dkt. No. 33-13 at 2. Mr. Newton also asked for more negotiation:

What if we consider a few options: what if the county authorizes some funds now and we can revisit it as things go along? Say authorize past work and 100 hours of future work. At 100 hours, I can give you a better estimate of where we are and what it will take. Perhaps I will have over-estimated and we won't need any or much more.

If this does not work, I will need to, as soon as possible, file a motion with the district court for funding or to allow me to withdraw as his attorney.

Id. at 2–3.

After the County failed to respond for five days, Mr. Newton filed a motion for attorney fees on March 20, 2017. Dkt. No. 33-14; see also Dkt. No. 33-15 at 4. That motion quoted much of his most recent email to the County. See Dkt. No. 33-14 at 4–5, n.1. Mr. Newton asked the court to preauthorize 200 hours, at which point Mr. Newton would update the court regarding the need for additional work. Id. at 4. Mr. Newton also explained that he had "now expended time and funds well beyond what Weber County has agreed to pay since the County has not authorized any payments since the beginning of the year." Id. at 3. Mr. Newton represented that, nevertheless, he had already "worked $11,000 over that amount without compensation" and was "continu[ing] to work on the case without compensation." Id. Mr. Newton also stated that "counsel has been unable (because of a lack of funding) to interview" some of the relevant witnesses and "would need some investigative resources so his investigator could speak with those witnesses prior to their testimony." Id.

On March 23, 2017, the County responded to Mr. Newton's email and opposed his motion for fees. In the email, Commissioner Harvey stated that the County agreed to pay for 100 hours of additional work, but not to pay for extra work that Mr. Newton had already performed:

While it's uncertain how much time and effort will need to be put into the evidentiary hearings and revising the initial brief, 100 hours seems to be a reasonable estimate. If the remand takes longer than 100 hours, and you can justify the additional time, we will remain open to another request for additional funding.

Any work that has been completed to date and any work required for the reply brief or oral arguments we consider covered under the initial $75,000 amount.

Dkt. No. 33-15 at 28.

In its brief, the County argued that

[b]ecause it has been 25 years since Defendant was first convicted, there is a high likelihood that many of the witnesses remember little about Defendant. After contacting those witnesses through his investigator, Mr. Newton may even decide that many of them don't need to appear in court to testify on the record. Even if some of the witnesses have relevant information, it is highly speculative that it will take a full 10 to 15 days to question them.

Dkt. No. 33-15 at 8. The County also represented that although "Mr. Newton argues in Defendant's Motion that he doesn't have an investigator ... his contract specifically provides that Mr. Newton will be reimbursed for investigator fees at the rate of $60 per hour." Id. at 6 (citation omitted). It added that "Mr. Newton is well aware of that provision as he has hired an investigator for this case in the past." Id.

After the briefs were filed, Mr. Newton continued to negotiate further with Deputy County Attorney Bryan Baron. On April 10th, Mr. Baron wrote:

As I understand the [Commissioners’] position, they have pre-approved 100 hours to go towards the work that is required on the remand. That includes the evidentiary hearing and reworking your initial brief. The county will not release additional funds until that work has been done. Any other work (e.g., the last invoice for 2016 as well as any work that is required for your reply brief and oral arguments) should be covered by the $75,000.

Dkt. No. 33-17 at 3.

Mr. Newton responded within a half-hour:

Bryan, I

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