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I John L. Fellows (No. 4212) Eric Weeks (No. 7340) Office Of John L. Fellows (No. 4212) Eric Weeks (No. 7340) Office of Legislative Research and General Counsel Legislature of the State of Utah W210 State Capitol Complex Salt Lake City, Utah 84114 Counsel for the Special Investigative Committee of the Utah House of Representatives IN THE THIRD JUDICIAL DISTRICT COURT, SALT LAKE DEPARTMENT SALT LAKE COUNTY, STATE OF UTAH In re: MEMORANDUM IN SUPPORT OF THE MOTION OF THE SPECIAL Utah House of Representatives INVESTIGATIVE COMMITTEE Special Investigative Committee UNDER § 36-14-5 TO COMPEL Subpoena of Softwise, Inc., OBEDIENCE TO A SUBPOENA Dated October 4, 2013 ISSUED TO SOFTWISE, INC. AND IN OPPOSITION TO MOTION TO QUASH Civil No. 130907548 Judge: Su Chon TABLE OF CONTENTS PRELIMINARY STATEMENT .....................................................................................................1 FACTUAL BACKGROUND ..........................................................................................................3 A. The Formation of the Special Committee by the Utah House of Representatives ........................................................................................................3 B. The Relationship of Softwise to the Matter Under Investigation. ...........................4 C. The October 4, 2013 Softwise Subpoena .................................................................5 D. Softwise’s Response to the October 4, 2013 Subpoena ...........................................7 i STATUTORY BACKGROUND ..................................................................................................10 ARGUMENT .................................................................................................................................11 A. The Utah Legislature Has Long Possessed Broad Powers to Investigate Allegations Of Official Misconduct By State Officials Through Compulsory Process...............................................................................................12 1. The Legislature’s inherent investigatory powers. ..................................... 12 2. The Special Committee’s investigatory judgment should be respected. .. 14 B. Softwise Should Be Ordered to Obey The Special Committee’s Subpoena, Which Is Authorized, Valid, Pertinent, and Reasonable .......................................15 1. The subpoena is authorized by statute. ..................................................... 16 2. The subpoena is for a valid legislative purpose. ....................................... 17 3. The subpoena is relevant to the Committee’s investigation. .................... 17 4. The subpoena is neither oppressive nor unreasonable. ............................. 19 CONCLUSION ..............................................................................................................................22 ii TABLE OF AUTHORITIES CASES: Barenblatt v. United States, 360 U.S. 109 (1959) .................................................................................................................12 Boyle v. Nat’l Union Fire Ins. Co., 866 P.2d 595 (Utah Ct. App. 1993) .........................................................................................20 Braden v. United States, 365 U.S. 431 (1961) ...........................................................................................................15, 17 Connecticut Indem. Co. v. Superior Court, 23 Cal. 4th 807 (2000) .................................................................................................12, 14, 15 Does v. 2TheMart.com Inc., 140 F.Supp.2d 1088 (W.D. Wash. 2001) .................................................................................19 Eastland v. U. S. Servicemen’s Fund, 421 U.S. 491 (1975) .....................................................................................................11, 12, 15 Garner v. Cherberg, 111 Wash. 2d 811 (1988) .........................................................................................................13 Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539 (1963) .................................................................................................................19 Hutcheson v. United States, 369 U.S. 599 (1962) .................................................................................................................12 Jones v. Utah Bd. of Pardons & Parole, 94 P.3d 283 (Utah 2004) ..........................................................................................................13 Matter of Criminal Investigation, 7th Dist. Court No. CS-1, 754 P.2d 633 (Utah 1988) ........................................................................................................16 McGrain v. Daugherty, 273 U.S. 135 (1927) ...........................................................................................................11, 15 Spackman ex rel. Spackman v. Bd. of Educ. of Box Elder Cnty. Sch. Dist., 16 P.3d 533 (Utah 2000) ..........................................................................................................13 iii State ex rel. Joint Comm. of Gov’t & Fin. of W. Virginia Legislature v. Bonar, 159 W. Va. 416 (1976) ............................................................................................................13 State v. Evans, 735 P.2d 29 (Utah 1987) ..........................................................................................................13 State v. Mooney, 98 P.3d 420 (Utah 2004) ..........................................................................................................19 State v. Thompson, 810 P.2d 415 (Utah 1991) ........................................................................................................19 Tenney v. Brandhove, 341 U.S. 367 (1951) .................................................................................................................11 United States v. Corbett, 4:07-CR-435CAS, 2008 WL 2095740 (E.D. Mo. May 16, 2008)...........................................17 United States v. Hoeffner, 254 F.R.D. 302 (S.D. Tex. 2008) .............................................................................................17 United States v. Lansing, 2:08-CR-558 TS, 2009 WL 321575 (D. Utah Feb. 9, 2009) ...................................................17 United States v. Mendinueta-Ibarro, 12 CR 379 VM, 2013 WL 3871392 (S.D.N.Y. July 18, 2013) ...............................................17 United States v. R. Enterprises, Inc., 498 U.S. 292 (1991) ...........................................................................................................17, 18 Ward v. Peabody, 405 N.E.2d 973 (Mass. 1980) ..................................................................................................15 Watkins v. United States, 354 U.S. 178 (1957) .................................................................................................................11 Wilkinson v. United States, 365 U.S. 399 (1961) ...........................................................................................................12, 15 iv CONSTITUTION AND STATUTES: Utah Code Ann. 36-12-19 .............................................................................................................................14, 15 36-14-1 .................................................................................................................................9, 15 36-14-2 .................................................................................................................................9, 14 36-14-3 .......................................................................................................................................9 36-14-4 .....................................................................................................................................12 36-14-5 .....................................................................................................................9, 10, 12, 13 Utah Const. Art. V, § 1 ..................................................................................................................13 OTHER AUTHORITIES: 1 Sutherland Statutory Construction (7th ed. 2008) ......................................................................11 Federal Rule of Criminal Procedure 17(c)(2) ................................................................................18 v PRELIMINARY STATEMENT This combined motion and opposition is brought by the Special Investigative Committee of the Utah House of Representatives (the “Special Committee” or “Committee”), which the House convened in July of this year to conduct an inquiry into allegations of improper conduct by Attorney General John Swallow. On November 21, 2013, Attorney General Swallow resigned from office effective at 12:01 a.m. on December 3, 2013. That resignation does not, however, affect the Special Committee’s duty under its authorizing resolution to investigate and to report to the House findings of fact about the matters investigated and the need, if any, for legislation, including legislation that might seek to avoid similar situations in the future. In conducting its inquiry, the Special Committee has considered it necessary to subpoena certain documents from Softwise, Inc. (“Softwise”), a Provo-based firm specializing in providing software systems to support payday lenders, internet lenders, check-cashing firms, and other financial services businesses. The Committee’s subpoena provided a deadline of October 21, 2013. To date, Softwise has not produced even a single document in response. On
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