1 of 15
MATT GADE, Deseret News
Utah Attorney General John Swallow announces his resignation during a press conference at the Capitol in Salt Lake City on Thursday, Nov. 21, 2013.
This gentleman was not elected by the voters under Utah law. He committed a cheat and a fraud on the Utah voters. —Joe Hatch, a Democratic Party lawyer and former Salt Lake County Council member

SALT LAKE CITY — Utah Democrats contend embattled Attorney General John Swallow wasn't legally elected, and because he can't resign from an office he didn't hold, Republicans shouldn't get to pick his successor.

"It's rewarding the party of the evildoer," said Utah Democratic Party Chairman Jim Dabakis. "So why should we go back to the Central Committee of the Republican Party, the people that got Swallow in there in the first place, and say, 'Here, take another crack at it?'"

State Democratic leaders say voters should choose the next attorney general, and Gov. Gary Herbert has the ability to call a special election in June.

"This gentleman was not elected by the voters under Utah law. He committed a cheat and a fraud on the Utah voters," said Joe Hatch, a Democratic Party lawyer and former Salt Lake County Council member.

Democrats called their shot in a news conference Tuesday that could lead to legal maneuvering with the GOP majority over how to replace Swallow, a first-term Republican.

Last Thursday, Swallow announced his resignation effective Dec. 3, citing the strain a Utah House special committee investigation was having on him, his family and his finances. The state elections office released a report the next day showing Swallow violated campaign finance reporting law by failing to disclose that he received income from or served as a manager in several business entities.

"The comments made by the Democratic Party at this point are merely speculation," Utah GOP Chairman James Evans said in a statement.

Absent any court action, Evans said, the party intends to hold a Central Committee meeting Dec. 14 to choose three nominees for the governor's consideration as provided in state law. Herbert's choice would face election in 2014.

Last week, state elections director Mark Thomas said the process for picking a replacement would be the same whether Swallow resigns or a judge vacates the office.

Democrats acknowledged that even if there were a special election in June, the law calls for another election in November to fill the remaining two years on Swallow's term.

Swallow easily defeated Democratic Weber County Attorney Dee Smith in the general election last November. Before that, Swallow beat Sean Reyes in a nasty Republican primary.

The special counsel that investigated Swallow for the elections office recommended their findings be turned over to a court judge to decide whether to void the election and declare the office vacant.

Lt. Gov. Spencer Cox, whose office oversees elections, hasn't decided whether to forward the report to a judge.

Hatch said the Swallow situation is unprecedented and that there is a gap in the law.

"Who would envision a silly situation like this?" he said.

Democrats sent a letter to Cox on Tuesday asking him to get a legal opinion — not from the attorney general's office, as would be typical, but from outside attorneys — about the ability and process for an officeholder to resign. The law doesn't address how a person can or may "resign" from an office they don't legally hold and how that position should be filled, according to the letter.

Hatch said he hopes the issue can be resolved without litigation.

The lieutenant governor's office had no response Tuesday to the Democrats' viewpoint. It cited state law and the state constitution describing how the governor fills a vacancy in the attorney general's office.

If Cox doesn't ask a judge to review the special counsel's report, Dabakis said Democrats would do it themselves.

Democrats also say because Swallow wasn't legally elected, he should have to return his $104,400 annual salary and shouldn't collect the pension he apparently wants by making his resignation effective at 12:01 a.m. Dec. 3.

Swallow, 51, joined the attorney general's office as chief deputy on Dec. 1, 2009, and would be eligible for state retirement after four years of service at age 65. The pension amount is calculated based on years of service and salary. Swallow made about $150,000 a year as chief deputy. His salary dropped to $104,400 as attorney general.

Dan Anderson, Utah Retirement Systems executive director, said he couldn't comment on Swallow's benefits, but he said he's never had a situation where an elected official's term was nullified. He said he's not sure if the official would be eligible to accrue service credits during in that case.

Contributing: Peter Samore

Email: [email protected]

Twitter: dennisromboy