herbert response to gop lawsuit

8/9/2019 Herbert response to GOP lawsuit

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PARKER DOUGLAS (8924)Utah Federal Solicitor

DAVID N. WOLF (6688)

Assistant Utah Attorney GeneralOFFICE OF THE UTAH ATTORNEY GENERAL

350 North State Street, Ste. 230

P.O. Box 142320

Salt Lake City, Utah 84114-2320Telephone: (801) 538-9600

Facsimile: (801) 538-1121

E-mail:[email protected]

E-mail: [email protected]

Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

Plaintiff,

CONSTITUTION PARTY OF UTAH, aregistered political party of Utah,

Plaintiff and Intervenor,

v.

GARY R. HERBERT, in his Official Capacity

as Governor of Utah, and SPENCER J. COX,

in his Official Capacity as Lieutenant Governorof Utah,

Defendants.

DEFENDANTSANSWER TO THE UTAH

REPUBLICAN PARTYSCOMPLAINT

Case No. 2:14-cv-00876-DN

Judge David Nuffer

Defendants answer Plaintiffs Complaint(doc. 2)and assert their defenses as follows.

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 1 of 13
mailto:[email protected]://ecf.utd.uscourts.gov/doc1/18313207515https://ecf.utd.uscourts.gov/doc1/18313207515https://ecf.utd.uscourts.gov/doc1/18313207515https://ecf.utd.uscourts.gov/doc1/18313207515mailto:[email protected]


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FIRST DEFENSE

Plaintiffs Complaint fails to state a claim upon which relief may be granted.

SECOND DEFENSE

Defendants respond to the numbered paragraphs of Plaintiffs Complaint as follows:

1. The allegations contained in paragraph 1 of Plaintiffs Complaint constitute legal

conclusions to which no response is necessary. To the extent a response is deemed necessary,

Defendants deny the allegations contained in paragraph 1 of Plaintiffs Complaint.

2.

The allegations contained in paragraph 2 of Plaintiffs Complaint constitute legal



3. The allegations contained in paragraph 3 of Plaintiffs Complaintconstitute legal


Defendants admit that Plaintiff accurately sets forth a small portion of the Supreme Courts

opinion in California Democratic Party v. Jones, 530 U.S. 567, 575 (2000) but denies its

applicability to this case.

4. Defendants admit the allegations contained in paragraph 4 of Plaintiffs

Complaint.

5. In response to the allegations contained in paragraph 5 of Plaintiffs Complaint,

Defendants admit that SB 54 modified part of the process governing how candidates may access

the ballot and deny the remaining allegations contained in paragraph 5 of Plaintiffs Complaint.

6. Defendants lack sufficient knowledge and information to either admit or deny the

allegations of paragraph 6 and, therefore, deny the same.



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7. Defendants deny the allegations contained in paragraph 7 of Plaintiffs

Complaint.


Complaint.


Complaint.


Defendants admit that Plaintiff seeks an order striking down SB 54,but denies that Plaintiff is

entitled to the requested relief.


allegations of paragraph 11 and, therefore, deny the same.


Defendants admit that Gary R. Herbert is the Governor of the State of Utah. The remaining

allegations contained in paragraph 12 of Plaintiffs Complaint constitute legal conclusions to

which no response is necessary. To the extent a response is deemed necessary, Defendants state

that the Governors powers and duties are defined by constitutional provisions of the Utah

Constitution, statute and common law.



Defendants state that the Lieutenant Governors powers and duties are defined by constitutional

provisions of the Utah Constitution, statute and common law.



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Defendants state that the Governors and Lieutenant Governors powers and duties are defined

by constitutional provisions of the Utah Constitution, statute and common law.



Defendants do not dispute that the Court has jurisdiction over this matter.

16.

The allegations contained in paragraph 16 of Plaintiffs Complaint constitute legal


Defendants do not dispute that venue is proper in this Court.

17. The allegations contained in paragraph 17 of Plaintiffs Complaint are not

directed at these answering Defendants, and thus, no response is necessary. To the extent a

response is deemed necessary, Defendants deny that Plaintiff is entitled to the relief sought in its

Complaint.



Defendants state that the manner and timing of Utahs elections is defined primarily by statute

and that those statutes speak for themselves.

19.

The allegations contained in paragraphs 19 through 29 of Plaintiffs Complaint

constitute legal conclusions to which no response is necessary. To the extent a response is

deemed necessary, Defendants state that the statutes contained in Utahs election code speaks for

themselves.



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allegations of paragraphs 30 through 40 of Plaintiffs Complaint and, therefore, deny the same.

21. The allegations contained in paragraphs 41 and 42 of Plaintiffs Complaint


deemed necessary, Defendants state that the statutes governing elections in the State of Utah

prior to the passage of Senate Bill 54 speak for themselves.


allegations of paragraph 43 of Plaintiffs Complaint and, therefore, deny the same.



Defendants state that the statutes contained in Utahs election code speak for themselves.





Defendants state that the statutes contained in Utahs election code speak for themselves and

deny the remaining allegations contained in paragraph 46 of Plaintiffs Complaint.








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Defendants state that the statutes governing elections in the State of Utah prior to the passage of

Senate Bill 54 speak for themselves.


allegations of paragraphs 50 through 60 of Plaintiffs Complaint and, therefore, deny the same.


allegations contained in the first sentence of paragraph 61 of Plaintiffs Complaint and, therefore,

deny the same. Defendants deny the allegations contained in the second sentence of paragraph 61

of Plaintiffs Complaint.The allegations contained in the last sentence of paragraph 61 of

Plaintiffs constitute legal conclusions to which no response is necessary. To the extent a

response is deemed necessary, Defendants state that the provisions contained in Senate Bill 54

speak for themselves.











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33. The allegations contained in paragraphs 64 through 66 of Plaintiffs Complaint


deemed necessary, Defendants state that the provisions contained in Senate Bill 54 speak for

themselves.




themselves and deny the remaining allegations contained in paragraphs 67 through 70 of

Plaintiffs Complaint.



Defendants state that the provisions contained in Senate Bill 54 speak for themselves.








Defendants state that the provisions contained in Senate Bill 54 speak for themselves.





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40. Defendants deny the allegations of paragraph 81 of Plaintiffs Complaint.

41. The allegations contained in the first sentence of paragraphs 82 of Plaintiffs

Complaint constitute legal conclusions to which no response is necessary. To the extent a

response is deemed necessary, Defendants state that the provisions contained in Senate Bill 54

speak for themselves and deny the remaining allegations contained in the first sentence of

paragraph 82 of Plaintiffs Complaint. Defendants lack sufficient knowledge and information to

either admit or deny the allegations contained in the second sentence of paragraph 82 of

Plaintiffs Complaint and, therefore, denythe same.



Defendants state that the provisions contained in Senate Bill 54 speak for themselves and deny

the remaining allegations contained in paragraph 83 of Plaintiffs Complaint.


allegations contained in paragraph 84 of Plaintiffs Complaint and, therefore, deny the same.






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themselves and deny the remaining allegations contained in paragraph 85 through 88 of


45. Defendants deny the allegations of paragraph 89 of Plaintiffs Complaint.






47. Defendants deny the allegations of paragraphs 95 through 106 of Plaintiffs

Complaint.

48. In response to paragraph 107, Defendants incorporate their responses to

paragraphs 1 through 106 above.

49. In response to paragraph 108, Defendants admit that Plaintiff has brought claims

pursuant to 42 U.S.C. 1983 for alleged violations of the First and Fourteenth Amendments to

the United States Constitution and deny the validity of those claims.

50. The allegations contained in paragraph 109 of Plaintiffs Complaint constitute

legal conclusions to which no response is necessary.


Complaint.

52. In response to paragraph 113, Defendants incorporate their responses to




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Complaint.

54. In response to paragraphs 118, Defendants incorporate their responses to


55. The allegations contained in paragraph 119 and 120 of Plaintiffs Complaint

constitute legal conclusions to which no response is necessary.

56. Defendants deny the allegations of paragraphs 121 and 122 of Plaintiffs

Complaint.

57. Defendants deny each and every allegation of Plaintiffs Complaint, which is not

specifically admitted or otherwise pleaded to herein.

THIRD DEFENSE

Eleventh Amendment sovereign immunity bars Plaintiffs official capacity claims for

money damages.

FOURTH DEFENSE

Official immunity from this lawsuit bars Plaintiffs claims for money damages.

FIFTH DEFENSE

The doctrine of qualified immunity bars Plaintiffsclaims for money damages.

SIXTH DEFENSE

Any and all injuries and damages alleged by Plaintiff in the Complaint resulted from

Plaintiffs own actions or omissions, or from the acts or omissions of third parties over whom

Defendants had no authority or control.



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SEVENTH DEFENSE

Plaintiffs claims for injunctive relief may be barred be the doctrines of res judicata,

waiver or estoppel.

EIGHTH DEFENSE

Plaintiffs claims for injunctive relief may be barred by the doctrine of mootness.

NINTH DEFENSE

To the extent Plaintiffs subsequently assert any claims based on state law, such state law

claims are limited and barred by the Utah Governmental Immunity Act, which includes but is not

limited to, timely failure to file a notice of claim and bring the action within the statutory period

and file a bond prior to commencement of the action, all of which deprives the court of subject

matter jurisdiction.

TENTH DEFENSE

Plaintiffs trademark infringement claims are barred because the mark is not used in

commerce as required by 15 U.S.C 1125(a).

ELEVENTH DEFENSE

Plaintiffs trademark infringement claims are barred because as alleged in the Complaint,

the mark is not used in interstate commerce as required by 15 U.S.C 1125(a).

TWELFTH DEFENSE

Plaintiffs trademark infringement claims are barredby sovereign immunity.

THIRTEENTH DEFENSE

Plaintiffs trademark infringement claims arebarredbecause the mark is generic.



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FOURTEENTH DEFENSE

Plaintiffs trademark infringement claims are barredbecause the mark is merely

descriptive and has not acquired secondary meaning.

FIFTEENTH DEFENSE

Plaintiffs trademark infringement claims are barredbecause Plaintiff's mark is

misdiscriptive.

SIXTEENTH DEFENSE

Plaintiffs trademark infringement claims are barred because any use of the mark was

protected by the doctrine of fair use.

SEVENTEENTH DEFENSE

Plaintiffs trademark infringement claims are barred because any use of the mark was

protected by the doctrine of nominative fair use.

EIGHTEENTH DEFENSE

Plaintiffs trademark infringement claims are barred because any use of the mark did not

cause likelihood of consumer confusion as to the source of the goods or services for which the

mark is applied.

NINTEENTH DEFENSE

Defendants preserve and do not waive any of the affirmative defenses set forth in Rule

8(c) of the Federal Rules of Civil Procedure, as discovery may reveal to be applicable, or any

other matter constituting an avoidance or affirmative defense as may become known in the

future.



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PRAYER FOR RELEIF

WHEREFORE, having answered Plaintiffs Complaint, Defendants pray that the

Complaint be dismissed, with prejudice, that Plaintiffs take nothing thereby, and that Defendants

be awarded costs and fees reasonably incurred in defending this action and such other relief as

the Court deems just.

DATED: February 2, 2015.

OFFICE OF THE UTAH ATTORNEY GENERAL

/s/ David N. Wolf

DAVID N. WOLF

Assistant Utah Attorney GeneralPARKER DOUGLAS

Utah Federal Solicitor

Counsel for Defendants


herbert response to gop lawsuit

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