Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 1 of 13

PARKER DOUGLAS (8924)

Utah Federal Solicitor
DAVID N. WOLF (6688)
Assistant Utah Attorney General
OFFICE OF THE UTAH ATTORNEY GENERAL
350 North State Street, Ste. 230
P.O. Box 142320
Salt Lake City, Utah 84114-2320
Telephone: (801) 538-9600
Facsimile: (801) 538-1121
E-mail: pdouglas@utah.gov
E-mail: dnwolf@utah.gov
Counsel for Defendants

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

DEFENDANTS ANSWER TO THE UTAH

REPUBLICAN PARTYS COMPLAINT

Plaintiff,
CONSTITUTION PARTY OF UTAH, a
registered political party of Utah,
Case No. 2:14-cv-00876-DN
Plaintiff and Intervenor,
Judge David Nuffer
v.
GARY R. HERBERT, in his Official Capacity
as Governor of Utah, and SPENCER J. COX,
in his Official Capacity as Lieutenant Governor
of Utah,
Defendants.
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 2 of 13

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

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

Defendants deny the allegations contained in paragraph 2 of Plaintiffs Complaint.
3.

The allegations contained in paragraph 3 of Plaintiffs Complaint constitute legal

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

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.

2

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 3 of 13

7.

Defendants deny the allegations contained in paragraph 7 of Plaintiffs

Complaint.
8.

Defendants deny the allegations contained in paragraph 8 of Plaintiffs

Complaint.
9.

Defendants deny the allegations contained in paragraph 9 of Plaintiffs

Complaint.
10.

In response to the allegations contained in paragraph 10 of Plaintiffs Complaint,

Defendants admit that Plaintiff seeks an order striking down SB 54, but denies that Plaintiff is
entitled to the requested relief.
11.

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

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

12.

In response to the allegations contained in paragraph 12 of Plaintiffs Complaint,

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.
13.

The allegations contained in paragraph 13 of Plaintiffs Complaint constitute legal

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

Defendants state that the Lieutenant Governors powers and duties are defined by constitutional
provisions of the Utah Constitution, statute and common law.

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 4 of 13

14.

The allegations contained in paragraph 14 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 and Lieutenant Governors powers and duties are defined
by constitutional provisions of the Utah Constitution, statute and common law.
15.

The allegations contained in paragraph 15 of Plaintiffs Complaint constitute legal

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

Defendants do not dispute that the Court has jurisdiction over this matter.
16.

The allegations contained in paragraph 16 of Plaintiffs Complaint constitute legal

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

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.
18.

The allegations contained in paragraph 18 of Plaintiffs Complaint constitute legal

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

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.
4

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 5 of 13

20.

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

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

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

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.
22.

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

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

23.

The allegations contained in paragraph 44 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 speak for themselves.
24.

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

allegations of paragraph 45 of Plaintiffs Complaint and, therefore, deny the same.

25.

The allegations contained in paragraph 46 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 speak for themselves and
deny the remaining allegations contained in paragraph 46 of Plaintiffs Complaint.
26.

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

allegations of paragraph 47 of Plaintiffs Complaint and, therefore, deny the same.

27.

The allegations contained in paragraph 48 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 48 of Plaintiffs Complaint.
5

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 6 of 13

28.

The allegations contained in paragraph 49 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 governing elections in the State of Utah prior to the passage of
Senate Bill 54 speak for themselves.
29.

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

allegations of paragraphs 50 through 60 of Plaintiffs Complaint and, therefore, deny the same.
30.

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

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.
31.

The allegations contained in paragraph 62 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 speak for themselves and
deny the remaining allegations contained in paragraph 62 of Plaintiffs Complaint.
32.

The allegations contained in paragraph 63 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 speak for themselves and
deny the remaining allegations contained in paragraph 63 of Plaintiffs Complaint.

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 7 of 13

33.

The allegations contained in paragraphs 64 through 66 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.
34.

The allegations contained in paragraphs 67 through 70 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 paragraphs 67 through 70 of
Plaintiffs Complaint.
35.

The allegations contained in paragraph 71 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.
36.

The allegations contained in paragraphs 72 through 75 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 paragraphs 72 through 75 of
Plaintiffs Complaint.
37.

The allegations contained in paragraph 76 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.
38.

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

allegations of paragraph 77 of Plaintiffs Complaint and, therefore, deny the same.

7

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 8 of 13

39.

The allegations contained in paragraphs 78 through 80 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 paragraphs 78 through 80 of
Plaintiffs Complaint.
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, deny the same.
42.

The allegations contained in paragraph 83 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 paragraph 83 of Plaintiffs Complaint.
43.

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

allegations contained in paragraph 84 of Plaintiffs Complaint and, therefore, deny the same.
44.

The allegations contained in paragraphs 85 through 88 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
8

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 9 of 13

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

Plaintiffs Complaint.
45.

Defendants deny the allegations of paragraph 89 of Plaintiffs Complaint.

46.

The allegations contained in paragraphs 90 through 94 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 paragraphs 90 through 94 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.

51.

Defendants deny the allegations of paragraphs 110 through 112 of Plaintiffs

Complaint.
52.

In response to paragraph 113, Defendants incorporate their responses to

paragraphs 1 through 112 above.

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 10 of 13

53.

Defendants deny the allegations of paragraphs 114 through 117 of Plaintiffs

Complaint.
54.

In response to paragraphs 118, Defendants incorporate their responses to

paragraphs 1 through 117 above.

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 Plaintiffs claims 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.

10

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 11 of 13

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 barred by sovereign immunity.
THIRTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because the mark is generic.

11

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 12 of 13

FOURTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because the mark is merely
descriptive and has not acquired secondary meaning.
FIFTEENTH DEFENSE
Plaintiffs trademark infringement claims are barred because 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.

12

Case 2:14-cv-00876-DN Document 31 Filed 02/02/15 Page 13 of 13

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 General
PARKER DOUGLAS
Utah Federal Solicitor
Counsel for Defendants

13