Halvorsen et al v. Cox et al

THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH
TRACIE HALVORSEN, et al.,
Plaintiffs,
v.
SPENCER COX as an individual and
official capacity, et al.,
Defendants.
REPORT AND RECOMMENDATION
Case No. 2:25-cv-00909-HCN-JCB
District Judge Howard C. Nielson, Jr.
Magistrate Judge Jared C. Bennett
I NTRODUCTION1
Plaintiffs Tracie Halvorsen (“Ms. Halvorsen”), Nancy Inman, Steven Huber, Wayne
Wickizer, and Daniel Newby’s (collectively, “Plaintiffs”)2 complaint primarily takes issue with a
specific provision of Utah’s election code, which is commonly referred to as the Either or Both
Provision.3 To adequately frame the issues in Plaintiffs’ complaint, the court first provides a brief
history of the Either or Both Provision and subsequent litigation concerning it, all of which is
taken from Utah Republican Party v. Cox (“URP”).4 Thereafter, the court provides the factual
background for this case.
1 This case is referred to Magistrate Judge Jared C. Bennett under 28 U.S.C. § 636(b)(1)(B). ECF
No. 21.
2 Sophie Anderson was named as a plaintiff in the complaint, ECF No. 1, but was later
voluntarily dismissed. ECF No. 80.
3 Utah Code Ann. § 20A-9-101(13)(c).
4 892 F.3d 1066 (10th Cir. 2018).
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I. 	Either or Both Provision and Subsequent Litigation
In March 2014, Utah Senate Bill 54 (“SB54”) created the Either or Both Provision.5 Prior
to SB54, the Utah Republican Party (“URP”) selected its candidates for primary elections
exclusively through its state nominating convention.6 However, the enactment of the Either or
Both Provision provided an alternative to the convention that permitted candidates to gather a
certain number of signatures to be placed on the primary election ballot.7
The code provisions enacted through SB54 created two categories of political parties: a
Registered Political Party (“RPP”) and a Qualified Political Party (“QPP”).8 Members of RPPs
can qualify for a primary election only by gathering a certain number of signatures of the eligible
primary voters for the office sought.9 If a party chooses to register as a QPP, it may still hold a
caucus and may certify winners of the caucus to the primary ballot.10 However, a QPP may not
restrict access to the primary ballot to only candidates who emerge from the party convention.11
Under the enacted provisions, a candidate who is unwilling or unable to gain placement on the
primary ballot through the caucus and convention may still qualify for the primary election by
gathering a set number of signatures by petition from eligible primary voters.12 Specifically, the
Either or Both Provision provides that a QPP must allow its members to seek the political party’s
5 Id. at 1072.
6 Id.
7 Id.
8 Id. at 1073.
9 Id.; see also Utah Code Ann. § 20A-9-403(3)(a).
10 URP, 892 F.3d at 1073; see also Utah Code Ann. §§ 20A-9-406, -407
11 URP, 892 F.3d at 1073.
12 Id.
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nomination for any elective office “by the member choosing to seek the nomination by either or
both of the following methods: (i) seeking the nomination through the . . . political party’s
convention process . . . or (ii) seeking the nomination by collecting signatures.”13
In 2015, the URP announced that it would permit nomination only by caucus.14 The URP
took the position that the Either or Both Provision permitted the political party—rather than the
candidates—the option to allow nomination by either the signature-gathering method, the
convention method, or both.15 Utah Governor Spencer Cox (“Governor Cox”), who was then
Utah Lieutenant Governor, responded that it was the State of Utah’s position that under the
Either or Both provision, it was the party member’s choice—not the political party’s—whether to
pursue the nomination using the signature-gathering method, the convention method, or both.16
The URP then filed suit in this court seeking declaratory and injunctive relief that the
Either or Both Provision was unconstitutional.17 In that case, District Judge David Nuffer
certified to the Utah Supreme Court the question of the interpretation of the Either or Both
Provision.18 Specifically, Judge Nuffer asked the Utah Supreme Court to determine whether the
Either or Both Provision permitted the candidate member or the political party to choose
which—or both—of the qualification processes to use.19 In response, the Utah Supreme Court
13 Utah Code Ann. § 20A-9-101(13)(c) (emphasis added); see also URP, 892 F.3d at 1073.
14 Id. at 1074.
15 Id.
16 Id.
17 Id.
18 Id.
19 Id.
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stated that the Either or Both Provision allows the candidate member—not the party—to select
which of those two paths to follow to be certified to the primary ballot.20
Following the Utah Supreme Court’s decision, Judge Nuffer ruled that the Either or Both
Provision did not infringe on the URP’s First Amendment rights of association.21 URP appealed
that decision to the Tenth Circuit.22 The Tenth Circuit affirmed and held that the Either or Both
Provision is constitutional.23
II. 	Factual Background
Plaintiffs initiated this case on October 14, 2025, against: (1) Defendants Governor Cox,
Utah Lieutenant Governor Diedre Henderson (“Lt. Governor Henderson”), and the State of Utah
(collectively, “State Defendants”); (2) Defendants Utah State Senator Curtis Bramble (“Senator
Bramble”), Utah State Senator Daniel McCay (“Senator McCay”), Utah State Senator J. Stuart
Adams (“Senator Adams”), and Utah State House Representative Mike Schultz (“Representative
Schultz”) (collectively, “Legislative Defendants”); (3) Defendant Utah Supreme Court Chief
Justice Matthew Durrant (“Chief Justice Durrant”); (4) Defendants Robert Axson (“Mr. Axson”),
Kim Coleman (“Ms. Coleman”), and Chris Null (“Mr. Null”), who all are or were associated in
some capacity with the URP (collectively, “URP Defendants”); and (5) Defendant Brian
McKenzie, who is the County Clerk for Davis County, Utah (“Mr. McKenzie”) (hereinafter, all
Defendants (1)-(5), collectively, “Defendants”).24 Plaintiffs assert claims against Defendants:
20 Id. at 1074-75 (citing Utah Republican Party v. Cox, 373 P.3d 1286, 1287 (Utah 2016)).
21 Id. at 1075.
22 Id.
23 Id. at 1076-85.
24 ECF No. 1.
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(1) for declaratory relief; (2) for violations of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”); (3) under 42 U.S.C. § 1983 for violations of the First Amendment
right to associate, the Fourteenth Amendment’s Due Process and Equal Protection Clauses, and
the Guarantee Clause of the United States Constitution; (4) for violations of 42 U.S.C. § 1985;
and (5) for violations of 42 U.S.C. § 1986.
Plaintiffs’ claims are primarily based upon their position that the Either or Both Provision
permits the URP to decide how its candidates can be nominated.25 In that vein, Plaintiffs contend
that the URP prohibits the signature-gathering method and mandates nominations of candidates
exclusively through the convention method.26 Thus, Plaintiffs maintain that Defendants were
engaged in a conspiracy to violate Plaintiffs’ constitutional rights by permitting “disqualified”
candidates who used the signature-gathering method to appear on the primary election ballot.27
Plaintiffs’ allegations against each group of Defendants are outlined below.
A. State Defendants
In Utah’s 2024 election, numerous candidates for Utah political positions sought
candidacy for office as members of the URP through both the convention method and the
signature-gathering method, including Governor Cox.28 In February and March 2024, Governor
Cox posted messages on a social media platform indicating that he and Lt. Governor Henderson
submitted enough signatures to qualify for the Republican primary election ballot.29 The URP
25 See generally id.; see also id. at ¶¶ 72, 91.
26 See generally id.; see also id. at ¶¶ 1-2.
27 See generally id.
28 Id. at ¶¶ 75, 77-78.
29 Id. at ¶¶ 82, 84.
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subsequently held its nominating convention in April 2024 and nominated certain individuals for
several Utah political offices, including Phil Lyman (“Mr. Lyman”) for Utah Governor.30
On May 1, 2024, Lt. Governor Henderson certified the list of candidates to appear on the
June primary election ballot.31 That list included candidates who obtained placement on the
primary election ballot using the signature-gathering method, including Governor Cox.32 In June
2024, Governor Cox defeated Mr. Lyman in the Republican primary election and became the
Republican nominee for Utah Governor.33 The following month, Lt. Governor Henderson
certified the general election ballot.34 The ballot included candidates, such as Governor Cox,
who won the Republican primary election after qualifying through the signature-gathering
method.35 Those ballots were mailed to voters in October 2024.36 In November 2024, Governor
Cox won the 2024 election for Utah Governor.37
B. Legislative Defendants
In 2014, Senator Bramble and Senator McCay sponsored SB54.38 The two senators
discussed SB54 during committee meetings and floor debates.39 Senator McCay sponsored
30 Id. at ¶¶ 85-89.
31 Id. at ¶ 98.
32 Id.
33 Id. at ¶¶ 117-19.
34 Id. at ¶ 127.
35 Id. at ¶¶ 127, 150.
36 Id. at ¶ 159.
37 Id. at ¶ 165.
38 Id. at ¶ 39.
39 Id. at ¶¶ 41, 43-44.
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House Bill 338 in 2018, which related to the nomination process for political parties.40 House
Bill 338 did not pass the Utah Legislature.41 Senator McCay sponsored Senate Bill 205
(“SB205”) in 2021, which proposed a class of political party that chooses a nominee by
convention only.42 In February 2021, Governor Cox held a meeting with, among other people,
Senator Bramble, Senator McCay, and Senator Adams to discuss SB205 (“Meeting”).43 SB205
did not pass the Utah Legislature.44
C. Chief Justice Durrant
On August 1, 2024, Mr. Lyman filed a petition for extraordinary writ with the Utah
Supreme Court contesting the 2024 primary election and challenging the application of Utah
Code Ann. § 20A-9-408, which is the Utah statute governing the signature-gathering process for
nomination.45 On August 13, 2024, Chief Justice Durrant issued an order denying Mr. Lyman’s
petition without holding a hearing or receiving a response from the defendants.46 After Governor
Cox and Lt. Governor Henderson won the 2024 general election, Chief Justice Durrant
administered the oath of office to both of them.47
40 Id. at ¶ 63.
41 Id.
42 Id. at ¶ 65.
43 Id. at ¶ 67.
44 Id. at ¶ 69.
45 Id. at ¶ 129.
46 Id. at ¶ 133
47 Id. at ¶ 166.
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D. URP Defendants
On August 21, 2024, Ms. Halvorsen sent a notice of intent to Mr. Axson as URP State
Central Committee Chair (“Notice of Intent”).48 The Notice of Intent indicated Ms. Halvorsen’s
intent to file suit against various URP officials unless they rejected candidates who qualified for
the primary ballot using the signature-gathering method and certified candidates who were
successful in the convention method.49 Mr. Axson later sent an email to the URP State Central
Committee members explaining that the URP was aware of the Notice of Intent and prepared to
defend itself against Ms. Halvorsen’s threatened lawsuit.50 Mr. Axson also stated that the Notice
of Intent contained “meritless” threats.51
On September 7, 2024, Ms. Halvorsen attended the URP State Central Committee
meeting (“Committee Meeting”) “to address the Committee regarding [the] Notice of Intent and
potential actions to ensure the proper nomination of candidates through the state convention.”52
Mr. Axson demanded that Ms. Halvorsen leave the meeting. When Ms. Halvorsen refused, Ms.
Coleman and Mr. Null attempted to escort her to the door but were unsuccessful in doing so.53 At
that point, Ms. Coleman called the police.54
48 Id. at ¶ 146.
49 Id.; see also ECF No. 5-10.
50 ECF No. 1 at ¶ 147; see also ECF No. 5-11.
51 ECF No. 1 at ¶ 147; see also ECF No. 5-11.
52 ECF No. 1 at ¶ 152.
53 Id. at ¶ 155.
54 Id. at ¶ 153.
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E. 	Mr. McKenzie
As County Clerk for Davis County, Mr. McKenzie is responsible for verifying signatures
on candidate petitions.55 In June and August 2024, Mr. McKenzie posted statements on a social
media platform about the integrity of the signature-verification process.56
L EGAL S TANDARDS
To resolve the motions addressed herein, the court applies the legal standards for a
motion to dismiss under Fed. R. Civ. P. 12(b)(6) and a motion for preliminary injunction under
Fed. R. Civ. P. 65. Each standard is set forth below.
I. 	Motion to Dismiss Under Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “‘enough
facts to state a claim to relief that is plausible on its face.’”57 “Rather than adjudging whether a
claim is ‘improbable,’ ‘[f]actual allegations [in a complaint] must be enough to raise a right to
relief above the speculative level.’”58 “[I]n examining a complaint under Rule 12(b)(6), [the
court] disregard[s] conclusory statements and look[s] only to whether the remaining, factual
allegations plausibly suggest the defendant is liable.”59 The analysis under Rule 12(b)(6) requires
the court to “accept as true the well[-]pleaded factual allegations” in the complaint and “view
them in the light most favorable to [the plaintiff], and draw all reasonable inferences from the
55 Id. at ¶ 12.
56 Id. at ¶¶ 112, 145.
57 Hogan v. Winder, 762 F.3d 1096, 1104 (10th Cir. 2014) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)).
58 Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting Twombly, 550 U.S. at 555-56)
(alterations in original).
59 Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012).
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facts in favor of [the plaintiff].”60 However, “‘the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions.’”61
Additionally, Fed. R. Civ. P. 8 is incorporated into the court’s Rule 12(b)(6) analysis.62
Rule 8 requires that a complaint contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” “A pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it
tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’”63 “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”64
II. 	Motion for Preliminary Injunction Under Rule 65
To be entitled to a preliminary injunction under Rule 65, the moving party must establish
the following four elements: “(1) a substantial likelihood of prevailing on the merits;
(2) irreparable harm unless the injunction is issued; (3) that the threatened injury outweighs the
harm that the preliminary injunction may cause the opposing party; and (4) that the injunction, if
issued, will not adversely affect the public interest.”65 “The likelihood-of-success and
irreparable-harm factors are the most critical in the analysis.”66 “Because a preliminary
60 Brooks v. Mentor Worldwide LLC, 985 F.3d 1272, 1281 (10th Cir. 2021).
61 Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1214 (10th Cir. 2011) (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009)).
62 United States ex rel. Lemmon v. Envirocare of Utah, Inc., 614 F.3d 1163, 1171 (10th Cir.
2010).
63 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557) (alteration in original).
64 Id.
65 Dine Citizens Against Ruining Our Env’t v. Jewell, 839 F.3d 1276, 1281 (10th Cir. 2016)
(citation modified).
66 Rocky Mountain Gun Owners v. Polis, 121 F.4th 96, 112 (10th Cir. 2024) (citation modified).
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injunction is an extraordinary remedy, the movant’s right to relief must be clear and
unequivocal.”67 “[P]reliminary injunctions that alter the status quo” are among the types of
“disfavored preliminary injunctions” for which a movant must “satisfy an even heavier burden of
showing that the four preliminary injunction factors weigh heavily and compellingly in movant’s
favor before such an injunction may be issued.”68
ANALYSIS
For the reasons explained below, the court recommends: (I) granting Defendants’ motions
to dismiss; and (II) denying Plaintiffs’ motion for preliminary injunction. Each issue is
considered in turn.
I. 	Defendants’ Motions to Dismiss Should Be Granted.
The court should grant the motions to dismiss filed by: (A) the State Defendants; (B) the
Legislative Defendants; (C) Chief Justice Durrant; (D) the URP Defendants; and (E) Mr.
McKenzie. The court addresses each motion in order.
A. The State Defendants’ Motion to Dismiss Should Be Granted.
The State Defendants’ motion to dismiss should be granted because Plaintiffs fail to state
claims against the State Defendants under: (1) section 1983; (2) section 1985; (3) section 1986;
(4) RICO; and (5) 28 U.S.C. § 2201 (i.e., declaratory relief). Each reason is addressed in turn.
1. 	Plaintiffs’ Fail to State Claims Against the State Defendants Under Section 1983.
Plaintiffs fail to state claims against the State Defendants under section 1983 because:
(a) the State Defendants’ application of the Either or Both Provision is constitutional; (b) the
67 Dine Citizens Against Ruining Our Env’t, 839 F.3d at 1281 (citation modified).
68 O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.
2004).
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State Defendants are entitled to legislative immunity from Plaintiffs’ section 1983 claims based
on the Meeting; (c) Plaintiffs’ claims against the State Defendants under the Guarantee Clause
are not justiciable; and (d) the State Defendants in their individual capacities are entitled to
qualified immunity from Plaintiffs’ section 1983 claims. The court discusses each issue below.
a. 	The State Defendants’ Application of the Either or Both Provision Is
Constitutional.
Plaintiffs fail to state section 1983 claims against the State Defendants for violations of
the First Amendment right to associate or the Fourteenth Amendment’s Due Process and Equal
Protection Clauses. Section 1983 imposes civil liability upon any person who, acting under color
of state law, deprives another of their federally protected rights.69 Section 1983 does not confer
any substantive rights but merely serves as a vehicle for vindicating rights secured by the United
States Constitution or federal statutes.70 To state a claim under section 1983, a plaintiff must
allege a deprivation of a federally protected right and that this deprivation was committed by a
person acting under color of state law.71
Plaintiffs’ section 1983 claims against the State Defendants are based on Plaintiffs’
allegation that the State Defendants’ application of the Either or Both Provision and Lt. Governor
Henderson’s corresponding certification of Republican candidates who qualified for Utah
primary elections using signature-gathering “manipulate[d] Utah’s election process” through
69 42 U.S.C. § 1983.
70 Maher v. Gagne, 448 U.S. 122, 129 n.11 (1980).
71 West v. Atkins, 487 U.S. 42, 48 (1988).
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certification of “disqualified candidates.”72 Plaintiffs’ claims fail under the analysis and holding
of URP.
The Tenth Circuit held in URP that the Either or Both Provision does not violate the First
Amendment right to associate.73 To reach that holding, the Tenth Circuit applied the
Anderson-Burdick balancing test because the Either or Both Provision is an electoral
regulation.74 Under that test, a court is first required to weigh the character and magnitude of the
asserted injury to the plaintiff’s constitutional rights against the state’s interests asserted as
justifications for the burden imposed by the regulation. Also, the court considers the extent to
which those interests made it necessary to burden the plaintiff’s rights.75 If the regulation
imposes severe burdens on a the plaintiff’s associational rights, it must be narrowly tailored to
serve a compelling state interest.76 If, on the other hand, the regulation imposes lesser burdens, a
state’s important regulatory interests will usually be enough justify the restrictions imposed by
the regulation.77
In URP, the plaintiff argued that the Either or Both Provision violated its associational
rights by requiring it to use a process for selecting candidates different from that which it would
prefer.78 Under the first part of the Anderson-Burdick test, the Tenth Circuit concluded that the
72 ECF No. 1 at ¶ 234.
73 892 F.3d at 1094-95.
74 Id. at 1077.
75 Id.
76 Id.
77 Id.
78 Id.
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Either or Both Provision does not severely burden the URP’s rights because it “does not regulate
the [URP]’s internal process” and does not “prevent[] the URP from endorsing the candidate of
its choice.”79 The court also concluded that the “case [was] not . . . about who the candidates are,
but rather who the deciders are” and that the Either or Both Provision “only . . . ensure[s] that all
the party members have some voice in deciding who their party’s representative will be in the
general election,” rather than having the “will of all the URP . . . truncated by an overly
restrictive and potentially unrepresentative nominating process.”80 Thus, the court concluded that
the Either or Both Provision “does not impose a severe burden on the URP by potentially
allowing the nomination of a candidate with whom the URP leadership disagrees.”81
In the second part of the Anderson-Burdick test, the court concluded that the Either or
Both Provision furthered the State of Utah’s important regulatory interests in managing elections
in a controlled manner, increasing voter participation, and increasing access to the ballot.82 The
court also concluded that “[t]hese state interests constitute the very backbone of our
constitutional scheme—the right of the people to cast a meaningful ballot.”83
When balancing the burden on the URP against the State of Utah’s interests, the court
concluded that the State of Utah “has a strong—even compelling—interest in ensuring that the
governed have an effective voice in the process of deciding who will govern them.”84 Ultimately,
79 Id. at 1080.
80 Id..
81 Id. at 1083.
82 Id. at 1083-84.
83 Id. at 1084.
84 Id. at 1085.
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the concluded that “the State interests in [the Either or Both Provision] surely predominate over
the minimal burdens imposed upon the URP.”85
In the end, the court concluded that the Either or Both Provision “allow[ed] the URP and
all other political associations and individuals across Utah to express their preferences and values
in a democratic fashion and to form associations as protected by the First Amendment to the
Constitution.”86 Thus, the court held that “the Either or Both Provision is a constitutional
exercise of the State’s regulatory authority” and that it goes to the “very essence” of the United
States Constitution.87
The Tenth Circuit’s analysis and holding in URP apply with equal weight to Plaintiffs’
claims. Applying that analysis under the Anderson-Burdick test to Plaintiffs’ claims, the State
Defendants have not severely burdened Plaintiffs’ rights. Further, the State Defendants’
application of the Either or Both Provision neither regulates URP’s internal workings nor
prevents Plaintiffs from endorsing the candidate of their choice. Additionally, the State
Defendants’ application of the Either or Both Provision advances the State of Utah’s important
interests identified in URP. Therefore, under the Tenth Circuit’s holding in URP, Plaintiffs fail to
state claims against the State Defendants under section 1983 for violations of the First
Amendment right to associate. Those claims should be dismissed with prejudice.
Plaintiffs’ section 1983 claims against the State Defendants for violations of the
Fourteenth Amendment’s Due Process and Equal Protection Clauses fare no better under the
85 Id.
86 Id. at 1094.
87 Id. at 1085, 1095.
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Anderson-Burdick test.88 Therefore, the analysis above applies to Plaintiffs’ claims for violations
of those clauses. Consequently, Plaintiffs fail to state claims against the State Defendants under
section 1983 for violations of the Fourteenth Amendment’s Due Process and Equal Protection
Clauses, and those claims should be dismissed with prejudice.89
b. 	The State Defendants Are Entitled to Legislative Immunity from Plaintiffs’
Section 1983 Claims Based on the Meeting.
Any of Plaintiffs’ section 1983 claims against the State Defendants connected to the
Meeting should be dismissed because the State Defendants are entitled to legislative immunity.
Legislative immunity applies to section 1983 claims seeking damages and declaratory or
injunctive relief.90 “[O]fficials outside the legislative branch,” such as “executive official[s],”
“are entitled to legislative immunity when they perform legislative functions.”91 “Whether an act
is legislative turns on the nature of the act, rather than on the motive or intent of the official
88 VoteAmerica v. Schwab, 121 F.4th 822, 840-41 (10th Cir. 2024).
89 Although the analysis and holding of URP, by themselves, provide sufficient bases on which
to dismiss Plaintiffs’ section 1983 claims against the State Defendants, the Utah Supreme Court’s
holding in Utah Republican Party v. Cox, 373 P.3d at 1287, provides additional support for
dismissing those claims. In that case, the Utah Supreme Court rejected Plaintiffs’ interpretation
of the Either or Both Provision. As stated above, Plaintiffs allege that the Either or Both
Provision permits the URP—not the members of the party—to choose nomination of candidates
by either the signature-gathering method or the convention method, or both. That interpretation is
in direct conflict with the Utah Supreme Court’s holding that the plain language of the Either or
Both Provision requires a political party to “permit its members to seek its nomination by
choosing to seek the nomination by either or both the convention and the signature process.” Id.
(emphasis added) (citation modified). The Utah Supreme Court’s interpretation of a Utah statute
should be followed by this court. Cf. Auwae v. Metro. Life Ins. Co., 441 F. Supp. 3d 1188, 1191
(D. Colo. 2020) (“In interpreting Colorado state statutes, federal courts are bound by the
interpretations of the Supreme Court of Colorado.” (citing Phelps v. Hamilton, 59 F.3d 1058,
1071 (10th Cir. 1995))).
90 Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998).
91 Id. at 55.
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performing it.”92 “[A]t its core, the legislative function involves determining, formulating, and
making policy.”93 “[D]iscretionary policy-making decisions” are “shielded by legislative
immunity.”94
As noted above, Plaintiffs allege that the Meeting included Governor Cox, Lt. Governor
Henderson, and others. Plaintiffs further allege SB205 was the topic of discussion at the
Meeting. Because the Meeting involved discussions about potential legislation, the Governor
Cox and Lt. Governor Henderson were engaging in a legislative function and, accordingly, are
entitled to legislative immunity. Therefore, any of Plaintiffs’ section 1983 claims related to the
Meeting should be dismissed with prejudice.
c. 	Plaintiffs’ Claims Against the State Defendants Under the Guarantee Clause
Are Not Justiciable.
Plaintiffs fail to state claims against the State Defendants under the Guarantee Clause
because those claims are not justiciable. Indeed, the United States Supreme Court “has several
times concluded . . . that the Guarantee Clause does not provide the basis for a justiciable
claim.”95 Claims under the Guarantee Clause are “political in character, and therefore not
cognizable by the judicial power, but solely committed by the Constitution to the judgment of
Congress.”96 Thus, Plaintiffs’ claims against the State Defendants under the Guarantee clause are
not justiciable and, therefore, should be dismissed with prejudice.
92 Id.
93 Kamplain v. Curry Cnty. Bd. of Comm’rs, 159 F.3d 1248, 1251 (10th Cir. 1998).
94 Burnett v. Fallin, 785 F. App’x 546, 553 (10th Cir. 2019).
95 Rucho v. Common Cause, 588 U.S. 684, 718 (2019).
96 Pac. States Tel. & Tel. Co. v. Oregon, 223 U.S. 118, 133 (1912).
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d. 	The State Defendants in Their Individual Capacities Are Entitled to Qualified
Immunity from Plaintiffs Section 1983 Claims.
Having raised the defense in their motion to dismiss, the State Defendants are entitled to
qualified immunity from Plaintiffs’ individual-capacity claims under section 1983. “Individual
defendants named in a § 1983 action may raise a defense of qualified immunity, which shields
public officials from damages actions unless their conduct was unreasonable in light of clearly
established law.”97 “Once an individual defendant asserts qualified immunity, the plaintiff carries
a two-part burden to show: (1) that the defendant’s actions violated a federal constitutional or
statutory right, and, if so, (2) that the right was clearly established at the time of the defendant’s
unlawful conduct.”98 “If the plaintiff fails to carry either part of [the] two-part burden, the
defendant is entitled to qualified immunity.”99
Although qualified immunity defenses are typically resolved at the
summary judgment stage, district courts may grant motions to
dismiss on the basis of qualified immunity. Asserting a qualified
immunity defense via a Rule 12(b)(6) motion, however, subjects the
defendant to a more challenging standard of review than would
apply on summary judgment.100
Plaintiffs fail to carry either part of their burden. First, as demonstrated above, they have
not plausibly alleged that the State Defendants committed any violations of Plaintiffs’ federally
97 Gutierrez v. Cobos, 841 F.3d 895, 899 (10th Cir. 2016) (citation modified).
98 Id. at 900 (citation modified).
99 Albright v. Rodriguez, 51 F.3d 1531, 1535 (10th Cir. 1995).
100 Thomas v. Kaven, 765 F.3d 1183, 1194 (10th Cir. 2014) (citation modified); see also Behrens
v. Pelletier, 516 U.S. 299, 309 (1996) (providing that when considering qualified immunity in
the context of a motion to dismiss, “it is the defendant’s conduct as alleged in the complaint that
is scrutinized for objective legal reasonableness” (citation modified) (emphasis in original)).
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protected rights. Second, even if Plaintiffs could show such a violation, they have not plausibly
alleged that any right was clearly established.
A clearly established right is one that is sufficiently clear that every
reasonable official would have understood that what he is doing
violates that right. [Courts] do not require a case directly on point,
but 	existing 	precedent 	must 	have 	placed 	the 	statutory 	or
constitutional 	question 	beyond 	debate. 	Put 	simply, 	qualified
immunity protects all but the plainly incompetent or those who
knowingly violate the law.101
Plaintiffs have not pointed to any existing and binding precedent that would have put the State
Defendants on notice that their conduct violated any of Plaintiffs’ federally protected rights. To
the contrary, as discussed above, the Tenth Circuit’s analysis and holding in URP demonstrate
that any authority is contrary to Plaintiffs’ position. Consequently, Plaintiffs have not carried
either part of their burden, which entitles the State Defendants to qualified immunity. Thus,
qualified immunity bars Plaintiffs’ individual-capacity claims under section, which requires
dismissal with prejudice.
2. 	Plaintiffs’ Fail to State Claims Against the State Defendants Under Section 1985.
Plaintiffs fail to state claims under section 1985 against the State Defendants because:
(a) Plaintiffs fail to include in their complaint the required allegations to state section 1985
claims; (b) Plaintiffs fail to plausibly allege a conspiracy to violate their federally protected
rights under section 1985; and (c) the State Defendants are entitled to qualified immunity from
Plaintiffs’ individual-capacity claims under section 1985. Each issue is discussed in order.
101 Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (per curiam) (citation modified).
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a. 	Plaintiffs’s Complaint Fails to State Section 1985 Claims.
Plaintiffs fail to make the required allegations to state claims under section 1985. Section
1985 “creates a cause of action against persons who conspire to deprive a person or class of
‘equal’ protection or ‘equal’ privileges and immunities.”102 To state a claim for violations of
section 1985, the plaintiff must include allegations of “class-based or racially discriminatory
animus. In the absence of allegations of class[-]based or racial discriminatory animus, the
complaint fails to state a claim under § 1985.”103 Additionally, “the plaintiff must be a member
of a statutorily protected class, and the actions taken by [the] defendant must stem from
plaintiff’s membership in the class.”104 As to protected classes, “the classes covered by § 1985
should not be extended beyond those already expressly provided by the [United States Supreme]
Court.”105
Plaintiffs fail to allege a class-based or racially discriminatory animus. Additionally,
Plaintiffs do not plausibly allege that they are a member of any protected class recognized under
section 1985. Indeed, Plaintiffs’ only allegation concerning membership in any class is that the
alleged conspiracy was directed toward “Utah citizens,”106 which is not a protected class for
102 Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir. 1994).
103 Id. (citation modified); see also Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) (stating that
a claim for violation of section 1985 must include an allegation of “some racial, or perhaps
otherwise class-based, invidiously discriminatory animus behind the conspirators’ action”).
104 Silkwood v. Kerr-McGee Corp., 637 F.2d 743, 746 (10th Cir. 1980).
105 Wilhelm v. Cont’l Title Co., 720 F.2d 1173, 1176 (10th Cir. 1983); see also Haverstick Enters.,
Inc. v. Fin. Fed. Credit, Inc., 32 F.3d 989, 994 (6th Cir. 1994) (providing that a protected class
under section 1985 “must possess the characteristics of a discrete and insular minority, such as
race, national origin, or gender”).
106 ECF No. 1 at ¶ 246.
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purposes of section 1985. Thus, Plaintiffs’ section 1985 claims against the State Defendants fail
and should be dismissed with prejudice.
b. 	Plaintiffs Fail to Allege a Conspiracy to Violate Their Federally Protected
Rights Under Section 1985.
Plaintiffs fail to allege a conspiracy to violate their federally protected rights under
section 1985 because they have failed to plausibly allege that any of those rights were violated.
To state a claim under section 1985, a plaintiff must allege, among other things, “the existence of
a conspiracy . . . resulting in an injury or deprivation of federally[ ]protected rights.”107 As
discussed above, Plaintiffs fail to state claims against the State Defendants for violations of any
federally protected right. For that additional reason, Plaintiffs’ section 1985 claims fail and
should be dismissed with prejudice.
c. 	The State Defendants in Their Individual Capacities Are Entitled to Qualified
Immunity from Plaintiffs’ Section 1985 Claims.
The State Defendants assert and are entitled to qualified immunity from Plaintiffs’
individual-capacity claims under section 1985. The Tenth Circuit has held that “defendants in
section 1985 actions are entitled to claim qualified immunity.”108 Under the standard for
qualified immunity set forth above, Plaintiffs again fail to carry their two-part burden. First, as
the court has demonstrated, the Plaintiffs have failed to plausibly allege that the State Defendants
violated any of Plaintiffs’ federally protected rights. Second, Plaintiffs fail to identify any
existing, binding precedent putting the State Defendants on notice that their conduct violated any
107 Murray v. City of Sapulpa, 45 F.3d 1417, 1423 (10th Cir. 1995).
108 Bisbee, 39 F.3d at 1102.
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of those rights. Therefore, the State Defendants are entitled to qualified immunity from Plaintiffs’
individual-capacity section 1985 claims, and those claims should be dismissed with prejudice.
3. 	Plaintiffs’ Fail to State Claims Against the State Defendants Under Section 1986.
Plaintiffs fail to state claims against the State Defendants under section 1986 because
Plaintiffs have not stated a valid claim under section 1985. “[T]here can be no valid claim under
§ 1986 of neglect to prevent a known conspiracy, in the absence of a conspiracy under
§ 1985.”109 Given the court’s conclusion that Plaintiffs fail to state claims against the State
Defendants under section 1985, it follows that Plaintiffs fail to state claims against the State
Defendants under section 1986. Therefore, Plaintiffs’ claims against the State Defendants under
section 1986 should be dismissed with prejudice.
4. 	Plaintiffs’ Fail to State Claims Against the State Defendants Under RICO.
Plaintiffs assert RICO claims against the State Defendants under 18 U.S.C. §§ 1962(b)
and (c). Section 1962(b) provides that it is “unlawful for any person through a pattern of
racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or
indirectly, any interest in or control of any enterprise which is engaged in, or the activities of
which affect, interstate or foreign commerce.” Section 1962(b) states that it is “unlawful for any
person employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the
conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of
unlawful debt.” The Tenth Circuit has stated that the elements of a RICO claim under either of
109 Santistevan v. Loveridge, 732 F.2d 116, 118 (10th Cir. 1984); see also Brown v. Reardon, 770
F.2d 896, 907 (10th Cir. 1985) (“The district court did not err in finding that the § 1986 claim is
dependent upon the existence of a valid claim under § 1985.”).
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those provisions are: “(1) investment in, control of, or conduct of (2) an enterprise (3) through a
pattern (4) of racketeering activity.”110 Plaintiffs also assert a RICO conspiracy claim under
section 1962(d), which provides that it is “unlawful for any person to conspire to violate any of
the provisions of” sections 1962(a), (b), or (c).
Plaintiffs’ RICO claims against the State Defendants fail because: (a) Plaintiffs have not
plausibly alleged racketeering activity under RICO; (b) Plaintiffs fail to plausibly allege a pattern
of racketeering activity under RICO; (c) Plaintiffs cannot state a RICO conspiracy claim without
an underlying RICO claim; and (d) Plaintiffs cannot state official-capacity RICO claims against
the State Defendants. The court addresses each issue in turn.
a. 	Plaintiffs Have Not Plausibly Alleged Racketeering Activity Under RICO.
Plaintiffs have not sufficiently alleged racketeering activity, which is defined as any of
certain state and federal criminal acts, including the acts Plaintiffs rely upon—namely, mail fraud
under 18 U.S.C. § 1341 and wire fraud under 18 U.S.C. § 1343.111 “These underlying acts are
referred to as predicate acts, because they form the basis for liability under RICO.”112
To establish the predicate act of mail fraud, [a plaintiff] must allege
(1) the existence of a scheme or artifice to defraud or obtain money
or property by false pretenses, representations[,] or promises, and
(2) use of the United States mails for the purpose of executing the
scheme. The elements of wire fraud are very similar, but require that
the 	defendant 	use 	interstate 	wire, 	radio[,] 	or 	television
communications in furtherance of the scheme to defraud.113
110 Tal v. Hogan, 453 F.3d 1244, 1261 (10th Cir. 2006) (citing 18 U.S.C. § 1962(a)-(c)).
111 18 U.S.C. § 1961(1).
112 Tal, 453 F.3d at 1261 (citation modified).
113 Id. at 1263 (citation modified).
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“The common thread among these crimes is the concept of fraud.”114 “The particularity
requirement of [Fed. R. Civ. P.] 9(b) . . . applies to claims of mail and wire fraud.”115 Therefore,
“a complaint alleging fraud must set forth the time, place[,] and contents of the false
representation, the identity of the party making the false statements[,] and the consequences
thereof.”116
With respect to mail fraud, Plaintiffs allege that the State Defendants committed that
predicate act by distributing “ballots containing false statements” through U.S. mail across state
lines.117 Plaintiffs allege that the “false statements” on the ballots were the listing on the ballots
of “unlawfully included candidates” who used signature-gathering to qualify for primary
elections.118 As for wire fraud, Plaintiffs allege that the State Defendants committed that
predicate act through social media posts and emails that included false statements about the
legitimacy of certain candidates who used the same signature-gathering process.119
Plaintiffs’ allegations of false statements made by the State Defendants are all grounded
in Plaintiffs’ overarching theory that the Either or Both Provision is unconstitutional. As
discussed above, that position was squarely rejected by the Tenth Circuit in URS. Accordingly,
Plaintiffs allegations do not demonstrate that the State Defendants made any false statements,
114 Id. (citation modified).
115 Id.
116 Id. (citation modified).
117 ECF No. 1 at ¶ 159.
118 Id.
119 Id. at ¶¶ 82, 84, 94-95, 97, 102, 105, 107-09, 111, 113, 115-16, 117, 119, 121-27, 130, 137-38,
141, 151, 163-64, 166-67
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and, therefore, Plaintiffs fail to plausibly allege that the State Defendants committed any
fraud.120 Consequently, Plaintiffs cannot satisfy the elements for the predicate acts of mail fraud
or wire fraud against the State Defendants. Thus, Plaintiffs have not sufficiently alleged
racketeering activity, which means that their RICO claims against the State Defendants fail and
should be dismissed with prejudice.
b. 	Plaintiffs Fail to Plausibly Allege a Pattern of Racketeering Activity Under
RICO.
Plaintiffs also fail to plausibly allege a pattern of racketeering activity under RICO. “To
satisfy RICO’s pattern requirement, a plaintiff must allege not only that the defendants had
committed two or more predicate acts, but also that the predicates themselves amount to, or that
they otherwise constitute a threat of, continuing racketeering activity.”121 As shown above,
Plaintiffs fail to sufficiently allege that the State Defendants committed the predicate acts of mail
fraud or wire fraud. Therefore, they likewise fail to plausibly allege a pattern of racketeering
activity.122 For that alternative reason, Plaintiffs’ RICO claims against the State Defendants fail
and should be dismissed with prejudice.
120 Additionally, given URS, Plaintiffs cannot and have not alleged any facts establishing an
intent to defraud, which is an element of both mail fraud and wire fraud. See, e.g., United States
v. Camick, 796 F.3d 1206, 1214 (10th Cir. 2015) (stating that specific intent to defraud is an
element of mail fraud); United States v. Zar, 790 F.3d 1036, 1049-50 (10th Cir. 2015) (stating
that specific intent to defraud is an element of wire fraud).
121 Bixler v. Foster, 596 F.3d 751, 761 (10th Cir. 2010) (citation modified).
122 Gaddy v. Corp. of President of Church of Jesus Christ of Latter-Day Saints, 665 F. Supp. 3d
1263, 1297 (D. Utah 2023) (“Because [the plaintiffs] fail to allege even a single predicate act of
mail or wire fraud, the court agrees with the [the defendant] that [the plaintiffs] have failed to
allege a ‘pattern’ of predicate acts sufficient to plead a cognizable civil RICO claim.”), aff’d sub
nom. Gaddy v. Corp. of the President of the Church of Jesus Christ of Latter-Day Saints, 148
F.4th 1202 (10th Cir. 2025).
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c. 	Plaintiffs Cannot State a RICO Conspiracy Claim Without an Underlying
RICO Claim.
Because Plaintiffs’ underlying RICO claims against the State Defendants fail, they cannot
state a claim for a RICO conspiracy against the State Defendants. “If a plaintiff has no viable
claim under § 1962(a), (b), or (c), then its subsection (d) conspiracy claim fails as a matter of
law.”123 Thus, Plaintiffs’ RICO conspiracy claim against the State Defendants fails and should be
dismissed with prejudice.
d. 	Plaintiffs Cannot State Official-Capacity RICO Claims Against the State
Defendants.
Plaintiffs cannot state RICO claims against the State Defendants in their official
capacities. “Because the real party in interest in an official-capacity suit is the governmental
entity and not the named official, [a plaintiff’s] RICO claims against [state officials] in their
official capacities are effectively RICO claims against the [state].”124 RICO claims against a state
are not viable because “government entities are incapable of forming the malicious intent
necessary to support a RICO action.”125 Accordingly, Plaintiffs fail to state official-capacity
RICO claims against the State Defendants, and those claims should be dismissed with prejudice.
123 Tal, 453 F.3d at 1270.
124 BEG Invs., LLC v. Alberti, 85 F. Supp. 3d 13, 27 (D.D.C. 2015).
125 Pedrina v. Chun, 97 F.3d 1296, 1300 (9th Cir. 1996) (citation modified); see also Ruggles v.
Ige, No. CV 16-00304 LEK-KJM, 2017 WL 427498, at *5 (D. Haw. Jan. 31, 2017) (concluding
that a state “is not capable of forming the intent necessary to support a RICO claim,” and,
therefore, the plaintiff’s RICO claims against the state defendants in their official capacities “fail
as a matter of law”).
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5. 	Plaintiffs’ Fail to State Claims Against the State Defendants for Declaratory
Relief.
Plaintiffs assert two claims for declaratory relief against the State Defendants. First,
Plaintiffs seek a declaration that the State Defendants’ alleged withholding of election records
violates the Utah Government Records Access and Management Act (“GRAMA”). Second,
Plaintiffs seek a declaration that an Interlocal Cooperation Agreement signed by the Director of
Elections for Lt. Governor Henderson violates Utah law. Each of those claims fails.
Plaintiffs’ first claim for declaratory relief fails for two reasons. First, Plaintiffs are
seeking a declaration that the State Defendants’ alleged withholding of records violates Utah law.
Because the ground for Plaintiffs’ claim is an “implication of denied records . . . based on
GRAMA, this does not provide a basis for a federal cause of action.”126 Second, Plaintiffs do not
allege that they filed a GRAMA request for the records in question, and they cannot bring a
claim based on another person’s records request.127 Therefore, Plaintiff’s first claim for
declaratory relief against the State Defendants fails and should be dismissed with prejudice.
Plaintiffs’ next claim for declaratory relief likewise fails because they seek a declaration
that the Interlocal Cooperation Agreement referenced above violates state law, which, again,
does not provide a basis for a federal cause of action.128 Further, Utah law specifically allows an
126 Herrera v. Hadfield, No. 1:21-CV-95 RJS, 2022 WL 2953725, at *4 (D. Utah July 26, 2022)
(citation modified).
127 Cf. Sw. Env’t Ctr. v. Sessions, 355 F. Supp. 3d 1121, 1135 (D.N.M. 2018) (“Parties establish
standing under [the Freedom of Information Act] by showing that they sought and were denied
specific agency records.”)
128 Cf. Herrera, 2022 WL 2953725, at *4.
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election officer to enter into a contract or interlocal agreement to conduct an election.129
Accordingly, Plaintiff’s second claim for declaratory relief against the State Defendants also fails
and should be dismissed with prejudice.
B. The Legislative Defendants’ Motion to Dismiss Should Be Granted.
The court should grant the Legislative Defendants’ motion to dismiss because: (1) they
are entitled to absolute legislative immunity from Plaintiffs’ claims; and (2) the court cannot
grant Plaintiffs’ requested relief against the Legislative Defendants. The court addresses each
reason in order.
1. 	The Legislative Defendants Are Entitled to Absolute Legislative Immunity.
Absolute legislative immunity shields the Legislative Defendants. “Legislators are
immune from deterrents to the uninhibited discharge of their legislative duty . . . .”130 Legislative
immunity applies to legislators’ actions taken “in the sphere of legitimate legislative activity.”131
“[A]bsolute legislative immunity applies to claims for declaratory and injunctive relief, as well
as claims for damages.”132 Legislative immunity exists because “the exercise of legislative
discretion should not be inhibited by judicial interference or distorted by the fear of personal
liability.”133 In discussing legislative immunity, the United States Supreme Court has
129 Utah Code Ann. § 20A-5-400.1(1)(a).
130 Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
131 Id. at 376.
132 Hagan v. Quinn, 838 F. Supp. 2d 805, 811 (C.D. Ill. 2012) (citing Sup. Ct. of Va. v. Consumers
Union of the U.S., Inc., 446 U.S. 719, 732-33; Risser v. Thompson, 930 F.2d 549, 551 (7th
Cir.1991)).
133 Bogan, 523 U.S. at 52.
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“emphasized that any restriction on a legislator’s freedom undermines the ‘public good’ by
interfering with the rights of the people to representation in the democratic process.”134
All of Plaintiffs’ allegations against the Legislative Defendants that are relevant to
Plaintiffs’ claims involve legitimate legislative activities. Indeed, Plaintiffs allege that the
Legislative Defendants sponsored certain legislation that either was or was not enacted,135
discussed proposed legislation in committee meetings and floor debates,136 participated in the
Meeting,137 and failed to investigate alleged fraud or pursue impeachment proceedings.138 All of
that conduct is within the sphere of legitimate legislative activity. Thus, the Legislative
Defendants are entitled to absolute legislative immunity from Plaintiffs’ claims, and those claims
should be dismissed with prejudice.
2. 	The Court Cannot Grant Plaintiffs’ Requested Relief Against the Legislative
Defendants.
Even if the Legislative Defendants were not entitled to absolute legislative immunity, the
court cannot grant Plaintiffs’ requests for relief against the Legislative Defendants. Plaintiffs
request an injunction preventing the Legislative Defendants from “defeating legislation to restore
convention-only nominations.”139 The court does not have the authority to provide Plaintiffs with
134 Spallone v. United States, 493 U.S. 265, 279 (1990).
135 ECF No. 1 at ¶¶ 39, 58, 63, 65.
136 Id. at ¶¶ 41, 43-44,
137 Id. at ¶ 67.
138 Id. at ¶¶ 15-16, 204, 234, 256.
139 ECF No. 1 at ¶¶ 284, 291.
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that requested relief under well-established principles of separation of powers.140 For that
additional reason, Plaintiffs’ claims against the Legislative Defendants should be dismissed with
prejudice.141
C. Chief Justice Durrant’s Motion to Dismiss Should Be Granted.
Chief Justice Durrant’s motion to dismiss should be granted because: (1) he is entitled to
absolute judicial immunity from Plaintiffs’ claims; (2) Plaintiffs fail to state claims against him
under RICO; (3) any claims for injunctive relief against him are barred; and (4) Plaintiffs cannot
state claims against him for alleged violations of Utah criminal statutes. Each ground for
dismissal is addressed in turn.
1. 	Chief Justice Durrant Is Entitled to Absolute Judicial Immunity.
Absolute judicial immunity shields Chief Justice Durrant from Plaintiffs’ claims against
him. “Under the common law, judges are absolutely immune from suit on any claim based on the
conduct of their office, including allegations that a decision is erroneous, malicious, or in excess
of their judicial authority.”142 This immunity ensures “that a judicial officer, in exercising the
authority vested in him, shall be free to act upon his own convictions, without apprehension of
140 See, e.g., San Francisco NAACP v. San Francisco Unified Sch. Dist., 484 F. Supp. 657, 665
(N.D. Cal. 1979) (“[U]nder the doctrine of separation of powers[,] courts may not order the
[l]egislature or its members to enact or not to enact . . . specific legislation.”); City of Toledo v.
State, 110 N.E.3d 1257, 1259 (Ohio 2018) (“[T]he separation-of-powers doctrine precludes
courts from enjoining [a legislative body] from exercising its legislative power to enact laws.”);
State v. Sopher, 71 P. 482, 485 (Utah 1903) (stating that courts “may not usurp the functions of
the lawmaking power by assuming to interfere with or control the legislative discretion”).
141 Huck v. United States, No. 2:21-CV-11-TC, 2022 WL 2905663, at *4 (D. Utah July 22, 2022)
(citing numerous cases for the proposition under the doctrine of standing that “the court cannot
redress the injury if it does not have authority to provide the requested relief”).
142 Christensen v. Ward, 916 F.2d 1462, 1473 (10th Cir. 1990); see also Mireles v. Waco, 502
U.S. 9, 9-12 (1991) (per curiam).
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personal consequences to himself.”143 “[J]udicial immunity is not overcome by allegations of
bad faith or malice . . . .”144 “Only accusations that a judge was not acting in his judicial capacity
or that he acted in the complete absence of all jurisdiction can overcome absolute immunity.”145
Plaintiffs’ first claim against Chief Justice Durrant involves the order denying Mr.
Lyman’s petition for extraordinary writ. Chief Justice Durrant’s issuance of that order was a
quintessential judicial act,146 and the Utah Supreme Court had jurisdiction over the writ.147
Plaintiffs’ second claim against Chief Justice Durrant involves his administration of an oath of
office to certain individuals. That was likewise a judicial act within Chief Justice Durrant’s
jurisdiction.148 Therefore, Chief Justice Durrant is entitled to absolute judicial immunity from
Plaintiffs’ claims, and those claims should be dismissed with prejudice.
143 Mireles, 502 U.S. at 10 (citation modified).
144 Id. at 11.
145 Guttman v. Khalsa, 446 F.3d 1027, 1034 (10th Cir. 2006).
146 Plaintiffs argue that this act was nonjudicial based on their belief that it was “a one-justice
order.” ECF No. 102 at 6. That position is directly contradicted by the order, which is attached as
an exhibit to Plaintiffs’ complaint. ECF No. 5-7. The first page of the order states that “Mr.
Lyman’s petition for extraordinary relief was referred to the full court for consideration.” Id. at 2
of 7. Further, the order uses first-person, plural pronouns throughout, indicating that it was not
only Chief Justice Durrant who considered Mr. Lyman’s petition. Additionally, although Chief
Justice Durrant signed the order, it indicates that he did so “FOR THE COURT.” Id. at 6 of 7.
Finally, the order was issued per curiam, which, even according to Plaintiffs, “reflects the
collective judgment of the court.” ECF No. 102 at 7.
147 Utah Const. art. VIII, § 3 (“The Supreme Court shall have original jurisdiction to issue all
extraordinary writs . . . .”); Utah Code Ann. § 78A-3-102 (“The Supreme Court has original
jurisdiction to issue all extraordinary writs . . . .”).
148 Utah Const. art. IV, § 10 (providing that “[a]ll officers made elective or appointive by this
Constitution or by the laws made in pursuance thereof, before entering upon the duties of their
respective offices” must take and subscribe to an oath); Utah Code Ann. § 78B-1-142
(“Every . . . justice . . . has the power to administer oaths or affirmations.”).
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2. 	Plaintiffs Fail to State Claims Against Chief Justice Durrant Under RICO.
Even if Chief Justice Durrant were not entitled to absolute judicial immunity from
Plaintiffs’ claims against him, Plaintiffs fail to state RICO claims against him for two reasons.
First, as discussed above in reference to Plaintiffs’ RICO claims against the State Defendants,
Plaintiffs’ RICO claims fail because they have not plausibly alleged racketeering activity or a
pattern of racketeering activity. And, as previously established, Plaintiffs cannot state a RICO
conspiracy claim without an underlying RICO claim.149 That warrants dismissal by itself.
Second, if another reason were necessary, Plaintiffs’ allegations fail to satisfy other
elements for underlying RICO claims. Importantly, Plaintiffs’ claims against Chief Justice
Durrant fail to include any plausible allegations that he had “any interest in or control of” the
alleged enterprise, as required by 18 U.S.C. § 1962(b).150 Similarly, Plaintiffs fail to include any
plausible allegations that Chief Justice Durrant “conduct[ed] or participate[d], directly or
indirectly, in the conduct of” the alleged enterprise, as required by 18 U.S.C. § 1962(c).151
Indeed, Plaintiffs’ only allegations against Chief Justice Durrant involve the order he issued on
Mr. Lyman’s petition for extraordinary writ and his administration of an oath of office to
Governor Cox and Lt. Governor Henderson. Neither of those allegations plausibly suggest that
149 Tal, 453 F.3d at 1270.
150 Id. at 1268-69 (“‘Interest in or control of’ requires more than a general interest in the results
of [the enterprise’s] actions, or the ability to influence the enterprise through deceit. Rather, it
requires some ownership of the enterprise or an ability to exercise dominion over it.” (citation
modified)).
151 BancOklahoma Mortg. Corp. v. Cap. Title Co., 194 F.3d 1089, 1100 (10th Cir. 1999) (“For
liability to be imposed under [18 U.S.C. § 1962(c)], the defendants must have participated in the
operation or management of the RICO enterprise.”).
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Chief Justice Durrant violated either section 1962(b) or (c). In sum, Plaintiffs’ fail to state any
RICO claims against Chief Justice Durrant, and those claims should be dismissed with prejudice.
3. 	Plaintiffs’ Claims for Injunctive Relief Against Chief Justice Durrant Are Barred.
Plaintiffs’ claims for injunctive relief against Chief Justice Durrant are barred by a
provision of section 1983, which states that “in any action brought against a judicial officer for
an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted
unless a declaratory decree was violated or declaratory relief was unavailable.” Plaintiffs’
complaint nowhere alleges that any of Chief Justice Durrant’s actions violated a declaratory
decree or that declaratory relief was unavailable in this case. Therefore, Plaintiffs’ claims for
injunctive relief against Chief Justice Durrant are barred and should be dismissed with prejudice.
4. 	Plaintiffs Cannot State Claims Against Chief Justice Durrant for Alleged
Violations of Utah Criminal Statutes.
Plaintiffs’ claims against Chief Justice Durrant for violations of Utah Code Ann.
§§ 76-8-201 and 76-8-504—both of which are criminal statutes—fail because those provisions
are enforceable only by the State of Utah and do not provide a private right of action. As private
individuals, Plaintiffs do “not have standing to demand the criminal prosecution of another
individual, let alone standing to prosecute the individual [themselves].”152 Accordingly,
Plaintiffs’ claims against Chief Justice Durrant for violations of those criminal statutes fail and
should be dismissed with prejudice.153
152 Davit v. Davit, 173 F. App’x 515, 518 (7th Cir. 2006).
153 For the first time in their opposition to Chief Justice Durrant’s motion to dismiss, Plaintiffs
argue that the violations of the criminal statutes in question are predicate acts supporting
Plaintiffs’ RICO claim. The court declines to consider that argument because it was raised for the
first time in Plaintiffs’ opposition. Hayes v. Whitman, 264 F.3d 1017, 1025 (10th Cir. 2001)
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D. The URP Defendants’ Motion to Dismiss Should Be Granted.
The court should grant the URP Defendants’ motion to dismiss because Plaintiffs fail to
state claims against the URP Defendants under: (1) section 1983; (2) sections 1985 and 1986;
and (3) RICO. Each is addressed in order below.
1. 	Plaintiffs Fail to State Claims Against the URP Defendants Under Section 1983.
Plaintiffs section 1983 claims against the URP Defendants fail because: (a) Plaintiffs fail
to plausibly allege that the URP Defendants violated Plaintiffs’ federally protected rights through
Mr. Axson’s response to the Notice of Intent; (b) Plaintiffs fail to plausibly allege that the URP
Defendants violated Plaintiffs’ federally protected rights by attempting to exclude Ms. Halvorsen
from the Committee Meeting; and (c) the URP Defendants were not state actors. The court
discusses each issue in turn.
(“While it might be appropriate for a court to consider additional facts or legal theories asserted
in a response brief to a motion to dismiss if they were consistent with the facts and theories
advanced in the complaint, a court may not consider allegations or theories that are inconsistent
with those pleaded in the complaint.” (citation modified)); Johnson v. Genworth Fin. Home
Equity, Inc., No. 11-CV-00366 MCA/WDS, 2012 WL 13081651, at *4 (D.N.M. Mar. 19, 2012)
(“In her response, Plaintiff has introduced new theories of wrongdoing that are not fairly
encompassed by the allegations of her complaint. It is axiomatic that the complaint may not be
amended by the briefs in opposition to a motion to dismiss.” (citation modified)). Nevertheless,
even if the court were to consider both Utah Code Ann. §§ 76-8-201 and 76-8-504 as a predicate
offense for RICO purposes, Plaintiffs fail to state a claim because the factual allegations in
support of these purported offenses relate to Chief Justice Durrant’s signing the order dismissing
Phil Lyman’s election contest. As shown above, Chief Justice Durrant is entitled to absolute
judicial immunity for the Utah Supreme Court’s collective handling of Mr. Lyman’s election
challenge and, therefore, cannot serve as “racketeering” under RICO. Thomas v. Wilkins, 61 F.
Supp. 3d 13, 18-19 (D.D.C. 2014) (holding judge immune from RICO claims under absolute
judicial immunity).
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a. 	Plaintiffs Fail to Plausibly Allege That the URP Defendants Violated
Plaintiffs’ Federally Protected When Mr. Axson Responded to the Notice of
Intent.
Plaintiffs fail to state a section 1983 claim based upon Mr. Axson’s response to the Notice
of Intent because they do not plausibly allege that Mr. Axson violated any of their federally
protected rights. Plaintiffs claim that Mr. Axson violated their federally protected rights when,
acting under color of state law, he responded to the Notice of Intent because he “suppressed
dissent by dismissing fraud claims”154 and “suppress[ed] delegate rights.”155 However, other than
general citations to the First Amendment, the Fourteenth Amendment, and the Guarantee Clause,
Plaintiffs fail to identify the specific federally protected right that Mr. Axson violated. To the
extent that Plaintiffs claim that Mr. Axson violated Plaintiffs’ First Amendment rights through his
response to the Notice of Intent, that claim fails. Although Ms. Halvorsen had a First Amendment
right to send the Notice of Intent, she did not have a federally protected right to have her views in
the Notice of Intent heard or met with approval.156 Accordingly, Plaintiffs fail to state a section
1983 claim against the URP Defendants based upon Mr. Axson’s response to the Notice of Intent.
Therefore, that claim should be dismissed with prejudice.
b. 	Plaintiffs Fail to Plausibly Allege That the URP Defendants Violated
Plaintiffs’ Federally Protected Rights by Attempting to Exclude Ms. Halvorsen
From the Committee Meeting.
Plaintiffs fail to state section 1983 claims based upon the URP Defendants alleged
attempts to exclude Ms. Halvorsen from the Committee Meeting because: (i) Plaintiffs fail to
154 ECF No. 1 at ¶ 206.
155 Id. at ¶ 235.
156 See, e.g., Minnesota State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283 (1984) (stating
that individuals “have no constitutional right to force the government to listen to their views”).
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identify a federally protected right that the URP Defendants violated; and (ii) Plaintiffs’ cited
authority fails to show that Ms. Halvorsen had a right to attend the Committee Meeting. Each
issue is discussed below.
i. 	Plaintiffs Fail to Identify a Federally Protected Right That the URP
Defendants Violated.
Plaintiffs fail to plausibly allege that the URP Defendants violated any of Plaintiffs’
federally protected rights by attempting to exclude Ms. Halvorsen from the Committee Meeting.
Although not entirely clear, Plaintiffs appear to claim that Ms. Halvorsen had a right to attend
and speak at the Committee Meeting. However, the court is unable to find—and Plaintiffs have
not cited—any authority for the proposition that Ms. Halvorsen had a federally protected right to
do so. To the contrary, “the First Amendment does not guarantee the right to communicate one’s
views at all times and places or in any manner that may be desired.”157 Additionally, the United
States Supreme Court has stated that even “public bodies may confine their meetings to specified
subject matter and may hold nonpublic sessions to transact business.”158 Thus, a private body
like a political party has neither a constitutional obligation to open its meetings to the public nor
an obligation to allow Ms. Halvorsen to speak at its meetings. Because Ms. Halvorsen did not
have a federally protected right to attend or speak at the Committee Meeting, Plaintiffs’ section
1983 claim based on the URP Defendants’ alleged attempts to exclude her from the Committee
Meeting should be dismissed with prejudice.
157 Heffron v. Int’l Soc. for Krishna Consciousness, Inc., 452 U.S. 640, 647 (1981).
158 City of Madison, Joint Sch. Dist. No. 8 v. Wisconsin Emp. Rels. Comm’n, 429 U.S. 167, 176
n.8 (1976).
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ii. 	Plaintiffs’ Cited Authority Fails to Show That Ms. Halvorsen Had a
Right to Attend the Committee Meeting.
The authorities Plaintiffs cite to show that Ms. Halvorsen had a right to attend the
Committee Meeting do not support that proposition. First, Plaintiffs first cite Section 3.0.E.13 of
the URP Bylaws, which, according to Plaintiffs, states: “Public Access: The state party shall not
provide electronic access or allow electronic participation for non-[State Central Committee]
members.”159 Plaintiffs fail to demonstrate how that inapposite citation supports their claim.
Second, Plaintiffs rely upon Roberts Rules of Order, which are incorporated into the URP
Bylaws.160 The relevant portions of those rules provide:
• 	“A society has the right to determine who may be present at its meetings and
to control its hall while meetings are in progress . . . .”161
• 	“Nonmembers . . . can be excluded at any time from part or all of a meeting of
a society, or from all of its meetings.”162
• 	“Any nonmembers allowed in the hall during a meeting, as guests of the
organization, have no rights with reference to the proceedings . . . . An
assembly has the right to protect itself from annoyance by nonmembers, and
its full authority in this regard—as distinguished from cases involving
disorderly members—can be exercised by the chair acting alone. The chair
has the power to require nonmembers to leave the hall, or to order their
159 ECF No. 1 at ¶ 153 n. 89; ECF No. 3-13 at 8 of 29.
160 ECF No. 1 at ¶ 153 n.90; ECF No. 3-13 at 26 of 29.
161 ECF No. 87-1 at 6 of 8.
162 Id.
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removal, at any time during the meeting; and the nonmembers have no right of
appeal from such an order of the presiding officer.”163
• 	“If a person . . . refuses to obey the order of proper authority to leave the hall
during a meeting, the chair should take necessary measures to see that the
order is enforced, but should be guided by a judicious appraisal of the
situation. The chair can appoint a committee to escort the offender to the
door . . . . If those who are assigned that task are unable to persuade the
offender to leave, it is usually preferable that he be removed by police . . . .”164
Despite Plaintiffs’ citation to Roberts Rules of Order to support their claim, those rules
undermine the claim because, according to Plaintiffs’ own allegations, the URP Defendants did
precisely what those rules require when Ms. Halvorsen attempted to attend the Committee
Meeting. For purposes of the rules, Ms. Halvorsen was a nonmember because she was not a
member of the Committee. Thus, Mr. Axson, as Chair of the Committee, had authority to require
Ms. Halvorsen to leave the Committee Meeting. When the individuals Mr. Axson appointed to
escort Ms. Halvorsen to the door (i.e., Ms. Coleman and Mr. Null)165 were unsuccessful in doing
so, Ms. Coleman called the police.166 Because those actions are exactly what is required under
Roberts Rules of Order, Plaintiffs’ reliance on those rules is entirely misplaced.
163 Id. at 7 of 8.
164 Id.
165 ECF No. 1 at ¶ 155.
166 Id. at ¶ 153.
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Finally, Plaintiffs’ citation to Utah Code Ann. § 20A-1-501 also fails to support their
claim. Indeed, that provision says nothing about State Central Committee meetings much less
provide a viable cause of action. In sum, Plaintiffs’ cited authority fails to show that Ms.
Halvorsen had a right to attend the Committee Meeting. For that alternative reason, Plaintiffs’
section 1983 claim based on the URP Defendants’ alleged attempts to exclude Ms. Halvorsen
from the Committee Meeting should be dismissed with prejudice.
c. 	The URP Defendants Were Not State Actors.
Even if Plaintiffs had plausibly alleged that the URP Defendants violated Plaintiffs’
federally protected rights by attempting to exclude Ms. Halvorsen from the Committee Meeting,
Plaintiffs’ section 1983 claim would still fail because the URP Defendants were not state actors.
The Tenth Circuit has adopted four tests for determining whether a person is a state actor of
purposes of section 1983.167 Under any of the four tests, “the conduct allegedly causing the
deprivation of a federal right must be fairly attributable to the State.”168
All of Plaintiffs’ allegations concerning the URP Defendants describe events that
transpired at the Committee Meeting, which was a private meeting. Thus, the URP Defendants’
actions are not “fairly attributable to the State.”169 For that additional reason, Plaintiffs’ section
1983 claim based on the URP Defendants’ alleged attempts to exclude Ms. Halvorsen from the
Committee Meeting should be dismissed with prejudice.
167 Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1447 (10th Cir. 1995).
168 Id. (citation modified).
169 Id. (citation modified).
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2. 	Plaintiffs Fail to State Claims Against the URP Defendants Under Sections 1985
and 1986.
In their motion to dismiss, the URP Defendants incorporate all the State Defendants’
arguments concerning Plaintiffs’ section 1985 and 1986 claims, with the exception of the State
Defendants’ arguments about qualified immunity. Thus, for the same reasons the court relied
upon to recommend granting the State Defendants’ motion to dismiss Plaintiffs’ claims under
sections 1985 and 1986—except for qualified immunity—the court should dismiss Plaintiffs’
claims against the URP Defendants under sections 1985 and 1986.170
3. 	Plaintiffs Fail to State Claims Against the URP Defendants Under RICO.
For several of the same reasons the court discussed above when addressing the State
Defendants’ motion to dismiss and Chief Justice Durrant’s motion to dismiss—that Plaintiffs
have not plausibly alleged racketeering activity or a pattern of racketeering activity—Plaintiffs
fail to state RICO claims against the URP Defendants. Further, without an underlying RICO
claim against the URP Defendants, Plaintiffs cannot state a RICO conspiracy claim against the
URP Defendants.171
Although those are sufficient bases to dismiss Plaintiffs’ RICO claims, the URP
Defendants provide an additional reason why those claims fail—namely, that Plaintiffs fail to
170 In their motion to dismiss, the URP Defendants request an award of attorney fees against
Plaintiffs under 42 U.S.C. § 1988, which “authorizes a district court to award attorney’s fees to a
defendant upon a finding that the plaintiff’s action was frivolous, unreasonable, or without
foundation.” Fox v. Vice, 563 U.S. 826, 833 (2011) (citation modified). Because Judge Nielson
will be making the final determination on the URP Defendants’ motion to dismiss, this court
declines to reach the issue of an attorney fee award to the URP Defendants under section 1988 at
this time. The URP Defendants may move for such an award, if appropriate, after Judge Nielson
enters a final ruling on their motion to dismiss.
171 Tal, 453 F.3d at 1270.
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adequately allege one of the elements for establishing the predicate acts of mail fraud and wire
fraud. Specifically, Plaintiffs fail to plausibly allege “the existence of a scheme or artifice to
defraud or obtain money or property by false pretenses, representations or promises.”172 With
respect to that element, the United States Supreme Court recently explained:
The money-or-property requirement lies at the heart of this dispute.
Although the lower courts once interpreted the phrase “money or
property” as something of a catchall, we recently reiterated that the
federal fraud statutes reach traditional property interests. Schemes
that target the exercise of the Government’s regulatory power, for
example, do not count. Nor do schemes that seek to deprive another
of intangible interests unconnected to property. And in all cases,
because money or property must be an object of the defendant’s
fraud, the traditional property interest at issue must play more than
some bit part in a scheme. Obtaining the victim’s money or property
must have been the aim, not an incidental byproduct, of the
defendant’s fraud.173
Plaintiffs do not allege in their complaint that the aim of the alleged RICO enterprise was
to obtain money or property. Although Plaintiffs reference “financial losses” for “delegate time,”
“convention participation,” “campaign donations,” and “time spent battling legislative policies
via initiatives and a blog,”174 their central allegation is that the object of the alleged fraud was to
“control the URP nominating process”175 and “manipulate Utah’s election laws,” thereby
“nullif[ying] the [URP]’s 2024 convention results.”176 Because Plaintiffs’ complaint makes clear
that the aim of the alleged fraudulent scheme was not to obtain money or property, Plaintiffs fail
172 Id. at 1263 (emphasis added) (citation modified); see also 18 U.S.C. §§ 1341, 1343.
173 Kousisis v. United States, 605 U.S. 114, 121-22 (2025) (citation modified).
174 ECF No. 1 at ¶ 211.
175 Id. at ¶ 199
176 Id. at ¶ 229.
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to establish that requirement of the predicate acts of mail fraud and wire fraud. For that reason,
and the other reasons identified above, Plaintiffs’ fail to state RICO claims against the URP
Defendants, or for that matter, any Defendants named in Plaintiffs’ RICO cause of action.
Plaintiffs’ RICO claims against the URP Defendants should be dismissed with prejudice.
E. 	Mr. McKenzie’s Motion to Dismiss Should Be Granted.
Mr. McKenzie’s motion to dismiss should be granted because: (1) Plaintiffs fail to state a
claim against him under section 1983; (2) Plaintiffs fail to state a claim against him in his official
capacity under section 1983; (3) he is entitled to qualified immunity from Plaintiffs’ section 1983
claim against him in his individual capacity; (4) Plaintiffs fail to state claims against him under
sections 1985 and 1986; and (5) Plaintiffs fail to state claims against him under RICO.
1. 	Plaintiffs Fail to State Claims Against Mr. McKenzie Under Section 1983.
Plaintiffs fail to state a section 1983 claim against Mr. McKenzie because they do not
plausibly allege that he violated any of their federally protected rights. Plaintiffs’ only allegations
against Mr. McKenzie involve his verification of signatures on candidate petitions and making
two statements about the integrity of that signature-verification process.177 Those allegations rely
on the same premise underlying Plaintiffs’ complaint—that the Either or Both Provision is
unconstitutional. As the court has repeatedly indicated, that position was soundly rejected by the
Tenth Circuit in URS. Thus, Plaintiffs fail to plausibly allege that Mr. McKenzie violated any of
their federally protected rights. Without such an allegation, Plaintiffs fail to state a claim against
Mr. McKenzie under section 1983. Therefore, that claim should be dismissed with prejudice.
177 ECF No. 1 at ¶¶ 12, 112, 145.
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2. 	Plaintiffs Fail to State a Claim Against Mr. McKenzie in His Official Capacity
Under Section 1983.
Plaintiffs’ official-capacity claim against Mr. McKenzie under section 1983 fails. In the
context of a section 1983 action, the United States Supreme Court has stated:
Official-capacity suits . . . “generally represent only another way of
pleading an action against an entity of which an officer is an agent.”
As long as the government entity receives notice and an opportunity
to respond, an official-capacity suit is, in all respects other than
name, to be treated as a suit against the entity. It is not a suit against
the official personally, for the real party in interest is the entity. Thus,
. . . a plaintiff seeking to recover on a damages judgment in an
official-capacity suit must look to the government entity itself.178
Plaintiffs’ official-capacity claim under section 1983 is essentially a claim against Davis
County, not Mr. McKenzie. That claim fails because Plaintiffs have not identified any policy or
custom implemented by Davis County that is linked to their alleged injuries and was
implemented by a person with policy-making authority.
A municipality may not be held liable under § 1983 solely because
its employees inflicted injury on the plaintiff. Rather, to establish
municipal liability, a plaintiff must show 1) the existence of a
municipal policy or custom, and 2) that there is a direct causal link
between the policy or custom and the injury alleged.179
178 Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (quoting Monell v. N.Y. City Dep’t of Soc.
Servs., 436 U.S. 658, 690, n.55 (1978) (other citation and emphasis omitted); see also Porro v.
Barnes, 624 F.3d 1322, 1328 (10th Cir. 2010) (“Suing individual defendants in their official
capacities under § 1983, we’ve recognized, is essentially another way of pleading an action
against the county or municipality they represent.”).
179 Hinton v. City of Elwood, Kan., 997 F.2d 774, 782 (10th Cir. 1993); see also Monell, 436 U.S.
at 694 (“[A] local government may not be sued under § 1983 for an injury inflicted solely by its
employees or agents. Instead, it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those whose edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983.”).
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Plaintiffs’ complaint does not contain allegations about any type of Davis County policy or
custom, let alone one that was implemented by someone with the authority to make policy
decisions and is linked to their alleged injuries. Therefore, even if the court construes Plaintiffs’
official-capacity claim against Mr. McKenzie under section 1983 as a claim against Davis
County, that claim fails and should be dismissed with prejudice.
3. 	Mr. McKenzie Is Entitled to Qualified Immunity from Plaintiffs’ Section 1983
Claims Against Him in His Individual Capacity.
Mr. McKenzie is entitled to qualified immunity from Plaintiffs’ individual-capacity
claims against him under section 1983. Under the standard for such immunity discussed above,
Plaintiffs fail to carry their two-part burden. First, as shown above, Plaintiffs fail to plausibly
allege that Mr. McKenzie violated any of Plaintiffs’ federally protected rights. Second, Plaintiffs
have not identified any legal precedent putting Mr. McKenzie on notice that his conduct violated
any of those rights. Therefore, Mr. McKenzie is entitled to qualified immunity from Plaintiffs’
individual-capacity claim under section 1983, and that claim should be dismissed with prejudice.
4. 	Plaintiffs Fail to State Claims Against Mr. McKenzie Under Sections 1985 and
1986.
Plaintiffs’ claims against Mr. McKenzie under sections 1985 and 1986 fail. As for their
section 1985 claim against Mr. McKenzie, that claim fails for the same reasons the court
discussed above with respect to Plaintiffs’ section 1985 claims against the State Defendants.
Specifically, Plaintiffs fail to allege either a class-based or racially discriminatory animus,
Plaintiffs fail to plausibly allege a conspiracy to violate their federally protected rights, and Mr.
McKenzie is entitled to qualified immunity from Plaintiffs’ individual-capacity claim under
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section 1985. For those reasons, Plaintiffs’ section 1985 claim against Mr. McKenzie should be
dismissed with prejudice.
With respect to Plaintiffs’ section 1986 claim against Mr. McKenzie, that claim fails
because Plaintiffs have not stated a viable section 1985 claim.180 Accordingly, Plaintiffs’ section
1986 claim against Mr. McKenzie should be dismissed with prejudice.
5. 	Plaintiffs Fail to State Claims Against Mr. McKenzie Under RICO.
Plaintiffs’ RICO claims against Mr. McKenzie fail for several of the same reasons the
court discussed above when addressing the State Defendants’ motion to dismiss, Chief Justice
Durrant’s motion to dismiss, and the URP Defendants’ motion to dismiss. Specifically, Plaintiffs
have not plausibly alleged racketeering activity, a pattern of racketeering activity, or that the aim
of the alleged RICO enterprise was to obtain money or property. Therefore, Plaintiffs fail to state
a RICO claim against Mr. McKenzie. Additionally, without an underlying RICO claim against
Mr. McKenzie, Plaintiffs cannot state a RICO conspiracy claim against him.181 Therefore,
Plaintiffs’ RICO claims against Mr. McKenzie should be dismissed with prejudice.
II. 	Plaintiffs’ Motion for Preliminary Injunction Should Be Denied.
Plaintiffs’ motion for preliminary injunction should be denied because they fail to carry
their heavy burden on the two most important factors required for issuance of such an injunction:
substantial likelihood of success on the merits and irreparable harm. Plaintiffs fail to establish the
first critical factor of substantial likelihood of success on the merits of their claims. Indeed, the
180 Santistevan, 732 F.2d at 118; see also Reardon, 770 F.2d at 907.
181 Tal, 453 F.3d at 1270.
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court has recommended above that Defendants’ motions to dismiss be granted because Plaintiffs
fail to state any viable claims.
Although Plaintiffs’ failure to establish that element is determinative of their motion,182
the court nevertheless considers the second critical factor of irreparable harm. Plaintiffs fail to
establish irreparable harm because of their delay in bringing this lawsuit. Showing irreparable
harm “is not an easy burden to fulfill.”183 “As a general proposition, delay in seeking preliminary
relief cuts against finding irreparable injury.”184
[U]ndue delay can . . . weigh heavily against a party seeking
preliminary relief. After all, such relief is generally granted under
the theory that there is an urgent need for speedy action to protect
the plaintiffs’ rights. It follows that delay in seeking enforcement of
those rights tends to indicate at least a reduced need for such drastic,
speedy action.185
182 Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22-24 (2008) (recognizing that the failure
to establish one of the four preliminary injunction elements obviates the need to address the other
elements); Highlands Ranch Neighborhood Coal. v. Cater, No. 16-CV-01089-RM, 2016 WL
8737775, at *6 (D. Colo. Dec. 7, 2016) (denying the plaintiff’s motion for a preliminary
injunction for failure to establish one of the four required elements and concluding that the court
need not decide whether the plaintiff met its burden on the other three elements); Johnson v.
Miller, No. CIV-09-263-C, 2009 WL 2591681, at *2 (W.D. Okla. Aug. 20, 2009) (denying the
plaintiff’s motion for a preliminary injunction for failure to show a substantial likelihood of
success on the merits of his claims and not addressing the remaining three elements).
183 Fish v. Kobach, 840 F.3d 710, 752 (10th Cir. 2016) (citation modified).
184 Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536,
1543-44 (10th Cir. 1994) (citation modified).
185 Schiermeyer on Behalf of Blockchain Game Partners, Inc. v. Thurston, 697 F. Supp. 3d 1265,
1270 (D. Utah 2023) (citation modified).
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“As the Tenth Circuit has put it, delay ‘undercuts the sense of urgency that ordinarily
accompanies a motion for preliminary relief and suggests that there is, in fact, no irreparable
injury.’”186
According to Plaintiffs’ own allegations, the conduct that formed the basis for Plaintiffs’
complaint began sometime in 2015 when Governor Cox (who was then Lieutenant Governor of
Utah) explained the State of Utah’s interpretation of the Either or Both Provision.187 Two other
key events highlighted in Plaintiffs’ complaint are Lt. Governor Henderson’s certification of
Governor Cox to the Republican primary election ballot on May 1, 2024,188 and Ms. Halvorsen’s
sending of the Notice of Intent on August 21, 2024.189 Despite the timing of those events,
Plaintiffs did not file their complaint and their motion for preliminary injunction until October
14, 2025. Even if the court assumes that the latest of those dates—the date of Ms. Halvorsen’s
Notice of Intent—is when Plaintiffs first became aware of their claims, they waited nearly 14
months to bring this lawsuit and seek immediate injunctive relief. That significant delay
demonstrates an absence of irreparable harm.190 Because Plaintiffs fail to carry their heavy
186 Id. (quoting GTE Corp. v. Williams, 731 F.2d 676, 678 (10th Cir. 1984)).
187 ECF No. 1 at ¶ 55.
188 Id. at ¶ 98.
189 Id. at ¶ 146; ECF No. 5-10.
190 Other courts in this district have found a lack of irreparable harm when preliminary injunctive
relief was sought after similar delays. Lone Star Promotions, LLC v. Abbey Lane Quilts, LLC,
No. 1:18CV73DAK, 2018 WL 5808802, at *6 (D. Utah Nov. 6, 2018) (concluding that movant
failed to show irreparable harm when motion for preliminary injunction was filed 18 months
after dispute arose); Nature’s Life, Inc. v. Renew Life Formulas, Inc., No. 2:05CV162, 2006 WL
62829, at *7 (D. Utah Jan. 11, 2006) (concluding that movant failed to establish irreparable harm
based on movant’s nine-month delay in seeking injunctive relief).
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burden of establishing the two most critical factors, they are not entitled to a preliminary
injunction. Therefore, their motion for a preliminary injunction should be denied.
RECOMMENDATION
For the reasons stated above, the court HEREBY RECOMMENDS:
1. 	The motions to dismiss filed by the State Defendants,191 the Legislative
Defendants,192 Chief Justice Durrant,193 the URP Defendants,194 and Mr.
McKenzie195 be GRANTED.
2. 	Plaintiffs’ motion for a preliminary injunction196 be DENIED.
3. 	This case be DISMISSED WITH PREJUDICE.
NOTICE TO PARTIES
Copies of this Report and Recommendation are being sent to all parties, who are hereby
notified of their right to object.197 The parties must file any objections to this Report and
Recommendation within 14 days after being served with a copy of it.198 Failure to object may
constitute waiver of objections upon subsequent review.
191 ECF No. 85.
192 ECF No. 83.
193 ECF No. 84.
194 ECF No. 87.
195 ECF No. 88.
196 ECF No. 7.
197 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
198 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).
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DATED this 12th day of January 2026.
BY THE COURT:
JARED C. BENNETT
United States Magistrate Judge
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