Utah GOP memorandum on SB54

8/18/2019 Utah GOP memorandum on SB54

1/50

Marcus R. Mumford (12737)MUMFORD PC405 South Main Street, Suite 975

Salt Lake City, Utah 84111Telephone: (801) 428-2000Email: [email protected]

Christ Troupis admitted pro hac vice Troupis Law Office, P.A.801 E. State Street, Ste 50Eagle, ID 83616-6869Telephone: (208) 938-5584Email: [email protected] Attorneys for Plaintiff Utah Republican Party

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF UTAH, CENTRAL DIVISION

UTAH REPUBLICAN PARTY,

Plaintiff,

UTAH DEMOCRATIC PARTY,

Intervenor,

v.

SPENCER J. COX,

Defendant.

THE UTAH REPUBLICAN

PARTY’S MEMORANDUM IN

RESPONSE TO DOCKET

ORDER 77

Case No. 2:16-cv-00038-DN

Plaintiff Utah Republican Party (the “URP”) submits this Memorandum pursuant to the

Court’s recent Docket Order (Doc. 77).

1. The URP Claims That SB54, As Interpreted By The Utah Supreme Court in Utah

Republican Party v. Cox , 2016 UT 17, Impermissibly Burdens Its Rights.

In Utah Republican Party v. Cox, 2016 UT 17, the Utah Supreme Court concluded that

the plain language of Utah Code § 20A-9-101(12)(d) requires that the URP, to meet the

Case 2:16-cv-00038-DN Document 80 Filed 04/13/16 Page 1 of 50


2/50

2

definitional requirements of a QPP under SB54, “must permit its members to seek its nomination

by ‘choosing to seek the nomination by either or both’ the convention and the signature process.”

Id. ¶ 4. In other words, the Utah Supreme Court’s interpretation of SB54 requires that a QPP

allow those members choosing to seek its nomination to dictate to the party how they will seek

its nomination – displacing the rights of the QPP, and its other members and elected delegates, to

determine for themselves how the party will select its candidates. See id. ¶¶ 3-6.

The Utah Supreme Court’s ruling burdens the URP’s associational rights under the First

and Fourteenth Amendments by imposing internal candidate selection procedures on the URP

that conflict with those set forth in its Constitution and Bylaws, identified in Section 3 below.

Among other things, those internal procedures only permit URP members to seek the party’s

nomination via its convention, followed by a primary election between the top two candidates for

an elected office at convention in the event that neither receives at least 60% of the convention

delegate vote.1 In fact, the URP’s procedures require that each candidate seeking the party’s

nomination to certify that he or she “will comply with the rules and processes set forth in the

Utah Republican Party Constitution and these Bylaws.”2 Because the URP has certified as a

QPP, the Utah Supreme Court’s ruling gives those members seeking the URP’s nomination the

right to override and violate the candidate-selection procedures that the URP has set, burdening

the URP’s fundamental right of association, including the rights of the URP (and its members

and delegates, as the relevant “voters” under § 20A-9-401(1), who set those procedures)3 to

1 See 4/6/2016 Order [Doc. 75] at 15 & nn.68 & 69.2 See id. at 14 & n.63.3 Clegg v. Bennion, 247 P.2d 614, 615 (1952) (rejecting a candidate’s attempt to disqualify thecandidate selected at the Republican Party’s convention, in part, because of a provision of theelection code similar to the current § 20A-9-401(1), which sought “liberality of interpretation



3/50

3

determine for itself the process by which it “select[s] a standard bearer who best represents the

party’s ideologies and preferences.”4

Contrary to what the Utah Supreme Court stated, the issue is not necessarily whether it is

“‘too plain for argument’ … that a State may require parties to use the primary format for

selecting their nominees.” Utah Republican Party, 2016 UT 17, ¶ 7 (quoting Jones, 530 U.S. at

572). The URP’s candidate-selection procedures call for nomination contests to be resolved by a

primary election, so long as candidates seeking its nomination via primary election first obtain at

least 40% of convention delegate votes.5 The Utah Supreme Court’s opinion would bar the URP

from enforcing these additional requirements, thus burdening its associational rights. It is settled

law in this area that a political party may impose additional requirements on members seeking its

nomination than those required by state law. See Ray v. Blair, 343 U.S. 214, 230 (1952). In Ray,

a candidate for federal elector sued the chairman of the Alabama Democratic Party after that

chairman had refused to certify the election of the otherwise qualified candidate for elector on

grounds that the candidate refused to take the pledge – required of all party candidates – to aid

and support the party’s nominees for president and vice-president. Id. at 215. The Alabama State

Supreme Court had struck down the party’s pledge as an unconstitutional restriction on the

elector’s right to vote in the Electoral College for his choice for president. Id. at 215-16. But the

United States Supreme Court reversed the judgment of the state supreme court, reasoning that

against disfranchisement,” of the Party’s “delegates and the thousands they represent,” that provision “saying that ‘This act shall be construed liberally so as to insure full opportunity to become candidates and for voters to express their choice.’”).4 California Democratic Party v. Jones, 530 U.S. 567, 575 (2000); see also New York Bd. of Elections v. Lopez Torres, 552 U.S. 196, 202 (2008) (citing Democratic Party of United States v.Wisconsin ex rel. La Follette, 450 U.S. 107, 122 (1981), and Jones, 530 U.S. at 574-75).5 See 4/6/2016 Order [Doc. 75] at 15 & nn.68 & 69.



4/50

4

even if one assumed that “such promises of candidates for the electoral college are legally

unenforceable …, it would not follow that the requirement of a pledge in the primary is

unconstitional.” Id. at 230. The Ray Court concluded that

[a] candidacy in the primary is a voluntary act of the applicant. He is not barred,discriminatorily, from participating but must comply with the rules of theparty.

Id . (emphasis added).6

The Utah Republican Party Bylaws mandate a similar pledge requirement of its members

who choose to seek the Party's nomination for elective office. Article 8.0 of the URP Bylaws

provides: “Candidates who wish to run for any federal or statewide office shall sign and submit a

certification that they will comply with the rules and processes set forth in the Utah Republican

Party Constitution and these Bylaws and a disclosure statement to State Party Headquarters at

least 30 days prior to the State Party Convention.” The Utah Supreme Court seems to interpret

the statute as barring the URP from enforcing those very rules against candidates who may

choose to boycott the caucus/convention process in favor of signature-gathering as a way to

appear on the URP’s primary ballot, or who may wish to still appear on the URP’s primary

ballot, having failed to obtain at least 40% of the delegate’s vote at the party’s convention.

The Utah Supreme Court disagreed with the URP’s argument that its interpretation of

SB54 violated the provision of Utah Code § 20A-9-401(2), which prohibits that part of the Utah

Election Code from being “construed to govern or regulate the internal procedures of a registered

political party.” See Utah Republican Party, 2016 UT 17, ¶ 6. In so doing, the Utah Supreme

6 Consistent with this, the Utah Supreme Court noted in Anderson v. Cook , 130 P.2d 278, 283(1942), that there should not be “forced down the throats of the party membership a candidatethey do not want.”



5/50

5

Court contradicts the prior ruling of this Court and the unconstitutional choice doctrine. The

Utah Supreme Court explains:

The statute does not require the Republican Party to seek certification as aqualified political party, and it does not purport to mandate the adoption of any provisions in its constitution, bylaws, rules, or other internal procedures. Aregistered political party that chooses to function as such incurs no obligationunder subsection (12)(d). However, if a party seeks certification as a QPP, it mustcomply with the statute’s requirements. This does not amount to internal controlor regulation of the party by the State.

Id.

In its November 3, 2015 Order from the First Case, this Court rejected the State’s

argument that because SB54 gives political parties the “choice” to become either a QPP or

remain an RPP, “they cannot now complain that the State … forced association with unaffiliated

voters,” applying Miller v. Brown to hold: “This is incorrect. … [noting that the State was citing

to that portion of Miller which concerned a facial challenge but] after the choice was made, the

court found the law unconstitutional as-applied.” Utah Republican Party v. Herbert , No. 2:14-

CV-00876-DN-DBP, 2015 WL 6695626, at *19 (D. Utah Nov. 3, 2015) (citing Miller v. Brown,

503 F.3d 360, 371 (4th Cir. 2007)).

Last week, this Court ruled that, standing alone, the signature-gathering provisions in

SB54 as applied to the URP are likely unconstitutional, in part because those requirements are

discriminatory as to candidates and party members depending solely on the number of eligible

Republican voters in the district. (Order [Doc. 75] at 31-34) In that ruling, the Court only upheld

the QPP signature-gathering provision on grounds that it was “an option in addition to the

caucus/convention system available to QPPs.” (Id. at 34)



6/50

6

But when now viewed in tandem with the opinion of the Utah Supreme Court, the Court

should realize how the entirety of the regimen SB54 sets for a QPP burdens the rights of the

URP. First, the Utah Supreme Court grants a “right” to the candidate seeking the URP’s

nomination to “choos[e] to seek the nomination by either or both” the convention or signature-

gathering method. Utah Republican Party, 2016 UT 17, ¶ 4. So that, despite this Court’s ruling

saving the unconstitutional signature-gathering requirements as set forth in § 20A-9-408(8) as

applied to the URP on grounds that it was not a “stand alone” provision, the Utah Supreme Court

would force the URP to accept on its primary ballot candidates who “choose” only to qualify via

an admittedly unconstitutional method.

Second, SB54 is unconstitutional in how it conditions the URP’s certification as a QPP in

order to retain its preferred caucus/convention method of selecting candidates, on its also

accepting an admittedly unconstitutional signature-gathering path to the ballot for its candidates.

Requiring the URP to accept an unconstitutional and discriminatory signature-gathering path to

the primary ballot as a condition of retaining its constitutional caucus/convention path violates

the URP’s First Amendment rights by attaching unconstitutional conditions to the URP’s right to

participate in the Utah political process.

To qualify as a QPP, the URP must give up its fundamental First Amendment Right to

control the process by which it selects its nominees for public office. The URP has provided in

its Constitution and Bylaws, in accordance with Utah state law, that its nominees for office are

selected through a Party Caucus and Convention process. In certain cases, the convention is

followed by a post-convention primary election if no candidate secured a sufficient percentage of

votes from caucus delegates at the convention. To qualify as a QPP, the Party must abandon the



7/50

7

nominee selection process its members have chosen and adopt SB 54’s statutorily imposed

mandates. As a QPP, the Party can still hold caucuses and a convention, but these processes no

longer determine the candidates or nominee of the Party. Instead, the convention is only the first

step in the process. Other candidates can bypass the convention entirely and the Party may be

forced to accept those candidates as the Party's nominee. According to the Utah Supreme Court,

any person, either one disappointed by the vote of Party caucus delegates, or someone who chose

to skip the caucus/convention process entirely, can still become the Party’s nominee by gathering

signatures to run for the Party’s nomination in a primary election. The QPP requirements were

intended to and have the effect of eviscerating the Utah Republican Party Caucus/Convention

system. This requirement that the URP incorporate an unconstitutional signature path to the

ballot onto its convention path is an unconstitutional condition. The cases relied upon by this

Court in upholding the unconstitutional signature gathering process addressed the availability of

an alternative path only from the perspective of a candidate, not the Party. In those cases the

Court refused to strike the unconstitutional provision because a candidate was never required to

use it. He or she could simply ignore the unconstitutional process and choose the other option.

The Party does not have that choice. The Party and its convention delegates must accept

candidates who elect to use the signature path to get on the ballot, even in cases in which the

process is discriminatory and unconstitutional.

The State of Utah has authorized a Party to choose to become a QPP. It cannot condition

that choice on the Party's agreement to surrender control of the internal selection processes of its

candidates for office, and submit to an unconstitutional means of selecting its candidates that

violate the rights of the Party and its members.



8/50

8

As the U.S. Supreme Court declared in Perry v. Sindermann, 408 U.S. 593, 92 S. Ct.

2694, 33 L.Ed.2d 570 (1972)

“For at least a quarter-century, this Court has made clear that, even though a person has no "right" to a valuable governmental benefit, and even though thegovernment may deny him the benefit for any number of reasons, there are somereasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interest, especiallyhis interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, hisexercise of those freedoms would in effect be penalized and inhibited. This wouldallow the government to "produce a result which [it] could not commanddirectly." Speiser v. Randall , 357 U.S. 513, 526. Such interference with

constitutional rights is impermissible.”

More recently, the Supreme Court noted in Board of County Comm’rs v Umbehr , 518

U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843, 64 USLW 4682 (1996)

Recognizing that "constitutional violations may arise from the deterrent, or'chilling,' effect of governmental [efforts] that fall short of a direct prohibitionagainst the exercise of First Amendment rights," Laird v. Tatum, 408 U.S 1, 11(1972), our modern "unconstitutional conditions" doctrine holds that thegovernment "may not deny a benefit to a person on a basis that infringes his

constitutionally protected . . . freedom of speech" even if he has no entitlement tothat benefit, Perry v. Sindermann, 408 U.S 593, 597 (1972).

The ‘unconstitutional conditions doctrine’ has been consistently applied by the 10th

Circuit Court of Appeals to prospectively enjoin statutes or regulations that condition the receipt

of a government benefit upon the surrender of rights of free speech or association. As the Court

discussed in Planned Parenthood of Kansas and Mid-Missouri v. Moser , 747 F.3d 814, 838-839,

(10th Cir. 2014):

We begin by stating our understanding of the unconstitutional-conditions doctrine. Underthe " modern unconstitutional conditions doctrine . . . the government may not deny a benefit to a person on a basis that infringes his constitutionally protected freedom ofspeech even if he has no entitlement to that benefit." Bd. of Cnty. Comm'rs v. Umbehr ,518 U.S. 668, 674, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996) (ellipsis and internalquotation marks omitted). To do so, the Supreme Court has explained, " would allow the



9/50

9

government to produce a result which it could not command directly." Perry v.Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (brackets andinternal quotation marks omitted). The Court has applied this doctrine in

two distinct contexts.

First, the doctrine has been applied when the condition acts prospectively in statutes orregulations that limit a government-provided benefit--typically a subsidy or tax break--tothose who refrain from or engage in certain expression or association. See, e.g., FCC v. League of Women Voters, 468 U.S. 364, 366, 104 S. Ct. 3106, 82 L.Ed.2d 278 (1984)(federal statute that forbids recipients of public-broadcasting subsidy from " engag[ing] ineditorializing" (internal quotation marks omitted)); Speiser v. Randall , 357 U.S. 513, 515,78 S. Ct. 1332, 2 L.Ed.2d 1460 (1958) (state constitutional provision and effectuatingstatute that grant tax exemption only to veterans who pledge not to advocateoverthrowing the government). These cases recognize that the government ordinarily can

impose conditions on the receipt of government funding, but that conditioning a benefiton someone's speech or association achieves an effect similar to direct regulation of thespeech or association. See Rumsfeld v. Forum for Academic & Institutional Rights, 547U.S. 47, 59, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006). These cases have addressed onlyconditions explicitly imposed by the law.

In fact, the 10th Circuit has enjoined Utah laws that imposed limits on the commercial

speech rights of Utah liquor licensees as a condition of licensure. In Utah Licensed Beverage

Association v. Leavitt , 256 F.3d 1061, 1074, 1076 (10th Cir. 2001), the Court declared:

To permit Utah to abridge the commercial speech rights of its liquor licensees as acondition of their licenses would constitute just such a qualification of the FirstAmendment. Utah Cannot Therefore rely on its Twenty-First Amendment powers tosalvage its advertising restrictions….Because we have held that Utah’s challengedstatutes also unconstitutionally limit free speech, we conclude that enjoining theirenforcement is an appropriate remedy not adverse to the public interest. See also ElamConstr., v. Regional Transp. Dist., 129 F.3d 1343, 1347 (19

th Cir. 1997) (stating, in the

context of a request for injunctive relief, that “[t]he public interest…favors plaintiffs’assertion of their First Amendment rights.”)

The State cannot overrule the rights of the URP in determining who the URP’s nominee

will be. In Duke v. Cleland, 954 F.2d 1526 (11th Cir. 1992), the United States Court of Appeals

for the Eleventh Circuit upheld the state Republican Party’s right to deny David Duke a position

from its primary ballot based on the “legitimate right of the party to determine its own



10/50

10

membership qualifications.” Id. at 1531 (citing Tashjian v. Republican Party of Connecticut , 479

U.S. 208, 215 n.6 (1986)). In so doing, the court rejected Duke’s argument that “he has a right to

associate with an ‘unwilling partner,’ the Republican Party.” Id . at 1530. Similarly, the Supreme

Court has held State's interests subordinate to the Party's right to determine how and with whom

it will associate, most notably in Democratic Party of U.S. v. Wisconsin, 450 U.S. 107, 101 S. Ct.

1010 (1981), Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 107 S. Ct. 544 (1986),

and Cousins v. Wigoda, 419 U.S. 477, 95 S. Ct. 541 (1975.

In Hopfmann v. Connolly, 769 F.2d 24 (1st Cir. 1985), the Court of Appeals upheld a

challenge to the Democratic Party's 15 percent rule that barred a candidate's access to the ballot

for the party's nomination unless he obtained 15 percent of convention delegate votes, in addition

to meeting a state-imposed signature requirement. In so ruling, the Court declared:

"It suffices to say that the 15 percent rule's infringement of appellants' rights toassociate and express political ideas, as well as their right to equal protection of the laws,is not substantial. For example, the rule does not discriminate against any class of

candidates or voters, and does not disqualify any candidates from appearing on thegeneral election ballot. Cf. Bullock v. Carter, 405 U.S. 134, 142-44, 92 S.Ct. 849, 855-56,31 L.Ed.2d 92 (1972); Jenness v. Fortson, 403 U.S. 431, 438-42, 91 S.Ct. 1970, 1974-76,29 L.Ed.2d 554 (1971). Moreover, the 15 percent rule promotes the legitimate andimportant state interest of "prevent[ing] the clogging of its election machinery, avoid[ing]voter confusion, and assur[ing] that the winner is the choice of a majority, or at least alarge plurality, of those voting, * * *." Storer v. Brown, 415 U.S. 724, 732, 94 S.Ct. 1274,1280, 39 L.Ed.2d 714Bullock v. Carter, 405 U.S. at 145, 92 S.Ct. at 857.

Pursuant to the standards which have been utilized by the Supreme Court in ballotaccess cases, it becomes apparent that the 15 percent rule does not "unfairly or

unnecessarily burden the availability of political opportunity." Anderson v. Celebrezze,460 U.S. 780, 793, 103 S.Ct. 1564, 1572, 75 L.Ed.2d 547 (1983). Therefore, we hold thatappellants' contention that the 15 percent rule violates the First and FourteenthAmendments is without merit."

The 1st Circuit Appeals Court decision in Hopfmann followed the Massachusetts

Supreme Court's decision in Langone v. Secretary of the Commonwealth, 388 Mass. 185, 446



11/50

11

N.E.2d 43 (1983) in which that Court held that: "The Commonwealth's interest in the integrity of

the election process does not require, and therefore does not permit, preclusion of a party rule

that reserves to its convention delegates the right to bar from the party's primary ballot

candidates who lack the support of at least 15% of those delegates on any convention ballot." Id.

at 192. It should be noted that one District Court in Connecticut struck a similar 15% delegate

vote requirement, but only when presented with an 'as applied' challenge by party candidates. See

Campbell v. Bysiewicz, 242 F.Supp.2d 164 (D. Conn. 2003). That decision was not appealed,

and has not been cited by any other court for that ruling. Moreover, the Campbell decision has no

bearing on our case. First, in Connecticut, the 15% party rule was codified into State law, so that

the Campbell holding was based on the presence of state action. In our case, state law directly

conflicts with the party convention rule. Second, the Campbell decision was based candidates

claims alleging invidious discriminaton, and a factual record to support those claims. There is no

such record here. In fact, the Utah Republican Party's convention process would easily withstand

an 'as applied' challenge. Under the URP convention rules, challengers have succeeded in

substantial numbers. Current Senator Mike Lee is but one example.

The Supreme Court has invalidated Party rules only when they have severely burden

secured constitutional rights. See, e.g., United States v. Classic, (1941), 313 U.S. 299, or Smith v.

Allwright, 321 U.S. 649 (1944). In this case, no claim has been made and there is no proof that

any constitutional rights have been burdened by the URP's convention requirements. In fact, in

its Memorandum Decision and Order (Dkt 75), p. 34, this Court ruled that the URP Convention

route is constitutional, stating:

"No party claims that the QPP convention path, found in Utah Code § 20A-9-407, isunconstitutional. In fact, the URP has taken the position that the convention path is the



12/50

12

only proper path for its candidates. Thus, because there is no challenge to the conventionroute, it is assumed to be a constitutional path to the ballot for URP candidates.

... No one contends that going through a caucus/convention system imposes a

serious obstacle to gain access to the ballot . . . .”

In addition, since this Court has found the signature gathering path is unconstitutional,

the convention path must be constitutional or the entire QPP law fails. SB54 is essentially a

three-legged stool. One leg is the RPP path; the other two are the QPP's convention and signature

paths. Since the signature path is unconstitutional without the presence of the convention path as

an alternative, striking the latter takes two legs out from under the stool.

While the State argues that it could compel the Party to select its candidates through a

primary instead of a convention, the cases supporting that claim are inapplicable here because

SB54 does not purport to substitute the primary for the party convention. In fact, if SB54's QPP

provisions are constitutional, they can only stand because of the existence of the convention as

one of the QPP legs. In light of the Utah Supreme Court's interpretation of the QPP provisions,

the question is whether the State can require the Utah Republican Party to accept as candidates

for its party's nomination, party members who refuse to follow the Party's Constitution and

Bylaws. Imposing such a requirement would be contrary to the Supreme Court's rulings in Ray

v. Blair, Democratic Party of U.S. v. Wisconsin, Tashjian v. Republican Party of Connecticut,

and Cousins v. Wigoda.

This Court has upheld the QPP signature gathering requirement, even though it is most

likely unconstitutional and unquestionably discriminatory, on the tenuous grounds that it merely

affords an additional means for a party member to access the party primary ballot. That analysis

gave no consideration to the impact on the Party of an alternative path to the primary ballot or



13/50

13

the fundamental importance of the Party Convention. The rights in issue are those of the Utah

Republican Party.

In Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 128 S.

Ct. 1184 (2008), the Supreme Court rejected the Republican Party's facial challenge to

Washington's non-partisan primary that allowed candidates to state their party preference on the

ballot. The Court reasoned that the Republican Party's constitutional rights were not impaired

because it was still free to choose its own party candidates by other means. In dissent, Justice

Scalia argued that the Party's rights were nonetheless severely impacted by this law because it

hijacked the party brand.

The Utah law, 'as applied' to the Utah Republican Party, is far more intrusive on the

Party's rights than Washington's non-partisan primary, since it allows party members who refuse

to comply with party rules to gain access to the party primary ballot simply by gathering

signatures, and it forces the nominee chosen by Party delegates at the Party Convention to

compete a second time for the Party's nomination against a candidate who chose not to comply

with Party rules or to submit to the Party's only authorized candidate selection process. In effect,

the Utah law steals the 'seal of approval' from the nominee chosen by the Party at its Convention.

Justice Scalia described the constitutional issue in this way:

"A political party's expressive mission is not simply, or even primarily, to persuade votersof the party's views. Parties seek principally to promote the election of candidates who

will implement those views. See, e.g., Tashjian v. Republican Party of Conn. ,479 U.S.208, 216, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Storer v. Brown, 415 U.S. 724, 745, 94S.Ct. 1274, 39 L.Ed.2d 714 (1974); M. Hershey & P. Beck, Party Politics in America 13(10th ed. 2003). That is achieved in large part by marking candidates with the party's sealof approval."

"The State of Washington need not like, and need not favor, political parties. It is entirelyfree to decline running primaries for the selection of party nominees and to hold



14/50

14

nonpartisan general elections in which party labels have no place on the ballot. SeeCalifornia Democratic Party v. Jones, 530 U.S. 567, 585-586, 120 S.Ct. 2402, 147L.Ed.2d 502 (2000). Parties would then be left to their own devices in both selecting and

publicizing their candidates. But Washington has done more than merely decline to makeits electoral machinery available for party building. Recognizing that parties draw supportfor their candidates by giving them the party imprimatur, Washington seeks to reduce theeffectiveness of that endorsement by allowing any candidate to use the ballot for drawingupon the goodwill that a party has developed, while preventing the party from using the ballot to reject the claimed association or to identify the genuine candidate of itschoice. This does not merely place the ballot off limits for party building; it makes the ballot an instrument by which party building is impeded, permitting unrebuttedassociations that the party itself does not approve." Id. at 464-465.

The Utah law violates the Utah Republican Party's right of association by forcing the

Party to accept candidates who only nominally agree to associate with the Utah Republican

Party, while refusing to comply with its Constitution and Bylaws, on an equal footing with the

chosen nominee of the Party.

2. The URP Will NOT "Comply With The Requirements Of The QPP Statute As

Confirmed In [The] Opinion," Utah Republican Party, 2016 UT 17, § 11, And

Therefore, The Relief Sought By The URP Is Not Moot.

The URP has brought this suit to challenge SB54 as applied. The Utah Supreme Court’s

opinion is inconsistent with the position that the State took in the First Case to persuade this

Court that the law does not burden the Party’s rights, and confirmed for the URP that SB54

imposes an unconstitutional burden on its rights, in particular by forcing the Party to accept a

candidate that does not qualify for its primary ballot in compliance with its rules and procedures.

It forces the URP to comply with the requirement that candidates may seek the Party's

nomination solely through the signature gathering process, in contravention of its rules. To the

extent that the State would force the Party to designate, or designate for the party, a candidate

who does not comply with the Party’s procedures, the Party intends to challenge that action in

defense of its rights.



15/50

15

Based on these facts, the relief sought by the Party is not moot. The party is concerned

that a candidate will be certified and imposed on the party who does not satisfy the requirements

and follow the rules.

3. Identify any URP rule, regulation, procedure, bylaw or other provisions which

expressly prohibits, limits, or penalizes a member from using the signature

gathering process and attaching the identified materials.

The URP Constitution and Bylaws were adopted prior to the date on which the Utah State

Legislature enacted the QPP signature gathering requirements, and therefore, do not expressly

reference those requirements. However, the Constitution and Bylaws have been amended to

require that all members comply with the URP Constitution and Bylaws as a condition of

membership in the Party.

"2015 Utah Republican Party Constitution, Article I, C. Membership. Party membershipis open to any resident of the State of Utah who registers to vote as a Republican andcomplies with the Utah Republican Party Constitution and Bylaws, and membership may be further set forth in the Utah Republican Party Bylaws."

"2015 Utah Republican Party Bylaws, Article 8.0 CANDIDATE DISCLOSURE A.Candidates who wish to run for any federal or statewide office shall sign and submit acertification that they will comply with the rules and processes set forth in the UtahRepublican Party Constitution and these Bylaws and a disclosure statement to State PartyHeadquarters at least 30 days prior to the State Party Convention. The disclosurestatement shall specify either: (1) "I have read the Utah Republican Party Platform. Isupport that Platform and accept it as the standard by which my performance as acandidate and as an officeholder should be evaluated. I certify that I am not a candidate,officer, delegate nor position holder in any party other than the Republican party." Or (2)"I have read the Utah Republican Party Platform. Except for the provisions specificallynoted below, I support that Platform and accept it as the standard by which my

performance as a candidate and as an officeholder should be evaluated. I certify that I amnot a candidate, officer, delegate nor position holder in any party other than theRepublican party."B. The candidate certifications, disclosure statements and any exceptions noted therein,shall be compiled on the Utah Republican Party internet site at least two weeks prior tothe state party convention, and shall be made available to delegates attending theconvention. Should any candidate fail to submit the Disclosure Statement, the Party



16/50

16

Chairman will announce this failure immediately prior to balloting for that candidate'soffice."

The URP Constitution and Bylaws provide that the mechanism for selection of the Party's

nominees is by convention, with a subsequent Primary in the event that no candidate

receives at least 60% of the delegate votes. No other method of nominee selection is sanctioned

under the Party Constitution or Bylaws.

The Bylaws provide that where specific provisions are not included, party uses Roberts

Rules of Order.

"2015 Utah Republican Party Bylaws, Article 11.0 ROBERT'S RULES OF ORDER

The rules contained in the current edition of Robert's Rules of Order shall govern all meetings ofthe Party, except to the extent they are inconsistent with the Constitution and Bylaws and any

special rules of order the Party may adopt."

4. Identifying any process by which the Utah Republican Party may revoke a

person's membership and attaching the identified materials.

In the URP Constitution and the Bylaws, Robert’s Rules of Order, Newly Revised

(RONR) is designated as the official parliamentary authority to govern procedures of the URP in

all areas not specifically addressed in those two governing documents (Utah Republican Party

Constitution 2015 Article XIII and Utah Republican Party Bylaws 2015 Section 11).This means

the entire 669 pages of the parliamentary procedure are adopted as additional rules of the URP.

This book embodies a codification of the present-day general parliamentary law (omitting

provisions having no application outside legislative bodies). The book is also designed as a

manual to be adopted by organizations or assemblies as their parliamentary authority. When the

manual has been thus adopted, the rules within it, together with any special rules of procedure

that may also be adopted, are binding upon the body and constitute that body's rules of order.



17/50

17

RONR Page xxix

By doing so, this enables the URP to focus on the areas unique to their organization and

make adjustments to better fit the needs of the URP. If the parliamentary authority has a

satisfactory method or procedure already addressed in those 669 pages, there is no need to

incorporate that procedure into the URP governing documents.

In contrast to bylaws, rules of order derive their proper substance largely from the general

nature of the parliamentary process rather than from the circumstances of a particular assembly.

Consequently, although the tone of application of rules of order may vary, there is little reason

why most of these rules themselves should not be the same in all ordinary societies and should

not closely correspond to the common parliamentary law. The usual and preferable method by

which an ordinary society now provides itself with suitable rules of order is therefore to place in

its bylaws a provision prescribing that the current edition of a specified and generally accepted

manual of parliamentary law shall be the organization's parliamentary authority, and then to

adopt only such special rules of order as it finds needed to supplement or modify rules contained

in that manual. RONR Page 15

Beginning on page 643 of RONR are the procedures for discipline of a member of any

society, including the URP. These are the rules that we have been governed by and have

followed in removing members from certain positions and in enforcing our rules.

The process URP has followed and continues to follow begins with a breach of the rules

by a member. The URP Constitution and Bylaws are very specific as to what requirements must

be met to participate at various levels within the URP. The URP Chair contacts the member to

determine if remedy can be made. If the breach is severe enough and remedy cannot be made, an



18/50

18

investigative committee is formed and is comprised of usually 3 or 5 members of the State

Central Committee who then conduct interviews and collect information. That investigative

committee then forwards their findings and recommendations on to the governing body of the

URP, the State Central Committee. Notice of the meeting is sent with the Investigative

Committee report on the agenda. The Investigative Committee then gives its report to the State

Central Committee. The State Central Committee then deliberates the findings and

recommendations of the Investigative Committee. The offending member receives notice of,

may be present at the meeting and is allowed to address the State Central Committee. The State

Central Committee may then formulate a motion to dispose of the issue to its satisfaction based

on the deliberations. That disposition can be anything from dismissal of the breach to expulsion.

However, no fine can be imposed as it is not allowed in URP Constitution or Bylaw. This is the

highest governing body in the URP. The process for appeal from this body would be through a

court of law.

The membership of the URP is any resident of the State of Utah who registers to vote as a

Republican and complies with the URP Constitution and Bylaws. (Utah Republican Party

Constitution 2015 Article I.C.) These voters may attend a neighborhood caucus every even year

to select their representative leadership (precinct officers and delegates). Each leadership

position has duties and responsibilities that must be performed to remain in those positions.

Precinct chairs, in turn, elect Party representatives on the legislative districts level. Those

representatives then sit on executive committees and work with party leadership to conduct the

business of each county party. Furthermore, representatives are elected in each county to

represent the county at the State Central Committee. The State Central Committee is the



19/50

19

governing body for the entire URP. Each county has a governing body made up of at least

precinct chairs, with many including legislative representatives and other levels of leadership.

Members of the Republican Party participate in the selection of party leadership every

two years and participate in the primary and general elections. The leadership selected by those

members then participates in regular duties and responsibilities as outlined in the governing

documents of the county parties and the URP for those two years.

The primary objective of the URP is to “nominate and support the election of Republican

candidates in partisan races for public office, promote the principles set forth in the State Party

Platform, and perform Party functions set forth in the election laws of the State of Utah and the

Constitution and Bylaws of the Party.” (Utah Republican Party Constitution Article I.B.)

The URP Constitution and Bylaws define the qualifications, requirements, and

procedures to become a Republican Party nominee of the URP. Only Republican candidates

who have properly filed for elected public office as required by law and meet the requirements of

the URP Bylaws shall be considered at Convention. In accordance with URP Bylaws, all

candidates . . . shall have filed a letter of intent and disclosure statement at State Party

Headquarters at least 30 days prior to the State Convention. The Candidate or his/her

representative shall sign a document which states they have read and understand the CANDIATE

RULES AND REQUIREMENTS. (URP Bylaws Section 7.5.I.1. and 3.) Candidates who wish to

run for any federal or statewide office shall sign and submit a certification that they will comply

with the rules and processes set forth in the URP Constitution and these Bylaws and a disclosure

statement to State Party Headquarters at least 30 days prior to the State Party Convention. ( URP

Bylaws Section 8.0.A.) A candidate for an office that receives 60% or more of the votes cast at



20/50

20

any point in the balloting process at the state nominating convention shall proceed to the general

election. (URP Constitution Article X Section 2.I) When two candidates are nominated by the

state nominating convention for the same office, both candidates shall run in a primary election

in accordance with Utah Code. (URP Constitution Article XII Section 5.A.) Unopposed

candidates shall be declared the party’s nominee by the Chair. (URP Bylaws Section M.7)

Under RONR, a society has the right to determine its own membership. If a member is

unwilling to follow the rules set forth in the governing documents of the society, the society can

by a two-thirds vote of its governing body, expel a member from the society. The most recent

disciplinary actions in accordance with these rules were undertaken in 2006 and 2010.

In most societies it is understood that members are required to be of honorable character

and reputation, and certain types of associations may have particular codes of ethics to enforce.

Although ordinary societies seldom have occasion to discipline members, an organization or

assembly has the ultimate right to make and enforce its own rules, and to require that its

members refrain from conduct injurious to the organization or its purposes. No one should be

allowed to remain a member if his retention will do this kind of harm. RONR Page 643

Expulsion from membership requires a two-thirds vote. RONR Page 648

Excerpts from Robert’s Rules of Order, Newly Revised, 11th

Edition

[page xxix]

INTRODUCTION

This book embodies a codification of the present-day general parliamentary law (omitting

provisions having no application outside legislative bodies). The book is also designed as a

manual to be adopted by organizations or assemblies as their parliamentary authority. When the



21/50

21

manual has been thus adopted, the rules within it, together with any special rules of procedure

that may also be adopted, are binding upon the body and constitute that body's rules of order.

Parliamentary law originally was the name given to the rules and customs for carrying on

business in the English Parliament that were developed through a continuing process of decisions

and precedents somewhat like the growth of the common law. These rules and customs, as

brought to America with the settling of the New World, became the basic substance from which

the practice of legislative bodies in the United States evolved. Out of early American legislative

procedure and paralleling it in further development has come the general parliamentary law, or

common parliamentary law, of today, which is adapted to the needs of organizations and

assemblies of widely differing purposes and conditions. In legislative bodies, there is often

recourse to the general parliamentary law in situations not covered by the rules or precedents of

the particular body—although some of the necessary procedure in such a case must be proper to

that type of assembly alone.

The kind of gathering in which parliamentary law is applicable is known as a deliberative

assembly. This expression was used by Edmund Burke to describe the English Parliament, in a

speech to the electorate at Bristol in 1774; and it became the basic term for a body of persons

meeting (under conditions detailed on pp. 1–2) to discuss and determine upon common action.

[page 15]

. . .

Rules of Order

The term rules of order refers to written rules of parliamentary procedure formally

adopted by an assembly or an organization. Such rules relate to the orderly transaction of



22/50

22

business in meetings and to the duties of officers in that connection. The object of rules of order

is to facilitate the smooth functioning of the assembly and to provide a firm basis for resolving

questions of procedure that may arise.

In contrast to bylaws, rules of order derive their proper substance largely from the general

nature of the parliamentary process rather than from the circumstances of a particular assembly.

Consequently, although the tone of application of rules of order may vary, there is little reason

why most of these rules themselves should not be the same in all ordinary societies and should

not closely correspond to the common parliamentary law. The usual and preferable method by

which an ordinary society now provides itself with suitable rules of order is therefore to place in

its bylaws a provision prescribing that the current edition of a specified and generally accepted

manual of parliamentary law shall be the organization's parliamentary authority, and then to

adopt only such special rules of order as it finds needed to supplement or modify rules contained

in that manual. However, if the bylaws of a society do not designate a parliamentary authority,

one may be adopted by the same vote as is required to adopt a special rule of order, although it is

preferable to amend the bylaws. In a mass meeting or a meeting of a body not yet organized,

adoption of a parliamentary authority (or individual rules of order) may take place at the

beginning of the meeting by majority vote.

[page 643]

CHAPTER XX

DISCIPLINARY PROCEDURES

§61. DISCIPLINE OF MEMBERS AND GUESTS



23/50

23

In most societies it is understood that members are required to be of honorable character

and reputation, and certain types of associations may have particular codes of ethics to enforce.

Although ordinary societies seldom have occasion to discipline members, an organization or

assembly has the ultimate right to make and enforce its own rules, and to require that its

members refrain from conduct injurious to the organization or its purposes. No one should be

allowed to remain a member if his retention will do this kind of harm.

Punishments that a society can impose generally fall under the headings of censure,* fine

(if authorized in the bylaws), suspension, or expulsion. The extreme penalty that an organization

or society can impose on a member is expulsion.

If there is an article on discipline in the bylaws (p. 583, ll. 6–11), it may specify a number

of offenses outside meetings for which these penalties can be imposed on a member

[page 644]

of the organization. Frequently, such an article provides for their imposition on any

member found guilty of conduct described, for example, as "tending to injure the good name of

the organization, disturb its well-being, or hamper it in its work." In any society, behavior of this

nature is a serious offense properly subject to disciplinary action, whether the bylaws make

mention of it or not.

Formal disciplinary procedures should generally be regarded as a drastic step reserved for

serious situations or those potentially so. When it appears that such measures may become

necessary, proper and tactful handling of the case is of prime importance. It is usually in the best

interests of the organization first to make every effort to obtain a satisfactory solution of the

matter quietly and informally.



24/50

24

Cases of conduct subject to disciplinary action divide themselves into: offenses occurring

in a meeting; and offenses by members outside a meeting.

Dealing with Offenses in a Meeting

PRINCIPLES GOVERNING DISCIPLINE AT MEETINGS. A society has the right to

determine who may be present at its meetings and to control its hall while meetings are in

progress; but all members have the right to attend except in cases where the bylaws provide for

the automatic suspension of members who fall in arrears in payment of their dues, or where the

society has, by vote and as a penalty imposed for a specific offense, forbidden attendance.

Nonmembers, on the other hand—or a particular nonmember or group of nonmembers—

can be excluded at any time from part or all of a meeting of a society, or from all of its meetings.

Such exclusion can be effected by a ruling of the chair in cases of disorder, or by the adoption of

a rule on the subject, or by an appropriate motion as the need arises—a motion of the latter

nature being a question of privilege

[page 645]

(19). A motion to exclude all nonmembers (except absolutely necessary staff, if any) is

often referred to as a motion to "go into executive session" (see 9).

All persons present at a meeting have an obligation to obey the legitimate orders of the

presiding officer.* Members, however, can appeal from the decision of the chair (24), move to

suspend the rules (25), or move a reconsideration (37)—depending on the circumstances of the

chair's ruling. A member can make such an appeal or motion whether the order involved applies

to him or not.

In dealing with any case of disorder in a meeting, the presiding officer should always



25/50

25

maintain a calm, deliberate tone—although he may become increasingly firm if a situation

demands it. Under no circumstances should the chair attempt to drown out a disorderly

member—either by his own voice or the gavel—or permit himself to be drawn into a verbal duel.

If unavoidable, however, proper disciplinary proceedings to cope with immediate necessity can

be conducted while a disorderly member continues to speak.

BREACHES OF ORDER BY MEMBERS IN A MEETING. If a member commits only a

slight breach of order—such as addressing another member instead of the chair in debate, or, in a

single instance, failing to confine his remarks to the merits of the pending question—the chair

simply raps lightly, points out the fault, and advises the member to avoid it. The member can

then continue speaking if he commits no further breaches. More formal procedures can be used

in the case of serious offenses, as follows:

Calling a Member to Order. If the offense is more serious than in the case above—as

when a member repeatedly questions the motives of other members whom he mentions

[page 646]

by name, or persists in speaking on completely irrelevant matters in debate—the chair

normally should first warn the member; but with or without such a warning, the chair or any

other member can "call the member to order." If the chair does this, he says, "The member is out

of order and will be seated." Another member making the call rises and, without waiting to be

recognized, says, "Mr. President, I call the member to order," then resumes his seat. If the chair

finds this point of order (23) well taken, he declares the offender out of order and directs him to

be seated, just as above. If the offender had the floor, then (irrespective of who originated the

proceeding) the chair should clearly state the breach involved and put the question to the



26/50

26

assembly: "Shall the member be allowed to continue speaking?" This question is undebatable.

"Naming" an Offender. In cases of obstinate or grave breach of order by a member, the

chair can, after repeated warnings, "name" the offender, which amounts to preferring charges and

should be resorted to only in extreme circumstances. Before taking such action, when it begins to

appear that it may become necessary, the chair should direct the secretary to take down

objectionable or disorderly words used by the member. This direction by the chair, and the words

taken down pursuant to it, are entered in the minutes only if the chair finds it necessary to name

the offender.

Although the chair has no authority to impose a penalty or to order the offending member

removed from the hall, the assembly has that power. It should be noted in this connection that in

any case of an offense against the assembly occurring in a meeting, there is no need for a formal

trial provided that any penalty is imposed promptly after the breach (cf. pp. 250–51), since the

witnesses are all present and make up the body that is to determine the penalty.

The declaration made by the chair in naming a member is addressed to the offender by

name and in the second person,

[page 647]

and is entered in the minutes. An example of such a declaration is as follows:

CHAIR: Mr. J! The chair has repeatedly directed you to refrain from offensive personal

references when speaking in this meeting. Three times the chair has ordered you to be seated,

and you have nevertheless attempted to continue speaking.

If the member obeys at this point, the matter can be dropped or not, as the assembly

chooses. The case may be sufficiently resolved by an apology or a withdrawal of objectionable



27/50

27

statements or remarks by the offender; but if not, any member can move to order a penalty, or the

chair can first ask, "What penalty shall be imposed on the member?" A motion offered in a case

of this kind can propose, for example, that the offender be required to make an apology, that he

be censured, that he be required to leave the hall during the remainder of the meeting or until he

is prepared to apologize, that his rights of membership be suspended for a time, or that he be

expelled from the organization.

The offending member can be required to leave the hall during the consideration of his

penalty, but he should be allowed to present his defense briefly first. A motion to require the

member's departure during consideration of the penalty—which may be assumed by the chair if

he thinks it appropriate—is undebatable, is unamendable, and requires a majority vote.

If the member denies having said anything improper, the words recorded by the secretary

can be read to him and, if necessary, the assembly can decide by vote whether he was heard to

say them. On the demand of a single member—other than the named offender, who is not

considered to be a voting member while his case is pending—the vote on imposing a penalty

must be taken by ballot, unless the penalty proposed is only that the offender be required to leave

the

[page 648]

hall for all or part of the remainder of the meeting. Expulsion from membership requires

a two-thirds vote.

If the assembly orders an offending member to leave the hall during a meeting as

described above and he refuses to do so, the considerations stated below regarding the removal

of offenders apply; but such a member exposes himself to the possibility of more severe



28/50

28

disciplinary action by the society.

PROTECTION FROM ANNOYANCE BY NONMEMBERS IN A MEETING;

REMOVAL OF AN OFFENDER FROM THE HALL. Any nonmembers allowed in the hall

during a meeting, as guests of the organization, have no rights with reference to the proceedings

(pp. 644–45). 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 removal, at any time during the meeting; and the nonmembers have no right

of appeal from such an order of the presiding officer. However, such an order may be appealed

by a member. That appeal is undebatable (see Standard Descriptive Characteristic 5[a], p. 257).

At a mass meeting (53), any person who attempts to disrupt the proceedings in a manner

obviously hostile to the announced purpose of the meeting can be treated as a nonmember under

the provisions of this paragraph.

If a person—whether a member of the assembly or not—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, or the sergeant-at-arms—if there

is one—can be asked to do this. If those who are assigned that task are unable to persuade the

offender

[page 649]

to leave, it is usually preferable that he be removed by police—who may, however, be

reluctant to intervene unless representatives of the organization are prepared to press charges.



29/50

29

The sergeant-at-arms or the members of the appointed committee themselves may

attempt to remove the offender from the hall, using the minimum force necessary. Such a step

should generally be taken only as a last resort, since there may be adverse legal consequences;

and a person who would refuse to leave upon legitimate request may be the type most likely to

bring suit, even if with little justification. In cases where possibly serious annoyance by hostile

persons is anticipated—in some mass meetings, for example—it may be advisable to arrange in

advance for the presence of police or guards from a security service agency.

Offenses Elsewhere Than in a Meeting; Trials

If improper conduct by a member of a society occurs elsewhere than at a meeting, the

members generally have no first-hand knowledge of the case. Therefore, if disciplinary action is

to be taken, charges must be preferred and a formal trial held before the assembly of the society,

or before a committee—standing or special—which should be required to report its findings and

recommendations to the assembly for action. In addition, even when improper conduct occurs at

a meeting, in order for disciplinary action to be taken other than promptly after the breach

occurs, charges must be preferred and a formal trial held. However, the only way in which a

member may be disciplined for words spoken in debate is through the procedure described on

pages 645–48, which may be employed only promptly after the breach occurs. In some societies

(depending on particular provisions of the bylaws, as explained in 62), the same steps must also

be employed if an officer of the society is to be deposed from office.

[page 650]

The procedures governing all such cases are described in detail in 63.

§62. REMOVAL FROM OFFICE AND OTHER REMEDIES FOR DERELICTION OF



30/50

30

DUTY IN OFFICE OR MISCONDUCT

The presiding officer and other officers have the duties set forth in this manual (see 47)

and in the organization's bylaws. This section covers procedures available if they neglect those

duties, abuse their authority, or engage in other misconduct that calls into question their fitness

for office. This section also covers removal from office at the pleasure of the assembly when the

bylaws permit such removal.

Remedies for Abuse of Authority by the Chair in a Meeting

ENFORCING POINTS OF ORDER AND APPEALS. If the chair at a meeting acts

improperly (for example, fails to recognize a member entitled to the floor, see 42, or ignores a

motion properly made and seconded that is not dilatory, see 39, and neither states the question on

the motion nor rules it out of order), a Point of Order (23) may be raised, and from the chair's

decision an Appeal (24) may be taken. This procedure enables the majority to ensure

enforcement of the rules unless the chair ignores the point of order, ignores the appeal, or fails to

act in accordance with the assembly's decision on the appeal.

If the chair ignores a point of order that is not dilatory, the member can repeat the point

of order a second and third time and if the chair still ignores it, the member, standing in his place,

can immediately put the point of order to a vote without debate. The question may be put as, "Is

the point of

[page 651]

order that . . . well taken?" If the point of order was that the chair improperly ignored

another motion, the member may, instead of repeating the point of order, repeat the original

motion, and if it is seconded and the chair still ignores it, may, standing in his place, put the



31/50

31

ignored motion to a vote without debate.

Likewise, if the chair ignores an appeal appropriately made and seconded,* a member

can repeat the appeal and if, despite its being seconded, the chair ignores it again, the member

can repeat it a third time and if it is again seconded but still ignored by the chair, the member can

immediately, standing in his place, put the appeal to a vote without debate. The question may be

put as: "Shall the decision of the chair be sustained?"

REMOVAL OF PRESIDING OFFICER FROM CHAIR FOR ALL OR PART OF A

SESSION. If the chair fails to act in accordance with the assembly's decision on an appeal (or on

a point of order submitted to a vote of the assembly) or otherwise culpably fails to perform the

duties of the chair properly in a meeting, the assembly may employ measures temporarily to

replace the chair with another presiding officer expected to act in accordance with the will of the

assembly.

If the offending occupant of the chair is an appointed or elected chairman pro tem (see

pp. 452–54), a motion can be made to "declare the chair vacant and proceed to elect a new

chairman." Such a motion is a question of privilege affecting

[page 652]

the assembly (19) and is an incidental main motion requiring a majority vote for its

adoption.*

If the chair is not an appointed or elected chairman pro tem, a motion to declare the chair

vacant is not in order. However, a motion can be made to Suspend the Rules so as to take away

from him the authority to preside during all or part of a given session.** When such a motion is

made and seconded, after stating the motion he must turn the chair over to another following the



32/50

32

procedure described on page 395, and the remedy for refusal or failure to do so is that the motion

may be put to a vote by its maker.

Any one motion to Suspend the Rules that might limit the authority or duties of the

presiding officer during a meeting can remain in effect, at most, for one session. (See p. 87, ll. 6–

11 and p. 88, ll. 26–35.) Therefore, in order to prevent the regular presiding officer from

presiding during subsequent sessions, the motion to Suspend the Rules would have

[page 653]

to be renewed and separately adopted at each of the sessions. Moreover, since Suspend

the Rules applies only when "an assembly wishes to do something during a meeting that it

cannot do without violating one or more of its regular rules" (p. 260, ll. 19–21, emphasis added),

the motion cannot be used to remove from the presiding officer (even temporarily) any

administrative duties—those related to the role of an executive officer that are distinct from the

function of presiding over the assembly at its meetings. (Cf. p. 456, ll. 22–28.)

If the motion to suspend the rules is adopted by a two-thirds vote, then, unless the motion

names a new occupant of the chair, the ranking vice-president (or, in the absence of the vice-

president, an elected temporary presiding officer, pp. 453–54) has the duty of presiding through

the end of the session (or any shorter period specified by the motion to suspend the rules).

A permanent removal of the presiding officer, and removal of authority to exercise

administrative duties conferred by the bylaws, requires the procedure described below.

Removal from Office

Except as the bylaws may provide otherwise, any regularly elected officer of a permanent

society can be removed from office by the society's assembly as follows:



33/50

33

• If the bylaws provide that officers shall serve "for __ years or until their

successors are elected," the officer in question can be removed from office by adoption of a

motion to do so. The vote required for adoption of such a motion is (a) a two-thirds vote, (b) a

majority vote when previous notice (as defined on p. 121) has been given, or (c) a vote of a

majority of the entire membership—any one of which will suffice. A motion to remove an

officer from

[page 654]

office is a question of privilege (19) affecting the organization of the assembly, and so

also is the filling of any vacancy created by the adoption of such a motion.*

• If, however, the bylaws provide that officers shall serve only a fixed term,

such as "for two years" (which is not a recommended wording; see p. 573, l. 33 to p. 574, l. 3), or

if they provide that officers shall serve "for __ years and until their successors are elected," an

officer can be removed from office only for cause—that is, neglect of duty in office or

misconduct—in accordance with the procedures described in 63; that is, an investigating

committee must be appointed, charges must be preferred, and a formal trial must be held.

§63. INVESTIGATION AND TRIAL

As explained in 61 and 62, the removal of an officer for cause, or the discipline of a

member for improper conduct, may require that charges be preferred and that a formal trial be

held. The full procedure for such cases is described in this section.**

[page 655]

Rights of the Society and the Accused

A society has the right to investigate the character of its members and officers as may be



34/50

34

necessary to the enforcement of its own standards. But neither the society nor any member has

the right to make public any information obtained through such investigation; if it becomes

common knowledge within the society, it should not be revealed to any persons outside the

society. Consequently, a trial must always be held in executive session, as must the introduction

and consideration of all resolutions leading up to the trial.

If (after trial) a member is expelled or an officer is removed from office, the society has

the right to disclose that fact—circulating it only to the extent required for the protection of the

society or, possibly, of other organizations. Neither the society nor any of its members has the

right to make public the charge of which an officer or member has been found guilty, or to reveal

any other details connected with the case. To make any of the facts public may constitute libel. A

trial by the society cannot legally establish the guilt of the accused, as understood in a court of

law; it can only establish his guilt as affecting the society's judgment of his fitness for

membership or office.

Ordinarily it is impossible for the society to obtain legal proof of facts in disciplinary

cases. To get at the truth under the conditions of such a trial, hearsay evidence has to be

admissible, and judgment as to the best interests of the society may have to be based on it.

Witnesses are not sworn. The persons with first-hand knowledge may be nonmembers, who

probably will decline to testify, and may be willing only to reveal the facts privately to a single

member on condition that their names in no way be connected with the case. Even members may

be reluctant to give formal testimony against the accused. A member can be required to testify at

a trial on pain of expulsion, but it is very seldom advisable to force such an issue.

[page 656]



35/50

35

A member or officer has the right that allegations against his good name shall not be

made except by charges brought on reasonable ground. If thus accused, he has the right to due

process—that is, to be informed of the charge and given time to prepare his defense, to appear

and defend himself, and to be fairly treated.

If a member or officer is guilty of a serious offense and knows that other members are in

possession of the facts, he may wish to submit his resignation. When the good of the society

appears to demand the departure of an offender, it is usually best for all concerned to offer him

the opportunity to resign quietly before charges are preferred. The society has no obligation to

suggest or accept such a resignation at any stage of the case, however, even if it is submitted on

the offender's own initiative.

Steps in a Fair Disciplinary Process

Most ordinary societies should never have to hold a formal trial, and their bylaws need

not be encumbered with clauses on discipline. For the protection both of the society and of its

members and officers, however, the basic steps which, in any organization, make up the elements

of fair disciplinary process should be understood. Any special procedures established should be

built essentially around them, and the steps should be followed in the absence of such provisions.

As set forth below, these are: (1) confidential investigation by a committee; (2) report of the

committee, and preferral of charges if warranted; (3) formal notification of the accused; (4) trial;

and (5) the assembly's review of a trial committee's findings (if the trial has been held in a

committee instead of the assembly of the society).

CONFIDENTIAL INVESTIGATION BY COMMITTEE. A committee whose members

are selected for known integrity and good judgment conducts a confidential investigation



36/50

36

[page 657]

(including a reasonable attempt to interview the accused) to determine whether to

recommend that further action, including the preferring of charges if necessary, is warranted.

Accordingly, if the rules of the organization do not otherwise provide for the method of

charge and trial, a member may, at a time when nonmembers are not present, offer a resolution to

appoint an investigating committee. This resolution is to be in a form similar to the following:

Resolved, That a committee of . . . [perhaps "five"] be elected by ballot to investigate

allegations of neglect of duty in office by our treasurer, J.M., which, if true, cast doubt on her

fitness to continue in office, and that the committee be instructed, if it concludes that the

allegations are well-founded, to report resolutions covering its recommendations.

To initiate disciplinary proceedings involving a member, a suitable resolution would be:

Resolved, That a committee of . . . [perhaps "five"] be appointed by the chair [or "be

elected by ballot"] to investigate rumors regarding the conduct of our member, Mr. N, which, if

true, would tend to injure the good name of this organization, and that the committee be

instructed, if it concludes the allegations are well-founded, to report resolutions covering its

recommendations.

For the protection of parties who may be innocent, the first resolution should avoid

details as much as possible. An individual member may not prefer charges, even if that member

has proof of an officer's or member's wrongdoing. If a member introduces a resolution preferring

charges unsupported by an investigating committee's recommendation, the chair must rule the

resolution out of order, informing the

[page 658]



37/50

37

member that it would instead be in order to move the appointment of such a committee

(by a resolution, as in the example above). A resolution is improper if it implies the truth of

specific rumors or contains insinuations unfavorable to an officer or member, even one who is to

be accused. It is out of order, for example, for a resolution to begin, "Whereas, It seems probable

that the treasurer has engaged in graft, . . ." At the first mention of the word "graft" in such a

case, the chair must instantly call to order the member attempting to move the resolution.

An investigating committee appointed as described above has no power to require the

accused, or any other person, to appear before it, but it should quietly conduct a complete

investigation, making an effort to learn all relevant facts. Information obtained in strict

confidence may help the committee to form an opinion, but it may not be reported to the society

or used in a trial—except as may be possible without bringing out the confidential particulars.

Before any action is taken, fairness demands that the committee or some of its members make a

reasonable attempt to meet with the accused for frank discussion and to hear his side of the story.

It may be possible at this stage to point out to the accused that if he does not rectify the situation

or resign, he probably will be brought to trial.

REPORT OF THE INVESTIGATING COMMITTEE; PREFERRAL OF CHARGES. If

after investigation the committee's opinion is favorable to the accused, or if it finds that the

matter can be resolved satisfactorily without a trial, it reports that fact.* But if the committee

from its investigations

[page 659]

finds substance to the allegations and cannot resolve the matter satisfactorily in any other

way, it makes a report in writing—which is signed by every committee member who agrees—



38/50

38

outlining the course of its investigation and recommending in the report the adoption of

resolutions preferring charges, arranging for a trial, and, if desired, suspending the rights of the

accused, as in the following example:

Resolved, That when this meeting adjourns, it adjourn to meet at 8 P.M. on Wednesday,

November 15, 20__. [For variations depending on conditions, see the first paragraph following

these resolutions, below.]

Resolved, That J.M. is hereby cited to appear at said adjourned meeting for trial, to show

cause why she should not be removed from the office of treasurer on the following charge and

specifications:

Charge. Neglect of duty in office.

Specification 1. In that J.M. has failed to account for at least $10,000 of the

Society's funds known to have been given into her custody.

Specification 2. In that J.M. has repeatedly failed to provide the financial records

of her treasurership for review by the auditing committee.

Resolved, That from the time official notification of this resolution is delivered to

J.M.'s address until disposition of the case, all of J.M.'s authority, rights, and duties pertaining to

the office of treasurer are suspended.

Resolved, That members S and T act as managers for the Society at the trial. [See

below.]

[page 660]

In a disciplinary proceeding against a member, an example of the second and third

resolutions is:



39/50

39

Resolved, That Mr. N is hereby cited to appear at said adjourned meeting for trial, to

show cause why he should not be expelled from the Society on the following charge and

specifications:

Charge. Conduct tending to injure the good name of this organization.

Specification 1. In that Mr. N has so conducted himself as to establish among a

number of his acquaintances a reputation for willfully originating false reports against innocent

persons.

Specification 2. In that on or about the evening of August 12, 20__, in the

Matterhorn Restaurant, Mr. N was seen by patrons to be the apparent provoker of a needless and

violent disturbance, causing damage to the furnishings.

Resolved, That from the time official notification of this resolution is delivered to Mr. N's

address until disposition of the case, all of Mr. N's rights as a member (except as relate to the

trial) are suspended pending disposition of the case.

With reference to an appropriate date for which to set the trial, thirty days is a reasonable

time to allow the accused to prepare his defense. When a trial is to be before the assembly of the

society, it is generally a good policy to hold it at a meeting devoted exclusively to the matter,

such as an adjourned meeting as in the example above. To devote a meeting to the trial when

there is to be another regular meeting between the date of adoption of these resolutions and the

date desired for the trial, the first resolution would establish a special meeting instead of an

adjourned meeting

[page 661]

(see 9).* If believed advisable—and particularly when the trial is likely to be delicate,



40/50

40

involve potential scandal, or be long and troublesome, or when the assembly of the organization

is large—the resolutions reported by the investigating committee, instead of providing for trial

before the entire assembly, can be worded so as to establish a committee to hear the trial and

report its findings and recommendations to the assembly for action. In such a case, the first two

of the resolutions above would be worded as follows:

Resolved, That a trial committee consisting of Mr. H as chairman and members A, B, C,

D, E, and F be appointed to try the case of J.M. and report its findings and recommendations. [A

special committee appointed to hear a trial must be composed of persons different from those on

the preliminary investigating committee. This resolution can either be offered with the names of

the members of the proposed trial committee specified as in the example, or it can contain a

blank so as to leave the manner of their selection to the assembly.]

Resolved, That J.M. is hereby cited to appear before the said trial committee at the

Society hall at 8 P.M. on Wednesday, November 15, 20__, to show cause why she should not be

removed from the office of treasurer on the following charge and specifications: . . . [setting

them forth, as above.]

The remaining resolutions would be the same whether the trial is to be before the

assembly or before a special committee (see above).

[page 662]

A charge sets forth an offense—that is, a particular kind of act or conduct that entails

liability to penalty under the governing rules—of which the accused is alleged to be guilty. A

specification states what the accused is alleged to have done which, if true, constitutes an

instance of the offense indicated in the charge. An accused officer or member must be found



41/50

41

guilty of a charge before a penalty can be imposed. If the bylaws of the society provide for the

imposition of penalties for offenses defined in the bylaws or an adopted code of conduct or

similar set of rules, a charge may consist of such a defined offense. If such particular offenses are

not defined or are not applicable, a member may be charged with "conduct tending to injure the

good name of the organization, disturb its well-being, or hamper it in its work," or the like, and

an officer may be charged with misconduct of the type just mentioned or with "misconduct in

office," "neglect of duty in office," or "conduct that renders him [or "her"] unfit for office."

Each separate charge contained in the resolutions must be accompanied by at least one

specification, unless the investigating committee and the accused agree in preferring that this

information not be disclosed outside the trial. It is best if each specification is carefully worded

so as to make no broader allegation than is believed sufficient to establish the validity of the

charge if the specification is found to be true.

A resolution preferring charges may (although it need not) be accompanied by one

suspending all or some specified portion of the accused's authority, rights, and duties as an

officer or rights as a member (except those rights that relate to the trial) pending disposition of

the case, effective from the time official notification of the resolution is delivered to the

accused's address.

The "managers" at the trial—referred to in the fourth resolution of the complete set

shown above—have the task of presenting the evidence against the accused, and must be

members of the society. Their duty, however, is not to act as

[page 663]

prosecutors—in the sense of making every effort t

Documents

Utah GOP memorandum on SB54