ProtectMarriage.com - Yes on 8, a Project of California Renewal et al v. Bowen et al

Filing 90

ANSWER to AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL by Jan Scully.(Cassidy, Terence)

Download PDF
P r o t e c t M a r r i a g e . c o m - Yes on 8, a Project of California Renewal et al v. Bowen et al D o c . 90 1 A PROFESSIONAL CORPORATION 2 3 4 5 Terence J. Cassidy, SBN 99180 Kristina M. Hall, SBN 196794 350 University Ave., Suite 200 Sacramento, California 95825 TEL: 916.929.1481 FAX: 916.927.3706 A tto rn e ys for Defendant JAN SCULLY, in her official capacity 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 U N IT E D STATES DISTRICT COURT E A S T E R N DISTRICT OF CALIFORNIA PROTECTMARRIAGE.COM - YES ON 8, A PROJECT OF CALIFORNIA RENEWAL; N A T I O N A L ORGANIZATION FOR MARRIAGE CALIFORNIA - YES ON 8, SPONSORED BY NATIONAL ORGANIZATION FOR MARRIAGE, JOHN DOE #1, an individual and as representative of the CLASS OF MAJOR DONORS, Plaintiffs, vs. DEBRA BOWEN, Secretary of State for the State of California, in her official capacity; EDMUND G. BROWN, JR., Attorney General for the State of California, in his official capacity; DEAN C. LOGAN, Registrar-Recorder of Los Angeles County, C al i fo rn i a, in his official capacity; DEPARTMENT OF ELECTIONS - CITY AND COUNTY OF SAN FRANCISCO; JAN SCULLY, District Attorney for Sacramento County, California in her official capacity and as a representative of the Class of District Attorneys in the State of California; DENNIS J. HERRERA, City Attorney for the City and County of San Francisco, California, in his official capacity and as a representative of the Class of Elected City Attorneys in the State of California; ROSS JOHNSON, TIMOTHY HODSON, EUGENE HUGUENIN, JR., ROBERT LEIDIGH and RAY REMY, members of the California Fair Political Practices Commision, in their official capacities, Defendants. / 1 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD C as e No. 2:09-CV-00058-MCE-DAD D E F E N D A N T JAN SCULLY'S ANSWER T O SECOND AMENDED COMPLAINT A N D DEMAND FOR JURY TRIAL w w w .p o r t er s c o t t .c o m Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 D e f e n d a n t JAN SCULLY, in her official capacity as District Attorney for the County o f Sacramento, hereby answers Plaintiffs' Second Amended Complaint as follows: 1. A n s w e rin g paragraphs 1, 2, 3 and 4, this answering Defendant contends that s a id paragraphs contain conclusions of law and not averments of fact to which an answer m a y be required, but insofar as an answer may be deemed required, this answering Defendant g e n e r a lly and specifically denies each and every allegation in said paragraphs. I. J U R IS D IC T I O N AND VENUE 2. A n sw e rin g paragraphs 5, 6 and 7, this answering Defendant contends that said p a ra g ra p h s contain conclusions of law and not averments of fact to which an answer may be re q u ire d , but insofar as an answer may be deemed required, this answering Defendant g e n e r a lly and specifically denies each and every allegation in said paragraphs. II. P A R T IE S 3. A n s w e rin g paragraphs 8, 9, 10, 11 and 12, this answering Defendant lacks su f f icie n t information or knowledge to enable her to answer the allegations contained in said p a ra g ra p h , and basing her denial on that ground, generally and specifically denies each and e v e r y allegation contained in said paragraphs. 4. A n s w e rin g paragraph 13, this answering Defendant admits that Debra Bowen is the Secretary of State of California. Answering the remaining allegations contained in said p a ra g ra p h , this answering Defendant contends that said paragraph contains conclusions of la w and not averments of fact to which an answer may be required, but insofar as an answer m a y be deemed required, this answering Defendant generally and specifically denies each a n d every allegation in said paragraph. 5. A n s w e rin g Paragraph 14, this answering Defendant admits that Edmund B ro w n , Jr., is the Attorney General of California. Answering the remaining allegations c o n ta in e d in said paragraph, this answering Defendant contends that said paragraph contains c o n c lu s io n s of law and not averments of fact to which an answer may be required, but insofar 2 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 a s an answer may be deemed required, this answering Defendant generally and specifically d e n ie s each and every allegation in said paragraph. 6. A n s w e rin g Paragraphs 15 and 16, this answering Defendant lacks sufficient in f o rm a tio n or knowledge to enable her to answer the allegations contained in said p a ra g ra p h s, and basing her denial on that ground, generally and specifically denies each and e v e r y allegation contained in said paragraphs. 7. A n sw e rin g paragraph 17, this answering Defendant admits that she is the duly e le c te d District Attorney for Sacramento County, California. Answering the remaining a lleg a tio n s contained in said paragraph, this answering Defendant contends that said p a ra g ra p h contains conclusions of law and not averments of fact to which an answer may be re q u ire d , but insofar as an answer may be deemed required, this answering Defendant g e n e ra lly and specifically denies each and every allegation in said paragraph. 8. A n s w e rin g paragraphs 18 and 19, this answering Defendant lacks sufficient in f o rm a tio n or knowledge to enable her to answer the allegations contained in said p a ra g ra p h s, and basing her denial on that ground, generally and specifically denies each and e v e ry allegation contained in said paragraphs. In addition, Defendant contends that said p a ra g ra p h s contain conclusions of law and not averments of fact to which an answer may be re q u ire d , but insofar as an answer may be deemed required, this answering Defendant g e n e r a lly and specifically denies each and every allegation in said paragraphs. I I I. C L A S S ACTION ALLEGATIONS 9. A n s w e rin g paragraphs 20 and 21, Defendant contends that said paragraphs c o n ta in conclusions of law and not averments of fact to which an answer may be required, b u t insofar as an answer may be deemed required, this answering Defendant generally and s p e c if ic a lly denies each and every allegation in said paragraphs. /// /// /// 3 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 IV . FACTS 10. A n s w e rin g paragraphs 22, 23, 24, 25, 26, 27 and 28, this answering Defendant la c k s sufficient information or knowledge to enable her to answer the remaining allegations c o n tain e d in said paragraphs, and basing her denial on that ground, generally and specifically d e n ie s each and every allegation contained in said paragraphs. 11. A n s w e rin g paragraph 29, 30, 31, and 32, this answering Defendant lacks su f f icie n t information or knowledge to enable her to answer the allegations contained in said p a ra g ra p h s, and basing her denial on that ground, generally and specifically denies each and e v e ry allegation contained in said paragraphs. In addition, Defendant contends that said p a ra g ra p h s contain conclusions of law and not averments of fact to which an answer may be re q u ire d , but insofar as an answer may be deemed required, this answering Defendant g e n e r a lly and specifically denies each and every allegation in said paragraphs. 12. A n s w e rin g paragraphs 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46, th is answering Defendant lacks sufficient information or knowledge to enable her to answer th e allegations contained in said paragraphs, and basing her denial on that ground, generally a n d specifically denies each and every allegation contained in said paragraphs. 13. A n s w e rin g paragraphs, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 a n d 62, this answering Defendant contends that said paragraphs contain conclusions of law a n d not averments of fact to which an answer may be required, but insofar as an answer may b e deemed required, this answering Defendant generally and specifically denies each and e v e r y allegation in said paragraphs. V. COUNT 1 14. A n s w e rin g paragraph 63, this answering Defendant incorporates by reference h e r responses to paragraphs 1 through 62 as though fully restated herein. 15. A n s w e rin g paragraphs 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74 and 75 (in c lu d in g footnotes), this answering Defendant contends that said paragraphs contain 4 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 c o n c lu s io n s of law and not averments of fact to which an answer may be required, but insofar a s an answer may be deemed required, this answering Defendant generally and specifically d e n ie s each and every allegation in said paragraphs. 16. A n s w e rin g paragraphs 76, 77, 78, 79, 80, 81 and 82, this answering Defendant la c k s sufficient information or knowledge to enable her to answer the allegations contained in said paragraphs, and basing her denial on that ground, generally and specifically denies e a ch and every allegation contained in said paragraphs. In addition, Defendant contends that s a id paragraphs contain conclusions of law and not averments of fact to which an answer m a y be required, but insofar as an answer may be deemed required, this answering Defendant g e n e r a lly and specifically denies each and every allegation in said paragraphs. P r a y e r for Relief 17. A n s w e rin g paragraph 83 and its subparagraphs of Plaintiffs' Prayer for Relief, th is answering Defendant contends that said paragraphs do not contain averments of fact to w h ic h an answer may be required, but insofar as an answer may be deemed required, D e f e n d a n t generally and specifically denies each and every allegation in said paragraphs. V I. COUNT 2 18. A n s w e rin g paragraph 84, this answering Defendant incorporates by reference h e r responses to paragraphs 1 through 83 as though fully restated herein. 19. A n sw e rin g paragraphs 85, 86, 87, 88, 89, 90, 91, 92, 93, 94 and 95, this a n sw e rin g Defendant lacks sufficient information or knowledge to enable her to answer the a lle g a tio n s contained in said paragraphs, and basing her denial on that ground, generally and s p e c if ic a lly denies each and every allegation contained in said paragraphs. In addition, D e f en d a n t contends that said paragraphs contain conclusions of law and not averments of f a ct to which an answer may be required, but insofar as an answer may be deemed required, th is answering Defendant generally and specifically denies each and every allegation in said paragraphs. /// 5 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 P r a y e r for Relief 20. A n s w e rin g paragraph 96 and its subparagraphs of Plaintiffs' Prayer for Relief, th is answering Defendant contends that said paragraphs do not contain averments of fact to w h ic h an answer may be required, but insofar as an answer may be deemed required, D e f e n d a n t generally and specifically denies each and every allegation in said paragraphs. V II. COUNT 3 21. A n s w e rin g paragraph 97, this answering Defendant incorporates by reference h e r responses to paragraphs 1 through 96 as though fully restated herein. 22. A n sw e rin g paragraphs 98, 99, 100, 101, 102, 103, 104, 105 and 106, this a n sw e rin g Defendant lacks sufficient information or knowledge to enable her to answer the a lle g a tio n s contained in said paragraphs, and basing her denial on that ground, generally and s p e c i f i c a l ly denies each and every allegation contained in said paragraphs. In addition, D e f en d a n t contends that said paragraphs contain conclusions of law and not averments of f a ct to which an answer may be required, but insofar as an answer may be deemed required, th is answering Defendant generally and specifically denies each and every allegation in said paragraphs. P r a y e r for Relief 23. A n s w e rin g paragraph 107 and its subparagraphs of Plaintiff's Prayer for Relief, th is answering Defendant contends that said paragraphs do not contain averments of fact to w h ic h an answer may be required, but insofar as an answer may be deemed required, D e f e n d a n t generally and specifically denies each and every allegation in said paragraphs. V I I I. COUNT 4 24. A n s w e rin g paragraph 108, this answering Defendant incorporates by reference h e r responses to paragraphs 1 through 107 as though fully restated herein. /// /// 6 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 25. A n sw e rin g paragraph 109, 110, 111, 112, 113, 114, 115, 116, 117 and 118, this a n sw e rin g Defendant lacks sufficient information or knowledge to enable her to answer the a lle g a tio n s contained in said paragraphs, and basing her denial on that ground, generally and s p e c if ic a lly denies each and every allegation contained in said paragraphs. In addition, D e f en d a n t contends that said paragraphs contain conclusions of law and not averments of f a ct to which an answer may be required, but insofar as an answer may be deemed required, th is answering Defendant generally and specifically denies each and every allegation in said paragraphs. P r a y e r for Relief 26. A n sw erin g paragraph 119 and its subparagraphs of Plaintiffs' Prayer for Relief, th is answering Defendant contends that said paragraphs do not contain averments of fact to w h ic h an answer may be required, but insofar as an answer may be deemed required, D e f e n d a n t generally and specifically denies each and every allegation in said paragraphs. A F F I R M A T I V E DEFENSES F I R S T AFFIRMATIVE DEFENSE T h e Complaint fails to state facts sufficient to constitute claims upon which relief can b e granted against this answering Defendant. S E C O N D AFFIRMATIVE DEFENSE P la in tif f s' demand to enjoin this answering Defendant is barred, as Plaintiffs have s u f f ere d neither harm nor irreparable harm as a result of any of this Defendant's actions, and P la in tif f s have an adequate remedy at law. T H I R D AFFIRMATIVE DEFENSE P la in tif f s' claims against this answering Defendant are not ripe for adjudication and/or a re moot. F O U R T H AFFIRMATIVE DEFENSE P la in tif f s' claims against this answering Defendant are barred by the doctrine of a b s te n tio n . /// 7 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 D a te d : February 5, 2009 F I F T H AFFIRMATIVE DEFENSE T h i s matter is not an appropriate class action and Defendant is not a class re p re se n ta tiv e and therefore any judgment cannot bind any other purported party other than D e f e n d a n t. S I X T H AFFIRMATIVE DEFENSE D e f en d a n t is mandated by statute to enforce the codified laws of the State of C alif o rn ia and therefore this action against her is without basis in law. S E V E N T H AFFIRMATIVE DEFENSE P la in tif f s' claims and each of them are barred on the grounds that Plaintiffs lack any r e m e d y and therefore the Court lacks jurisdiction over any such claims. W H E R E F O R E , Defendant JAN SCULLY prays for judgment as follows: 1. 2. 3. 4. T h a t Plaintiffs' action be dismissed; T h a t Plaintiffs take nothing by way of their Complaint; T h a t Defendant be awarded her costs of suit, including attorney fees; and, F o r such other relief as the Court deems proper. R e sp e c tf u lly submitted, P O R T E R SCOTT A PROFESSIONAL CORPORATION By 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 /s/Terence J. Cassidy Terence J. Cassidy A tto rn e y for Defendant J A N SCULLY, District Attorney for S a c ra m e n to County, California in her o f f icia l capacity /// /// /// /// /// 8 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m 1 2 3 4 5 6 7 D a te d : February 5, 2009 D E M A N D FOR JURY TRIAL D e f en d a n t JAN SCULLY hereby demands a trial by jury in the above-entitled action a s provided by the Seventh Amendment to the United States Constitution and Rule 38 of the F e d e ra l Rules of Civil Procedure. R e sp e c tf u lly submitted, P O R T E R SCOTT A PROFESSIONAL CORPORATION By 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PORTER * SCOTT ATTORNEYS 3 5 0 U N I V E R S I T Y A V E ., S U I T E 2 0 0 SACRAM EN TO , CA 95825 T E L : 9 1 6 . 9 2 9 .1 4 8 1 F A X : 9 1 6 . 9 2 7 .3 7 0 6 /s/Terence J. Cassidy Terence J. Cassidy A tto rn e y for Defendant J A N SCULLY, District Attorney for S a c ra m e n to County, California in her o f f icia l capacity 9 DEFENDANT JAN SCULLY'S ANSWER TO SECOND AMENDED COMPLAINT AND DEMAND FOR JURY TRIAL 00650393.WPD w w w .p o r t er s c o t t .c o m