Pipkin v. Acumen

• Decision Date: 30 July 2020
• Docket Number: No. 20190378-CA,20190378-CA
• Court: Utah Court of Appeals
• Parties: Lynda PIPKIN, Janice Legler, Benjamin Thompson, Robert McEntee, Elizabeth Carlin, Arturo Morales Llan, and Paul Cozzens, Appellants, v. Daryl ACUMEN, Appellee.

472 P.3d 315

Lynda PIPKIN, Janice Legler, Benjamin Thompson, Robert McEntee, Elizabeth Carlin, Arturo Morales Llan, and Paul Cozzens, Appellants,

v.Daryl ACUMEN, Appellee.

No. 20190378-CA

Court of Appeals of Utah.

Filed July 30, 2020

Rehearing Denied August 24, 2020

Seth D. Needs, Attorney for Appellants

Todd D. Weiler, Attorney for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

ORME, Judge:

¶1 During the period relevant to this lawsuit, Lynda Pipkin, Janice Legler, Benjamin Thompson, Robert McEntee, Elizabeth Carlin, Arturo Morales Llan, and Paul Cozzens (collectively, Plaintiffs) were members or former members of the State Central Committee (SCC), the governing body of the Utah Republican Party (URP). After the SCC adopted a controversial bylaw, Daryl Acumen, who strongly opposed it, sent emails to URP members and posted on social media challenging the bylaw and suggesting its illegality. In these communications, Acumen also alleged that Plaintiffs either supported the bylaw or voted in its favor. Plaintiffs filed a complaint against Acumen claiming, among other things, defamation and electronic communications harassment. The district court granted summary judgment in Acumen's favor on all their claims, and we affirm.

BACKGROUND¹

¶2 This case takes place within the larger context of the controversy surrounding the creation of a signature path to the Republican primary ballot—a hotly debated issue within the URP. To make a long story short,² in 2014 the Legislature passed SB54 which, when enacted, created a signature-gathering path for candidates to the primary election ballot as an alternative to state nominating conventions and prevented any political party from restricting access to its primary ballot solely to candidates who won nomination through the convention process. See Utah Code Ann. § 20A-9-101(12)(c) (LexisNexis 2019) (stating that a qualified political party must allow members "to seek the registered political party's nomination for any elective office by the member choosing to seek the nomination by either or both ... (i) seeking the nomination through the registered political party's convention process ... or (ii) seeking the nomination by collecting signatures"); Utah Republican Party v. Cox , 2016 UT 17, ¶ 12, 373 P.3d 1286 (per curiam) (concluding that the statute "requires that, to be a [qualified political party], a registered political party must permit its members to seek access to nomination for electoral office by either or both the signature-gathering method or the convention method"). Although the Legislature was "comprised of overwhelming Republican majorities in both the State House and State Senate," see Utah Republican Party v. Cox , 892 F.3d 1066, 1073 (10th Cir. 2018), the URP opposed this legislation.

¶3 On February 24, 2018, after the URP lost two lawsuits challenging SB54's signature provision—and while the appeal from the second suit was pending before the United States Court of Appeals for the Tenth Circuit—the SCC adopted the relevant bylaw (the Bylaw). As the district court stated, "The gist of the Bylaw was that Republican candidates who chose to seek the party's nomination through the signature path allowed by [SB54] would not be allowed to present themselves on the ballot as the Republican party's nominees."³ The parties agree that several local media outlets suggested that the Bylaw was possibly illegal.

¶4 Although no official record was made of the vote, and the total number of votes in favor of the Bylaw was unclear, the SCC passed it by a two-thirds majority vote of members who were present at the meeting called to consider the Bylaw.⁴ Plaintiffs are members or former members of the SCC who purportedly either voted for or supported the Bylaw.⁵

¶5 Acumen, a former SCC member and the chair of the Utah Black Republican Assembly, vehemently opposed the Bylaw. On March 5, 2018, he sent an email with the subject "Keep the GOP on the ballot!" to URP members. With the exception of links to certain news articles that Acumen included, the email stated as follows:

An Important Message

Read if you want to keep the GOP on the ballot

Hello [name],

As you may have heard, on February 24th a small group of delegates to the [SCC] voted to enact a bylaw that currently threatens to disqualify the [URP] from the 2018 General Election ballot . The bylaw states that Republican candidates who choose to seek our party's nomination through the signature path allowed by current election law will be "kicked out" of the Republican Party . Because the bylaw violates the rules for a "Qualified Political Party" (QPP) under Utah state law, the [URP] (along with all our Republican candidates) will almost certainly be removed from the ballot in November as a consequence ... this is not a joke!

The move by a group known as the #GangOf51^[6] was taken during a "special" meeting of the SCC called with minimal notice in the hope that few regular committee members would be able to attend. Davis County Republican Party Secretary Brady Jugler proposed the bylaw intentionally to create a legal standoff with the Lt. Governor's office and to place the party's QPP status at risk. These actions violate the [URP] platform, which states "We support the ‘Rule of Law’ and believe in upholding the law of the land."

Because this stunt flouts current election law, it constitutes a class B misdemeanor under section 20A of Utah State Code, punishable by up to six (6) months in jail and a $1,000 fine.

Because the bylaw initially applies only to the 1^st and 2^nd Congressional races (excluding the 3rd and 4th), it violates the 14th Amendment to the United States Constitution , which requires the equal application of election laws. The bylaw also therefore runs afoul of the National Republican Party Platform which urges us to uphold the constitution and proclaims that "... the Constitution was written not as a flexible document, but as our enduring covenant ."

The Utah State Legislature is currently considering HB485 which would seek to repair the damage by directing the Lt. Governor's office to ignore mid-election bylaw changes by political parties, however the Utah Democratic Party has already signaled that it will challenge this guidance in court and will seek to force the Lt. Governor to recognize the bylaw as written [and] thus disqualify every Republican from the ballot in 2018 .

The [URP] has three (3) functions:

• Recruit Republicans

• Drive Republicans to the polls

• Elect Republicans

While certain extremists within our party are under the delusion that the primary focus of our party should be to fight against a signature path to the ballot, the vast majority of Republican voters in Utah and every single Republican leader in the United States disagrees.

By jeopardizing our place on the 2018 ballot, our SCC representatives have acted illegally, irresponsibly, recklessly, and against our interests. They have violated our trust and I believe they should be held accountable.

If you agree with me , please contact the SCC members responsible for this action by sending an email expressing your thoughts and opinions on the matter to GangOf51@UtahGOP.org. Alternatively you can simply reply to this email and your response will be directed to those responsible.

Thank you for your attention.

The bottom of the email also contained an "Unsubscribe here" link.

¶6 Two weeks later, on March 19, 2018, Acumen sent out a similar email with the subject line "Important Information for Caucus Night." This email contained a link to a website that listed the alleged members of the Gang of 51, including Plaintiffs. Acumen also posted on social media, "If you want to let the #GangOf51 know how you feel about their illegal activity, you can email them all .... I encourage everyone reading this to send them a quick note letting them know exactly what you think!"

¶7 In an affidavit, Acumen stated that he "sent a total of 67,660 emails to party members and only 12,870 of them were opened[,] ... generat[ing] about 600 responses that were redirected to Plaintiffs and other members of the ‘Gang of 51.’ " This statement was essentially undisputed by Plaintiffs.⁷

¶8 In September 2018, Plaintiffs filed their lawsuit against Acumen, asserting claims of electronic communications harassment, defamation, false light, and intentional infliction of emotional distress (IIED). Acumen moved to dismiss their complaint. Following oral argument, the district court converted Acumen's motion to dismiss into a motion for summary judgment on the ground that Acumen's motion and Plaintiffs' reply memorandum raised "matters outside the pleading." See Utah R. Civ. P. 12(b) ("If ... matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment[.]").

¶9 After providing the parties with a "reasonable opportunity to present all material made pertinent to such a motion," id. , the court granted summary judgment in Acumen's favor. The court first addressed Plaintiffs' electronic communications harassment claim, noting that "[t]he 600 responses that were directed to the Plaintiffs came from their constituents, not from ... Acumen." But "[e]ven if all 600 responses were copied to every member of the Plaintiff group, which is unclear," the court "conclude[d], as a matter of law, that [Acumen's] action in sending his email to Plaintiffs’ constituents was not intended to, and did not actually, ‘cause[ ] disruption, jamming, or overload of an electronic communication system.’ " See Utah Code Ann. § 76-9-201(2)(d) (LexisNexis 2017). Furthermore, the court concluded that the subject matter of Acumen's email communications "falls squarely within the statutory exception for communications made for legitimate business purposes." See id. § 76-9-201(5)(b).

¶10 Addressing Plaintiffs' claims for defamation, false light, and IIED, the court noted that...