Brigham Young University Law School BYU Law Digital Commons Utah Court of Appeals Briefs 1999 Crelley Mackey v. Chris Cannon, individually, Office ofon C gressman Chris Cannon; Chris Cannon for Congress Inc.; CI Group; Cannon Industries, Inc., and Cannon Engineering Technologies, Inc. : Petition for Rehearing Utah Court of Appeals Follow this and additional works at: https://digitalcommons.law.byu.edu/byu_ca2 Part of the Law Commons Original Brief Submitted to the Utah Court of Appeals; digitized by the Howard W. Hunter Law Library, J. Reuben Clark Law School, Brigham Young University, Provo, Utah; machine-generated OCR, may contain errors. Roger H. Hoole, Heather E. Morrison; Hoole and King, L.C.; Attorneys for Plaintiff. Mary Anne Q. Wood; Wood and Crapo; Richard M. Hymas; Nielsen and Senior, P.C. Frederick M. Herrera; U.S. House of Representatives Office of Employment Counsel; Attorneys for Defendants. Recommended Citation Legal Brief, Mackey v. Cannon, No. 990123 (Utah Court of Appeals, 1999). https://digitalcommons.law.byu.edu/byu_ca2/2029 This Legal Brief is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Court of Appeals Briefs by an authorized administrator of BYU Law Digital Commons. Policies regarding these Utah briefs are available at http://digitalcommons.law.byu.edu/utah_court_briefs/policies.html. Please contact the Repository Manager at [email protected] with questions or feedback. UTAH DOCUMENT KFU 50 .A10 DOCKET NO. _W/f*'fllNTffrTrnif COURT OF APPEALS Crelley Mackey, Plaintiff and Appellant, PETITION FOR REHEARING Chris Cannon, individually; Office of Court of Appeals No. 990123-CA Congressman Chris Cannon; Chris Cannon for Congress, Inc.; CI Group; Cannon Industries, Inc., and Cannon Engineering Technologies, Inc., Priority Category No. 15 Defendants and Appellees APPEAL FROM JUDGMENT OF THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY, STATE OF UTAH, JUDGE HOMER F. WILKINSON Roger H. Hoole Richard M. Hymas, USB No. 1612 Heather E. Morrison NIELSEN & SENIOR, P.C. Hoole & King, L.C. 60 East South Temple, Suite 1100 4276 South Highland Drive Salt Lake City, UT 84111 Salt Lake City, Utah 84124 Telephone: (801) 532-1900 Attorneys for Plaintiff Frederick M. Herrera, Associate Counsel U.S. HOUSE OF REPRESENTATIVES Mary Anne Q. Wood OFFICE OF EMPLOYMENT COUNSEL Wood & Crapo 433 Cannon House Office Building 60 East South Temple, Suite 500 Washington, D.C. 20515 Salt Lake City, Utah 84111 Telephone: (202) 225-7075 Attorneys for Chris Cannon, individually, Attorneys for the Employing Office of Chris Cannon for Congress, Inc., and Congressman Chris Cannon Cannon Industries, Inc. Julia V Clerk erf tt» IN THE UTAH COURT OF APPEALS Crelley Mackey, Plaintiff and Appellant, PETITION FOR REHEARING v. Chris Cannon, individually; Office of Court of Appeals No. 990123-CA Congressman Chris Cannon; Chris Cannon for Congress, Inc.; CI Group; Cannon Industries, Inc., and Cannon Engineering Technologies, Inc., Priority Category No. 15 Defendants and Appellees APPEAL FROM JUDGMENT OF THIRD JUDICIAL DISTRICT COURT OF SALT LAKE COUNTY, STATE OF UTAH, JUDGE HOMER F. WILKINSON Roger H. Hoole Richard M. Hymas, USB No. 1612 Heather E. Morrison NIELSEN & SENIOR, P.C. Hoole & King, L.C. 60 East South Temple, Suite 1100 4276 South Highland Drive Salt Lake City, UT 84111 Salt Lake City, Utah 84124 Telephone: (801)532-1900 Attorneys for Plaintiff Frederick M. Herrera, Associate Counsel U.S. HOUSE OF REPRESENTATIVES Mary Anne Q. Wood OFFICE OF EMPLOYMENT COUNSEL Wood & Crapo 433 Cannon House Office Building 60 East South Temple, Suite 500 Washington, D.C. 20515 Salt Lake City, Utah 84111 Telephone: (202) 225-7075 Attorneys for Chris Cannon, individually, Attorneys for the Employing Office of Chris Cannon for Congress, Inc., and Congressman Chris Cannon Cannon Industries, Inc. TABLE OF CONTENTS Pftge# PETITION FOR REHEARING 1 I. INTRODUCTION 1 II. FACTUAL BACKGROUND 2 III. ARGUMENT 5 A. THE STATE COURTS OF UTAH LACK SUBJECT MATTER JURISDICTION OVER THE EMPLOYING OFFICE OF CONGRESSMAN CHRIS CANNON PURSUANT TO U.R.C.P. 12(b)(1) AND THE CONGRESSIONAL ACCOUNTABILITY ACT 5 1. Sovereign Immunity has not been waived by Congress 5 2. The Utah Court of Appeals does not have jurisdiction over an employing office in the legislative branch of federal government where exclusive jurisdiction has been granted to the Office of Compliance in accordance with the Congressional Accountability Act 8 B. THE UTAH COURT OF APPEALS LACKS PERSONAL JURISDICTION OVER THE EMPLOYING OFFICE OF CONGRESSMAN CHRIS CANNON BECAUSE PLAINTIFF FAILED TO EFFECT SUFFICIENT SERVICE OF PROCESS 11 IV. CONCLUSION 14 CERTIFICATE OF SERVICE 15 ATTACHMENTS 16 103650.NI211.00I ii TABLE OF AUTHORITIES Page# CASES Brooks v. Richardson, 478 F.Supp. 793 (S.D.N.Y. 1979) 11 Fauver v. Hansen, 803 P.2d 1275 (Utah App.1990) 7 Garden Homes, Inc. v. Mason, 238 F.2d 651 (1st Cir. 1956) 12 General Investment Co. v. Lake Shore & Michigan Southern Ry Co., 260 U.S. 261 (1922) 13 Hawaii v. Gordon, 373 U.S. 57 (1963) 5 Kaiser v. Miller, 115 F.R.D. 504 (D.D.C. 1987) 11 Keener v. Congress of the United States, 467 F.2d 952 (5th Cir. 1972) 6 Lane v. Pena, 518 U.S. 187 (1996) 6 Lehman v. Nakshian, 453 U.S. 156 (1981) 6 Mackey v. Cannon, 2000 UT App. 1 6, 7 Martin v. Nelson, 533 P.2d 897 (Utah 1975) 11 Mechanical Appliance Co. v. Castleman, 215 U.S. 437 (1910) 13 San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959) 9 State of Utah Dep't of Social Servs. v. Vijil, 784 P.2d 1130 (Utah 1989) 7 Thompson v. Jackson, 743 P.2d 1230 (Utah App.1987) 7 United States v. Dalim, 494 U.S. 596 (1990) 5 United States v. King, 395 U.S. 1 (1969) 6, 10 103650.NI211.001 iii United States v. Mitchell, 445 U.S. 535 (1980) 5 United States v. Sherwood, 312 U.S. 584 (1941) 5 United States v. Testan, 424 U.S. 392 (1976) 6 STATUTES AND RULES 2 U.S.C. § 1301(9)(A) 8 2 U.S.C. § 1301(9)(D) 8 2 U.S.C. § 1301-1438 6 2 U.S.C. § 1381(a) 9 2 U.S.C. § 1401 9 2 U.S.C. § 1408(a) 9 2 U.S.C. § 1410 10 2 U.S.C. § 1414 9, 10 FEDERAL RULES OF CIVIL PROCEDURE R. 4(d)(5) 11 UTAHCODEANN. § 78-3-4 8 UTAH RULES OF APPELLATE PROCEDURE R. 35 1 UTAH RULES OF CIVIL PROCEDURE R. 4(h) 3,12 OTHER AUTHORITIES Office of Compliance Procedural Rule § 9.05(b) 10 103650.NI211.001 iv PETITION FOR REHEARING Office of Congressman Chris Cannon (more accurately titled the Employing Office of Congressman Chris Cannon, an Employing Office within the U.S. House of Representatives), a named but unserved Defendant and Appellee in this action, appears specially by and through its attorneys, Richard M. Hymas of Nielsen & Senior, P.C. and Frederick M. Herrera of the United States House of Representatives, Office of House Employment Counsel, and petitions this Court for rehearing pursuant to Utah R. App. P. 35 for the limited purpose of contesting this Court's apparent assumption of jurisdiction over the Employing Office of Congressman Chris Cannon in this action. I. INTRODUCTION In referring to the Defendants and Appellees in its written Opinion dated February 17, 2000, the Court did not differentiate those Defendants who had been served with process, were parties in the court below, and are subject to the jurisdiction of the Court from those Defendants who had not been served with process, were not parties below, and are not subject to the Court's jurisdiction. As a result, it appears from the Opinion that the Court has exercised subject matter jurisdiction and personal jurisdiction over the Employing Office of Congressman Chris Cannon. Such an exercise of jurisdiction is improper for the following reasons: First, the courts of this State, including the district court and this Court, lack subject matter jurisdiction over any claim against the Employing Office. Second, this 103650.NI211.001 1 Court lacks personal jurisdiction over the Employing Office because it was not served with process and the district court never acquired or purported to exercise personal jurisdiction over the Employing Office. The Court's Opinion, if not corrected, will cause confusion below on remand regarding issues of jurisdiction on matters arising under a federal statute. Moreover, to allow Plaintiff— who never served the Employing Office — to be able to benefit from a ruling implicating the federal government, would be unfair, a violation of due process, a violation of the principle of sovereign immunity, and would thwart the jurisdictional requirements under Rule 4 of the Utah Rules of Civil Procedure. The Employing Office respectfully requests that the Court amend its Opinion dated February 17, 2000, to clarify (1) that the Employing Office was not served in this action and was not a party to the appeal or the proceeding in the district court; (2) that neither this Court nor the district court has asserted subject matter jurisdiction or personal jurisdiction over the Employing Office; and (3) that the Court's Opinion reversing the decision of the district court does not apply to, and has no effect upon, the Employing Office. IL FACTUAL BACKGROUND On or about April 16, 1998, Plaintiff filed a Complaint against six defendants alleging, among other things, breach of contract. These six defendants are Chris Cannon, individually, the Office of Congressman Chris Cannon, Chris Cannon for Congress, Inc., 103650.NI211.001 2 Cannon Industries, Inc., The CI Group, and Cannon Engineering Technologies, Inc.1 Of the six defendants, only three were served with a Summons and Complaint: Chris Cannon, individually, Chris Cannon for Congress, Inc.