Legal Question in Civil Rights Law in Utah

Who receives service of summons for Utah?

The question is in four parts.

1. Who should be a party?

2. Who receives service for the state, its entities, and judges in their official capacity?

3. If I only have the District Court Judge as a defendant, will any declaration of unconstitutionality still have the effect of overturning state law?

4. How many summons are served if, for example, the Governor or Attorney General must be served for multiple parties?

I am attempting to file suit in federal court to address the constitutionality of divorce custody statutes which are causing me continuing damage. The standing arises out of a civil suit which was decided by the Fifth District Court, and the damage only occurs under a divorce action. The action arises from state statutes, not the divorce.

In order to get only declaratory relief regarding the constitutionality of the statutes, I think if I name as a defendant a District Court Judge in his official capacity, I avoid the immunity of the eleventh amendment, and I believe I also avoid the qualified immunity of judges.

I've protected myself against Younger and Rooker-Feldman, so I'm only worried about qualified immunity of judges and eleventh amendment immunity.


Asked on 12/06/03, 2:15 am

1 Answer from Attorneys
Alvin Lundgren Alvin R. Lundgren, L.C.

Re: Who receives service of summons for Utah?

Your proper course of action is to appeal the divorce decree and challenge the constitutionality of the statute arising from the application of the law. You cannot sue a judge, nor any other state office or officer about the constitutionality of a statute. If the time to appeal has run from your divorce decree you are out of luck. A judge can only enforce the law or refuse to enforce it on constitutional grounds. She cannot be sued for doing her duty.

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Answered on 12/06/03, 12:58 pm


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