Defendants’ Answer to Plaintiffs’ Complaint

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TIMOTHY C. FOX
Montana Attorney General
MARK W. MATTIOLI
Chief Deputy Attorney General
JON BENNION
Deputy Attorney General
Justice Building
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401
(406) 444-2026
Fax: (406) 444-3549
mmattioli@mt.gov
JonBennion@mt.gov

COUNSEL FOR DEFENDANTS

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION


ANGELA ROLANDO and TONYA
ROLANDO; CHASE WEINHANDL
and BENJAMIN MILANO; SUSAN
HAWTHORNE and ADEL JOHNSON;
and SHAUNA GOUBEAUX and
NICOLE GOUBEAUX,

Plaintiffs,
v.

TIM FOX, in his official capacity as
Attorney General of the State of
Montana; MICHAEL KADAS, in his
official capacity as the Director of the
Montana Department of Revenue; and
FAYE McWILLIAMS, in her official
capacity as Clerk of Court of Cascade
County,

Defendants.

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Cause No. 4:14 CV 00040-BMM

DEFENDANTS’
ANSWER TO PLAINTIFFS’
COMPLAINT
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Defendants’ Answer to Plaintiffs’ Complaint
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Defendants Fox, Kadas and McWilliams, by and through their counsel of
record, answer Plaintiffs’ Complaint for Declaratory and Injunctive Relief as
follows:

I.
INTRODUCTION
1. Paragraph 1 of Plaintiffs’ complaint consists of arguments, legal
claims or conclusions of law which do not require a response and therefore are
denied. To the extent Paragraph 1 alleges that marriage in Montana consists of a
marriage between one man and one woman, Defendants admit the allegation.
2. Paragraph 2 consists of arguments, legal claims or conclusions of
law which do not require a response and are therefore denied. To the extent
Paragraph 2 alleges that marriage in Montana is confined to marriage between
one man and one woman, the allegation is admitted.
3. Paragraph 3 consists of arguments, legal claims or conclusions of
law which do not require a response and therefore are denied.
4. Paragraph 4 consists of an argument, legal claim or conclusions of
law which does not require a response and therefore is denied.
5. Responding to the last sentence in Paragraph 5, Defendants admit
that same-sex marriage has been recognized as lawful or has been determined by
courts to be lawful in 19 states and in the District of Columbia. The remaining
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Defendants’ Answer to Plaintiffs’ Complaint
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allegations in Paragraph 5 consist of arguments, legal claims or conclusions of
law which do not require a response and therefore are denied.
6. Defendants admit that Plaintiffs are same-sex couples who are
seeking to marry in Montana or who seek to have Montana recognize marriages
occurring in other jurisdictions. The remainder of Paragraph 6 consists of
arguments, legal claims or conclusions of law which do not require a response
and therefore are denied. Defendants affirmatively allege that Montana’s
recognition of marriage as between one man and one woman does not constitute
or impose an unconstitutional stigma or second-class citizenship on persons in
same-sex relationships.
7. Paragraph 7 consists of arguments, legal claims or conclusions of
law which do not require a response and therefore are denied.

II.
JURISDICTION AND VENUE
8. Defendants admit that Plaintiffs, as asserted in Paragraph 8, have
sued under 42 U.S.C. Sections 1983 and 1988. Defendants deny that this Court
has jurisdiction under 28 U.S.C. Sections 1331 and 1343(a)(3) because,
according to Baker v. Nelson, 409 U.S. 810 (1972), Plaintiffs’ complaint does
not present or raise a substantial federal question.
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Defendants’ Answer to Plaintiffs’ Complaint
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9. Defendants admit that the allegation in the first sentence of
Paragraph 9 and the allegation in the second sentence of Paragraph 9 that all
Defendants reside in the State of Montana. Defendants lack knowledge or
information sufficient to form a belief about the truth of the allegations in the
third sentence of Paragraph 9 and on that basis the allegation is denied.
Defendants, however, do not contest venue in this district.
10. Defendants admit the allegation in Paragraph 10 that this case is
appropriately filed in the Great Falls Division and that two of the Plaintiffs
attempted to obtain a license to marry in Cascade County. Defendants lack
knowledge or information sufficient to form a belief about the truth of the
allegation that two of the Plaintiffs are legal residents of Great Falls, Montana,
and on that basis the allegation is denied.

III.
PARTIES
The Plaintiffs
11. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 11 and on that
basis the allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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12. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 12 and on that
basis the allegations are denied.
13. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 13 and on that
basis the allegations are denied.

14. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 14 and on that
basis the allegations are denied.

The Defendants
15. Defendants admit that Attorney General Fox is the chief legal
officer for the State of Montana and that the Attorney General’s Office provides
advice to state agencies. The remainder of Paragraph 15 consists of arguments,
legal claims, or conclusions of law which do not require a response and
therefore are denied.
16. Defendants admit that as the Clerk of Court of Cascade County
Faye McWilliams has authority to issue marriage licenses. The remainder of
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Defendants’ Answer to Plaintiffs’ Complaint
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Paragraph 16 consists of arguments, legal claims, or conclusions of law which
do not require a response and therefore are denied.
17. Defendants admit that Michael Kadas, as Director of the Montana
Department of Revenue, has authority to enforce the Montana revenue code.
The remainder of Paragraph 17 consists of arguments, legal claims, or
conclusions of law which do not require a response and therefore are denied.

IV.
PLAINTIFFS’ GENERAL ALLEGATIONS
18. Paragraph 18 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. To the extent
Paragraph 18 contains allegations of fact, Defendants lack knowledge or
information sufficient to form a belief about the truth of Paragraph 18 and on
that basis the allegations are denied.
19. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 19 and on that
basis the allegations are denied.
20. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 20 and on that basis the
allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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A. Angela Rolando and Tonya Rolando
21. Defendants admit that Angela Rolando works for the Child and
Family Services Division of the Department of Public Health and Human
Services. Defendants lack knowledge or information sufficient to form a belief
about the truth of the remaining allegations in Paragraph 21 and on that basis the
allegations are denied.
22. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 22 and on that basis the
allegations are denied.
23. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 23 and on that basis the
allegations are denied.
24. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 24 and on that basis the
allegations are denied.
25. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 25 and on that basis the
allegations are denied.
26. Defendants admit the allegations in Paragraph 26.
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Defendants’ Answer to Plaintiffs’ Complaint
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B. Chase Weinhandl and Benjamin Milano
27. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 27 and on that basis the
allegations are denied.
28. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 28 and on that basis the
allegations are denied.
29. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 29 and on that basis the
allegations are denied.
30. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 30 and on that basis the
allegations are denied.

C. Susan Hawthorne and Adel Johnson
31. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 31 and on that basis the
allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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32. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 32 and on that basis the
allegations are denied.
33. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 33 and on that basis the
allegations are denied.
34. Defendants admit that marriage in Montana consists of a marriage
between one man and one woman. Defendants lack knowledge or information
sufficient to form a belief about the truth of the remaining allegations in
Paragraph 34 and on that basis the allegations are denied.

D. Shauna Goubeaux and Nicole Goubeaux
35. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations in Paragraph 35 and on that basis the
allegations are denied.
36. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 36 and on that
basis the allegations are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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37. Defendants lack knowledge or information sufficient to form a
belief about the truth of the allegations contained in Paragraph 37 and on that
basis the allegations are denied.
38. Defendants admit that marriage in Montana consists of a marriage
between one man and one woman. Defendants lack knowledge or information
sufficient to form a belief about the truth of the remaining allegations contained
in Paragraph 38 and on that basis the allegations are denied.

E. Montana Law
39. To the extent Paragraph 39 alleges that marriage in Montana
consists of a marriage between one man and one woman, the allegation is
admitted. The remainder of Paragraph 39 consists of arguments, legal claims, or
conclusions of law which do not require a response and therefore are denied.
40. Paragraph 40 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.

F. Plaintiffs’ Allegations of Harm
41. Paragraph 41 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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42. Paragraph 42 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
43. Paragraph 43 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
44. Paragraph 44 (a through o) consists of arguments, legal claims, or
conclusions of law which do not require a response and therefore are denied.
45. Paragraph 45 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
46. Paragraph 46 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
47. Paragraph 47 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.

G. Plaintiffs’ Allegations Regarding the Interests Served by Montana’s
Recognition of Marriage as Between One Man and One Woman

48. Paragraph 48 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. Defendants
affirmatively allege, however, that the Supreme Court has not held that sexual
orientation is a suspect class, SmithKline is distinguishable, and Plaintiffs’
claims ignore and conflict with the Supreme Court’s determination in Baker v.
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Defendants’ Answer to Plaintiffs’ Complaint
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Nelson, 409 U.S. 810 (1972), that limiting marriage to opposite-sex couples
does not raise a substantial federal question.
49. Paragraph 49 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
50. Paragraph 50 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. To the extent
Plaintiffs’ Paragraph 50 claim attempts to incorporate state-law claims or assert
violations of state law, Defendants affirmatively assert that such claims are
barred by Eleventh Amendment sovereign immunity. Any such state-law claims
must be dismissed.
51. Paragraph 51 consists of arguments, legal claims, or conclusions
which do not require a response and therefore are denied.
52. Paragraph 52 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. To the extent
Plaintiffs’ Paragraph 52 claim attempts to incorporate state-law claims or assert
violations of state law, Defendants affirmatively assert that such claims are
barred by Eleventh Amendment sovereign immunity. Any such state-law claims
must be dismissed.
53. Paragraph 53 consists of arguments, legal claims, or conclusions
which do not require a response and therefore are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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V.
PLAINTIFFS’ CLAIMS FOR RELIEF
COUNT I: Plaintiffs’ Fourteenth Amendment Due Process Claim
54. Defendants reallege the foregoing paragraphs of this Answer as
though fully set forth herein.
55. Defendants admit the allegation in Paragraph 55.
56. Paragraph 56 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied. Defendants,
however, affirmatively allege that the Due Process Clause does not protect the
right of same-sex couples to marry. Rather, in Baker v. Nelson, 409 U.S. 810
(1972), the Supreme Court determined that deprivation of marriage to same-sex
partners did not raise a substantial federal question and in United States v.
Windsor, 133 S. Ct. 2675, 2689-90 (2013), the Court reaffirmed that the
“definition and regulation of marriage” is “within the authority and realm of the
separate states.”
57. Paragraph 57 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied. Defendants,
however, admit and affirmatively allege that in Montana marriage is between
one man and one woman.
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Defendants’ Answer to Plaintiffs’ Complaint
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58. Paragraph 58 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied.
59. Paragraph 59 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied. Defendants
affirmatively allege, however, that Plaintiffs have not alleged specific actions by
the Attorney General or Director of the Department of Revenue which Plaintiffs
claim have violated due process or otherwise harmed them. Plaintiffs have
failed to allege that the Attorney General or Director have “violated the
Constitution” by their “own individual actions.” Ashcroft v. Iqbal, 556 U.S.
662, 676 (2009).

COUNT II:
Plaintiffs’ Fourteenth Amendment Equal Protection Claim
(Alleging Sexual Orientation Discrimination)

60. Defendants reallege the foregoing paragraphs of this Answer as
though fully set forth herein.
61. Defendants admit the allegation in Paragraph 61.
62. Paragraph 62 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied.
63. Paragraph 63 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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64. Paragraph 64 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
65. Paragraph 65 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
66. Paragraph 66 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied. Defendants
affirmatively allege, however, that Plaintiffs have not alleged specific actions by
the Attorney General or Director of the Department of Revenue which Plaintiffs
claim have discriminated against them based upon their sexual orientation or
have otherwise harmed them. Plaintiffs have failed to allege that the Attorney
General or Director have “violated the Constitution” by their “own individual
actions.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

COUNT III
Plaintiffs’ Fourteenth Amendment Equal Protection Claim
(Alleging Sex Discrimination)

67. Defendants reallege the foregoing paragraphs of this Answer as
though fully set forth herein.
68. Defendants admit Paragraph 68.
69. Paragraph 69 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
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Defendants’ Answer to Plaintiffs’ Complaint
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70. Paragraph 70 consists of an argument, legal claim, or conclusion of
law which does not require a response and therefore is denied. Defendants,
however, affirmatively allege that Plaintiffs cannot state a claim based upon sex
discrimination because men and women, regardless of sexual orientation or
preference, are treated the same. Neither men nor women can marry persons of
the same gender.
71. Paragraph 71 consists of arguments, legal claims, or conclusions of
law which do not require a response and therefore are denied.
72. Paragraph 72 consists of arguments, legal claims, or conclusions
which do not require a response and therefore are denied. Defendants
affirmatively allege, however, that Plaintiffs have not alleged specific actions by
the Attorney General or Director of the Department of Revenue which Plaintiffs
claim have discriminated against them based upon gender or have otherwise
harmed them. Plaintiffs have failed to allege that the Attorney General or
Director have “violated the Constitution” by their “own individual actions.”
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
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Defendants’ Answer to Plaintiffs’ Complaint
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VI.
PRAYER FOR RELIEF
73. Paragraph 73 is Plaintiffs’ prayer for relief and does not contain
factual allegations which require a response.

ADDITIONAL DEFENSES
In addition to the defenses asserted in paragraphs 1 through 73, above,
Defendants assert the following additional defenses. Other defenses, not known
to Defendants at this time, may be asserted. Consequently, Defendants reserve
the right to amend this answer or otherwise assert additional defenses.

GENERAL DENIAL
Except as expressly admitted herein, Defendants deny each and every
allegation of the Complaint for Declaratory And Injunctive Relief.

FIRST DEFENSE
The complaint fails to state a claim upon which relief can be granted.
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Defendants’ Answer to Plaintiffs’ Complaint
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SECOND DEFENSE
The complaint should be dismissed for lack of subject matter jurisdiction
because it fails to raise a substantial federal question. Baker v. Nelson, 409 U.S.
810 (1972).

THIRD DEFENSE
Plaintiffs’ claims, to the extent they are based on state law, are barred by
the Eleventh Amendment of the United States Constitution.

FOURTH DEFENSE
Plaintiffs’ claims against the Montana Attorney General and Director of
the Montana Department of Revenue are legally deficient because Plaintiffs
have failed to state specific, individual actions of the Montana Attorney General
and Director of the Department of Revenue which have allegedly violated
Plaintiffs’ constitutional rights.

FIFTH DEFENSE
Defendants Tim Fox and Michael Kadas are not proper defendants
because the alleged violations are not fairly traceable to their actions.

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Defendants’ Answer to Plaintiffs’ Complaint
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SIXTH DEFENSE
Under the Eleventh Amendment of the United States Constitution, and the
doctrine of Ex Parte Young, all relief is barred except prospective injunctive
relief directed at a Defendant state official with authority to carry out the relief
that may be ordered.

SEVENTH DEFENSE
Defendants did not subject Plaintiffs, or cause Plaintiffs to be subjected,
to any violation of rights secured by the United States Constitution.

EIGHTH DEFENSE
Plaintiffs’ claims are barred by the Tenth Amendment of the United States
Constitution because the State of Montana has the sovereign power and
prerogative to define and regulate marriage. “[T]he states, at the time of the
adoption of the Constitution, possessed full power over the subject of marriage
and divorce . . .[and] the Constitution delegated no authority to the Government
of the United States on the subject of marriage and divorce.” United States v.
Windsor, 133 S. Ct. 2675, 2691 (2013) (quoted cases omitted).

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Defendants’ Answer to Plaintiffs’ Complaint
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NINTH DEFENSE
Plaintiffs’ claims are barred by the Anti-Tax Injunction Act, 28 U.S.C.
§ 1341, which precludes federal subject matter jurisdiction over issues involving
eligibility to file joint tax returns.

TENTH DEFENSE
28 U.S.C. Section 1738C provides that “[n]o State . . . shall be required
to give effect to any public act, record, or judicial proceedings of any other
State . . . respecting a relationship between persons of the same sex that is
treated as a marriage.” This federal statute, which is not challenged by
Plaintiffs, provides that Montana is not required to recognize same-sex
marriages entered into and recognized in other states.

PRAYER FOR RELIEF
Defendants respectfully request that this Court:
1. Enter judgment in favor of Defendants and against Plaintiffs on all
of Plaintiffs’ claims;
2. Order that Plaintiffs take nothing by their Complaint;
3. Dismiss the Complaint with prejudice;
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Defendants’ Answer to Plaintiffs’ Complaint
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4. Award Defendants their costs and disbursements incurred in their
defense; and
5. Order such other and further relief to Defendants as the Court
deems just and proper.
Respectfully submitted this 17th day of July, 2014.
TIMOTHY C. FOX
Montana Attorney General
215 North Sanders
P.O. Box 201401
Helena, MT 59620-1401


By: /s/ Mark W. Mattioli
MARK W. MATTIOLI
Chief Deputy Attorney General

/s/ Jon Bennion
JON BENNION
Deputy Attorney General
Attorneys for Defendants




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Defendants’ Answer to Plaintiffs’ Complaint
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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing document with the
clerk of the court for the United States District Court for the District of
Montana, using the cm/ecf system. Participants in the case who are registered
cm/ecf users will be served by the cm/ecf system.
DATED: July 17, 2014 /s/ MARK W. MATTIOLI
Chief Deputy Attorney General



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