13 F.3d 388 (11th Cir. 1994), 92-4093, Duke v. Smith

Docket Nº:92-4093.
Citation:13 F.3d 388
Party Name:David DUKE, Patrick J. Mahoney, Larry Agran, Lyndon LaRouche, Jr., Guillermo Sanchez, Tasharay S. Otway-Smithers, David Baldwin, Edward J. Rosenfeld, Eugene Cottrell, Claire Urdl, William E. Bonnell, and Susan B. Thomas, Plaintiffs-Appellants, v. Jim SMITH, Secretary of the State of Florida, T.K. Wetherell, Speaker of the Florida House of Represent
Case Date:February 03, 1994
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 388

13 F.3d 388 (11th Cir. 1994)

David DUKE, Patrick J. Mahoney, Larry Agran, Lyndon

LaRouche, Jr., Guillermo Sanchez, Tasharay S.

Otway-Smithers, David Baldwin, Edward J. Rosenfeld, Eugene

Cottrell, Claire Urdl, William E. Bonnell, and Susan B.

Thomas, Plaintiffs-Appellants,

v.

Jim SMITH, Secretary of the State of Florida, T.K.

Wetherell, Speaker of the Florida House of Representatives,

Gwen Margolis, President of the Florida Senate, James M.

Lombard, Minority Leader of the Florida House of

Representatives, Ander Crenshaw, Minority Leader of the

Florida Senate, Simon Ferro, Chairman of the Florida

Democratic Party, and Van Poole, Chairman of the Florida

Republican Party, in their capacities as members of the

Presidential Candidate Selection Committee, Defendants-Appellees.

No. 92-4093.

United States Court of Appeals, Eleventh Circuit

February 3, 1994

Page 389

[Copyrighted Material Omitted]

Page 390

Bruce Rogow, Beverly A. Pohl, H. Collins Forman, Jr., Fort Lauderdale, FL, Nina Vinik, American Civil Liberties Union of Florida Foundation, Inc. Miami, FL, for plaintiffs-appellants.

Mark Levine, Tallahassee, FL, for Simon Ferro, State Chairman of the FL Demo Party.

E. Thom Rumberger, Sharon L. Stedman, Daniel J. Gerber, Orlando, FL, for Van Poole, Lombard, Crenshaw.

George L. Waas, Dept. of Legal Affairs, Tallahassee, FL, for Smith, Wetherell and Magolis.

Appeal from the United States District Court for the Southern District of Florida.

Before CARNES, Circuit Judge, and FAY [*] and JOHNSON, Senior Circuit Judges.

FAY, Senior Circuit Judge:

David Duke filed an action pursuant to 42 U.S.C. Sec. 1983 in the District Court for the Southern District of Florida 1 challenging Florida Statutes Sec. 103.101 which governs access to the presidential primary ballot in Florida. The district court consolidated the preliminary injunction hearing with the trial and denied relief to all of the plaintiffs. Because we find state action, we REVERSE.

I. FACTS

Florida Statutes Sec. 103.101 entitled "Presidential preference primary" is the exclusive vehicle through which a person may gain access to the Florida presidential preference primary ballot ("Ballot"). 2 The Plaintiffs

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sought to have their names placed on the 1992 Ballot in Florida. To that end, they followed the procedures contained in Florida Statutes Sec. 103.101 and submitted their names to the Presidential Candidate Selection Committee ("Committee"). The defendants in this case, Jim Smith, T.K. Wetherell, Gwen Margolis, James M. Lombard, Ander Crenshaw, Simon Ferro, and Van Poole, comprise the Committee described in the statute.

Pursuant to Sec. 103.101(2)(a), following the plaintiffs' submissions, the representatives of the Florida Democratic and Republican Parties gave a list of their respective candidates for the Ballot to the Secretary of State, Jim Smith. 3 None of the Plaintiffs were on either list submitted to the Secretary of State.

Accordingly, thirty-two candidates, including plaintiffs Duke, Agran, Mahoney, and LaRouche, petitioned the Secretary of State pursuant to Sec. 103.101(2)(b) to have their names reconsidered for inclusion on the Ballot. 4 Subsequently, the Secretary of State requested that the Committee reconvene to reconsider the Plaintiffs' requests. On January 16, 1992, pursuant to Sec. 103.101(2)(c), the Committee reconvened and the Secretary of State read the names of 32 candidates who submitted formal requests for reconsideration. After he read the names, there was no response from the Committee and the Secretary of State stated:

Would anyone like to make a motion? Hearing none--is there any other business to come before this committee? This is one of the most efficient committees in government today, I think. There is no discussion--we are done. Meeting adjourned.

Van Poole Exh. 2; RE-8 (emphasis added).

Following the Committee's rejection of the Plaintiffs' petitions for reconsideration, the Plaintiffs filed suit 5 and alleged that the reconsideration process was unconstitutionally vague and allowed arbitrary and capricious government action which violated their First and Fourteenth Amendment rights. Pursuant

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to Fed.R.Civ.P. 65(2), the district court held a consolidated trial preliminary injunction evidentiary hearing on January 28, 1992. The district court found that the Plaintiffs failed to prove state action and entered judgment in favor of the Defendants on that basis.

The Plaintiffs appeal the above order and raise the following issues: 6

I. Whether this challenge to a presidential primary ballot access statute is capable of repetition yet evading review, and thus justiciable under the United States Constitution Art. III Sec. 2? 7

II. Whether the actions of the Presidential Candidate Selection Committee under Florida Statute Sec. 103.101(2)(c) are under color of state law for purposes of liability under Title 42 U.S.C. Sec. 1983?

III. Whether Sec. 103.101(2)(c) governing the reconsideration of excluded candidates by the Presidential Candidate Selection Committee violates the Fourteenth Amendment to the United States Constitution because it lacks any standards and allows arbitrary and capricious governmental action?

IV. Whether the Presidential Candidate Selection Committee violated Plaintiff David Duke's First and Fourteenth Amendment rights by excluding that candidate from the Presidential Primary Ballot because of his political beliefs?

We have jurisdiction pursuant to 28 U.S.C. Sec. 1291. Because we find that the Committee acted under the color of state law during the reconsideration process, we reverse.

II. DISCUSSION

We review the district court's order de novo because the issue of state action is a mixed question of law and fact. Albright v. Longview Police Dept., 884 F.2d 835, 838 (5th Cir.1989).

  1. State Action

    In order to prevail on a Sec. 1983 claim, the Plaintiffs must show that: (1) the conduct complained of was committed by a person acting under the color of state law; and (2) the conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986); Burch v. Apalachee Community Mental Health Services, Inc., 840 F.2d 797, 800 (11th Cir.1988), aff'd by Zinermon v. Burch, 494 U.S. 113, 110 S.Ct. 975, 108 L.Ed.2d 100 (1990).

    Our inquiry into the state action question will focus narrowly on the reconsideration provisions of Sec. 103.101(2)(c) as it is the only subsection of the statute which the Plaintiffs address on appeal. 8 Subsection (2)(c) states:

    (c) If a presidential candidate makes a request that the selection committee reconsider placing the candidate's name on the ballot, the selection committee will reconvene no later than the second Thursday after the first Monday in January to reconsider placing the...

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