Socialist Workers Party v. Hardy

• Decision Date: 05 August 1977
• Docket Number: Civ. A. No. 77-2211.
• Citation: 480 F. Supp. 941
• Parties: SOCIALIST WORKERS PARTY et al. v. Paul J. HARDY et al.
• Court: U.S. District Court — Eastern District of Louisiana

480 F. Supp. 941

SOCIALIST WORKERS PARTY et al. v. Paul J. HARDY et al.

Civ. A. No. 77-2211.

United States District Court, E. D. Louisiana.

August 5, 1977.

R. James Kellogg, New Orleans, La., for plaintiffs.

Joseph W. Thomas, New Orleans, La., for defendants.

MEMORANDUM OPINION

EDWARD J. BOYLE, Sr., District Judge:

Plaintiffs in this Section 1983 action are the Socialist Workers Party,¹ prospective candidates for mayor and city councilman for the City of New Orleans, and several registered voters who allege a desire to vote for these candidates should they qualify. They seek injunctive and declaratory relief from the requirements of LSA-R.S. 14:372, which provides, in substance, that no person can become a candidate for any public office in Louisiana unless the prospective candidate attaches to and files with his nominating papers a sworn affidavit to the effect that he or she "is not and never has been a communist or a subversive person as defined in R.S. 14:359."

Defendants Paul J. Hardy, Secretary of State, and Edwin W. Edwards, Governor, are sued in their capacity as state officials responsible for the administration and enforcement of Louisiana's election laws. The jurisdiction of this court is invoked pursuant to 28 U.S.C. §§ 1343(3), 2201 and 2202.

Plaintiffs claim that this Louisiana statute unconstitutionally infringes the freedom of expression and association guaranteed them by the First Amendment. This argument is supported predominantly by citation of recent United States Supreme Court decisions which have dealt with the right of access to the ballot and the right to be free from state inquiry into one's political beliefs and associations. Defendants' only response to the merits of this argument completely ignores the strongest authority against their position, and simply offers a conclusionary and unsupported argument that the statute is constitutional because it imposes sanctions only on the commission of illegal acts and on knowing membership in an organization with an illegal purpose. The defendants nowhere offer a documented, affirmative argument in support of the constitutionality of the statute as written. On the contrary, their most strongly urged argument, which asks this court to apply the doctrine of abstention, and which offers a somewhat tortured reading of the statute by the Attorney General of Louisiana, tends to underscore the fact that it is very difficult to read the statute in a constitutional manner.

The defendants have urged that it is appropriate for the court to abstain from deciding the merits of this case, as the statute involved is a criminal statute which has not been reviewed by the Supreme Court of Louisiana. The Attorney General of Louisiana, speaking for the defendants, has offered a narrowed construction² of the statute which, he submits, should save the statute from unconstitutionality. The only authority offered for this invocation of the abstention doctrine is a per curiam decision of the Supreme Court which had nothing to do with abstention. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745 (1951). There the Court avoided striking down Maryland's requirement of a loyalty oath for prospective candidates by accepting a narrowed construction of the oath which had already been made by a Maryland court. Subsequently, in Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184, 19 L.Ed.2d 228 (1967), the Court found it necessary to invalidate a teacher's oath based on the same Maryland statute. Despite the acceptable narrow judicial construction approved in Gerende, the Court concluded that the underlying statute was unconstitutionally vague and violative of First Amendment rights. Thus not only is Gerende not authority for abstention, but Whitehill, dealing with the same statute, is authority for the proposition that an Attorney General alone may not confer constitutionality on an otherwise unconstitutional law. Here, the Louisiana Attorney General's proffered reading does not have the support of judicial construction. Furthermore, his reading is contrary to the words of the statute itself. The Attorney General has attempted to apply the definition which the statute, in LSA-R.S. 14:359(8), gives to "subversive organizations" to "subversive persons," which is separately defined in section 359(9). Section 359(8) does require knowing performance of illegal acts for an organization to be labelled "subversive." However, section 359(9) clearly requires either knowing membership in a subversive organization or actual commission of illegal acts for one to be a subversive person.

In any event, for reasons stated below, this court feels that the challenged oath is, in its present form, insusceptible of an interpretation which would render it constitutional. Even assuming that the Attorney General's interpretation is constitutional, there is no guarantee that future administrations will be as willing to read the statute in as enlightened a manner, nor even that the Supreme Court of Louisiana would accept his interpretation. Any torturing of the statute which might result in a constitutional reading could not alter the fact that reasonable men could still read the plain words of the statute so as to be uncertain as to whether their otherwise constitutionally protected activities are subject to the statute. See Baggett v. Bullitt, 377 U.S. 360, 375-79, 84 S.Ct. 1316, 1324-27, 12 L.Ed.2d 377 (1964).

The current tool for the enforcement of the provisions of LSA-R.S. 14:372 is a Qualifying Form, promulgated by Louisiana's Secretary of State, which must be completed and sworn to by all prospective candidates for office. The pertinent portion appears on the Form as item 5. It requires that the candidate swear that: "He is not and never has been a Communist or a subversive person as defined by LSA-R.S. 14:359." A reference to LSA-R.S. 14:359 reveals the following relevant definitions:

(2) A "Communist Action Organization" is the Communist Party Of The United States, the communist party of any state or foreign nation, the Progressive Labor Movement, or any other organization (other than a diplomatic representative or mission of a foreign government accredited as such by the U.S. Department of State), which is substantially directed, controlled or dominated by any of the foreign governments controlling the world Communist movement described in R.S. 14:358,³ and shall include any section, branch, fraction or all of any such organization as is described in this Section.

(3) A "Communist" is any person who has accepted the discipline of or has become a member of a communist action organization and has remained under the discipline thereof or remained a member thereof knowing it to be such an organization.

(8) A "Subversive Organization" is any organization which advocates the overthrow or destruction of the United States, the state of Louisiana, or any political subdivision thereof by revolution, force, violence or any other unlawful means, and performs or carries out as a function of the organization, known, agreed to, or knowingly performed by any of the officers of the organization, any affirmative act, including abetting, materially assisting, advising or teaching such overthrow or destruction, with the intent to incite action rather than engage in the mere exposition of theory.

(9) A "Subversive Person" is any person who knowingly is a member of a subversive organization knowing the said organization to be subversive within the meaning of R.S. 14:358-14:373 or any person who commits any act intended to bring about the overthrow or destruction of the United States, the state of Louisiana or any political subdivision thereof by revolution, force, violence or other unlawful means.

The precise nature of the rights intertwined with the right of candidates to access to the ballot has recently been outlined by the Supreme Court: "At stake are plaintiff's First and Fourteenth Amendment rights to associate with others for the common advancement of political beliefs and ideas." Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 449, 94 S.Ct. 656, 662, 38 L.Ed.2d 635 (1974). This calls into play the full panoply of protection afforded to First Amendment freedoms. In Whitcomb, the Court, in the context of limiting access to the ballot, fully applied the principle for protection of First Amendment rights, as enunciated in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), which allows a state to limit political advocacy of the use of force or law violations only where "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." 395 U.S. at 447, 89 S.Ct. at 1829. As the Court noted in Whitcomb, there is no reason not to apply this principle in ballot access cases in the same manner and to the same extent as in other cases where it has received more complete extrapolation. Other cases where the principle which was expressed in Brandenburg v. Ohio has been applied to include not only cases of direct advocacy such as Brandenburg, but also cases involving loyalty oaths required of public employees, e. g., Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967), and bar admission cases involving loyalty oaths, e. g., Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971).

Using this principle, the Court has established the basic guidelines under which a state may regulate or inquire into association with groups having illegal purposes: "Employment and by extension, access to the ballot may not be conditioned on an oath denying past, or abjuring future, associational activities within constitutional protection; such protected activities include membership in organizations having illegal purposes unless one knows of the purpose and shares a specific intent to promote the illegal purpose." (Emphasis supplied)...