621 F.2d 809 (6th Cir. 1980), 80-1292, Kay v. Austin

Docket Nº:80-1292.
Citation:621 F.2d 809
Party Name:Richard B. KAY, Plaintiff-Appellant, v. Richard AUSTIN, Secretary of State; Frank J. Kelley, Attorney General of Michigan, Defendants-Appellees.
Case Date:April 30, 1980
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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621 F.2d 809 (6th Cir. 1980)

Richard B. KAY, Plaintiff-Appellant,


Richard AUSTIN, Secretary of State; Frank J. Kelley,

Attorney General of Michigan, Defendants-Appellees.

No. 80-1292.

United States Court of Appeals, Sixth Circuit

April 30, 1980

Argued April 29, 1980.

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Richard B. Kay, Cleveland, Ohio, for plaintiff-appellant.

Jann Ryan Baugh, Asst. Atty. Gen. of Michigan, Lansing, Mich., for defendants-appellees.

Before KENNEDY, MARTIN and JONES, Circuit Judges.


Appellant Kay, a candidate for President of the United States, appeals from a judgment of the District Court for the Western District of Michigan refusing to order his name placed on the May 20, 1980 presidential primary ballot.

Appellant Kay filed suit in the Western District of Michigan on March 31, 1980, alleging that he had been denied his constitutional rights through the failure of the Michigan Secretary of State to place Kay's name on the ballot as a candidate for the Democratic presidential nomination. Kay had attempted to qualify as a candidate through Mich.Comp.L.Ann. § 168.614, which provides:

(1) By 4 p. m. of the first Friday in March in each presidential election year, the secretary of state shall issue a list of the individuals generally advocated by the national news media to be potential presidential candidates for each party's nomination by the political parties for which a presidential primary election will be held pursuant to section 613.

On January 28, 1980, Kay sent the Secretary of State an affidavit stating that he had traveled into thirty states in pursuit of the Democratic nomination and had been interviewed by "over 540 members of the news media including 257 members of the written news media, 141 radio stations and 142 TV stations" and requested his name be placed on the ballot. He also alleges that he submitted a number of newspaper clippings in support of his claim of entitlement under the statute. 1 On February 11, 1980, Kay sent a letter to the Secretary of State stating that he had been placed on the ballot in Florida and Georgia under a similar statute. On February 27, 1980, Bernard J. Apol, Director of Elections, responded in a letter which cited the statute and informed him of the various means of having his name placed on the ballot. 2 It also informed him that if his name were selected, he would be so informed shortly after March 7, 1980, the first Friday in March. On March 7, 1980, Secretary of State Austin issued his list of candidates. Kay was not on this list. He called the office of the Secretary of State on March 20, 1980 and learned that his name had not been included as a candidate. He then filed suit on March 31, 1980.

In his opinion, filed April 18, 1980, the District Judge stated that the language of Mich.Comp.L.Ann. § 168.614 was imprecise. He did not reach the question of whether it was unconstitutionally vague since he held as a preliminary matter that Kay lacked standing to bring the action. This holding was based on Kay's failure to utilize the other routes providing access to the ballot, such as petitions. The District Judge held that the complained of injury was not directly traceable to the Secretary of State's action, since Kay "contributed to (his) plight in failing to act upon readily available and promising alternate avenues of relief."

On appeal, Kay urges that he met the requirements of § 168.614 but was discriminated against by the Secretary of State. Alternatively he asks that the statute be found unconstitutional as void for vagueness for failing to define the words "potential," "generally advocated," "news," and "media." He further contends that the

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statute represents an improper delegation of authority by the legislature to the Secretary of State by its failure to set policies and standards.

The Michigan Secretary of State counters, asserting that the statute embodies a...

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