Belluso v. Poythress, Civ. A. No. 80-283 A.

• Decision Date: 25 February 1980
• Docket Number: Civ. A. No. 80-283 A.
• Parties: Nick BELLUSO, Francis J. Richards, Jr., and William A. Forsyth, Sr. v. David POYTHRESS, Thomas B. Murphy, John R. Riley, Paul D. Coverdell, Herbert Jones, Jr., Marge Thurman, and Matthew H. Patton.
• Court: U.S. District Court — Northern District of Georgia

485 F. Supp. 904

Nick BELLUSO, Francis J. Richards, Jr., and William A. Forsyth, Sr. v. David POYTHRESS, Thomas B. Murphy, John R. Riley, Paul D. Coverdell, Herbert Jones, Jr., Marge Thurman, and Matthew H. Patton.

Civ. A. No. 80-283 A.

United States District Court, N. D. Georgia, Atlanta Division.

February 25, 1980.

COPYRIGHT MATERIAL OMITTED

Lloyd E. N. Hall, Hall, White & Daum, Atlanta, Ga., for plaintiffs.

Micheal J. Bowers, Senior Asst. Atty. Gen., Atlanta, Ga., for defendants.

ORDER

RICHARD C. FREEMAN, District Judge.

Plaintiffs came before this court on February 20, 1980 seeking a declaratory judgment, damages, and preliminary and permanent injunctive relief. Plaintiffs allege that their rights under the first and fourteenth amendments to the United States Constitution have been violated by the failure of the defendant members of the Georgia Presidential Preference Primary Selection Committee to include the name of plaintiff Nick Belluso on the Republican ballot for the March 11, 1980 Georgia Presidential Preference Primary. 42 U.S.C. § 1983, 28 U.S.C. § 1343.

On February 22, this court held an evidentiary hearing on plaintiffs' claims. At that time, the court understood the purpose of the hearing to be to determine the propriety of preliminary injunctive relief, the function of a preliminary injunction being "merely to preserve the status quo until the merits of a case can be adjudicated." Morgan v. Fletcher, 518 F.2d 236, 239 (5th Cir. 1975). The court failed to make clear, however, the nature of the proceedings, or formally to propose consolidation of the preliminary injunction hearing with a trial on the merits, Rule 65(a)(2), Fed.R.Civ.P. Nevertheless, after hearing the evidence, we believe our ruling today will be dispositive of plaintiffs' claims. In the interest of justice, therefore, we ask that the parties inform the court within two days of receipt of this order if they wish to offer further evidence or argument.

STATEMENT OF THE FACTS

Plaintiff Nick Belluso is a recent convert to the Georgia Republican Party, but a perennial, though unsuccessful, candidate for both state and national public office. Mr. Belluso has run, inter alia, for Alderman of the City of Atlanta, State Senator, United States Representative, and Governor of the State of Georgia. In the past, Mr. Belluso campaigned as either an independent or Democratic candidate. Plaintiffs Francis J. Richards, Jr. and William A. Forsyth, Sr. are registered voters residing in DeKalb County, Georgia, who wish to vote for Mr. Belluso in the Georgia Presidential Preference Primary as the Republican Party's candidate for President of the United States. Defendants Poythress, Murphy, Riley, Coverdell, Jones, Thurman, and Patton comprise the Georgia Presidential Preference Primary Selection Committee (Selection Committee) and are charged under state law with the responsibility of choosing the names of the candidates that will appear on the parties' primary ballots. See Ga.Code § 34-1003a.

The state of Georgia provides by law that a presidential preference primary shall be held every four years, and sets out the procedures to be followed by the participating political parties. Section 34-1003a governs the selection of candidates to appear on the party ballots, and provides, in pertinent part:

The name of any candidate for a political party or body nomination for the office of President of the United States shall be printed upon the ballot used in such primary:

(a) Upon the direction of a presidential candidate selection committee composed of a nonvoting chairman who shall be the Secretary of State, the Speaker of the House of Representatives, the Majority Leader of the Senate, the Minority Leaders of both the House and Senate, and the chairmen of the political parties and bodies who conduct a presidential preference primary pursuant to section 34-1002. The Secretary of State, during the second week in January of the year in which a presidential preference primary is held, shall prepare and publish a list of names of potential presidential candidates who are generally advocated or recognized in news media throughout the United States as aspirants for that office and who are members of a political party or body which will conduct a presidential preference primary in this State. The Secretary of State shall submit such list of names of potential presidential candidates to the selection committee during the third week in January of the year a presidential preference primary is held. . . . Each person designated by the Secretary of State as a presidential candidate shall appear upon the ballot of the appropriate political party or body unless all committee members of the same political party as the candidate agree to delete such candidate's name from the ballot. . . .

(b) Any presidential candidate whose name is not selected by the Secretary of State or whose name is deleted by the selection committee may request, in writing, to the chairman of the selection committee, prior to February 10 of each year a presidential preference primary is held, that his name be placed on the ballot. Not earlier than February 10, nor later than February 15, the Secretary of State shall convene the committee to consider such requests. If any member of the selection committee of the same political party or body as the candidate requests that such candidate's name be placed on the ballot, the committee shall direct the Secretary of State to place the candidate's name on the ballot. Within five days after such meeting, the Secretary of State shall notify the potential presidential candidate whether or not his name will appear on the ballot.

The results of the preference primary are binding on each party's delegates to the national nominating conventions only insofar as the party may determine by party rule. Ga.Code § 34-1002a. The political parties may apportion their delegates as they choose. 1979 Georgia Laws, pp. 1316, 1317.

On January 2, 1980, plaintiff Belluso sent a letter to Secretary of State David Poythress requesting that his name be included on the Republican ballot. The letter was supplemented by copies of Belluso's filings with the Federal Election Committee, a copy of the check for $1500 that he had sent as a filing fee to be included on the Republican ballot in the South Carolina presidential primary, copies of eleven stories about Belluso's candidacy appearing in major newspapers, and lists of broadcasted radio and television interviews. Defendants' Exhibit # 1.

Pursuant to Ga.Code § 34-1003a, in the third week of January, Secretary of State Poythress submitted a list of potential Republican presidential candidates to the Selection Committee. The list included John Anderson, Howard Baker, George Bush, John Connally, Philip Crane, Robert Dole, and Ronald Reagan. Mr. Belluso's name was absent. As permitted by Ga.Code § 34-1003a(b), plaintiff then wrote to Matthew W. Patton, chairman of the State Republican Party and a member of the Selection Committee, requesting that his name be added to the list. Although all committee members of the same party must agree to delete a name, the request of only one member is required to add a name. Belluso's request for inclusion was denied. Mr. Belluso never contacted any other committee members about his desired candidacy. No names on the list of candidates submitted by the Secretary were ultimately deleted by the Selection Committee, but three names were added. The Democratic committee members added Richard B. Kay to the Democratic ballot, and Harold Stassen and Benjamin Fernandez were added to the Republican ballot.

At the February 22 hearing, the court heard testimony that the original list of candidates is compiled by the Secretary and his staff without the advice or consultation of the Selection Committee. The statute requires that the Secretary submit the names of presidential candidates "who are generally advocated or recognized in news media throughout the United States as aspirants for that office . . .." Ga.Code § 34-1003a. In applying this admittedly broad statutory standard to lesser-known candidates, the Secretary testified he considered recommendations of his staff, materials submitted by the candidates, and impressions formed by personal experience. Although the national scope of the news coverage of the candidate was a factor, there was no weighting of the number or length of articles published about each candidate. The Secretary maintained no clipping service, and used no specific method to analyze the celebrity of presidential hopefuls. He did not evaluate the candidates' financial assets or ability to raise money, the candidates' chances of winning, the electorate's view of the candidates, or the seriousness of the candidates' platforms. The Secretary testified he considered manifestations in the media coverage of a candidate's own serious intent to pursue the presidency and serve in that office if elected.

Applying this test of seriousness to the materials submitted by plaintiff Belluso, the Secretary rejected the plaintiff's application. Secretary Poythress testified that the news articles the plaintiff chose to offer in support of his candidacy revealed a frivolous desire for office and an insincere intent to serve if elected. The Secretary's evaluations were based on the news coverage of Mr. Belluso as a "kookie" candidate. Much of the press's treatment of Mr. Belluso, which included articles in such major newspapers as the Washington Post, the Detroit Free Press, The Houston Post, and The Atlanta Constitution, focused on the plaintiff's organization of a Presidential Kookie Candidate Convention in December 1979, and plaintiff's labelling of himself as a "kookie" candidate. Among the proposals cited by the Secretary as evidence of plaintiff's insincerity was Mr. Belluso's promise that, if elected, he would sit in a rocking chair on the porch of the White House and do nothing but...