Blank v. Heineman

• Decision Date: 11 January 1991
• Docket Number: No. CV. 90-0-799.,CV. 90-0-799.
• Citation: 771 F. Supp. 1013
• Parties: Robert R. BLANK, et al., Plaintiffs, v. David HEINEMAN, et al., Defendants.
• Court: U.S. District Court — District of Nebraska

771 F. Supp. 1013

Robert R. BLANK, et al., Plaintiffs, v. David HEINEMAN, et al., Defendants.

No. CV. 90-0-799.

United States District Court, D. Nebraska.

January 11, 1991.

Douglas Veith, Scott S. Phillips, David A. Christensen, Veith, Christensen & Phillips, Bellevue, Neb., for plaintiffs.

James S. Mitchell, William G. Dittrick, Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, Omaha, Neb., for David Heineman, Norm Riffel, Chuck Sigerson, Lee Terry and Al Todd.

MEMORANDUM OPINION

STROM, Chief Judge.

This matter is before the Court on defendants' motions to dismiss (Filing Nos. 3 and 24). The Court conducted a hearing on January 3, 1991, at which time arguments were presented to the Court. Defendants filed their motions pursuant to Fed.R.Civ.P. 12(b)(1) and (6). Defendants allege that the Court lacks jurisdiction over the subject matter, that no justiciable issue exists, and that the complaint fails to state a claim upon which relief can be granted.

Plaintiffs filed their complaint alleging that the Court has jurisdiction pursuant to 28 U.S.C. § 1331, 28 U.S.C. § 1343, and the Declaratory Judgment Act, 28 U.S.C. §§ 2201, et seq. Plaintiffs allege violations of 42 U.S.C. § 1971 (Voting Rights Act of 1965), 42 U.S.C. § 1983, 42 U.S.C. § 1985(3), the First and Fourteenth Amendments of the United States Constitution, and Neb.Rev.Stat. §§ 32-101, et seq. (Filing No. 2, ¶ 5).

Plaintiffs' complaint essentially concerns their alleged wrongful removal as officers of the Douglas County Republican Party by the Executive Committee of the Republican Party of Nebraska.¹ Plaintiffs allege that during the months prior to November, 1990, "various Defendants to this action conspired together to remove and replace various Plaintiffs from the respective positions they hold within the Douglas County Republican Party" (Filing No. 2, ¶ 8).

On December 1, 1990, the Executive Committee unanimously voted to remove plaintiff Sieler from the Douglas County Chairmanship and replace him with Defendant Sigerson (Filing No. 2, ¶ 10). Specifically, in a letter dated December 1, 1990, Norm Riffel, as State Chairman of the Nebraska Republican Party, stated that "the State Executive Committee voted unanimously to remove John Sieler as the Douglas County Republican Party Chairman for failing to adequately perform his duties as County Chairman." (Filing No. 2, exhibit 2).

Plaintiffs filed this action alleging that actions of the defendants were due in part to the fact that plaintiffs are evangelical christians (Filing No. 2, ¶ 11). Plaintiffs therefore allege that defendants' actions are violative of their constitutional rights and the rights secured to them by various laws of the United States and the State of Nebraska (Filing No. 2, ¶ 5). The Court notes that all of the alleged activity in this case relates solely to the removal of the plaintiffs from their elected positions within the internal structure of the Douglas County Republican Party.

Application Of Voting Rights Act of 1965

Plaintiffs allege a violation of the Voting Rights Act of 1965 which provides in part:

(a)(1) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude.

(2) No person acting under color of law shall —

. . . . .

42 U.S.C. § 1971 (emphasis added). The Court finds this statute inapplicable to this action. The Voting Rights Act governs racial discrimination and activities of persons acting under color of law. In this action, plaintiffs do not allege that any of the defendants' activities were under color of law, nor do plaintiffs allege that any of the defendants' activities were due to racial considerations. Accordingly, the Court finds that plaintiffs cannot maintain their action under the Voting Rights Act of 1965.²

Application of 42 U.S.C. § 1983

Plaintiffs allege that the actions of defendants constitute a violation of 42 U.S.C. § 1983, which provides in part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

(Emphasis added). It is clear that to establish a violation of 42 U.S.C. § 1983, the defendants must have acted under color of law. As the plaintiffs have failed to allege, and further that the Court fails to find, that defendants acted under color of law, the plaintiffs cannot maintain their action under 42 U.S.C. § 1983.

Application of 42 U.S.C. § 1985(3)

Plaintiffs allege that defendants' actions constitute a conspiracy in violation of 42 U.S.C. § 1985(3). That section permits recovery of damages against a conspirator interfering with civil rights as follows:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(3). The essential issue is whether the this action come within the purview of § 1985(3) so that this Court has jurisdiction to consider plaintiffs' allegations that defendants conspired to deny plaintiffs their First Amendment rights by making decisions based on plaintiffs' religion.

In Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), black individuals brought suit alleging that certain white individuals conspired to deprive the plaintiffs of their civil rights in violation of 42 U.S.C. § 1985(3). The defendants allegedly stopped the plaintiffs' automobile on a public highway and had detained, assaulted, beaten, and injured them. The Court held that a cause of action existed for black citizens "who have been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basic rights that the law secures to all free men." Id. at 105, 91 S.Ct. at 1800. However, the Court noted that, although the statute governs private conspiracies concerning racial discrimination, coverage of the statute was not intended to apply to all tortious, conspiratorial interferences with the rights of others. Id. at 101, 91 S.Ct. at 1797. Rather, the language in § 1985(3) requiring intent to deprive of equal protection, or equal privileges and immunities, "means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action." Id. at 102, 91 S.Ct. at 1798.

In United Brotherhood of Carpenters and Joiners, Local 610 v. Scott, 463 U.S. 825, 103 S.Ct. 3352, 77 L.Ed.2d 1049 (1983), a construction company that hired non-union employees, and two of the company's employees, brought suit alleging that the defendants conspired to deprive them of their legally protected rights in violation of 42 U.S.C. § 1985(3). The suit arose out of a protest at a construction site where company employees, including the two employee plaintiffs, were assaulted and beaten, and construction equipment was burned and destroyed. The United States District Court for the Eastern District of Texas found, and the United States Court of Appeals for the Fifth Circuit affirmed, that a violation of equal protection of the laws existed within the meaning of § 1985(3). The courts held that the purpose of the conspiracy was to deprive plaintiffs of their First Amendment right not to associate with a union. The courts rejected the argument that it was necessary to show some state involvement to demonstrate an infringement of First Amendment rights. Id. at 830, 103 S.Ct. at 3357.

The United States Supreme Court reversed stating that "an alleged conspiracy to infringe First Amendment rights is not a violation of § 1985(3) unless it is proved that the State is involved in the conspiracy or that the aim of the conspiracy is to influence the activity of the State." Id. Because the rights claimed to have been infringed had their source in the First Amendment, it was necessary for plaintiffs to allege and prove that the State was somehow involved in or affected by the conspiracy to make out a § 1985(3) case. Id. at 833, 103 S.Ct. at 3358. Therefore, the Supreme Court held that the Court of Appeals erred in holding that § 1985(3) prohibits wholly private conspiracies to abridge the right of association guaranteed by the First Amendment. Id.

The parties have failed to cite, nor has the Court been able to find, any specific authority to support plaintiffs' position that § 1985(3) affords relief against private conspiracies based solely on religious classifications in this jurisdiction. Pla...