Blawis v. Bolin
| Decision Date | 08 May 1973 |
| Docket Number | No. Civ. 72-402 Phx.,Civ. 72-402 Phx. |
| Citation | 358 F. Supp. 349 |
| Parties | Patricia Bell BLAWIS et al., Plaintiffs, v. Wesley BOLIN, Secretary of State of State of Arizona, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Treon, Warnicke & Dann, by B. Michael Dann; Jay Dushoff, John Hay, Alan M. Kyman, Phoenix, Ariz., W. Edward Morgan, S. Leonard Scheff, and Risner, Wolfe & Raven, Tucson, Ariz., for plaintiffs.
Gary K. Nelson, Atty. Gen. of Ariz., by James G. Bond, Asst. Atty. Gen., Phoenix, Ariz., for defendant.
William Smitherman, U. S. Atty., D. Ariz. by Fred C. Mather, Asst. U. S. Atty., amicus curiae.
Plaintiffs filed a complaint seeking injunctive and declaratory relief, mandating the Secretary of State of Arizona to certify the candidates and electors for President and Vice President, and the name of the Communist Party U.S. A., on the 1972 general election ballots. The individual plaintiffs Blawis, Mac-Koviak and Renteria are candidates for Presidential Elector and are pledged to vote for plaintiffs Hall and Tyner. Defendant Bolin is the Arizona Secretary of State, and Marston and Turley are the Recorders of Maricopa and Navajo Counties, respectively. There are no facts in dispute. Jurisdiction is predicated on 28 U.S.C. § 1343(3, 4); 42 U. S.C. § 1983 (1970).
A three-judge court was convened, which denied injunctive relief on the ground that the party had obtained insufficient signatures to qualify for the 1972 ballot, and the issue was moot. Due to the allegation of continuing harm in the amended complaint, the case was remanded to this Court, sitting alone, for a determination of the prayer for declaratory relief. See Brockington v. Rhodes, 396 U.S. 41, 43, 90 S.Ct. 206, 208, 24 L.Ed.2d 209 (1969). The case is submitted on plaintiffs' motion for summary judgment, and all the pleadings and briefs filed.
Plaintiffs gathered signatures on petitions to create a new political party within Arizona and in Summer 1972 presented them to the various county recorders for certification of the signatures pursuant to the Arizona election laws.1 Marston and Turley refused to certify the petitions on the authority of Ariz.Rev.Stat.Ann. § 16-206 (Supp. 1972-73), which disenfranchises the Communist Party U.S.A. and its affiliates. The similar federal statute, 50 U. S.C. §§ 841-842 (1970), is also in issue.2 Subsequently, a petition consisting of all the signatures and the required verifications, including those refused by Marston and Turley, were submitted to Bolin, who refused on July 14 to accept it for the same reason. On July 22 plaintiffs instituted this action, in which they allege continuing irreparable harm beyond the current elections.
Plaintiffs challenge the proscriptions, Ariz.Rev.Stat.Ann. §§ 16-205, 16-206 (Supp.1972-73), and the federal counterpart, 50 U.S.C. §§ 841-842 (1970), on the grounds that they are a bill of attainder, and violate the privileges and immunities clause, the due process clauses of the fifth and fourteenth amendments, the equal protection clause of the fourteenth amendment, and the first amendment freedoms. The state statute is also attacked under the supremacy clause, and the federal statute is attacked as beyond the power of Congress.
A number of issues briefed and argued related to the method by which the Party and candidates could qualify for placement on the ballot under state law.3 Many of those issues are moot or are subsumed in the opinion of the three-judge court denying injunctive relief. The central issue remaining is the validity of the proscription statutes, which plaintiffs maintain are a continuing bar—practically and legally—to the creation of their party in this state. The Arizona election statutes will be discussed only as necessary to reaching a decision on that issue.
A political party may qualify for a ballot position in Arizona only by having previously been on the ballot and having obtained five percent of the votes cast for the various offices for which it ran candidates, Ariz.Rev.Stat.Ann. § 16-201 (1956), or by filing a new-party petition with the Arizona Secretary of State. There is no provision for candidates of new parties to qualify for the ballot. See id. §§ 16-301, 16-303, 16-305 (Supp.1972-73). Other gaps in the statutory scheme exist. The plan for enfranchising new parties and their candidates is sufficiently incomplete that the Court could not safely adapt other sections to fill those gaps, even if it were inclined to indulge in legislating a solution.
The plaintiff candidates for presidential elector allege they have been nominated "in convention or committee duly convened or held," and intend to run in future elections. The Court finds that the method of selection of these candidates does not contravene the Arizona selection procedure for new-party candidates, and that they have standing to sue. See note 1 supra. The impediment to organizing a party that the statutory bar creates, and the practical impossibility of challenging the statute within the 30-day period allowed biennially has not been seriously rebutted by the state. The latter difficulty makes this case one of recurring harm yet possibly evading review, and therefore appropriate for declaratory relief.
The Arizona statutes challenged, Ariz.Rev.Stat.Ann. §§ 16-205, 16-206 (Supp.1972-73), are part of the Arizona Communist Control Act, ch. 108, 1961 Ariz.Sess.Laws 220, a portion of which has been held unconstitutional.4 Elfbrandt v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966), rev'g 94 Ariz. 1, 381 P.2d 554 (1963), noted, 5 Ariz.L.Rev. 254 (1964). Subsection 16-205(B) of the Arizona Act is drawn verbatim from 50 U.S.C. § 841 (1970); other subsections are drawn from other congressional acts, or are newly written. Section 16-206 of the Arizona Act is an almost verbatim adoption of 50 U.S.C. § 842 (1970) (outlawing Communist Party) which in turn is part of a federal series of enactments aimed at suppression of communist political organizations. Communist Control Act of 1954, ch. 886, 68 Stat. 775 (); Internal Security Act of 1950, ch. 1024, 64 Stat. 987, amended, Pub.L. No. 90-237, 81 Stat. 765 (1968), Pub.L. No. 87-474, 76 Stat. 91 (1962) (); Smith Act, 18 U.S.C. § 2385. Substantial portions of those acts are no longer in force.5
While the federal version of the proscription statute has been considered before, Communist Party U. S. A. v. Catherwood, 367 U.S. 389, 81 S.Ct. 1465, 6 L.Ed.2d 919 (1961), the central issue presented here appears to have arisen in only one other case. In Mitchell v. Donovan, 290 F.Supp. 642 (D.Minn.1968), the court granted an injunction under facts identical to those here, but did so on a balancing of the hardships due to the extreme proximity of the election. The merits were not reached. A later attempt to raise the merits failed for mootness. Mitchell v. Donovan, 300 F. Supp. 1145 (D.Minn.1969), vacated, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), dismissed on remand, No. 3-68-Civ-256 (D.Minn. Jul. 28, 1970). The court did indicate its "grave doubts" as to the constitutionality of the statute, however. 290 F.Supp. at 645.
As was done in Mitchell, the Court has invited the United States to submit a brief on its position. Emphasizing that the Department of Justice believes 50 U.S.C. § 842 inapplicable to the case, and that it appears as amicus curiae only, the government submitted the same brief it prepared for the Mitchell court and declined to participate further. A reading of that brief leaves one with the unavoidable conclusion that the Department of Justice, itself, entertains serious doubts on a number of grounds as to the constitutionality of section 3 of the Federal Communist Control Act of 1954 if applied as in this case.
Plaintiffs' first argument is that the statutes are an attainder. Bills of Attainder are prohibited by Const. art. I, § 9. These legislative acts are bills of attainder if they are "aimed particularly at the Communist Party as an identifiable entity, intending to punish it." Communist Party U. S. A. v. Subversive Act. Cont. Bd. (SACB), 367 U.S. 1, 82, 81 S.Ct. 1357, 1403, 6 L.Ed.2d 625 (1961). In that case, the Supreme Court examined the Internal Security Act, 50 U.S.C. § 781 et seq. (1970), to determine whether it was subject to constitutional attack. The crucial difference between that statute and the two Communist Control Acts is that the former does not designate the Communist Party by name, but instead provides a procedure for identifying organizations as "communist-action" bodies, and requires their registration and certain other consequences.6 The Control Acts, on the other hand, have as their stated purpose the proscription of the Party from the political process. 50 U.S.C. § 842; Ariz.Rev.Stat.Ann. § 16-206 (Supp.1972-73). While findings are made by the legislature, id. § 16-205, they are in conclusory terms as to the particular organization, not as to the general danger to be protected against.
The Arizona Attorney General attempts to meet this challenge by positing that such an enactment is not an attainder where based on lengthy and detailed congressional fact-finding. He misunderstands Communist Party U. S. A. v. SACB, supra, upon which he relies for this argument, and the statute it interprets. The court did not there sanction a "legislative finding of guilt." Rather, it held the statute constitutional precisely because any findings under it were made by an administrative quasi-judicial body whose determination was appealable to the courts. The state's argument "ignores the crucial constitutional significance of what Congress did when it rejected in the Internal Security Act the approach of outlawing ...
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