Fahey v. Darigan, Civ. A. No. 750151.

Citation405 F. Supp. 1386
Decision Date12 December 1975
Docket NumberCiv. A. No. 750151.
PartiesDavid FAHEY and Eileen E. Carney v. Francis J. DARIGAN.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island

Anthony J. Bucci, Providence, R. I., for plaintiffs.

Jordan Stanzler and Milton Stanzler, Providence, R. I., for defendant.

Malcolm Farmer, III, Hinckley, Allen, Salisbury & Parsons, Herbert F. DeSimone, DeSimone, DelSesto & DelSesto, Providence, R. I., amicus curiae.

OPINION

PETTINE, Chief Judge.

Plaintiffs in this action for declaratory and injunctive relief are two residents and voters registered in the Democratic Party in the Ninth Ward of the City of Providence. The defendant is the Chairman of the Democratic Committee for the City of Providence ("City Committee").

The Democratic Party structure for the City of Providence is organized on two levels into ward and city committees. The City of Providence is divided into thirteen wards. See R.I.G.L. §§ 17-11-1, 17-12-10. In the Democratic Party primary held once every four years, the Democratic voters in each ward elect eleven persons to serve on their respective ward committees, R.I.G. L. §§ 17-12-6, 17-12-8,1 and on the City Committee generally. The City Committee consists of the committee members of the thirteen wards, R.I.G.L. § 17-12-7,2 and up to three officers from outside the elected membership who may be chosen from the ranks of the party's city membership generally. R.I.G.L. § 17-12-9.3 Pursuant to R.I.G.L. § 17-12-9, all of the ward committee members are required to meet in January of every odd-numbered year to organize the City Committee and elect its officers.

The last Democratic Party primary in the City of Providence was held on September 10, 1974. Plaintiff Carney voted in that primary and participated in the election of committee members for the Ninth Ward. Plaintiff Fahey was one of those elected to serve on the Ninth Ward and Providence City committees. He is now serving as chairman of the Ninth Ward Committee. In January 1975, the thirteen ward committees which were elected the previous September met together to organize the City Committee and elected defendant Darigan to the post of Chairman of the City Committee.

On May 9, 1975, the Rhode Island General Assembly passed a bill affecting the composition of the Providence ward and City Committees and giving new powers of appointment to the chairmen of the Democratic and Republican Party Committees for the City of Providence. The act, designated "H 6371" and designed to supercede the present R.I.G.L. § 17-12-6, see note 1, supra, took effect on May 19, 1975, and provides:

"Section 1. Section 17-12-6 of the general laws in chapter 17-12 entitled `Party committees and conventions' is hereby amended to read as follows: 17-12-6. Election of town and ward committees. â The party voters of each political party in each ward of each of the cities of the state shall, biennially, in every even year, at the primary election held to nominate party candidates, elect a ward committee for each such ward, provided, however, that the ward committees in the City of Providence shall each consist of nineteen (19) members and shall be elected quadrennially, and the party voters of each political party in each of the towns of the state shall biennially at said primary election elect a town committee for such town.
Sec. 2. The Chairman of the city committee of each political party forthwith upon the passage of this act shall appoint such number of members to each ward committee as may be necessary in order to carry out the provisions of section 1 hereof. Such ward committee members, so appointed shall hold office until the primary election in 1978 and thereafter until their successors shall have been duly elected, qualified and organized.
Sec. 3. This act shall take effect upon its passage."

A comparison of H 6371 ad R.I.G.L. § 17-12-6 reveals that all changes made in § 17-12-6 by the new act pertain to the composition of the ward committees of the Democratic and Republican parties of the City of Providence. Pursuant to section 1 of H 6371, the size of each of the ward committees, in the City of Providence alone, is for the first time set by statute â at nineteen committee members per ward. Section 2 of H 6371 requires the chairman of the City Committee for each political party, upon passage of the Act (see H 6371, § 3), to appoint such additional members to each of that party's ward committees as to bring the committees' size up to the full complement of nineteen per ward until the next primary election is held in 1978. As a consequence, defendant Darigan is empowered and required by H 6371 to appoint eight new members to each of the thirteen ward committees to hold office until the 1978 Democratic primary. This in turn will cause the City Committee membership to be increased from its present 143 to 247 members. R.I.G.L. § 17-12-7. See note 2, supra.

The plaintiffs challenge the constitutionality of H 6371, arguing, in essence, that, first, insofar as the Democratic ward and City committees perform a "public" function, H 6371 fails to comport with the "one person, one vote" principle enunciated in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L. Ed.2d 506 (1964), without furthering a compelling state interest, and thereby violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution; and, second, insofar as these committees perform a purely "private" political function, H 6371 impermissibly interferes with the internal affairs of a political party without serving a compelling state interest and thereby violates the plaintiffs' associational rights protected by the First and Fourteenth Amendments to the U. S. Constitution. See, e. g., Storer v. Brown, 415 U.S. 724, 729-730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L. Ed.2d 247 (1968). Plaintiffs seek a declaration that H 6371 as it applies to the City of Providence is unconstitutional and an injunction restraining defendant Darigan from making the additional 104 appointments required by the Act.4 The defendant's Republican counterpart, Roland A. Dumont, seeks to avoid the mandate of H 6371 and has filed a brief as amicus curiae which essentially adopts plaintiffs' legal arguments as recited above.

The action having been brought pursuant to 42 U.S.C. § 1983, jurisdiction is conferred upon the Court, sitting as a single judge, by 28 U.S.C. §§ 1343, 2201, 2202. The action does not require the convening of a three-judge panel under 28 U.S.C. § 2281, since plaintiffs' challenge to H 6371 relates only to its application to the City of Providence, and is not brought against a "state officer" within the meaning of 28 U.S.C. § 2281 to enjoin the operation of a statute of statewide applicability. Board of Regents v. New Left Education Project, 404 U.S. 541, 542, 92 S.Ct. 652, 30 L. Ed.2d 697 (1972); Moody v. Flowers, 387 U.S. 97, 101-103, 87 S.Ct. 1544, 18 L.Ed.2d 643 (1967); Souza v. Travisono, 498 F.2d 1120, 1121-1122 (1st Cir. 1974).

I

In order to assess plaintiffs' argument that H 6371 violates the "one person, one vote" requirement of the Equal Protection Clause, we must first determine that principle's applicability to the instant case. It is elementary that the provisions of the Equal Protection Clause of the Fourteenth Amendment relate only to "state", as opposed to "private", action. It equally cannot be disputed that state control of the nomination processes governing which candidates for public office will appear on the ballot in a general election constitutes "state action".5 "All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote." Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 1496, 23 L.Ed.2d 1 (1969) (citations omitted). Similarly, in Gray v. Sanders, 372 U.S. 368, 374, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963), the Supreme Court adopted the following language of Chapman v. King, 154 F.2d 460, 464 (5th Cir. 1946, cert. denied, 327 U.S. 800, 66 S.Ct. 905, 90 L.Ed. 1025:

"Where the State . . . collaborates in the conduct of the party primary, and puts its power behind the rules of the party ,it adopts the primary as a part of the public election machinery."

See, e. g., Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Seergy v. Kings County Republican County Committee, 459 F.2d 308, 313 (2d Cir. 1972). See also Lynch v. Torquato, 343 F.2d 370, 372 (3d Cir. 1965). Cf. Bunting v. Board of Canvassers and Registration of the City of Cranston, 90 R.I. 63, 153 A.2d 560, 562-563 (1959). Such processes must comport with the Equal Protection Clause, which, with exceptions not here applicable,6 requires compliance with the "one person, one vote" principle. Reynolds v. Sims, supra; Gray v. Sanders, supra; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L. Ed.2d 663 (1962). See also Gallant v. LaFrance, 101 R.I. 299, 222 A.2d 567, 570 (1967) (dictum).

Thus our task is to determine to what extent, if any, the City and ward committees perform a "public" function so as to require adherence to the "one person, one vote" rule. We start with the proposition that the Equal Protection Clause is not implicated in the mere endorsement of a candidate as the party's pick to succeed in a primary election. It is immaterial whether such an endorsement confers a "theoretical" advantage upon the endorsed candidate, Gallant v. LaFrance, supra, 222 A.2d at 570, or, as is urged through a statistical showing by the amicus, makes the endorsed candidate's nomination a virtual certainty. In either event, the party primary is still held, and it is left to the voters to accept or reject the endorsing committee's choice.

"It cannot be argued that such endorsement deprives any voter, otherwise qualified to vote in the party primary, from participating equally with all other voters in choosing the party's
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