Ferency v. Austin

• Decision Date: 21 April 1980
• Docket Number: No. G80-193 CA5.,G80-193 CA5.
• Citation: 493 F. Supp. 683
• Parties: Zolton FERENCY, Plaintiff, v. Richard H. AUSTIN, Secretary of State; Bernard Apol, Director, Elections Division, Department of State and Board of State Canvassers, Defendants.
• Court: U.S. District Court — Western District of Michigan

493 F. Supp. 683

Zolton FERENCY, Plaintiff, v. Richard H. AUSTIN, Secretary of State; Bernard Apol, Director, Elections Division, Department of State and Board of State Canvassers, Defendants.

No. G80-193 CA5.

United States District Court, W. D. Michigan, S. D.

April 21, 1980.

COPYRIGHT MATERIAL OMITTED

Zolton Ferency, East Lansing, Mich., for plaintiff.

Jann Ryan Baugh, Haywood W. Julian, Asst. Attys. Gen., Lansing, Mich., for defendants.

OPINION

INTRODUCTION

DOUGLAS W. HILLMAN, District Judge.

Plaintiff, Zolton Ferency, has filed suit against the Michigan Secretary of State, the State Director of Elections¹, and the Board of State Canvassers, seeking a declaratory judgment concerning the administration of the Michigan presidential primary election to be held on May 20, 1980. At issue is the constitutionality of the state's election law as it applies to the Democratic Party, and the authority of the state elections officials to supervise party-run caucuses.

Suit was initially filed on March 20, 1980, in Ingham County Circuit Court under the state's Administrative Procedures Act of 1969 (M.C.L.A. § 24.201, et seq.; M.S.A. § 3.560(101), et seq.). That same day, Judge Ray C. Hotchkiss entered an order to show cause why plaintiff's request for a declaratory ruling should not be granted, and a hearing was scheduled for March 26, 1980. On March 25, 1980, the defendants removed the case to this court, and because plaintiff alleged violations of privileges and immunities guaranteed to him by the United States Constitution, jurisdiction was maintained under 28 U.S.C. § 1343(3).²

Plaintiff thereafter moved for a declaratory judgment pursuant to the federal Declaratory Judgment Act, 28 U.S.C. § 2201. Due to the importance of the questions presented, plaintiff's motion was advanced on the court's calendar and a hearing scheduled for April 11, 1980. By agreement of the parties, the Michigan Democratic Party was permitted to participate in an amicus capacity. At oral argument, all participants agreed that no genuine issue of material fact existed which would preclude a prompt decision by this court. For the reasons that follow, I deny plaintiff's motion for declaratory relief, and I accordingly dismiss the case.

FACTS

In the early part of the Twentieth Century, the movement toward democratization of the presidential nominating process led several states to adopt presidential preference primaries. In 1904, Florida became the first such state to permit this type of election. Others soon followed, so that by 1916, primaries were being conducted in 26 states.

By 1968, this number dwindled to 16, due in large part to the prohibitive costs. Because of the sudden advent of intense media coverage, however, 35 states now employ primary elections as a means of choosing their party delegations. (See, Durbin and Seitzinger, Nomination and Election of the President and Vice President of the United States, pp. 134-135; U. S. Government Printing Office: 1980.)

Michigan first enacted a presidential primary election law in 1972. Prior to that time, representative delegations were picked in state conventions, and before that, in party caucuses. The presidential primary in Michigan is an open primary in that any individual may vote for the candidates of any party on the ballot. A Republican, a Democratic, a minor party member, or an independent may cast his or her ballot in either the Republican or the Democratic primary without making a prior declaration as to party affiliation. This procedure is known as "cross-over" voting, and is permitted in several other states.

Following the 1976 presidential election, the National Democratic Party reevaluated its support of cross-over voting. This led to a rule change embodied in the Delegate Selection Rules for the 1980 Democratic National Convention (hereinafter "Rules") issued by the Democratic National Committee in 1978. Rule 2A of the Delegation Selection Rules restricts participation in the delegate selection process in primaries or caucuses "to Democratic voters only who publicly declare their party preference and have that preference publicly recorded". Under Rule 2C, state parties which are precluded by state statute from complying with Rule 2A, must adopt and implement an alternative delegate selection system which complies with Party rules. No exemptions are granted (Rule 2B).

On August 18, 1979, the Michigan Democratic Party adopted its 1980 delegate selection plan containing alternative methods for choosing delegates to the national convention. Under the first option, a Michigan delegation would be selected via the Michigan primary election law provided that the state's open-primary features were eliminated prior to October 1, 1980. Failure to amend state law would result in the Party's employment of a second option providing for the establishment of party-run caucuses. Under this plan, participation would be limited solely to Party members who had publicly registered before February 26, 1980. Because the state legislature failed to timely act, the Democratic State Central Committee officially adopted the caucus-alternative on October 13, 1979.

Thereafter, members of the State Senate wrote to the Michigan Attorney General and asked that steps be taken to force the Democratic Party's participation in the state presidential primary. The Attorney General replied on December 6, 1979, informing the legislators that under his reading of recent Supreme Court rulings, state officials were without authority to compel participation in the primary. A second letter to the same effect was sent to the Senate Majority Leader in January, 1980.

On December 10, 1979, Olivia Maynard, the chairperson of the Michigan Democratic Party, informed the Secretary of State that the party would not comply with the rules and requirements of the state's primary election law. Instead, the Democrats informed the Secretary of State that a caucus method would be used to select delegates to the national convention, and moreover, that members of the Democratic Party likely to be listed as candidates on the state's primary election ballot would be requested to withdraw from competition. In fact, President Carter and Senator Kennedy later withdrew. At this time, only Lyndon H. LaRouche, Jr., and Edmond G. Brown, Jr., are listed as participating candidates.³

In January of this year, plaintiff delivered a letter to the Elections Division of the Department of State addressed to the Board of State Canvassers requesting a declaratory ruling concerning, among other things, the propriety of the Secretary of State's refusal to enforce Michigan's presidential primary election law. Specifically, the plaintiff demanded an explanation for the defendants' refusal to comply with M.C. L.A. § 168.620, which reads:

Sec. 620. All rules, procedures, allocation of national delegates, additional qualifications for delegates and delegations of authority, by any state central committee under the provision of this act relating to presidential primary elections, shall be filed with the secretary of state no later than December 31 of the year preceding the presidential election except that in 1972, such rules, procedures, allocation of national delegates, additional qualifications for delegates or delegations of authority shall be filed with the secretary of state no later than the second Friday of March. If the state central committee of any political party, for which a presidential primary is to be held under section 613, fails to file any rules, procedures, allocation of national delegates, additional qualifications for delegates and delegations of authority necessary for the appropriate implementation of this act relating to presidential primary elections, the secretary of state forthwith shall issue them to the extent necessary. The secretary of state shall insure that all such rules, procedures, allocation of national convention delegates, additional qualifications for delegates, delegations of authority and the general provisions of this act relating to the presidential primary election shall be widely publicized in the mass communications media and made easily available to the public.

Plaintiff was thereafter notified of a hearing on his requested ruling to be held by the Board of State Canvassers on February 7, 1980. Plaintiff attended, submitted a memorandum, and responded to questions propounded by members of the Board. The next day, plaintiff wrote defendants Austin and Apol in order to clarify the fact that he was specifically requesting a ruling on these matters by the Secretary of State's office and by the Elections Division of the Department of State, as well as by the Board of Canvassers. Plaintiff was not informed until February 21, 1980, that the matter was referred to the state's Attorney General.

Although plaintiff had requested an "expeditious" ruling by the defendants, he heard nothing more of the matter. Consequently, as already stated, plaintiff filed suit in state court, which was removed by the defendants to this court on March 25, 1980.

In his complaint and motion for a declaratory judgment, plaintiff requests this court to adjudge and declare that:

(a) under state law (M.C.L.A. § 168.613⁴), the Democratic Party, because it received greater than 5% of the total vote cast in the last nationwide presidential election, is obligated to participate in the State's presidential primary election to be held May 20, 1980, and to allocate its delegates to the August Democratic National Convention pursuant to that primary election;

(b) under state law (M.C.L.A. § 168.620), the Democratic Party is obligated to file with the Secretary of State the rules and procedures which it will use in allocating its delegates to the national convention, and that if the Democratic Party fails to issue these rules by December 31, 1979, as required by law, the Secretary of State is then required to "forthwith" issue his...