Hartke v. Roudebush, IP 70-C-694.

• Decision Date: 22 March 1971
• Docket Number: No. IP 70-C-694.,IP 70-C-694.
• Citation: 321 F. Supp. 1370
• Parties: Vance HARTKE, Plaintiff, v. Richard L. ROUDEBUSH, Samuel J. Walker, John R. Hammond, Duge Butler, Defendants, Theodore Sendak, Attorney General of Indiana, Intervening Defendant.
• Court: U.S. District Court — Southern District of Indiana

321 F. Supp. 1370

Vance HARTKE, Plaintiff, v. Richard L. ROUDEBUSH, Samuel J. Walker, John R. Hammond, Duge Butler, Defendants Theodore Sendak, Attorney General of Indiana, Intervening Defendant.

No. IP 70-C-694.

United States District Court, S. D. Indiana, Indianapolis Division.

December 19, 1970.

Jurisdiction Postponed March 22, 1971.

John J. Dillon, David W. Mernitz and James L. Tuohy, Indianapolis, Ind., for plaintiff, Vance Hartke.

Donald A. Schabel and John G. Tinder, Indianapolis, Ind., for defendant, Richard L. Roudebush.

Theodore L. Sendak, Atty. Gen., and Wendell C. Hamacher and Patricia J. Glifford, Deputy Attys. Gen., for the State of Indiana.

Before STEVENS, Circuit Judge, and STECKLER, Chief Judge, and DILLIN, District Judge.

Jurisdiction Postponed March 22, 1971. See 91 S.Ct. 1201.

OPINION

PER CURIAM.

This cause was heard before a three-judge District Court convened pursuant to 28 U.S.C. § 2284, on plaintiff's application for a preliminary injunction to enjoin the operation and enforcement of Chapter 54 of Title 29 of the Indiana Election Code, Burns' Ind.Stat.Ann. § 29-5401 through § 29-5417, upon the ground that the application and operation of such statutes in respect to an election for the office of United States Senator is unconstitutional.

At the general election of November 3, 1970, the plaintiff, Vance Hartke, an incumbent United States Senator for Indiana, and the defendant Richard L. Roudebush were opposing candidates for Hartke's office. The canvass reflected that Hartke received the highest number of votes cast for such office, and on November 16, 1970, the Secretary of State certified him to the Governor of Indiana as duly elected and the Governor, on December 3, 1970, gave to said candidate a certificate of his election, in the form required by Burns' Ind.Stat. Ann. § 29-5309.¹ The certificate has been filed with the Secretary of the United States Senate.

On November 17, 1970, defendant Roudebush filed in the Superior Court of Marion County, Indiana, a petition for a recount of the votes cast in selected precincts of Marion County, stating in said petition his desire to contest said election. This court knows judicially that similar petitions were filed by him in ten other counties of the State of Indiana. The Superior Court of Marion County overruled a motion to dismiss the petition, and proceeded to appoint the defendants Samuel J. Walker, John R. Hammond, and Duge Butler as a recount commission to recount the votes cast for the office of United States Senator in such selected precincts of Marion County, relying upon the Indiana recount statute, Burns' Ind.Stat.Ann. §§ 29-5401 to 29-5417, the pertinent parts of which are set out below.² Said recount was ordered to be commenced on December 8, 1970.

On December 3, 1970, plaintiff Hartke brought this action to enjoin the defendant recount commission from proceeding with the recount in Marion County, and to enjoin the defendant Roudebush generally from taking further action to obtain a recount in the other counties in which his recount petitions were filed. Jurisdiction was predicated on 28 U.S.C. § 1343(3), with request that a three-judge district court be convened to hear the case, pursuant to 28 U.S.C. § 2284. The jurisdiction of a three-judge court over an action in which a candidate for the Congress of the United States alleges the deprivation of a right under color of a state election law, and the unconstitutionality of such law in the light of the Constitution of the United States has been recognized. Voltaggio v. Caputo, D.N.J., 1963, 210 F.Supp. 337, app. dis., 371 U.S. 232, 83 S.Ct. 325, 9 L.Ed. 2d 494. See also Socialist Labor Party v. Rhodes, S.D.Ohio, 1968, 290 F.Supp. 983, aff'd as modified, sub nom Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24. This court was properly convened, and has jurisdiction in the premises.

The Attorney General of Indiana has been permitted to intervene, pursuant to 28 U.S.C. § 2284(2), and has filed a motion to dismiss the action. The defendant Roudebush has likewise moved to dismiss. An argument common to both motions is that this court lacks jurisdiction to grant injunctive relief, as prayed for, because prohibited by 28 U.S.C. § 2283.³

The statute referred to has been characterized as ambiguous, by the Supreme Court of the United States, speaking without dissent. Leiter Minerals, Inc. v. United States, 352 U.S. 220, 77 S.Ct. 287, 1 L.Ed.2d 267. It is therefore not surprising that various, and to some extent contradictory, interpretations of it have been made. One view, which we find persuasive, is that Section 2283 is not a jurisdictional statute, but is rather, in essence, a statutory adoption of the doctrine of comity and hence discretionary in its application. In spite of its absolute language, it does not prevent a federal court from enjoining state court proceedings where special circumstances justify such relief. Baines v. City of Danville, 4 Cir., 1964, 337 F.2d 579, 593. This appears to be particularly true with respect to cases arising pursuant to 42 U.S.C. § 1983, as to which 28 U.S.C. § 1343, under which this suit is brought, is the jurisdictional analogue. Machesky v. Bizzell, 5 Cir., 1969, 414 F.2d 283; Carmichael v. Allen, N.D.Ga., 1967, 267 F.Supp. 985 (three-judge court); Landry v. Daley, N.D.Ill., 1968, 288 F.Supp. 194, 233. See Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22.

Another ground for dismissal urged by the defendant Roudebush is that this court lacks jurisdiction because exclusive jurisdiction to determine the effect of the recount proceedings commenced by him is in the United States Senate by virtue of Article 1, Section 5 of the Constitution of the United States, which provides "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members. * * *" But a right claimed under the same Constitutional provision—the right to have the returns of the November 3 election judged by the Senate and not piecemeal by various commissions appointed by various state courts—is the very right which plaintiff asserts is being violated by the defendant Roudebush's state court actions. Regardless of the position taken, all parties agree as to the supremacy of the Senate itself to make the final determination as to the winner of the recent election. Reed v. County Commissioners, 277 U.S. 376, 48 S.Ct. 531, 72 L.Ed. 924; Barry v. United States ex rel. Cunningham, 279 U.S. 597, 49 S.Ct. 452, 73 L.Ed. 867.

The great weight of authority supports plaintiff's position that court proceedings for recount or contest with regard to an election for representative in the national House of Representatives or for United States Senator are unconstitutional, as in conflict with Article 1, Section 5, whether brought in state or federal court. State ex rel. Fleming v. Crawford, 1891, 28 Fla. 441, 10 So. 118; Burchell v. State Board of Election Commissioners, 1934, 252 Ky. 823, 68 S.W.2d 427; Opinion of the Justices, 1956, 152 Me. 212, 142 A.2d 532; Belknap v. Board of Canvassers, 1893, 94 Mich. 516, 54 N.W. 376; McLeod v. Kelly, 1942, 304 Mich. 120, 7 N.W.2d 240; State ex rel. 25 Voters v. Selvig, 1927, 170 Minn. 406, 212 N.W. 604; Odegard v. Olson, 1963, 264 Minn. 439, 119 N.W.2d 717; State ex rel. McCue v. Blaisdell, 1908, 18 N.D. 55, 118 N.W. 141; Laxalt v. Cannon, 1964, 80 Nev. 588, 397 P.2d 466; Opinion of the Justices, 1921, 80 N.H. 595, 113 A. 293; Smith v. Polk, 1939, 135 Ohio St. 70, 19 N.E.2d 281; Sutherland v. Miller, 1917, 79 W.Va. 796, 91 S.E. 993; State ex rel. Wettengel v. Zimmerman, 1946, 249 Wis. 237, 24 N.W.2d 504; Keogh v. Horner, 1934, S.D.Ill., 8 F.Supp. 933; Peterson v. Sears, et al., 1964, N.D.Iowa, 238 F. Supp. 12.

An equally strong body of authority supports the same rule with regard to the lack of jurisdiction in the courts to countenance suits for recount or contest with regard to elections of members of the State legislatures. The reasoning is identical and is predicated on provisions of the various state constitutions which copy Article 1, Section 5 of the Constitution of the United States either verbatim or in substance. We deem it unnecessary to burden this opinion with a collection of these many cases, inasmuch as the Supreme Court of Indiana has had occasion to speak three times in the past twenty years on the subject of legislative recounts, attempted under the statute here involved, Burns' Ind.Stat.Ann. §§ 29-5401 to 29-5417, inclusive.

This trilogy consists of the cases of State ex rel. Acker, et al. v. Reeves, 1951, 229 Ind. 126, 95 N.E.2d 838; State ex rel. Beaman v. Circuit Court of Pike County, et al., 1951, 229 Ind. 190, 96 N.E.2d 671, and State ex rel. Batchelet v. DeKalb Circuit Court, et al., 1967, 248 Ind. 481, 229 N.E.2d 798. The provision of the Constitution of Indiana which controlled the cases is Article 4, Section 10, which is virtually identical to Article 1, Section 5 of the Constitution of the United States.⁴ In each case, a defeated candidate for the General Assembly of Indiana filed a petition for a recount pursuant to Burns' Ind.Stat.Ann. §§ 29-5401 to 29-5417, in each case the trial court appointed a recount commission, and in each case the Supreme Court of Indiana issued a writ of prohibition restraining the court from proceeding with the recount on the ground that it was constitutionally impermissible in the light of Article 4, Section 10.

In order to understand Acker, Beaman, and Batchelet, and, for that matter, our own decision, it is necessary to make plain what the unadorned word "recount" has been taken to mean in Indiana. It will be noted immediately that the statute (Footnote 2) does not specify in what manner the recount shall be conducted; however, we find from the undisputed evidence in the case before us, and in addition know judicially, that by custom, usage and practice recounts in Indiana have been conducted under the statute as follows:...