LaRouche v. Sheehan

• Decision Date: 30 June 1984
• Docket Number: Civ. No. K-84-675.
• Citation: 591 F. Supp. 917
• Parties: Lyndon H. LaROUCHE, Jr. and Kevin C. Salisbury and Linda W. Back and Benjamin F. Raney and Barbara L. Brown v. Lorraine SHEEHAN, Secretary of State of Maryland.
• Court: U.S. District Court — District of Maryland

591 F. Supp. 917

Lyndon H. LaROUCHE, Jr. and Kevin C. Salisbury and Linda W. Back and Benjamin F. Raney and Barbara L. Brown v. Lorraine SHEEHAN, Secretary of State of Maryland.

Civ. No. K-84-675.

United States District Court, D. Maryland.

June 30, 1984.

Odin P. Anderson, Boston, Mass., Patrick J. Moran, Rockville, Md., and Karl W. Pilger, Washington, D.C., for plaintiffs.

Stephen H. Sachs, Atty. Gen. of Maryland, Susan K. Gauvey and Jack Schwartz, Asst. Attys. Gen. of Maryland, Baltimore, Md., for defendant.

FRANK A. KAUFMAN, Chief Judge.

Plaintiffs, Lyndon H. LaRouche, Jr., a candidate for the Democratic presidential nomination, and four of his political supporters, instituted this action against defendant Lorraine Sheehan, Secretary of State of Maryland, seeking placement of Mr. LaRouche's name on the May 8, 1984 Maryland primary election ballot pursuant to Md.Ann.Code art. 33, § 12-6(a)(1) (1983 Repl.Vol.).¹ That provision of the Maryland Code provides, inter alia, that the Secretary of State shall place the name of the candidate upon the primary election ballot when in the sole discretion of the Secretary, "the candidate's candidacy is generally advocated or recognized in the news media throughout the United States or in Maryland...."

In February, 1984, defendant Sheehan determined that the names of eight Democratic presidential candidates should be placed on the Maryland primary ballot pursuant to section 12-6(a)(1).² Defendant Sheehan did not place the name of Lyndon LaRouche on the primary ballot, as she found that "Mr. LaRouche's candidacy is not generally advocated or recognized in the news media throughout the United States or in Maryland."³ Thereafter, on February 24, 1984, plaintiffs instituted the within case seeking immediate and permanent injunctive and declaratory relief. Plaintiffs allege that defendant's refusal to place Mr. LaRouche's name on the ballot was arbitrary and illegal and that, in any event, section 12-6(a)(1) is void for vagueness.

On February 27, 1984, several days after plaintiffs initiated this action, plaintiff LaRouche did obtain placement on the Maryland primary ballot by virtue of the petition provisions of Md.Ann.Code art. 33, § 12-6(a)(2) (1983 Repl.Vol.).⁴ The petition provisions of section 12-6(a)(2) provide an alternative means of gaining access to the Maryland primary election ballot. Thus, under the Maryland election code, a person seeking the presidential nomination may become a candidate on the Maryland primary ballot by either submitting the requisite number of signatures via the petition route or by being placed on the ballot at the direction of the Secretary of State under the media recognition provision.

Despite the fact that plaintiff LaRouche did obtain placement on the Maryland primary election ballot by way of petition, plaintiffs continue to press their claims that section 12-6(a)(1) is unconstitutionally vague or, in the alternative, that the statute was arbitrarily applied to Mr. LaRouche's candidacy. Because the issue of the constitutionality of the statute presents a legal question not rendered moot by Mr. LaRouche's placement on the ballot, this Court will reach and determine herein the merits of the first of those two questions. See, e.g., Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 1282 n. 8, 39 L.Ed.2d 714 (1974): "The 1972 election is long over, and no effective relief can be provided to the candidates or voters, but this case is not moot, since the issues properly presented, and their effects on independent candidacies, will persist as the California statutes are applied in future elections."⁵ As to plaintiffs' second or "as applied" claim, the question of whether the placement of Mr. LaRouche's name on the ballot renders it moot need not be addressed herein.⁶ This Court is foreclosed from entertaining such a claim under Pennhurst State School and Hospital v. Halderman, ___ U.S. ___, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984), in which the Supreme Court held that the Eleventh Amendment bars a federal court from ordering a state official to conform his conduct to state law. Accordingly, the single remaining issue herein relates to the facial validity of section 12-6(a)(1).

Plaintiffs claim that section 12-6(a)(1) is void for vagueness because it is standardless and places unbridled discretion in the Secretary of State, and that that section also violates the equal protection clause because it unduly restricts the exercise of fundamental First Amendment rights.

Void for Vagueness

The void-for-vagueness doctrine, while originally adopted in the context of penal statutes, has been applied to statutes which deter a "substantial amount of conduct" protected by the First Amendment. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1859 n. 8, 75 L.Ed.2d 903, 910 n. 8 (1983); Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982). A statute is unconstitutionally vague if persons of "common intelligence must necessarily guess at its meaning and differ as to its application," Connally v. General Construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), or if it "fails to give a person of ordinary intelligence fair notice" of conduct proscribed or required by the statute, United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811, 98 L.Ed. 989 (1954), and "encourages arbitrary and erratic" behavior on the part of those officials charged with enforcing the statute, Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972). In that vein, Justice Marshall has written:

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application.

Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (footnotes omitted), quoted in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982).

"The degree of vagueness that the Constitution tolerates — as well as the relative importance of fair notice and fair enforcement — depend in part on the nature of the enactment." Flipside, supra, 455 U.S. at 498, 102 S.Ct. at 1193. Thus, courts are more tolerant of possible vagueness in connection with laws which impose civil, rather than criminal penalties "because the consequences of imprecision are qualitatively less severe." Flipside, supra, 455 U.S. at 498-99, 102 S.Ct. at 1193-94. However, a law which interferes with the right of free speech should receive relatively more stringent scrutiny. Flipside, supra, 455 U.S. at 499, 102 S.Ct. at 1194.

When the constitutionality of a statute is challenged, it is the Court's obligation in determining validity "not to destroy the statute if we can ... but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations." United States Civil Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548, 571, 93 S.Ct. 2880, 2893, 37 L.Ed.2d 796 (1973). In Kay v. Austin, 621 F.2d 809 (6th Cir.1980), the Sixth Circuit examined language in a Michigan election law similar to the Maryland statutory provisions involved in this case.⁷ The Michigan election code, like that in Maryland, provided for ballot access either by direction of the Secretary of State or by virtue of a petition procedure. The statutory language at issue in Austin stated: "The secretary of state shall issue a list of the individuals generally advocated by the national news media to be potential presidential candidates...." Id. at 810. The Court in Austin considered the language to be capable of "narrow and reasonable applications" (at 812) and stated:

The word "advocated" cannot be read in isolation from the complete phrase "advocated to be a potential presidential candidate." So read, it does not require endorsement by the national news media, but only that the national news media generally recognize that the individual is a potentially viable, but not necessarily successful, candidate.

Id. at 812.

In Belluso v. Poythress, 485 F.Supp. 904 (N.D.Ga.1980), the Court found the challenged statutory language — "a list of names of potential presidential candidates who are generally advocated or recognized in news media throughout the United States" (at 907) to be facially reasonable because "it is not standardless or arbitrary" and because "it does not of necessity operate to exclude from the primary ballot candidates with a constitutional right to inclusion." Id. at 913. In addressing plaintiffs' vagueness challenge, the Court wrote:

The plaintiffs make much of the section's vagueness; its supposed delegation to a single official, the Georgia Secretary of State, of the authority to interpret its meaning; and its allegedly standardless grant of power to exclude even a candidate designated by the Secretary of State to a unanimous trio of party officials. Contrary to these contentions, however, the law does furnish usable guidelines. While Georgia has eschewed the more objective approach taken by states that have imposed filing fees and petition requirements, it has sought a principled means of evaluating a candidate's seriousness, on the theory that his or her recognition in the media demonstrates a minimum degree of public support. Georgia's test may not

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