Marshall v. Meadows

• Court: U.S. District Court — Eastern District of Virginia
• Writing for the Court: Daniel Allen Carrell, Robert Christopher Rice, Carrell & Rice, Richmond, VA, for Plaintiffs
• Citation: Marshall v. Meadows, 921 F.Supp. 1490 (E.D. Va. 1996)
• Decision Date: 17 April 1996
• Docket Number: Civil Action No. 3:96CV208.
• Parties: Robert G. MARSHALL and Patrick M. McSweeney, Plaintiffs, v. M. Bruce MEADOWS, Pamela L. Clark and George M. Hampton, Defendants.

921 F. Supp. 1490

Robert G. MARSHALL and Patrick M. McSweeney, Plaintiffs, v. M. Bruce MEADOWS, Pamela L. Clark and George M. Hampton, Defendants.

Civil Action No. 3:96CV208.

United States District Court, E.D. Virginia, Richmond Division.

April 17, 1996.

Daniel Allen Carrell, Robert Christopher Rice, Carrell & Rice, Richmond, VA, for Plaintiffs.

Alice Ann Berkebile, Office of the Attorney General, Richmond, VA, for Defendants M. Bruce Meadows, Pamela L. Clark and George M. Hampton, Sr.

Lewis Franklin Powell, III, Robert Hewitt Pate, III, Sarah C. Johnson, Hunton & Williams, Richmond, VA, for Defendant John Warner, Senator.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, Senior District Judge.

This matter is before the Court on various motions, chiefly the defendants' motion to dismiss. United States Senator John Warner has moved to intervene as a defendant and has tendered a proposed answer, motion for judgement on the pleadings and motion to dismiss. In addition, plaintiffs have moved to strike various exhibits of defendants and Warner. The case presents the question of whether two members of a political party have standing to file suit ninety days before a primary to be conducted under Virginia's open primary law, Va.Code Ann. § 24.2-530, when the political party itself has adopted an open primary and refuses to join the suit. The Court finds that the plaintiffs lack standing, have failed to show a redressable injury and are in laches, and therefore the case will be dismissed.

As a preliminary matter, Senator Warner and the defendants do not oppose the plaintiffs' motions to strike. Those motions will be granted and the Court will not rely on the exhibits. The Court instead relies on the remaining exhibits, to which plaintiffs have conceded admissibility, and on the agreed statements of fact in the parties' written and oral arguments before the Court.

Facts and procedural history.

The plaintiffs are Delegate Robert Marshall, a Republican representing Virginia's 13th House of Delegates District, and Patrick McSweeney, Chairman of the Republican Party of Virginia ("the Party"). The defendants, sued in both their personal and official capacities, are members of Virginia's board of elections, with Bruce Meadows the Secretary of the board. Senator Warner is a current United States Senator who seeks renomination and reelection in the 1996 Virginia senate race. The Republican Party of Virginia is not a litigant — plaintiff or defendant — in this suit.

Plaintiffs have known for approximately one year that Senator Warner intended to seek renomination by primary. Pursuant to Va.Code Ann. § 24.2-509(B), colloquially known as the incumbent protection act, Senator Warner's incumbency entitles him to a primary unless he consents to a different procedure. Warner chose a primary and the Party Central Committee adopted one by resolution on December 9, 1995: "The Republican Party of Virginia State Central Committee does hereby select a primary to select the nominee for a United States Senate candidate for the 1996 election to be held November 5, 1996."

The Committee rejected an amendment that would have expressed a preference for a convention had Virginia law not provided for a primary through the incumbent protection act. However, in December 1995 the Party's State Central Committee, its principal committee, unanimously adopted a resolution requesting that the General Assembly require voter registration by political affiliation — the inference is that such a law would lead eventually to a closed primary. Delegate Marshall introduced such a bill in the 1996 session. The bill was tabled, effectively killing it. Finally, at some or various points over the above time span, plaintiffs sought to have the Party itself endorse a lawsuit similar to this one. They failed.

Under Va.Code Ann. § 24.2-515, the Republican primary is to take place on June 11, 1996; this suit was filed and served on the defendants on March 8. In other words, this suit was filed only 95 days before the primary is to be held.

The plaintiffs emphasize that they are not asking for the creation of a caucus and convention scheme, or the invalidation of this June's primary; rather, they merely ask that the open primary law be declared unconstitutional. The purported significance of such declaration is that the Party might then, if Virginia passed appropriate new legislation, hold a closed primary. The plaintiffs claim a real controversy exists because they claim that a closed primary is the true preference of the Party. As proof they rest on an allegedly clear conflict between Virginia's political primary laws, Va.Code Ann. §§ 24.2-509, -516, -517 & -530, and Article I, § A(1) of the Party Plan. That section of the plan provides:

All legal and qualified voters under the laws of the Commonwealth of Virginia, regardless of race, religion, national origin or sex, who are in accord with the principles of the Republican Party, and who, if requested, express in open meeting either orally or in writing as may be required their intent to support all of its nominees for public office in the ensuing election may participate as members of the Republican Party of Virginia in its mass meetings, party canvasses, conventions, or primaries encompassing their respective election districts.

Analysis.

1. Senator Warner's motion to intervene.

Fed.R.Civ.P. 24(a) provides for intervention as of right where the intervenor "is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect his interest." Intervention is also appropriate permissively under Rule 24(b), which only requires a "question of fact or law in common" and a discretionary finding that intervention will not prejudice the original parties.

Plaintiffs' lead argument against intervention is that Rule 24(c), governing the procedure for intervention, requires that the motion to intervene "shall be accompanied by a pleading setting forth the claim or defense for which intervention is sought." Plaintiffs assert that because until recently Warner had submitted only a motion to dismiss, he had made no "pleading" and therefore violated Rule 24(c). The Court need not involve itself in this preliminary squabble. The Fourth Circuit rejects strict application of Rule 24(c), holding that "the proper approach is to disregard non-prejudicial technical defects." Spring Construction Co., Inc. v. Harris, 614 F.2d 374, 377 (1980). Senator Warner has served all parties with each of his filed and proposed motions and has now even tendered a proposed answer to meet the technical requirements of Rule 24(c). At this early stage of the case, where even the named defendants are not yet required to answer, no prejudice to plaintiffs can be shown. Defendants do not oppose Warner's motion.

Senator Warner's intervention serves a valid purpose in this case. He has more than merely identical interests and arguments to the named defendants, as plaintiffs asserts. In the words of the Rule and the Fourth Circuit, Warner has "as a practical matter" a vital interest in a procedure through which he is currently seeking election and toward which he has expended considerable money and time. Through those efforts Warner raises the issue of prejudicial reliance and thus the defense of laches, whereas the Commonwealth has not raised laches and may not be in a position to argue it forcefully. Warner's motion is appropriate under both Rule 24(a) and (b); therefore, his motion will be granted and his proposed motions and pleadings will be filed in due course.

2. The defendants' and Senator Warner's motion to dismiss.

The defendants and the Senator argue that the plaintiffs lack standing. Warner further argues that the plaintiffs are in laches and must be dismissed. The Court examines the issues separately.

The Court first turns to the issue of standing. As the Court has noted, federal courts refuse to adjudicate abstract questions of wide public significance that amount to generalized grievances shared by many. See Froelich v. Federal Election Commission, 855 F.Supp. 868, 870 (E.D.Va.1994), aff'd, 57 F.3d 1066 (4th Cir.1995) (private plaintiffs challenging interstate campaign contributions had no standing to sue), quoting Warth v. Seldin, 422 U.S. 490, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). "It is the responsibility of the complainant clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute." Renne v. Geary, 501 U.S. 312, 316, 111 S.Ct. 2331, 2336, 115 L.Ed.2d 288 (1991). An injury to the specific plaintiff must be "distinct and palpable" and cannot be "inferred argumentatively" from the pleadings. Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722, 109 L.Ed.2d 135 (1990); FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990). Although the Court has reviewed the wide body of Supreme Court and other standing precedent submitted by the parties, two cases are most instructive: Bender v. Williamsport Area School District and Charlestown Democratic Town Committee v. Connell, 475 U.S. 534, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986); 789 F.Supp. 517 (D.R.I.1992).

In Bender, one member of a school board attempted to appeal a judgment against the board where the board itself refused to appeal. 475 U.S. at 543-44, 106 S.Ct. at 1332. The Supreme Court found that even his status as a board member did not permit the plaintiff to "step into the shoes of the Board and invoke its right to appeal." Id. at 544, 106 S.Ct. at 1332 (quotation omitted). Connell then applied Bender to facts closely analogous to the present case: in Connell, a Democratic Party subcommittee and private plaintiffs challenged various state laws, among them one which specified the number of members certain party committees could have and one which made certain party officials automatic delegates to state conventions. 789 F.Supp. 517 (D.R.I....