McKenna v. Reilly

• Decision Date: 13 September 1976
• Docket Number: Civ. A. No. 76-0280.
• Citation: 419 F. Supp. 1179
• Parties: Kevin A. McKENNA and Marlene Marcello McKenna v. Charles T. REILLY, Chairman of the Democratic State Committee, et al.
• Court: U.S. District Court — District of Rhode Island

419 F. Supp. 1179

Kevin A. McKENNA and Marlene Marcello McKenna v. Charles T. REILLY, Chairman of the Democratic State Committee, et al.

Civ. A. No. 76-0280.

United States District Court, D. Rhode Island.

September 13, 1976.

John M. Roney, Richard Jessup, Jr., Providence, R. I., for plaintiffs.

Milton Stanzler, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

Plaintiffs in this action for declaratory and injunctive relief are a declared and qualified candidate for nomination by the Democratic Party of the State of Rhode Island to the office of Lieutenant Governor, and a qualified elector who is a member of the Democratic Party of the State of Rhode Island. Plaintiff Kevin McKenna, the nominee, has not been endorsed by the Democratic State Committee. Defendants are the Democratic State Committee, the chairman and treasurer of the Democratic State Committee, and Thomas DiLuglio, a candidate for the Democratic nomination to the office of Lieutenant Governor who has received the endorsement of the defendant Committee.

Section 44-30-2(e) (1975 Supp.) R.I.G.L., entitled "An Act Providing a Credit Against State Income Tax for a $1.00 Political Contribution", permits a credit of one dollar against the Rhode Island personal income tax otherwise due.¹ Each taxpayer is permitted to designate a political party, or a non-partisan general account, to receive his or her contribution.² The state general treasurer must distribute the designated partisan contributions to the chairmen of the parties by September 1 of each year. He must also distribute the non-partisan general fund to the party chairmen under a formula not at issue here.³ The statute is silent as to the purposes for which the parties receive these funds, and as to how the funds are to be spent. No special accounting of the disbursal of these funds is required.⁴

Plaintiff complains that defendants have allocated these "checkoff moneys" to endorsed candidates, including his endorsed opponent, to the exclusion and harm of unendorsed candidates running in the September 14 Democratic primary.⁵ He challenges the constitutionality of this practice, arguing that defendants' actions constitute governmental action assisting his opponent, and hindering his own candidacy, in violation of his rights of political expression under the First Amendment and equal protection as guaranteed by the Fourteenth Amendment. He seeks a declaration that the practice is illegal, and an injunction prohibiting defendants from providing, and defendant DiLuglio from spending, checkoff moneys for DiLuglio's compaign.

This action comes before the court on plaintiff's motion for a preliminary injunction, and defendant's motion to dismiss. Defendants argue (1) that the court does not have jurisdiction pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 because none of the defendants are state officers as required by 42 U.S.C. § 1983, and (2) that the complaint fails to state a claim on which relief can be granted because the defendants are not acting under color of state law as required by 42 U.S.C. § 1983.

LACK OF JURISDICTION

Jurisdiction is proper under 28 U.S.C. § 1343(3). Plaintiffs need not allege that defendants are state officers; they need merely allege, as they have here, that the acts complained of were accomplished under color of state law. See McClellan v. University Heights, Inc., 338 F.Supp. 374 (D.R.I.1972).

STATE ACTION

Defendants insist that plaintiffs' constitutional claim must fail at the threshold because the protections of the equal protection clause only come into play where invidious discrimination is undertaken by the state. They contend that the state's involvement in the distribution of checkoff moneys ends when the funds are given to the party chairman, and that a party may thereafter spend its money in any way it pleases. Indeed, defendants argue, for the state to interfere in the management of party affairs by directing how party money should be spent would perhaps violate the party's First Amendment rights.⁶

In determining whether or not there is sufficient state action to trigger the equal protection clause in any given case, courts must inescapably reach ultimate conclusions by "sifting facts and weighing circumstances", McQueen v. Druker, 438 F.2d 781, 783 (1st Cir. 1971), citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961). In this weighing, the court must give due consideration to the nature of the activity into which the state is claimed to have introduced itself. McClellan v. University Heights, supra. Where, as here, the electoral process is involved, particular sensitivity to state intrusion is required. Fahey v. Darigan, 405 F.Supp. 1386 (D.R.I.1975); Nixon v. Condon, 286 U.S. 73, 88, 52 S.Ct. 484, 76 L.Ed. 984 (1932).

The factors the court must weigh in reaching its determination include the degree of governmental subsidization, the degree of governmental control, and the extent to which the government has vested its functions in private hands. McClellan v. University Heights, supra; McQueen v. Druker, supra; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Nixon v. Condon, supra.

Defendants argue that the mere furnishing of state-provided funds does not transform the recipient's actions into the actions of the state, citing Grossner v. Trustees of Columbia University, 287 F.Supp. 535 (S.D.N.Y.1968) (university, a recipient of state funds, not bound by Fourteenth Amendment in student discharge proceedings); Greenya v. George Washington University, 512 F.2d 556 (D.C.Cir. 1975) (university, recipient of state funds, not bound by Fourteenth Amendment in teacher discharge proceedings.)

The court agrees with the principle, but finds defendants' reliance on these cases to be misplaced. In the case at bar, plaintiff does not argue that defendants are subject to the prohibitions of the Fourteenth Amendment in all their party activities merely because they receive state funds. Plaintiff does contend, however, and the court agrees, that insofar as a political party spends state-allocated funds for the benefit of endorsed candidates, to the detriment of unendorsed candidates, a much stronger case of state action is made than in either Grossner or Greenya, supra.⁷

The court must next assess the degree of state regulation, or control, to which private defendants are subject. McClellan, supra. Precisely what degree of control suffices is not evident from the cases, McQueen, supra, at 783, and varies according to circumstances. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350-51, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974). It seems clear that, in the "sifting facts and weighing circumstances", the court must also consider whether a private party is engaged in carrying out a public function at the behest of the government. Evans v. Newton, supra.

Rhode Island comprehensively regulates the activities of parties with regard to primary elections. Parties are required to nominate candidates for state-wide office in a primary election run by the state, R.I.G.L. § 17-15-7.⁸ Each party is authorized to endorse candidates for statewide office, and such endorsement appears on the ballot as of right, §§ 17-12-4, 17-15-8. See Gallant v. LaFrance, 101 R.I. 299, 222 A.2d 567 (1966). Each party is also required to disclose contributions periodically, § 17-25-7. Party campaign funds may only be disbursed by a properly designated party campaign treasurer, § 17-25-9, who must fill out mandated reports, § 17-25-11. The Democratic state committee is authorized to receive and disburse moneys "for the general purposes of maintaining such organization during the whole or any part of the year," § 17-25-14. Again, while this scheme of regulation is not sufficient of itself to bring the disbursement of party funds to endorsees within the ambit of the equal protection clause, Fahey v. Darigan, supra, Gallant v. LaFrance, supra, the court must consider in the overall equation this extensive involvement of the state in regulating and controlling the conduct of the party's activities.

A long line of Supreme Court cases touches on the question whether a political party engages in a public function in the internal functioning of its affairs. Certainly the strongest such case is presented when the activity in question is the nomination of the party's candidates for office. See Moore v. Ogilvie, 394 U.S. 814, 819, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969); Gray v. Sanders, 372 U.S. 368, 374, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944). The primary has been held to be an integral part of the election process. United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). It is true, as defendants point out, that the activity complained of here leaves each voter free to vote for unendorsed candidates, and to make political contributions to unendorsed candidates. Defendants contend that party activity which does not result in total exclusion of a candidate from the electoral process cannot be attributed to the state. The court rejects that argument. The restriction of the unendorsed candidate's ability to run for office here is partial, and may therefore be judged by a less strict standard of equal protection review than the ballot access cases, Buckley v. Valeo, supra, 424 U.S. at 94-95, 94 S.Ct. 612. Nevertheless, where, as here, state law requires a party to nominate its candidates by primary; extensively regulates the party; permits and gives value to the endorsement of primary candidates; and provides an extensive subsidy to the party, presumably for the purpose of defraying the costs of the state-imposed primary,⁹ the court believes that a party's actions in disbursing money derived solely from public subsidy to its candidates can fairly be called state action.

The court is not aware of any other decided cases dealing with...