Murray v. Norberg

• Decision Date: 07 December 1976
• Docket Number: Civ. A. No. 76-292.
• Citation: 423 F. Supp. 795
• Parties: James MURRAY et al. v. John H. NORBERG et al.
• Court: U.S. District Court — District of Rhode Island

423 F. Supp. 795

James MURRAY et al. v. John H. NORBERG et al.

Civ. A. No. 76-292.

United States District Court, D. Rhode Island.

December 7, 1976.

James Murray, Pawtucket, R. I., for plaintiffs.

Milton Stanzler, Christopher Del Sesto, J. Peter Doherty, Sp. Asst. Atty. Gen. of R. I., Providence, R. I., for defendants.

OPINION

Before McENTEE, Circuit Judge, PETTINE, Chief Judge, and DAY, Senior District Judge.

PETTINE, Chief Judge.

Plaintiffs challenge the constitutionality of Rhode Island General Laws § 44-30-2(e) (Supp.1975) on the ground that the statute violates First, Fourteenth, and Fifteenth Amendment rights of independent candidates for elective office and of certain Rhode Island taxpayers.

Plaintiffs are James Murray and Pasquale Pacia, independent candidates for Rhode Island State Senator, 39th District, and United States Representative, 2nd Congressional District of Rhode Island respectively,¹ and John C. Swift, a Rhode Island resident and taxpayer.² R.I.G.L. § 44-30-2(e), the challenged statute, permits a credit of one dollar against the Rhode Island personal income tax otherwise due.³ Each taxpayer may designate this "political contribution" of one dollar⁴ (hereinafter referred to as a "checkoff"), to (a) a political party that nominated a candidate for governor who received 5% of the vote cast, or (b) a non-partisan general account which is allocated to political parties in proportion to the combined number of votes cast for the general offices in the previous election after 5% of the non-partisan fund is allocated to a party for each general officer elected. Section 44-30-2(e) is administered by Defendants Norberg and Hawksley, the tax administrator and general treasurer of Rhode Island, respectively, who forward the partisan contributions and allocated portion of the non-partisan contributions to Defendant Coleman, chairman of the Democratic State Committee and Defendant Campanella, chairman of the Republican State Committee.

Candidate-plaintiffs Murray and Pacia, on behalf of themselves and a class of independent candidates, contend that § 44-30-2(e), on its face and as applied, invidiously discriminates against then by financing the candidacies of major party candidates, but not independent candidates. Taxpayer-plaintiffs Murray and Swift, on behalf of themselves and a class of taxpayers who checked off a dollar to the non-partisan fund, contend that the operation of the checkoff scheme denies them due process of law in that the tax form misleadingly invites a contribution to a non-partisan fund without notifying the taxpayer that this non-partisan fund will be allocated, under the statute, to the established political parties. They also claim that they are denied equal protection of the laws and First Amendment rights by being denied an opportunity to support independent candidates through the checkoff scheme.

The matter came on to be heard on October 18, 1976, before a three-judge court, pursuant to 28 U.S.C. § 2281 (1970) on plaintiffs' application for preliminary and permanent injunctive and declaratory relief. Plaintiffs have also moved to certify this case as a class action. Jurisdiction is invoked under 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983.

Class Certification

Taxpayer-plaintiffs seek to represent

"a class of Rhode Island residents and taxpayers who, when they filled out tax returns for the tax year of 1973, 1974, and 1975, checked off a one dollar contribution (or two dollars if a joint return) for the non-partisan general account. (Class I)"

Upon examination of plaintiffs' allegations, serious doubt is cast on the propriety of certifying such a class in this case. Plaintiff Murray alleges that he was misled by the term "non-partisan general account" into believing that funds from that account would go to non-partisan candidates for public office to the exclusion of candidates of any political party. Plaintiff Swift testified that he believed that the non-partisan general account would subsidize independent candidates and minor party candidates. Amicus Curiae American Civil Liberties Union understands non-partisan to refer to elections such as school board elections where none of the candidates carries party designation. Memorandum of Amicus Curiae A.C.L.U. at 11. Cf. Opinion to the House of Representatives, April 23, 1953, 80 R.I. 288, 96 A.2d 627 (1953).

The standard dictionary definitions of "non-partisan" appear to undercut both plaintiffs' interpretations of the term, and appear to be consistent with the definition found in § 44-30-2(e) under which non-partisan contributions are distributed to political parties as defined by Rhode Island law. See Webster's Third New International Dictionary (1961) (not affiliated with "a particular party") (emphasis added); Webster's New Twentieth Century Dictionary ("not ... supporting any single political party") (emphasis added). Thus, Murray's and Swift's claims that the tax form deprives them of due process may stem from their own peculiar, idiosyncratic interpretation of the term "non-partisan" rather than any vagueness inherent in the statute or tax form. Under these circumstances, the Court cannot find that either the commonality, typicality, or adequacy of representation requirements of Rule 23, F.R.Civ.P., are met. Additionally, the relief sought by plaintiffs, if granted, would inure to the benefit of all those similarly situated, and would be identical regardless of whether or not the action is maintained as a class action. No useful purpose would be served by maintaining this as a class action. The Court therefore will deny certification to the claimed class of taxpayer-plaintiffs. See Nelson v. Likins, 389 F.Supp. 1234 (D.Minn.1974) aff'd per curiam 510 F.2d 414 (8th Cir. 1975); see also Schneider v. Margossian, 349 F.Supp. 741, 746 (D.Mass.1972); District of Columbia Podiatry Soc. v. District of Columbia, 65 F.R.D. 113 (D.D.C. 1974).

Candidate-plaintiffs seek to represent

"A class of non-partisan or independent candidates not affiliated with either of the two major political parties who in 1974, 1975, and 1976 qualified for and sought elective office as members of the United States Congress, Rhode Island General Officers, or as members of the Rhode Island General Assembly. (Class II)"

However, the class as described numbers less than 20.⁵ Joinder would appear to be clearly practicable; each of the class members could be easily located and informed of the pendency of the action. Plaintiffs have not, except in the most conclusory way, asserted otherwise, and have thus failed to carry their burden of demonstrating the satisfaction of the requirements of Rule 23(a), F.R.Civ.P. The Court is therefore of the opinion that the numerosity requirement of Rule 23(a) is not met, and certification of Class II must also be denied. Additionally, as noted above, the Court notes that no useful purpose would be served by maintenance of this matter as a class action, since any relief granted would inure to the benefit of all candidates similarly situated.

Abstention and Certification

A. Candidates' Claims

Plaintiffs contend that the allocation of checkoff funds to party candidates, but not to independent candidates, constitutes invidious discrimination condemned by the Fourteenth Amendment to the Constitution. They rely on Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) in which the Supreme Court, per curiam, noted that the federal election campaign financing plan, which provided funds to candidates, might be constitutionally infirm by virtue of its exclusion of independent candidates from election funding. Id., at 87 n.118, 96 S.Ct. 612 (dictum); see also id., at 89 n.122, 96 S.Ct. 612; Storer v. Brown, 415 U.S. 724, 745-46, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Buckley v. Valeo, 171 U.S.App. D.C. 172, 519 F.2d 821, 887 (1975). Although a state may distinguish between candidates for financing purposes on the basis of demonstrated popular support, Buckley v. Valeo, supra, 424 U.S. at 96, 96 S.Ct. 612, and deny funding altogether to candidates who fail to show such support, id., at 103, there is serious question whether a state has such an interest in a party system that it could deny campaign funding altogether to independent candidates, while making it available to party candidates. See Buckley v. Valeo, supra; Storer v. Brown, supra; cf. McKenna v. Reilly, 419 F.Supp. 1179, 1185-87 (D.R.I.1976). Plaintiffs contend that the § 44-30-2(e) is a candidate financing scheme, and ask this Court to strike it down for its total exclusion of independent candidates from election funding.⁶ They further complain that, even if § 44-30-2(e) is denominated a party-financing plan, it is unconstitutional as applied because the parties use the funds received for the benefit of individual candidates.

On the other hand, defendants cite American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), where the Supreme Court upheld a party financing plan. Texas law authorized the distribution of state funds to the major parties to defray the costs of primary elections required by the state, and denied funds to other parties which were not required to hold such primaries. The Court held that Texas did not invidiously discriminate against particular parties when it reimbursed all of the parties (and only those parties) which bore particular costs imposed by the state. Id. at 792-94, 94 S.Ct. 1296. American Party seems to recognize a legitimate state interest in the maintenance of party structure to permit a party's assumption of certain state electoral functions, and to sanction distribution of state funds to a party for that purpose.⁷

Defendants Campanella and Coleman contend that § 44-30-2(e) is a party financing scheme which passes constitutional muster under the holding of American Party of Texas v. White, supra. They further assert that once they receive funds from both the partisan and non-partisan...