Piper v. Swan

• Citation: 319 F. Supp. 908
• Decision Date: 04 November 1970
• Docket Number: Civ. A. No. 7195.
• Parties: Wilbur W. PIPER v. Charles P. SWAN, Roger T. Riddell, John H. Cary, Ralph K. Adcock, Jr., Earl R. Layman, Individually and as members of the Election Commission for Knox County, Tennessee, David Pack, Individually and as Attorney General of the State of Tennessee, Bernard Waggoner, Individually and as Sheriff of Knox County, Tennessee and Joe C. Fowler, Individually and as Chief of Police of the City of Knoxville, Tennessee.
• Court: U.S. District Court — Eastern District of Tennessee

319 F. Supp. 908

Wilbur W. PIPER v. Charles P. SWAN, Roger T. Riddell, John H. Cary, Ralph K. Adcock, Jr., Earl R. Layman, Individually and as members of the Election Commission for Knox County, Tennessee, David Pack, Individually and as Attorney General of the State of Tennessee, Bernard Waggoner, Individually and as Sheriff of Knox County, Tennessee and Joe C. Fowler, Individually and as Chief of Police of the City of Knoxville, Tennessee.

Civ. A. No. 7195.

United States District Court, E. D. Tennessee, N. D.

November 4, 1970.

Wilbur W. Piper, in pro. per.

Robert H. Roberts, Asst. Atty. Gen., State of Tenn., Knoxville, for defendants.

MEMORANDUM

ROBERT L. TAYLOR, District Judge.

Wilbur W. Piper, Esq. asks that a 1967 amendment to the election laws of Tennessee be declared unconstitutional, that a temporary restraining order issue preventing enforcement of the statute, and that a three-judge district court be convened to make the injunction permanent. Plaintiff claims that he is entitled to such relief because the statute, the last sentence of T.C.A. 2-1218 (1969 Supp.), making it a misdemeanor "to distribute campaign literature of any nature on the same floor of a building, or within one hundred (100) feet thereof, where an election is in progress" violates freedoms of speech and press.

The complaint states:

"The plaintiff has been a citizen and resident of Knoxville, Knox County, Tennessee, and a registered voter since 1928, and at various times has exercised the privilege of going to the polling place where he resides and also elsewhere and particularly the North 16th Ward of the City of Knoxville, and working at elections being held, in behalf of or in opposition to candidates or issues controlled by referendum duly called, and has exercised such right by distributing campaign literature of various sorts at the polling place, and to the voters and others going to the polling places. Plaintiff avers that his right to work at polling places, by the use of campaign literature of various sorts and by the spoken word, is absolute and not subject to restraint by the statute of Tennessee being challenged herein; that there are more than 90 voting precincts in Knox County, Tennessee, and around 2300 voting precincts in all of the state of Tennessee, and that citizens have exercised the same rights as exercised by plaintiff in all the voting precincts of Knox County and other parts of the state of Tennessee, and that in elections like that being held in the whole state on November 3, 1970, many thousands of citizens exercise the right of speech and the press, in various ways at the polling places. Plaintiff brings this suit, not only in his own behalf, but in behalf of all other persons entitled to use speech and press at polling places, not only in Knox County, but in the entire state of Tennessee."

Jurisdiction allegedly is under 28 U.S. C. § 1343, "Civil rights and elective franchise;" 42 U.S.C. § 1983, "Civil action for deprivation of rights;" 28 U.S.C. §§ 2201-2202 pertaining to declaratory judgments, and 28 U.S.C. §§ 2281 and 2284 dealing with three-judge courts.

Upon application for the convening of a three-judge court, the single district judge to whom application is made must determine if a substantial constitutional question exists or if the application comes within some other requirement necessary for hearing before three judges, Idlewild Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962); Florida Lime and Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed. 2d 568 (1960); Jones v. Branigin, 433 F.2d 576 (C.A. 6, October 21, 1970). If these requirements are not present, the complaint should be dismissed on the merits. A question is unsubstantial when it is obviously without merit or clearly determined by previous case law. Ex parte Poresky, 290 U.S. 30, 32, 54 S.Ct. 3, 78 L.Ed. 152 (1933).

Federal courts have held that the Civil War "Civil Rights Statutes," 42 U.S.C. § 1981 et seq., do not allow federal intervention in state election procedures. Participation in state elections is not considered a federally protected right. Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); Snyder v. Swann, 313 F.Supp. 1267 (E. D.Tenn., 1970). However, federal courts have intervened in election matters to protect First Amendment rights. Mills v. Alabama, 384 U.S. 214, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966). The Court considers the distribution and reception of pamphlets, and more particularly election campaign literature, within the protection of the First Amendment. Lovell v. City of Griffin...