Potter v. Meier, 72-1168.

• Decision Date: 04 April 1972
• Docket Number: No. 72-1168.,72-1168.
• Citation: 458 F.2d 585
• Parties: Tracy POTTER et al., Appellants, v. Ben MEIER et al., Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

458 F.2d 585 (1972)

Tracy POTTER et al., Appellants, v. Ben MEIER et al., Appellees.

No. 72-1168.

United States Court of Appeals, Eighth Circuit.

April 4, 1972.

Irvin B. Nodland, Bismarck, N. D., for appellants.

Paul M. Sand, First Asst. Atty. Gen., Bismarck, N. D., for appellees.

Before HEANEY and STEPHENSON, Circuit Judges, and NEVILLE, District Judge.

PER CURIAM.

Three residents of North Dakota, all of whom allege that they are qualified to vote in primary and general elections in their respective North Dakota counties, instituted this suit seeking a declaration that selected provisions of the North Dakota election laws violate the Twenty-Sixth Amendment¹ and other provisions of the United States Constitution and an injunction against enforcement of these provisions by the North Dakota Secretary of State. Inasmuch as the suit is one to restrain the enforcement and execution of North Dakota statutes by a State officer on federal constitutional grounds, the convening of a statutory court of three judges was requested pursuant to 28 U.S.C. §§ 2281, 2284. Federal jurisdiction was invoked under 28 U.S.C. § 1343(3).² The suit is substantively based upon 42 U.S. C. § 1983, which authorizes a civil action on the part of a person deprived, under State law, "of any rights, privileges, or immunities secured by the Constitution . . ." The District Court, sua sponte, refused to convene a three-judge court on the ground that the complaint did not present a substantial federal question. That finding is challenged on this interlocutory appeal under 28 U.S.C. § 1292 (b).

In essence, the plaintiffs allege that the timeliness of the method by which North Dakota chooses its delegates to the national political party conventions is violative of the Twenty-sixth Amendment in that they are denied the opportunity to participate in the selection of candidates for the offices of President and Vice-President of the United States. Briefly stated, North Dakota law provides for the election of precinct committeemen at the party primary election every fourth year commencing with 1966.³

The precinct committeemen, together with the nominees for, and members of, the legislative assembly of each party, constitute the party's district committee.⁴ Prior to the second Monday in June in each presidential election year, the district committee is convened for the purpose of electing delegates to the State party convention.⁵ These delegates, and in some districts additional delegates chosen at precinct caucuses, elect delegates to the State conventions.⁶ The plaintiffs assert that all persons who were not eligible by age or residency to vote in the September 1970 primary elections, but who reach 18 years of age and/or establish residency by June 1972 are, "by the early, untimely election date set for the election of precinct committeemen, denied the right to elect precinct committeemen exercising the Presidential nominating function," and that "by reason of the enactment of the Twenty-sixth Amendment and because of the untimely election statutes of North Dakota . . ., approximately 80,000 persons will be denied their constitutional rights" in the 1972 presidential electoral process.

This complaint was filed November 15, 1971. The defendants answered December 2, 1971. On March 8, 1972, the District Court, in an unreported memorandum-order, and on the basis of Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1934), concluded that the complaint "is obviously without merit," and, hence, did not frame a substantial federal question. More particularly, the District Court found, in effect, that North Dakota's interest in providing for the election of its precinct leadership every fourth year—the interest being in ensuring that committeemen receive the experience and seasoning essential to the responsible discharge of their numerous and important party functions in a presidential election year—overrode the plaintiffs' otherwise legitimate right to participate in the selection of that leadership. The District Court emphasized that the precinct committeeman receives much of his training during the interval between his election and the time delegates are selected for the national party convention, and it voiced the fear that to re-structure and undo this system would be to work irreparable damage to the internal machinery of the party organization. The District Court then proceeded to conclude that while the plaintiffs conceivably were effectively deprived of the opportunity to participate in the presidential nominating function in the manner alleged, there were other, and perhaps more effective avenues of meaningful participation open to them so that, on balance, they sustained no substantial constitutional harm.

This appeal focuses solely on the propriety of the District Court's refusal to request the designation and impaneling of a statutory three-judge court, 338 F.Supp. 1353. As to this, the ground rules are firmly established. Whenever a substantial constitutional attack is mounted, on federal grounds, against the facial validity of a State statutory scheme, the relief sought is injunctive in nature, and a State officer is named as a party defendant, 28 U.S.C. § 2281 requires that a three-judge court be convened to hear and determine the merits of the claim. Where, as in this case, federal subject matter jurisdiction is not premised upon diversity of citizenship, the question of whether the federal constitutional issue is substantial is jurisdictional and, consequently, within the competence of a single district judge to decide. Thus, that a single district judge is empowered to dismiss the complaint where the federal constitutional question is plainly insubstantial, "either because it is `obviously without merit' or because `its unsoundness so clearly results from the previous decisions of the Court as to foreclose the subject and leave no room for the inference that the question sought to be raised can be the subject of controversy'" is clear and well settled.⁷ What is unclear, however, is the meaning and scope of the obviously-without-merit standard.⁸ Whether that standard was correctly applied in this case is the narrow issue now before us.

The plaintiff, alleging that by means of a long established statutory procedure providing for the election of precinct committeemen every fourth year, they and those whom they purport to represent are denied rights accorded them by the Twenty-sixth Amendment, find in that Amendment a requirement that they be permitted to participate in the presidential nominating function. While we express no view as to what should be the ultimate disposition of the claim it is our conclusion that it is not dismissable, for three-judge court purposes, as obviously without merit. For us, the determination of the substantiality of a constitutional issue is not unlike the issue presented by a statute which lies somewhere between clear constitutionality and clear unconstitutionality. In such a case, the question is one of degree, "of drawing a...