Reed v. Thomas, Civ. A. No. 74-807.

• Decision Date: 20 September 1974
• Docket Number: Civ. A. No. 74-807.
• Citation: 385 F. Supp. 266
• Parties: Robert C. REED, Plaintiff, v. F. Joseph THOMAS, as Specially Presiding Judge of the Court of Common Pleas for the Thirty-Sixth Judicial District of Pennsylvania, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

385 F. Supp. 266

Robert C. REED, Plaintiff, v. F. Joseph THOMAS, as Specially Presiding Judge of the Court of Common Pleas for the Thirty-Sixth Judicial District of Pennsylvania, et al., Defendants.

Civ. A. No. 74-807.

United States District Court, W. D. Pennsylvania.

September 20, 1974.

John J. Petrush, Pittsburgh, Pa., for plaintiff.

Edward A. Mihalik, Sp. Asst. Atty. Gen., Aliquippa, Pa., and Janet Moschetta, Asst. Atty. Gen., Pittsburgh, Pa., for defendant Judge Thomas.

Richard H. Martin, Pittsburgh, Pa., Harry E. Knafelc, Beaver County, Beaver, Pa., for other defendants.

OPINION

ROSENBERG, District Judge.

This matter comes before me by a complaint of the plaintiff, Robert C. Reed, seeking a mandatory injunction against F. Joseph Thomas, Specially Presiding Judge of the Court of Common Pleas for the Thirty-Sixth Judicial District of Pennsylvania, and Eli C. Corak, Eugene V. Atkinson and George T. Pettibon, as members of the Beaver County Board of Elections.

This action arises by reason of an election contest between principally two candidates for the office of judge of the Court of Common Pleas of Beaver County, and results because of a decision of the Supreme Court of Pennsylvania that a certain number of paper ballots were valid which had not had the numbered corners removed from the ballots. The plaintiff bases his action upon the Civil Rights Act, 42 U.S.C. § 1983. He alleges that a denial of due process resulted from (1) the failure of the State's highest tribunal to provide an opportunity for the production of evidence concerning whether certain election officials had, in accordance with state law, informed certain voters of the necessity to remove the identification corners from their election ballots; and (2) the denial of an opportunity to adequately argue the question of his right to such evidence resulting from the late service of candidate Walko's brief in the Supreme Court proceeding and refusal of that Court to grant a petition for rehearing.

The defendants as members of the Beaver County Board of Elections and Judge Thomas of the Court of Common Pleas, each moved to dismiss the complaint. In substance, each motion is similar and asserts a failure in the complaint to state a cause of action and a lack of jurisdiction in this court.

At the hearing the defendants were first heard on the motions to dismiss and thereafter evidence was received on the plaintiff's request for a preliminary injunction. I first discuss the defendants' motions to dismiss. In regard to this motion, the averments of the complaint are taken as stating the facts. Gardner v. Toilet Goods Assn., 387 U.S. 167, 87 S.Ct. 1526, 18 L.Ed.2d 704 (1967).

On November 6, 1973, in a general election held in Beaver County, Pennsylvania, three candidates ran for two seats on the Court of Common Pleas for that County. One of the candidates had received both the Republican and Democratic nominations and he is not involved in the problem here presented. The other candidates were the plaintiff, Robert C. Reed and Joseph S. Walko. The vote totals for these two candidates were close and both candidates petitioned for and brought in 112 ballot boxes for recount. During the recount, the Election Board was presided over by the Honorable F. Joseph Thomas, Judge of the Court of Common Pleas of Crawford County, Pennsylvania, who had been specially assigned by the Supreme Court of Pennsylvania. During the recount, the ballot boxes contained a number of paper ballots with the printed ballot number still appended to the corner of these ballots. The Election Board and the Presiding Judge ruled these ballots to be invalid and they were not counted. In so ruling, Judge Thomas followed the directions of the Pennsylvania Election Code, § 1004, as amended 25 P.S. § 2964 and § 1215(d) (25 P.S. § 3055(d)), which provides as follows:

" . . . the election officer shall direct the elector, without unfolding the ballot, to remove the perforated corner containing the number, and the elector shall immediately deposit the ballot in the ballot box. Any ballot deposited in a ballot box at any primary or election without having the said number torn off shall be void and shall not be counted."

Upon appeal to the Supreme Court of Pennsylvania by candidate Walko, the Supreme Court declared the ballots valid and directed Judge Thomas to supervise the removal of the disputed ballot corners and to count them as if the numbers had originally been torn from the corners before being deposited in the ballot boxes. The plaintiff avers that he was not served with a copy of his adversary's brief until immediately before the Supreme Court argument, thus denying him the chance to effectively argue the questions. His petition for reargument, assumedly based upon this point, was denied. He alleges also that the Supreme Court of Pennsylvania assumed that it was the election officials who failed to inform the voters to tear off the corners; and, therefore, he has a right to adduce evidence as to whether this was in actuality the case.

As soon as this matter was returned by the Pennsylvania Supreme Court to Judge Thomas, the plaintiff brought this action to prevent Judge Thomas and the Election Board from counting the disputed ballots.

Actions have been brought against state courts under the authorization of the Civil Rights Act, 42 U.S.C. § 1983.¹ Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Koen v. Long, 302 F.Supp. 1383 (E.D. Mo., 1969), affirmed, 428 F.2d 876, C. A. 8, 1970, cert. den., 401 U.S. 923, 91 S.Ct. 877, 27 L.Ed.2d 827 (1971); Mills v. Larson, 56 F.R.D. 63, 67-68 (W.D. Pa., 1972). As stated in Mitchum, supra, 407 U.S. at page 240, 92 S.Ct. at page 2161:

"It is clear from the legislative debates surrounding passage of § 1983's predecessor that the Act was intended to enforce the provisions of the Fourteenth Amendment `against State action, . . . whether that action be executive, legislative, or judicial.' Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (emphasis supplied)."

Stripped of all the technicalities and camouflage, the instant plaintiff's real objection is that the Pennsylvania Supreme Court's decision to allow the counting of the disputed votes was contrary to his interests. Without getting into the mertis of that decision the Pennsylvania Supreme Court decided that the technically correctible nature of the failure to remove the number was of less import than protecting the franchise rights of those who cast the disputed ballots. Thus the votes were to be counted in accordance with the direction of the Court.

In the delicate area of jurisdictional conflict between State and Federal courts, the federal judiciary has, through the doctrines of comity and abstention, often evinced its recognition that the state judicial systems are and should be constitutionally separate entities not subject, except in the most fundamental constitutional areas, to federal court review. Indeed, as stated by this court in East Cross Roads Center, Inc. v. Mellon Stuart, 245 F. Supp. 191 at page 194 (D.C.Pa., 1965):

"The Constitution does not guarantee that the decision of state courts shall be free from error, or require that pronouncements shall be consistent. (citations omitted). When the parties have been fully heard in the regular course of judicial proceedings, an erroneous decision of the state court does not deprive the unsuccessful party of his property without due process of law. . . . If the plaintiff is to have any remedy from a federal court, it would appear that the proper procedure would be by application to the United States Supreme Court for the issuance of a writ of certiorari to the Supreme Court of Pennsylvania."

The Court of Appeals for the Third Circuit in the case of Wood v. Conneaut Lake Park, Inc., 386 F.2d 121 (1967), which was substantially similar to the instant matter, stated:

". . . All that appears is that the majority of the Pennsylvania Supreme Court was selective in their use of testimony to support the conclusions in their written opinion. Admittedly the case was close, but the fact that we might have taken a different approach if the case had been before us on appeal from the trial court, does not require reversal. Absent a showing of arbitrary or capricious action on the part of the state supreme court, no Fourteenth Amendment violation exists.

. . . . . .

Failing a prerequisite showing of arbitrary action by the state court, the District Court was without original jurisdiction to entertain appellant's suit. His remedy, if any, was to petition the United States Supreme Court for certiorari . . ." (at pages 124 and 125)

As a matter of comity, abstention and equity, I must refuse to review the State Supreme Court decision on the basis of a civil rights complaint. Traditionally the doctrines of comity and abstention have been used by the federal courts to prevent needless friction between the state and federal judiciaries. Harrison v. N. A. A. C. P., 360 U.S. 167, 176, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1950); Darr v. Bulford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950). Although recognizing the power of this court to take jurisdiction over a Civil Rights Act suit against a state judicial body, the assumption of that jurisdiction here is both unnecessary and unjustified.

We are here confronted with a situation of a State Supreme Court using its discretion to interpret a state election statute. Inasmuch as the plaintiff has made no allegations of fraud, bad faith or wrongdoing by the Pennsylvania courts or the state administrative officials, the comity and abstention doctrines are applicable to avoid needless intervention in what is a matter of state policy decided by the state's highest court. Gibson v. Berryhill, 411 U.S. 564, 93 S.Ct. 1689, 36 L.Ed.2d 488 (1973).

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