Rock v. Bryant

• Decision Date: 19 July 1978
• Docket Number: No. LR-C-78-170.,LR-C-78-170.
• Citation: 459 F. Supp. 64
• Parties: William Pennell ROCK, Plaintiff, v. Winston BYRANT, Individually and as Secretary of State of the State of Arkansas, Defendant.
• Court: U.S. District Court — Eastern District of Arkansas

459 F. Supp. 64

William Pennell ROCK, Plaintiff, v. Winston BYRANT, Individually and as Secretary of State of the State of Arkansas, Defendant.

No. LR-C-78-170.

United States District Court, E. D. Arkansas, W. D.

July 19, 1978.

William Pennell Rock, pro se.

John M. Fincher, Asst. Atty. Gen., Little Rock, Ark., for defendant.

MEMORANDUM OPINION

ROY, District Judge.

Plaintiff, an independent candidate for the office of United States Senator, challenges as unconstitutional that portion of Ark.Stat.Ann. § 3-105(c) (Supp.1977) which establishes the deadline for the filing of nominating petitions by independent candidates seeking statewide office. This action is before the court on plaintiff's complaint and upon his motion for a temporary restraining order, preliminary injunction and declaratory relief seeking suspension of further enforcement of the statute until this matter is determined. Plaintiff has additionally asked that this cause be treated as a class action.

Section 3-105(c)¹ requires an independent candidate seeking either a state public office or the office of United States Senator to file nominating petitions no later than noon on the Monday immediately preceding the date of the preferential primary.² Petitions may only be circulated in a sixty-day period prior to the filing deadline and must contain signatures totaling either 3% of the qualified electors, or numbering 10,000, whichever is less. The number of qualified electors is determined by the total number of votes cast for all candidates in the preceding general election for governor. Only registered voters can be qualified electors.

Besides contending that the filing deadline is too far in advance of the date of the general election and that the sixty-day period in which to circulate petitions is too restrictive, plaintiff alleges that this statute deprives him of equal treatment before the law since it imposes a burden on independent candidates from which party nominees are relieved since the latter are not required to qualify for ballot positions until 45 days prior to the general election. The statute to which plaintiff refers is Ark.Stat. Ann. § 3-113(j)(1 & 2) (Repl.1976)³ which provides that candidates for state public office nominated by their respective political parties are notified by the Office of the Secretary of State at least 60 days prior to the date of the general election to file a certificate of nomination before their names can be placed on the ballot. These certificates must be filed at least 45 days, but not more than 55 days prior to the general election.

Defendant is a party to this litigation individually and in his capacity as Secretary of State. Ark.Stat.Ann. § 3-121 (Repl. 1976) requires that nominating petitions and certificates of nomination be filed in that office. Defendant has filed a motion to dismiss alleging the complaint fails to state a claim upon which relief can be granted and that the court does not have jurisdiction of the subject matter.

A motion to intervene on behalf of plaintiff and supporting brief has been filed by Jim Lendall, alleging his right to do so because he has, in the past, been a candidate for public office as an independent candidate. Lendall is not presently a candidate for public office in any capacity but states that should he attempt to file as an independent candidate under the present law, the mechanics of filing a separate suit would cause him undue hardship.

The jurisdiction of this court has been properly invoked by plaintiff pursuant to 28 U.S.C.A. § 1331; a complaint alleging the discriminatory application of a presumptively valid state statute clearly raises a substantial federal question. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Plaintiff's failure to separately state the jurisdictional basis on which this action is predicated is not fatal to his cause of action since federal court jurisdiction appears clearly and distinctly on the face of the complaint. Cf., Koll v. Wayzata State Bank, 397 F.2d 124 (8th Cir. 1968). As to defendant's allegation that the complaint fails to state an actionable claim, ". . . the failure to state a proper cause of action calls for a judgment on the merits and not for a dismissal for want of jurisdiction." Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946).

Plaintiff has alleged facts indicating he is a serious candidate for public office. Since the deadline for filing nominating petitions has passed, unless this court enjoins further enforcement of the statute, the injury plaintiff will suffer is that his candidacy will be foreclosed.⁴ Plaintiff has accordingly demonstrated the necessary personal interest in the outcome of this action to establish his standing to sue, and this court has been requested to adjudicate the rights of a litigant to an actual controversy. Baker v. Carr, supra. However, the court must deny plaintiff's motion to bring this suit as a class action since he has failed to satisfy the requirements set forth in Rule 23, Fed. R.Civ.P.

As to Lendall, who has sought permission to intervene, his motion is denied since he is not now a candidate for statewide public office, and he has failed to satisfy the requirements of Rule 24 Fed.R. Civ.P. and Local Rule 8 of this court. In Solien v. Miscellaneous Drivers & Helpers Union, Local No. 610, 440 F.2d 124 (8th Cir. 1971), the court held that since the applicant could not maintain this action himself, he should not be allowed to intervene as a party. Nevertheless, the court has treated the brief filed by Mr. Jim Lendall as a brief amicus curiae and considered its contents the same as if he were permitted to intervene in this action.

After due notice to the parties, the matter was set for hearing on the merits June 14, 1978. The plaintiff's sworn testimony at the hearing brought forth several pertinent facts. Plaintiff did not decide to run for the United States Senate until on or about May 1, 1978 and he obtained the necessary petition forms from the Secretary of State's office on that date. By plaintiff's own estimation, he secured approximately 60 signatures⁵ between May 1 and May 15. On May 15th plaintiff called a press conference to publicly announce his intention to run for the senate as an independent candidate. From the date of his press conference until May 29, 1978, the filing deadline for independent candidates, plaintiff secured an additional 800 signatures. Thus, as of the filing deadline, plaintiff had secured approximately 860 signatures of the necessary 10,000. Subsequent to the filing deadline, plaintiff asserts that he has obtained an additional 1,100 signatures for a total of 2,000 or roughly one-fifth of the requisite number prescribed by Section 3-105(c).⁶

After plaintiff's testimony two witnesses were called on behalf of defendant. Bill Bethea, employee in the Secretary of State's office in charge of elections, testified that seven applications had been received from independent candidates⁷ seeking various public offices throughout the state, one of which had been for the United States Senate. That application, submitted by John Black, contained 16,574 signatures, 10,097 of which had been determined to be valid.⁸ Introduced through witness Bethea was Defendant's Exhibit No. 2, the notarized formal certificate evidencing that 726,949 votes were cast in the previous governor's race on November 2, 1976. Bethea stated that the total number of signatures required to be filed by an independent candidate in the current race for United States Senator was 10,000 since that was the lesser figure as opposed to 3% of the total votes cast in the preceding governor's race.

Defendant's second witness was John Black, the independent candidate for United States Senator, whose petitions were on file in the Secretary of State's office. He stated that he began his candidacy by purchasing a full page advertisement in the Arkansas Gazette on April 12, 1978. The purpose of this ad was to let people know he was a serious candidate for the office. Black testified he had secured the great majority of the approximately 16,000 signatures on his petitions through personal contact. It was also his testimony that he collected the requisite number of signatures in less than 60 days.

The right of state legislatures to prescribe and regulate the times, places and manner of holding elections⁹ has been recognized on numerous occasions by the United States Supreme Court. Smiley v. Holm, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795 (1932); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). This broad power enjoyed by the states, however, is subject to constitutional limitations and must be exercised in a manner consistent with the Equal Protection Clause of the Fourteenth Amendment. Bullock v. Carter, supra. Whenever a state statute is challenged as violative of this constitutional provision, courts, in scrutinizing its validity, must consider three factors: (1) the facts and circumstances behind the law, (2) the interests claimed to be protected and furthered by the states and (3) the interests of those who maintain they are disadvantaged by the statute. See, e. g., Skinner v. Oklahoma, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942); Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965).

More recently the Supreme Court has had occasion to consider ballot access restrictions imposed on independent candidates by various statutory schemes enacted by the states as part of an attempt to regulate the electoral process. See, Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); and Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977). Emerging from these...