Smith v. State Executive Committee of Dem. Party of Ga.

• Decision Date: 23 August 1968
• Docket Number: Civ. A. No. 11709,11964.
• Parties: Andrew A. SMITH and Henry M. Henderson v. STATE EXECUTIVE COMMITTEE OF DEMOCRATIC PARTY OF GEORGIA. Richard F. MARSH and John Howett v. STATE DEMOCRATIC EXECUTIVE COMMITTEE OF the DEMOCRATIC PARTY OF GEORGIA.
• Court: U.S. District Court — Northern District of Georgia

288 F. Supp. 371

Andrew A. SMITH and Henry M. Henderson v. STATE EXECUTIVE COMMITTEE OF DEMOCRATIC PARTY OF GEORGIA.

Richard F. MARSH and John Howett v. STATE DEMOCRATIC EXECUTIVE COMMITTEE OF the DEMOCRATIC PARTY OF GEORGIA.

Civ. A. Nos. 11709, 11964.

United States District Court N. D. Georgia, Atlanta Division.

August 23, 1968.

Andrew A. Smith and Henry M. Henderson in pro. per.

Charles J. Driebe, Jonesboro, Ga., and Theodore G. Frankel, Atlanta, Ga., for certain members of defendant committee Theodore G. Frankel, Marvin Shoob, Dan Dunwoody, Thomas Whelchel, Upshaw Bentley, and Charles J. Driebe.

Lamar W. Sizemore, Joseph Lefkoff, Heyman & Sizemore, Atlanta, Ga., for named defendant.

Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Asst. Atty. Gen., Alexander Cocalis, Asst. Atty. Gen., Atlanta, Ga., for the State of Georgia.

George C. Walsh, Decatur, Ga., Albert M. Horn, Atlanta, Ga., for plaintiffs Marsh and Howett.

Heyman & Sizemore, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Alexander Cocalis, Asst. Attys. Gen., Atlanta, Ga., for defendant.

SIDNEY O. SMITH, Jr., District Judge.

These are two cases filed against the State Executive Committee of the Democratic Party of Georgia by members of the party. No. 11,709 was filed as a single-judge case and in it the plaintiffs contend that they are denied the equal protection guaranteed by the United States Constitution in the administration of the party under its rules and regulations, specifically, that such rights were denied in the selection of delegates to the National Democratic Convention. No. 11,964 was filed as a three-judge case and in it, the plaintiffs likewise attack the rules and regulations affecting the appointment of delegates but also contend that the Georgia Statute (Ga. Code § 34-902) permitting the adoption of such rules and regulations by the State Committee is unconstitutional.

Under such circumstances, a three-judge court was impaneled in No. 11,964 by the Chief Judge of the circuit. In view of the similar questions of law and fact involved, the two cases were consolidated for trial by the district court on July 26, 1968. At trial, it was apparent from the outset that the propriety of three-judge as opposed to single-judge jurisdiction was in doubt. Under the circumstances, the parties agreed that the trial be considered as a concurrent hearing before the two reserving the legal questions for decision. Evidence was offered and stipulated, including the exhibits previously presented in 11,709 on pending motion for summary judgment. At the close of the trial, both courts denied injunctive relief as to interference with the convention delegation, but reserved the jurisdictional question as well as the underlying equal protection problem raised in 11,964.

Three-judge question.

The claimed basis for three-judge relief lies in the constitutional attack on that portion of the Georgia Election Code, delegating party management to the state control committees of the respective parties. It provides, in part:

34-902. Committees of political parties; officers; authority to adopt rules and regulations; election of party officers.—(a) Each political party shall establish and maintain a State executive committee exercising State-wide jurisdiction and control over party affairs, and a county executive committee in each county in which it holds a primary, exercising county-wide jurisdiction and control over party affairs. A party may establish and maintain such other committees as it may from time to time deem advisable. The membership of such committees shall be selected in the manner determined by the State executive committee. Each committee shall be presided over by a chairman and shall have a secretary and such other officers as deemed advisable. (b) The State executive committee of each political party shall formulate, adopt and promulgate rules and regulations, consistent with law, governing the conduct of primaries, conventions and other party affairs. No such rule and regulation shall be effective until copies thereof, certified by the chairman, have been filed with the Secretary of State.

The three-judge statute (28 U. S.C.A. § 2281) requires such a panel when injunctive relief on constitutional grounds is granted "restraining the enforcement, operation, or execution (a) of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or (b) of an order made by an administrative board or commission acting under State statutes." Moreover, the basis for either situation must rest "upon the ground of the unconstitutionality of such statute" itself. Thus, in any instance, it is the statute which must be substantially attacked, and even a constitutional question involving the propriety of state action or of an administrative rule or regulation alone is insufficient to invoke three-judge jurisdiction. See Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct. 258, 15 L.Ed.2d 194 (1965); Phillips v. United States, 312 U.S. 246, 61 S.Ct. 480, 85 L.Ed. 800 (1940); Wright, Federal Courts, § 50ff. E. g., Clemmons v. C.O.R.E., 201 F.Supp. 737(3) (E.D.La.1962); Fair v. Adams, 233 F.Supp. 310(4) (N.D.Fla.1964); United States ex rel. Haughton v. Scranton, 257 F.Supp. 557(6) (E.D.Pa.1966).

An analysis of the instant case leads to the conclusion that it is but an insubstantial attack on the Georgia statute of the latter category. Of course, No. 11,709 makes no attack at all on the statute. While the petition in No. 11,964 asks the court "to declare unconstitutional on its face and as applied" Georgia Code § 34-902(a) (b), there is no attack upon it by brief, evidence, or argument at trial. It is tacitly conceded that the statute itself is constitutional, but that the rules and regulations are unconstitutional. Under such an indirect attack, there is no need or cause for a three-judge court. Hobbs v. Pollock, 280 U.S. 168, 50 S.Ct. 83, 74 L.Ed. 353 (1929); Ex parte Bransford, 310 U.S. 354, 60 S.Ct. 947, 84 L.Ed. 1249 (1940); McGuire v. Sadler, 337 F.2d 902(12) (5th Cir.1964); Clark v. Thompson, 204 F.Supp. 30 (S.D.Miss.1962).

The absence of a substantial attack on the statute itself negatives plaintiffs attempt to place the rules and regulations into the category "of an order made by an administrative board or commission acting under state statutes." Cf. Frasier v. Board of Trustees of University of N. C., 134 F.Supp. 589 (M.D.N.C.1955); Sigma Chi Fraternity v. Regents of University of Colorado, 258 F.Supp. 515 (D.C.Colo.1966). The comparison is hardly analogous on the facts, as there is no legal or financial connection between the political parties and the state. And, as seen, the sine qua non is the constitutional complaint against the statute itself, whether it be enforcement directly or through an administrator's order.

Moreover, some state action is necessary and some state officer must be sought to be enjoined as a party defendants. Wright, Federal Courts, § 50. No action by the state is involved in the political actions complained of and no state officer is concerned. While the petition alludes to the "Governor of Georgia," the evidence reveals that his actions were in his capacity as head of the party (or "gubernatorial nominee" as referred to in the rules) and not as head of the state. See Moody v. Flowers, 387 U.S. 97 at 101, 87 S.Ct. 1544, 18 L.Ed. 2d 643 (1967). Nor is the state chairman a public officer. See Morris v. Peters, 203 Ga. 350, 46 S.E.2d 729 (1948). Thus, the suits do not involve state action by state officials acting in their public capacities.

Lastly, even if three-judge actions were required, it would only relate to the injunctive relief, and not to the declaratory judgment claims. The three-judge panel, in fact, has denied the injunction and that feature of the three-judge jurisdictional claim is now moot. For similar results, see Williams v. Virginia State Election Board, 288 F. Supp. 622 (E.D.Va. Three-judge panel, July, 1968); Irish, et al. v. Democratic Farmer-Labor Party of Minnesota, 287 F.Supp. 794 (D.C.Minn. Aug. 1968, aff'd 399 F.2d 119, 8th Cir. Aug. 1968).

For the foregoing reasons, the defendant's motion is granted, and the three-judge court is dissolved.

Merits.

Remaining for the single-judge court is the substantial question whether the equal protection clause and its "one-man, one vote" sequel applies to the affairs of political parties and, if so, to what extent. E. g., Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Avery v. Midland County Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed. 2d 45 (1968). As is the source of much current comment,¹ the two-party system is a political creature of national origin and there is no constitutional or statutory foundation for its existence.

While the reality of its function has long been realized,² the only statutory recognition of the system (and that only by oblique reference) is found in such state statutes as Georgia's, many of which were passed in response to the Supreme Court decisions concerned with state action in statewide elections. Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963); Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The single possible source of constitutional recognition is found in ARTICLE II, Section 1,³ dealing with state choice of electors for President and Vice-President, the ultimate fruition of the system.

Thus far, the only authorities in the area are 14th and 15th Amendment cases, dealing with "state action." From Nixon v. Condon, 286 U.S. 373, 52 S.Ct. 484, 76 L.Ed. 984, 88 A.L.R. 458 (1932), United States v. Classic, 313 U. S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987, 151 A. L.R. 1110 (1944) and their progeny it is clear that equal protection applies (1) in the actual voting process by general or primary election and (2) in the legislative...