Socialist Workers Party v. Secretary of State, Docket No. 65466

• Decision Date: 01 March 1982
• Docket Number: Docket No. 65466
• Citation: 412 Mich. 571,317 N.W.2d 1
• Parties: SOCIALIST WORKERS PARTY, James Lafferty, Michael Moore, Marilyn Reed and Andrew Walden, Plaintiffs-Appellants, v. SECRETARY OF STATE OF the STATE of Michigan, Defendant-Appellee. 412 Mich. 571, 317 N.W.2d 1
• Court: Michigan Supreme Court

Page 1

317 N.W.2d 1

SOCIALIST WORKERS PARTY, James Lafferty, Michael Moore Marilyn Reed and Andrew Walden Plaintiffs-Appellants, v. SECRETARY OF STATE OF the STATE of Michigan Defendant-Appellee.

Docket No. 65466.

412 Mich. 571, 317 N.W.2d 1

Supreme Court of Michigan.

March 1, 1982.

Margaret Winter, New York City, Ronald Reosti, Detroit, for plaintiffs-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Jann Ryan Baugh (P 22810), Gary P. Gordon (P 26290), Asst. Attys. Gen., Lansing, for defendant-appellee.

Maurice Kelman, Detroit, for amicus curiae of the Metropolitan Detroit Branch, American Civil Liberties Union of Michigan, in support of plaintiffs-appellants.

FITZGERALD, Justice.

This is an appeal from a circuit court order granting defendant's motion for accelerated judgment on the ground of res judicata. Plaintiffs' ¹ complaint presented both Federal and state constitutional challenges to the statute by which candidates for political office qualify for the general election ballot.

I

In 1976 P.A. 94 ², the Legislature amended Michigan's election law. In part, that act directs a new political party ³ to meet both a petition requirement ⁴ and a minimum primary vote requirement of 3/10 of 1% of the total votes cast ⁵ before it may qualify for a place on the general election ballot. Prior to 1976 P.A. 94, a new political party qualified for the general election ballot merely by satisfying a petition requirement substantially identical to that now required for placement on the primary election ballot. ⁶ 1976 P.A. 94 also specifies that new political parties appear on the primary election ballot in a separate column or row, ⁷ that the names of the new political parties follow the statement, "I desire that the party indicated shall have its name, party vignette, and candidates listed on the next general election ballot", ⁸ and that voters may vote for the candidates of one political party only or for the appearance of one new political party on the general election ballot. ⁹ The Legislature provided that the act take effect immediately. The act was approved on April 22, 1976.

In 1976, after the passage of 1976 P.A. 94, several individuals and political parties (including plaintiff Socialist Workers Party) filed suit in Federal district court alleging that the addition of the primary vote requirement violated the First and Fourteenth Amendments. The Court in Hudler v. Austin, 419 F.Supp. 1002 (E.D.Mich., 1976), aff'd sub nom Allen v. Austin, 430 U.S. 924, 97 S.Ct. 1541, 51 L.Ed.2d 769 (1977), held that the act did not violate the Federal Constitution, Judge John Feikens dissenting. Nevertheless, the court found that the act was passed too late to give the affected political parties time to gather additional primary support and ruled that "new" parties which had satisfied the petition requirement but not the primary vote requirement appear on the general election ballot. The United States Supreme Court affirmed summarily, with Justices Stewart, Blackmun, and Powell voting to give the case plenary consideration. ¹⁰

In the case at bar, plaintiffs filed an action for declaratory judgment in Wayne Circuit Court on April 22, 1980. Plaintiffs sought a declaration that 1976 P.A. 94 violates the First and Fourteenth Amendments and Const.1963, art. 1, Secs. 1, 3 and 5. An amended complaint added the allegations that the act violates Const.1963, art. 1, Sec. 2 and art. 2, Sec. 4. ¹¹

Defendant responded with a motion for accelerated judgment under GCR 1963, 116.1(5). Defendant's motion was premised on the theory that the prior judgment in Hudler v. Austin, supra, precluded plaintiffs' action. Judge Robert J. Colombo granted the motion from the bench on May 22, 1980, although expressing personal agreement with the reasoning in Judge Feikens' dissent.

We granted plaintiffs' application for leave to appeal prior to a decision by the Court of Appeals and the motion to file a brief amicus curiae by the Metropolitan Detroit Branch of the American Civil Liberties Union of Michigan. We directed the parties include among the issues to be briefed (1) whether the current Federal constitutional challenge to 1976 P.A. 94, amending M.C.L. Sec. 168.685; M.S.A. Sec. 6.1685 and adding M.C.L. Sec. 168.560a and 168.560b; M.S.A. Sec. 6.1560(1) and 6.1560(2), is precluded by Hudler v. Austin, 419 F.Supp. 1002 (E.D.Mich., 1976), aff'd sub nom. Allen v. Austin, 430 U.S. 924, 97 S.Ct. 1541, 51 L.Ed.2d 769 (1977); (2) whether 1976 P.A. 94 infringes the First and Fourteenth Amendment rights of "new" political parties, their adherents and supporters, or the public in general; and (3) whether 1976 P.A. 94 violates rights guaranteed by the Michigan Constitution. 409 Mich. 896 (1980).

We hold that plaintiffs' action is not precluded by the decision in Hudler v. Austin, supra. We further hold that 1976 P.A. 94 violates the First and Fourteenth Amendments and Const.1963, art. 1, Sec. 2, and art. 2, Sec. 4. Accelerated judgment for defendant reversed and the matter remanded to the circuit court for proceedings in accordance with this opinion.

II

Judge Colombo granted defendant's motion for accelerated judgment on the ground of res judicata. Defendant argues that the motion was properly granted because plaintiff Socialist Workers Party, an unsuccessful party plaintiff in Hudler, is merely attempting to relitigate the identical issue addressed by the Hudler court: the constitutionality of 1976 P.A. 94.

The doctrine of res judicata operates to prevent the relitigation of facts and law between the same parties or their privies. Gose v. Monroe Auto Equipment Co., 409 Mich. 147, 161, 294 N.W.2d 165 (1980). The plea of res judicata applies to points previously litigated and decided as well as to points " 'which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time' ". Gursten v. Kenney, 375 Mich. 330, 335, 134 N.W.2d 764 (1965), quoting with approval from Henderson v. Henderson, 3 Hare 100, 115, 67 Eng.Rep. 313 (1843).

There are exceptions to the doctrine, such as found in Restatement Judgments, 2d (Tentative Draft No. 1, 1973), Sec. 68.1, pp. 170-171:

"Although an issue is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, relitigation of the issue in a subsequent action between the parties is not precluded in the following circumstances.

* * *

"(b) The issue is one of law and * * *

* * *

"(ii) A new determination is warranted in order to take account of an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws * * *."

The purpose of this section is explained by the commentary:

"A rule of law declared in an action between two parties should not be binding on them for all time, especially as to claims arising after the first proceeding has been concluded, when other litigants are free to urge that the rule should be rejected. Such preclusion might unduly delay needed changes in the law and might deprive a litigant of a right that the court was prepared to recognize for other litigants in the same position."

See Young v. Detroit City Clerk, 389 Mich. 333, 207 N.W.2d 126 (1973).

The issue facing the Hudler court was one of law, the constitutionality of 1976 P.A. 94. Moreover, as plaintiffs and amicus ACLU correctly aver, the applicable legal context for the decision has changed. The Hudler court applied the "significant modicum of support" test, Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), in the following context:

"The facts and circumstances underlying the passage of Public Act 94 may be summarized as follows: (1) over a ten-year period, the petition requirement for ballot access, standing alone, proved to be an imprecise tool for measuring true voter support; and (2) in 1976, more new parties sought to qualify by the petition method than it was technically possible for the state's voting machines to handle. Of Michigan's 6,972 precincts, 4,322 are serviced by voting machines." Hudler, 419 F.Supp. 1008.

In upholding the constitutionality of the act, the Hudler court did not balance the state's interest in effective regulation of elections against the public's interest in the dissemination of ideas by minor political parties. Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), since decided, establishes that the burden on the public's interest in the dissemination of ideas must also be assessed.

"The States' interest in screening out frivolous candidates must be considered in light of the significant role that third parties have played in the political development of the Nation. Abolitionists, Progressives, and Populists have undeniably had influence, if not always electoral success. As the records of such parties demonstrate, an election campaign is a means of disseminating ideas as well as attaining political office. * * * Overbroad restrictions on ballot access jeopardize this form of political expression." 440 U.S. 185-186, 99 S.Ct. 991.

In addition, electronic voting precincts, the so-called punch card precincts, now outnumber voting machine precincts 2,982 to 2,873. Like the old-fashioned paper ballots still in use in 573 precincts, the punch card ballots can physically accommodate any number of parties. ¹² To the extent the Hudler court relied on the actual number of voting machine precincts in support of the compelling state interests alleged, such reliance has been eroded.

Finally, our reading of the decision in Hudler convinces us that the district court reserved an "as applied" challenge to the constitutionality of 1976 P.A. 94 when it noted:

"It is impossible for this court or even the legislature to say in advance what the least drastic effective means of dealing with this problem would...