Thorsted v. Gregoire
| Decision Date | 10 February 1994 |
| Docket Number | No. C92-1763WD,C93-770WD.,C92-1763WD |
| Citation | 841 F. Supp. 1068 |
| Parties | Susan THORSTED; William First; and Timothy S. Zenk, Plaintiffs, v. Christine O. GREGOIRE; and Ralph Munro, Defendants, and Sherry Bockwinkel; Limit; Citizens for Term Limits; U.S. Term Limits; Alan M. Gottlieb; Lee Gill; and Wilbur B. McPherson, Intervenors Defendants. Margaret COLONY; League of Women Voters of Washington; George Cheek; John Clute; and Thomas Foley, Plaintiffs, v. Ralph MUNRO; and Christine O. Gregoire, Defendants. and Sherry Bockwinkel; Limit; Citizens for Term Limits; U.S. Term Limits; Alan M. Gottlieb; Lee Gill; and Wilbur B. McPherson, Intervenors Defendants. |
| Court | U.S. District Court — Western District of Washington |
COPYRIGHT MATERIAL OMITTED
Glen K. Thorsted, Bellevue, WA, for Susan Thorsted, William First, Timothy S. Zenk.
Fredric C. Tausend, Paul J. Lawrence, Stephen A. Smith, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, WA, for Margaret Colony.
Stephen A. Smith, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, WA, for League of Women Voters of Washington, George Cheek, John Clute, Thomas Foley.
John Maurice Groen, Pacific Legal Foundation, Bellevue, WA, Deborah J. La Fetra, Pacific Legal Foundation, Sacramento, CA, for Citizens for Term Limits.
Jeffrey T. Even, Atty. General's Office, Olympia, WA, James Kendrick Pharris, Atty. General's Office, Olympia, WA, for Kenneth O. Eikenberry, State of Wash., Ralph Munro.
Richard Andrew Derham, Davis Wright Tremaine, Seattle, WA, John G. Kester, Williams & Connolly, Washington, DC, for U.S. Term Limits, Alan M. Gottlieb, Lee Gill, Wilbur B. McPherson.
Kevin J. Hamilton, Thomas More Kellenberg, Perkins Coie, Seattle, WA, for American Civ. Liberties Union of Washington (ACLU), amicus.
David C. Stewart, Oles, Morrison & Rinker, Seattle, WA, for WA Legal Foundation, amicus.
Richard Andrew Derham, Davis Wright Tremaine, Seattle, WA, for Taxpayers United for Term Limits, amicus, Ronald D. Rotunda, amicus.
Herbert E. Wilgis, III, Preston, Thorgrimson, Shidler, Gates & Ellis, Seattle, WA, Lloyd N. Cutler, Wilmer, Cutler & Pickering, Washington, DC, for Henry J. Hyde, amicus.
Wallace M. Rudolph, pro se.
Shawn T. Newman, James Martin Johnson, Olympia, WA, Cleta Deatherage Mitchell, Washington, DC, Griffin B. Bell, King & Spalding, Atlanta, GA, Polly J. Price, King & Spalding, Washington, DC, for Limit (Sponsor of Initiative 573).
Shawn T. Newman, James Martin Johnson, Olympia, WA, Cleta Deatherage Mitchell, Washington, DC, Griffin B. Bell, King & Spalding, Atlanta, GA, Polly J. Price, James D. Miller, King & Spalding, Washington, DC, for Sherry Bochwinkel.
Sherry Bochwinkel, pro se.
ORDER ON DISPOSITIVE MOTIONS
These consolidated cases are of fundamental importance to the structure of representative government in the United States. At issue is the constitutionality of a state law designed to prevent incumbents who have served for a specified number of years from winning re-election to the United States Senate or House of Representatives.
On November 3, 1992, the voters of the State of Washington approved Initiative Measure 573 by a margin of about fifty-two to forty-eight percent. (The measure failed, by a similar margin, in the state's Fifth Congressional District, represented by plaintiff Thomas Foley, who is Speaker of the House of Representatives.) Under Article II, §§ 1 and 1(a) of the Washington Constitution, Initiative 573 became law thirty days after its passage, and is now codified at Revised Code of Washington ("RCW") Ch. 29. It provides in relevant part:
Other sections provide that the Washington Secretary of State shall not accept a declaration of candidacy from a person who "is ineligible for the office" under the Initiative, nor allow such person's name to appear on the ballot (Section 7); that one who is ineligible to appear on the ballot or file a declaration of candidacy may run a write-in campaign (Section 6); that no terms or years served in office before November 3, 1992, may be used to determine eligibility (Section 7); and that Sections 4 and 5, regarding candidates for federal legislative office, are not effective until at least nine other states have passed similar measures (Section 7). The latter condition has been met.
The full text of Initiative 573 is set out in Appendix A to this order. Only the parts governing candidacies for the two houses of Congress are challenged here; no ruling on the provisions relating to State of Washington offices is sought or made.
The plaintiffs, who are or represent registered voters in Washington, and one of whom is a member of the House of Representatives, allege that Initiative 573's restrictions on candidacies for Congress are invalid under Article I, §§ 2 and 3, of the United States Constitution, and under the First and Fourteenth Amendments. They seek a declaratory judgment and an order enjoining defendants Ralph Munro and Christine Gregoire, the Washington Secretary of State and Attorney General, from enforcing those provisions. Plaintiffs also seek relief for an alleged deprivation of their civil rights under 42 U.S.C. §§ 1983 and 1988. The two State officers who are defendants, and the intervenor defendants (Sherry Bockwinkel, LIMIT, U.S. Term Limits, Alan M. Gottlieb, Lee Gill, Wilbur B. McPherson, and Citizens for Term Limits), seek judgment upholding the constitutionality of Initiative 573 and denying any relief to plaintiffs. A variety of amici curiae have filed briefs.1
This court has jurisdiction under 28 U.S.C. § 1331. All parties have moved for summary judgment and/or for dismissal. The motions for dismissal are treated as summary judgment motions because matters outside the pleadings have been presented. Fed. R.Civ.P. 12(b)(6). There is no genuine issue of material fact for trial, and the case may be resolved on the motions under Fed.R.Civ.P. 56.
The briefs of all parties and friends of the court have been fully considered, as have the arguments of counsel given in open court at a hearing held on January 11, 1994.
These actions are brought against the Washington Secretary of State and Attorney General, who are responsible for implementing and enforcing Initiative 573. Although the Eleventh Amendment prohibits suits in federal court against a state without the state's consent, see Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), it does not bar actions to enjoin state officials from enforcing an unconstitutional law. Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); San Francisco County Democratic Central Comm. v. Eu, 826 F.2d 814, 824-25 (9th Cir.1987), aff'd, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989).2
The plaintiffs, supported by intervenor defendants Sherry Bockwinkel and LIMIT, and by some of the amici curiae, contend that plaintiffs have standing to sue and that the constitutional challenge is ripe for decision. The State defendants, supported by intervenor defendant U.S. Term Limits and by some of the amici curiae, contend that standing is absent and the case is not justiciable, i.e., is not ripe for decision.
There are eight plaintiffs. In the Colony case, Thomas Foley, who has represented the Fifth Congressional District of Washington in Congress since 1965, declares that he plans to continue serving if the voters re-elect him. Initiative 573, if valid, will bar him from the ballot in 1998. Margaret Colony, a registered voter in the State's Eighth Congressional District, claims injury to her right to vote for constitutionally qualified candidates of her choice. The League of Women Voters of Washington, a civic organization, asserts representational standing for its member-voters. George Cheek is a registered voter in the Fifth District who intends to vote for Congressman Foley. John Clute, dean of the Gonzaga University School of Law, is also a registered voter in the Fifth District. In the Thorsted case, plaintiffs Susan Thorsted, William First, and Timothy S. Zenk are registered voters in Washington.
The plaintiffs allege injury to their rights as voters and/or as candidates, and to their rights of free association and political expression. Some assert standing based upon harm to public projects that are being supported by certain incumbents. The latter category need not be analyzed because plaintiff Foley's standing as a member of Congress who plans to seek re-election, and the other plaintiffs' standing as registered voters, are enough.
The Supreme Court has listed three elements of standing to sue: the plaintiff must have suffered an "injury in fact" (an invasion of a legally-protected interest which is "concrete and particularized" and is "actual or imminent"); there must be a "causal connection" between the injury and the conduct complained of; and it must be "likely," and not merely "speculative," that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, ___ U.S. ___, ___, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992).
The Court in Lujan held that if "the plaintiff is himself an object of the...
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