Wright v. Mahan

• Decision Date: 18 October 1979
• Docket Number: Civ. A. No. 79-0531-R.
• Citation: 478 F. Supp. 468
• Court: U.S. District Court — Eastern District of Virginia
• Parties: William Randolph WRIGHT et al. v. Joan S. MAHAN et al.

478 F. Supp. 468

William Randolph WRIGHT et al. v. Joan S. MAHAN et al.

Civ. A. No. 79-0531-R.

United States District Court, E. D. Virginia, Richmond Division.

October 18, 1979.

Howard E. Copeland, Virginia Beach, Va., for plaintiffs.

Philip R. Trapani, City Atty., Harold P. Juren, Deputy City Atty., Norfolk, Va., Perkins Wilson, Asst. Atty. Gen. of Virginia, Richmond, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

I

Plaintiffs, members of an organization known as "The Norfolk Tea Party," filed a Petition for Election in the Office of the Clerk of the Circuit Court of the City of Norfolk, Virginia, on 26 March 1979. Finding that plaintiffs had complied fully with sections thirty through thirty-two of the Norfolk City Charter,¹ The Honorable Morris B. Gutterman, Judge of the Circuit Court of the City of Norfolk, entered an order dated 27 March 1979 calling a special election for 15 May 1979. The defendant members of the Norfolk Electorial Board, joined by the City of Norfolk, thereafter intervened to set aside the order. On 14 May 1979 Judge Gutterman vacated his prior order.²

Plaintiffs are seeking a writ of error from the Supreme Court of Virginia to review Judge Gutterman's order denying plaintiffs' petition for an initiative election. Plaintiffs also petitioned this Court for declaratory judgment and a writ of mandamus directing Judge Gutterman to call a special election for a vote on the proposed initiative ordinance.³

II

Plaintiffs assert that this Court has jurisdiction pursuant to 28 U.S.C. § 1343(3), which grants original jurisdiction to district courts in civil actions commenced by persons claiming deprivation, under color of State law, of "any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights . . .." Plaintiffs' substantive claim is based on 42 U.S.C. § 1983.⁴ Defendants do not dispute the jurisdiction of this Court, but have filed a motion to dismiss plaintiffs' complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). The gravamen of defendants' 12(b)(6) motion, however, is that plaintiffs' claims derive solely from State law. If the Court finds that the defendants' motion has merit, it necessarily will have found that it lacks jurisdiction under 28 U.S.C.A. § 1343(3).

A.

Defendants' motion to dismiss rests principally on Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943). In Snowden, a State primary canvassing board refused to certify the plaintiff as a nominee for a State office, such certificate being a prerequisite to inclusion of a candidate's name on the ballot. Plaintiff alleged that the board's refusal deprived him of rights secured by the Fourteenth Amendment. The district court granted defendants' motion to dismiss. The United States Supreme Court affirmed, holding that plaintiff's right, if any, to have his name appear on the ballot was predicated on State law, and that the deprivation or interference with such right by State action did not violate the privileges and immunities clause nor the due process and equal protection clauses of the Fourteenth Amendment. 321 U.S. at 6-8, 64 S.Ct. 397.

The Supreme Court has not specifically questioned or reviewed its decision in Snowden. Plaintiffs, however, question the continued vitality of Snowden in light of more recent decisions which have substantially altered the constitutional matrix in the area of voting rights. Plaintiffs would have the Court view this controversy as one affecting their fundamental right to vote. The issue, more fully framed, is whether a State judge's denial of a properly filed petition for a municipal initiative election contravenes the First Amendment guarantees of freedom of expression and the right to petition the government for redress of grievances, as applied to the States through the due process clause of the Fourteenth Amendment.⁵

B.

The Fourteenth Amendment provides that no State shall deprive a person of "life, liberty, or property, without due process of law." A party seeking relief under the due process clause must establish first, that he has been deprived by the State of "life, liberty, or property," and second, that the deprivation occurred without "due process."

Plaintiffs, as members of the Norfolk Tea Party, and as registered voters, claim that their First Amendment rights to an initiative election, to a place on the ballot in that election, and to vote, have been denied without due process. It is clear that the freedoms guaranteed by the First Amendment against infringement by the federal government are within the "liberty" protected from State deprivation by the due process clause. Cf. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943) (establishment of religion); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (free exercise of religion); Near v. Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931) (freedom of speech and of the press); NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (freedom of association); Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960) (right to petition the government for redress of grievances). What is unclear, however, is whether the rights claimed by the plaintiffs in this case are protected by the First Amendment or by any other provision of the Constitution.

Over three and a half decades have passed since the decision of Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1943). In that time there has been "an enlarged demand for an expansion of political opportunity." Lubin v. Panish, 415 U.S. 709, 713, 94 S.Ct. 1315, 1318, 39 L.Ed.2d 702 (1974). The courts have responded to that demand by gradually broadening the contours of the Fourteenth Amendment, in particular the equal protection clause.⁶ The net effect is that much of the law propounded by the Court in Snowden has been changed. The Supreme Court no longer holds, as it did in Snowden, that the right to vote in State elections, or to become a candidate for State office, are rights created and protected purely by State laws.⁷

Today the right to vote in State as well as in federal elections, and the protection afforded that right by the federal Constitution, are unquestioned. Harper v. Va. Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1963). The rationale for finding this right in the Constitution was expounded by the Court in Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964):

No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.⁸

The Supreme Court also holds that the right of an individual or a party to reasonable access to a ballot in State elections is a right secured by the United States Constitution. In a series of ballot placement cases the Court has emphasized the right to pursue elective office, and has afforded careful scrutiny to State regulations burdening that right.⁹ Cf. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (State law having the effect of excluding from the ballot independent and minority party candidates violative of equal protection clause); Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (State law requiring payment of prohibitively large filing fees by candidates violative of equal protection clause); Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (State law requiring payment of moderate fees by indigent candidates violative of equal protection clause); Elections Bd. v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979) (State signature requirements for new political party and independent candidates violative of equal protection clause).

The cited ballot placement cases are distinguishable in that they involved State statutes which prevented equal access to ballots, while this case involves State action which wholly denies ballot access. This is especially significant when it is recognized that the federal right of reasonable access to a ballot in State elections, as presently articulated by the Supreme Court, derives from the equal protection clause. Plaintiffs here make no claim founded on equal protection.¹⁰ Rather, plaintiffs assert that their right to an initiative election, to a place on the ballot in that election, and to vote, are grounded on the First Amendment and are protected by the due process clause of the Fourteenth Amendment.¹¹

The Supreme Court never has held that the right to vote or to reasonable ballot access stem from the First Amendment. The Court held that voting is a fundamental right, secured by the equal protection clause, in Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966). In Harper the Court was confronted with the argument that the right to vote is implicit in the guarantees of the First Amendment, but did not reach that question: "we do not stop to canvass the relation between voting and political expression." 383 U.S. at 665, 86 S.Ct. at 1080, 1081.

Several voting rights and ballot access cases since Harper have emphasized the close tie between the right of suffrage and the First Amendment. In Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973), the Court ruled unconstitutional an Illinois law that unduly restricted the right to vote. The basis for the Court's holding was the First Amendment and the right of free political association. Similarly, in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), in striking down a highly restrictive Ohio election law on equal protection grounds, the Court indicated that the First Amendment may...