Appendix — Allen Dahl v. Republican State Committee

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APPENDIX A -

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

NORTHERN DIVISION |

Dr. ALLEN Dant; Lyte Ernnaus; Dr. \.

~. Frank J.*Ricos; KENNETH Rocstap; Dr.

RicHarp CxLarkK; Dennis G. HAGEN;

SELMER THORP; and Dr. CHARLES R.

WOLFE, Civil No. 7557

Plaintiffs,

mS

Memorandum *

Order

‘Vv.

THE -REPUBLICAN STATE ComMIrTeE;

and C. MonTGOMERY JOHNSON, Chair-

man, |

Defendants.

This is a suit by certain officials of the Republican Party,

who reside in: the four most populous counties of the

State of Washington, challenging the constitutionality of

" R.C.W. 29.42.020. They bring this action in their in-’

dividual capacities and as representatives of certain classes

of voters in those counties.

The complaint attacks the congtituttonadity of R.C.W.

29.42.020, which provides that the state committee of a

major political party shall be composed of one committee-

man and ‘one committeewoman from each county. The

gravamen of the complaint, however, is the allegation that

the voters. of the four most populous counties in the state

are under-represented at the state convention, which meets

to elect Washington’s. delegates to the Republican National:

Convention, and for other purposes,

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Plaintiffs assert that by reason of this under-represena

tation they are denied a fair voice in.the choice of the

Republican nominees for the Presidency and Vice Presi-

dency of the United States; and that such constitutes a

denial of equal protection tinder the Fourteenth Amend-

‘ment, as interpreted in Bakersv. Carr, 369 U.S. 186,32

S.Ct. 691, 7 L.ed2d-663 (1962); Gray v. Sanders, 372

U.S. 368, 83 S.Ct. 801, 9 L.ed.2d 821 (1963); Reynolds

pv. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.ed.2d 506 (1954)

and other cases. - «

The number of delegates to represent each county at

the state convention is not détermined by statute, but in-

accordance with a “formula,” established by the Repub-

lican State Central Committee. In establishing the ma-

chinery for apportioning delegates to the state convention

among the several counties, the committee is exercising

the power —— by R.C.W. 29.42.010 which’ provides:

“Fach political party organization shall have the

power to: . Be Elect delegates to conventions,

_ state and national; .

Thus, the true thrust of the complaint i is that the Repub-

lican State Central Committee, in establishing that for- |

- mula, has deprived plaintiffs and those whom: they repre-

sent of/the equal protectionof the laws, in violation of

the Fourteenth Amendment. If we assume arguendo that

_ plaintiffs are correct,’ their claim that disproportionate

pian ats state convention to elect delegates to

- the national gonvention is a denial of equal protection is

at’ best an assault upon the constitutionality of the manner

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in which the state committee has exercised the power

delegated to the party organization by the Washington

’ State. Legislature, and not an attack upon the constitu-

tionality of the statute which establishes the state com-

mittee. So viewed, it is clear that the complaint raises

no genuine challenge to’ the constitutionality of a state

statute, and the jurisdictional requirenients for a three-

judge court, as set forth in 28 U.S.C. Sec. 2281; are absent.

Phillips v. U.S., 312 U.S. 246,.61 S.Ct. 480, loses L.ed. 800

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It should be noted, however, that this court does not,

at this time, pass upon the constitutional issue raised

by plaintiffs: namely, whether the so-called “one man-one

_ vote” principle is applicable to state nominating conven-

tions. We hold only that the facts alleged, even if proved,

would not support the relief which plaintiffs seek, the

| declaration that R.C.W. 29.42.020 is unconstitutional.

' The complaint is structured entirely as a challenge of

the statute, and the relief sought could not be granted. un-

less this court found the statute unconstitutional. Accord-

ingly, the motion to dismiss the complaint for failure to

state a claim is granted. If plaintiffs desire to amend they

shall make such intention known by notice in writing

served and filed within five days from the date hereof.

If plaintiffs so elect they are granted leave to file an

amended complaint within 15 days thereafter.

If plaintiffs elect not to amend, a decree of dismissal

_ may be presented upon three days’ notice. Otherwise this

memorandum order shall serve as the order of the court.

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Dated this 12 day of April, 1968. _

/s/ (Gmpeat H. JERTBERG |

United States Circuit Judge

/s/ WiLuiaM J. LiInpBERG

United States District Judge

/s/ W.T. Brexs

United States District jadee

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

| NORTHERN DIVISION _

Dr. ALLEN Dani; LyLe Ernnaus; Dr.

Frank J. Ricos; KENNETH RocstaD; Dr.

Ricuarp Cuark; DENNis G. HAGEN;

SELMER THORP; and Dr. CuHarzes, R.

WoLrFE, ' Civil No. 7557

P laintiff S;> Memorandum

Vv.

Order

THE REPUBLICAN STATE COMMITTEE;

and C. MoNTGOMERY JOHNSON, Chair- }

man,

Defendants

/

Plaintiffs’ original complaint stated a single cause of

action, seeking a declaration that R.C.W. 29.42.020 was

unconstitutional and that an injunction be issued restrain-

ing actions taken pursuant to that statute. Plaintiffs also .

- requested that a three-judge court be convened to hear the

- case, as required by 28 U.S.C. Sec. 2281 in cases where.

such relief is sought.

AS

This three-judge court was convened by order of Feb-

ruary 19, 1968..By memorandum order of April 12, 1968, °

this court held that, “. . . the complaint raises no genuine

challenge to the constitutionality of a state statute, and

the jurisdictional requirements for a three-judge court, as

-set forth in 28 U.S.C. Sec. 2281, are absent. . .. According-

ly, the motion to dismiss the complaint for rane to state

a claim is granted.”

In the same order, however, this court made clear that

it did not purport to pass upon the question of whether

there had been an unconstitutional exercise of powers -

granted by a state statute; and granted plaintiffs leave to

file an aménded complaint. In so doing, it was the court’s

- intention to furnish plaintiffs a clean-cut ruling against

their contention that the state statute is unconstitutional,

which plaintiffs could appeal to the Supreme Court if they

so. elected. This court also provided plaintiffs with the al-

ternative of filing an amended complaint limited to the

issues upon which this court had expressly declined. to

rule. Such issues could only: be litigated before a single

United States District Judge, inasmuch .as they did not

assert a challenge to the constitutionality of a state statute.

The court’s order was apparently misunderstood in this

respect. In the amended complaint filed by plaintiffs,

Count I re-asserts in essence substantially all of the alle-

gations of the original complaint, while only Count II is

directed to the issues left open by this court’s memoran-

dum order. Both Counts request that a three-judge c court

be convened to hear the case.

- Defendants now move to strike and Sitios each Count

of the amended complaint on the ground that there is no

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jurisdiction for a three-judge court, and upon the further

ground that the amended complaint fails to state a claim

upon which relief may be granted. .

The motion to strike the amended complaint and each

of the causes of action therein stated on the ground that ©

there is no jurisdiction for a three-judge court is granted.

This being so, this court has no jurisdiction to entertain the

motion to dismiss for failure to state a claim upon which

relief may be granted. Plaintiffs are granted leave to file

a seconded ‘amended complaint, which shall be limited to

_ the question of whether the Republican State Central -

Committee has exercised its statutory powers in a manner

which deprives plaintiffs of constitutional rights, and,

. which shall be heard by a single-judge court. If plaintiffs

desire so to amend, they shall-make such intention known

by notice in writing served and filed within five days from

the date hereof. If plaintiffs so elect they are granted leave

to file a second amended complaint within fifteen days

| thereafter.

If plaintiffs elect not to amend, a decree of dismissal may

be presented upon three days’ notice. Otherwise this mem-

-orandum order shall serve as the order of ihe < court.

"Dated this 4th day of ii 1968.

_ /s/ Grsert H. JERTBERG

United States Circuit Judge

/ s/ Winsssx J. LINDBERG

United States District Judge

/s| W. T. BrExs

United States District Judge

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James S. MUNN

_ Attorney at Law

423 Central Building

Seattle, Washington 98104

Telephone: MAin 4-4812

Russe A. AUSTIN, JR.

Attorney at Law |

609-11 Norton Building

Seattle, Washington 98104

Telephone: MAin 4-5370

ALFRED J. SCHWEPPE

Frepric C. TAUSEND ©

Attorneys at Law = art

657 Colman Building — | ;

Seattle, Washington 98104 -

Telephone: MAin 3-7520

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

NORTHERN DIVISION

Dr. ALLEN Dani; LyLE Exnuaus; Dr.

FRANK J. Ricos; KENNETH Rocstap; Dr.

RicHARD CLARK; DENNIS G. HAGEN; Civil No. 7557

SELMER THorP; and Dr. CHares R. :

WoLrFE, | Judgment and

Plaintiffs, Decree of

y. Dismissal

THE REPUBLICAN STATE COMMITTEE; Three Judge

Court

and C. MontTcoMERY JoHNsON, Chair-

man,

Defendants.

_ This matter came on for hearing on March 23, before

the undersigned judges of a Three Judge District Court

on defendant’s motion to dismiss the complaint for failure

to state a claim: The court having heard argument of coun-

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sel, having read the record and file herein, and having

entered a memorandum order dated April 12, 1968, grant-

ing defendants’ motion to dismiss the complaint for failure

to state a claim but giving plaintiffs leave to file an amend-

ed complaint; and having further entered its memorandum

order dated June 4, 1968, striking the amended complaint

and each of the causes of action therein stated; in accord- _

ance with the aforesaid memorandum orders dated ‘April.

12 and June 4, 1968,-it is hereby

ORDERED, ADJUDGED AND DEcREED that plaintiffs’ mo-

tion to dismiss the complaint for failure to state a claim

should be and the same hereby is granted and said com-

plaint is dismissed with prejudice.

Daten this 15th day of July, 1968.

/s/ Gusert H. JERTBERG |

United States Circuit Judge

“ Js) WraM J. LINDBERG

United States District Judge

/s/ W. T. Brexs

Presented by:

Frepric C. TAUSEND

Approved as for form and for entry,

Notice of presentation waived:

Epwarp N. LANGE

_

United States District Judge

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APPENDIX. B

Revised Code of Washington:

29.42.010 Authority—Generally. Each political party

organization shall have the power to:

(1) Make its own rules and sania

(2) Call conventions;°

' . (3) Elect delegates to conventions, state and national;

(4) Fill vacancies on the ticket; |

~ (5) Provide: for the nomination of presidential electors;

ond

(6) Perform all functions, inherent in such an organiza-

tion: Provided, That in no instance shall any convention

have the power to nominate any candidate to be voted for

at any primary eléction.

29.42.20. State committee. The state committee of each

major political party shall consist of one committeeman and

_ one committeewoman from each county elected by. the

county committee at its organization meeting. It shall have

a chairman and vice chairman who must be of opposite

sexes. ;

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APPENDIX C_:

28 United States Code:

' §°1253. Direct appeals from decisions of three-judge

Except as otherwise provided by law, any party may

appeal to the Supreme Court from an order granting or

denying, after notice and hearing, an interlocutory or per- '

manent injunction in any civil action, suit or proceeding |

. required by any Act of Congress to be heard and deter-

mined by a district court of three judges.

§ 1343. Civil rights and elective f ranchise

The district courts shall have original jurisdiction of any

civil action authorized by law to be Commenced by any

person: . 7 .

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by: any act dove

in furtherance of any conspiracy mentioned in.section 1985

of Title 42;

(2) To recover damages from any person who fails to - ~

prevent or to aid in preventing any wrongs mentioned in»

section 1985 of Title 42 which he had es were

about to occur and power to prevent:

(3) To redress the deprivation, under color of any State

. law, statute, ordinance, regulation, custom or usage, of any

_ right, privilege or immunity secured by the Constitution of

the United States or by any Act of Congress providing for

equal rights of citizens or of all persons within the jur-

isdiction of the United States; |

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(4) To recover damages or to secure equitable or other

relief. under any Act of Congress providing fo: the protec-

~ tion of civil rights, including the right to vote. As amended

Sept. 3, 1954, c. 1263, § 42, 68 Stat. 1241; Sept. 9, 1957,

Pub.L. 85-315, Part III, § 121, 71 Stat. 637. -

§ 2201. Creation of remedy .

_ In.a case of actual controversy within its jurisdiction,

except with respect to Federal taxes, any court of the Unit- _

ed States, upon the filing of an appropriate pleading, may

-s declare the rights and other legal relations of any interested

party seeking such declaration, whether or not further re-

lief is or could be sought. Any such declaration shall have

_ the force and effect of a final judgment or decree and

shall be reviewable as such. As amended May 24, 1949, c.

139, § 111, 63 Stat. 105; Aug. 28, 1954; c. 1033, 68 Stat.

890; July 7,- 1958, Pub.L. 85-508, § 12(p); 72 Stat. 349.

§ 2281. Injunction against enforcement ef State stat-

ute; three-judge court required

An interlocutory or permanent injunction restraining the

enforcement, operation or execution of any State statute by

restraining the action of any officer of such State in the

. enforcement or execution of such statute or of an order ”

made by an administrative board or commission acting

under State statutes, shall not be granted by any district :

’ court-or judge thereof upon the ground of the unconstitu-

tionality of such statute unless the application therefor is

heard and determined by a district court of thre judges

under section 2284 of this title. |

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42 United States Code:

§ 1993. Civil action for deprivation of rights

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

subjects, or causes to be subjected, any citizen of the Unit-

ed States or other person within the jurisdiction thereof

to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or —_

proper ere for redress. R.S. a —

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APPENDIX D a“

United States Constitution: a 2 |

wey AMENDMENT XIV.

§ 1. Citizenship rights not to be abridged by states

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens

of the United States and of the State wherein they reside.

—No State shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United States;

nor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.