Petition for Writ of Certiorari — Jones v. Verbiest

87 1624 = | Smo vs

FILED

MAR 16 1988

| WOSEPH F. SPANIOL,

NO =

IN THE SUPREME COURT

> OF THE UNITED STATES

October Term, 1987

THOMAS W. JONES,

Petitioner

V.

LAWRENCE N. VERBIEST,

ED CAREY, JR., Individually and as

Wayne County Director of Elections

Respondents

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Emery E. Jacques, Jr

Jacques and Ziem

990 Decker Rd.

Walled Lake,M| 48088

(313) 624-6330

COUNSEL FOR PETITIONER

NTED FOR R

1. Did the 1980 amendment to 28 U.S.C. S$ 1331 repeal by

implication, in whole or part, 28 U.S.C. § 1343 (a) (3)?

2.:\s it proper for a District Court to ignore an Emergency Motion

for Summary Judgment in a ballot access case when there are time

deadlines for printing of the official ballots ?

3. Does the abstention doctrine of Pullman y. Railroad Commission

of Texas, 312 U.S. 496 (1941) violate the acts of Congress

defining the jurisdiction of the lower federal courts and thereby

violate the following provisions of the Constitution- Art. |, Sec.1,

Art. 1, Sec>8,cl. 18, Art. Ill, Sec. 1 and Sec. 2, cl. 1, Art. VI and

Sec. 5 of the Fourteenth Amendment ?

4. If such abstention doctrine is constitutional does 4 U.S. District

Court violate such doctrine (a) by dismissing a case when there is

no state court proceeding pending (also causing statute of

limitations problems), and (b) by failing to use a certification

procedure to the State’s Supreme Court that is a Rule of the District

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Court and when the State Supreme Court has a corresponding

certification rule to receive the District Court's questions ?

». Does the separate is not equal doctrine of Brown v. Board of

Education, 347 U.S. 483 (1954) apply to state ballot access laws

by which candidates for the same office get their names printed on

official ballots such that many of this Court's ballot access cases

since 1968 have been wrongly decided or that such cases have been

rightly decided for the wrong reasons?

6. Does a State violate the No Title of Nobility Clause of Art. |, Sec.

10 by giving “heredity” ballot status to the candidates of “major”

political parties based on prior election results for specific

candidates of such parties ?

7. Have many “modern” 42 U.S.C. § 1983 cases been wrongly

decided by failing to distinguish between federally unconstitutional

acts or omissions done “under color of State law” or “under State

office” ?

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TABLE OF CONTENTS

Questions Presented

Table of Contents

Table of Authorities

Citation to Opinion Below and

Jurisdiction

Provisions involved

Statement of the Case/Facts

Argument

Prayer

Appendix A-- Opinion of Court of

Appeals

Appendix B-- Opinion of District

Court

Appendix C-- Complaint

Appendix D-- Court Rules

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12

TABLE OF AUTHORITIES

U. S. Constitution

Art. 1, Sec. 8,cl. 18

Art. |, Sec. |

Art. 1, Sec. 10

Art. lll, Sec. |

Art. 111, Sec. 2, Cl. 1

Art. VI

14th Amendment, Sec. |

14th Amendment, Sec. 5

U.S. Code

18 U.S.C. $242

28 U.S.C. § 1331

28 U.S.C. § 1343 (a) (3)

28 U.S.C. S$ 2201, 2202

42 U.S.C. § 1983

42 S.C. $1988

Supreme Court cases

American Tobacco Co. v. Patterson, 456 U.S. 63

(1982)

American Trial Lawyers Association v. New Jersey

Supreme Court, 409 U.S. 467 (1973) |

Anderson v. Liberty Lobby, Inc., 477 US.__,

106 S.Ct. 2505, 91 LEd2d 202 (1986)

Bellotti v. Baird, 428 U.S. 132 (1976)

Bowsher v. Synar, 478 US... _, 106 S.Ct. 3181,

92 LEd2d 583 ( 1986)

Brown v. Board of Education, 347 U.S. 483 (1954)

Celotex Corp. v. Catrett, 477 US. ___, 106 S.Ct.

2548, 91 LEd2d 265 (1986)

City of Houston, Texas v. Hill, 482 U.S... 107

$.Ct. 2502, 96 LEd2d 398 (1987)

Cohens v. Virginia, 6 Wheat 264, 404 (1821)

Dennis v. Sparks, 449 U.S. 24 { 1980)

Fisher v. Cockerell, S Pet. (30 U.S.) 248 (1831)

Flanders v. Tweed 16 Wall. (83 U.S.) 504 (1873)

Hawaii Housing Authority v. Midriff, 467 U.S. 229

(1984)

Hyde v. Stone, 20 How. (61 U.S.) 170 (1857)

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Be acer A De ood al

7 ,

nn

Inre Grossman, 177 U.S. 48 (1900)

Insurance Co. v. Dunn, 19 Wall. (86 U.S.)214

(1873)

Kendall v. United States, 12 Pet. (37 U.S.) 524

(1838)

Kline v. Burke Construction Co., 260 U.S. 226

(1922)

Lynch v. Household Finance Corp., 405 U.S. 538

(1972)

Mayor v. Cooper, 6 Wall. (73 U.S.)247 (1867)

McCain v. Des Moines, 174 U.S. 168 (1899)

Monroe v. Pape, 365 U.S. 167 (1961)

Moore v. Ogilvie, 394 U.S. 814 (1969)

Railroad Commission of Texas v. Pullman Co., 312

U.S. 496 (1941)

Reiter v. Sonotone Corp., 442 U.S. 330 (1979)

Screws y. United States, 325 U.S. 91( 1945)

Tindal v. Wesley, 167 U.S. 204 (1897)

United States v. Classic, 313 U.S. 299 (1941)

United States v. Price, 383 U.S. 787 (1966)

Willcox v. Consolidated Gas Co. 212 U.S. 19 (1909)

Williams v. Rhodes, 393 U.S. 23 (1968)

Williams v. United States, 341 U.S.97 (1951)

Other federa! cases

Communist Party vy. Austin, 381 F. Supp. 554 (€.D.

Mich 1974) (3 judge court) .

Dean v. Austin, 602 F2d 121 (CA 6 1979), cert den

444 U.S. 1045 (1980)

Goldman- Frankie v. Austin, 727 F2d 603 (CA 6,

1984)

Hall v. Austin, 495 F. Supp. 782 (E.D. Mich 1980)

Hudler v. Austin, 419 F. Supp. 1002 (E.D. Mich

1976) (3 judge court), summ aff'd sub nom Allen vy.

Austin, 430 U.S. 924 (1977)

Johnson v. Austin, 595 F. Supp. 103 (E.D. Mich —

1984)

Jones v. Hare, 440 F2d 685 (CA 6, 1971), cert den

404 U.S. 911 (1971)

McCarthy v. Austin, 423 F. Supp. 990 (W.D. Mich

1976) (3 judge court)

Y

Socialist Workers Party v. Hare, 304 F. Supp. 534

(E.D. Mich 1969)

Michigan compiled laws

MCL 168. 162

MCL 168. 163

MCL 168. 532

MCL 168. 560a

MCL 168. 685

MCL 168. 686a

MCL 168. 689

Other

1866 Civil Rights Act. 14 Stat. 27

Blackstone's Commentaries, Book |, (St. George

Tucker edition, 1603 reprinted 1969)

Congressional Globe, 39th Congress, Ist Session

Michigan Court Rules 7.305

[Mich] Op. Att. Gen. 1984, No. 6230, p. 320

Socialist Workers Party v. Secretary of State, 412

Mich 571, 317 NW2d 1 (1982)

Federal and State Constitutions, The, Compiled by

Ben: Perley Poore (2nd ed., 1924 reprinted 1972)

U.S. District Court Rules, Eastern District of

Michigan, Rule 28

yi

OPINION BELOW

The opinion of the United States Court of Appeals for the Sixth

Circuit, Case No. 86- 2188 wes given a “NOT FOR PUBLICATION”

label and is thus not reported but appears as Appendix A. Such

opinion affirmed the order of dismissal of the U. S. District Court

for the Eastern District of Michigan, Case No. 86- CY- 72480- DT

which was also not reported but which appears as Appendix B. The

Complaint appears es Appendix C.

STATEMENT OF GROUNDS

ON WHICH JURISDICTION IS INVOKED

The judgment of the United States Court of Appeals for the

Sixth Circuit was entered on January 4, 1988. This petition for a

writ of certiorari wes filed less than ninety (90) days from that

date. The jurisdiction of this court is invoked under 28 U.S.C. §

1254 (1).

vil

Provisions involved

United States Constitution

Art. |, Sec. 10, cl.1. [in relevant part] No State shall ... grant any

Title of Nobility.

14th Amendment, 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.

United States Laws

28 U.S.C. § 1331. The district courts shall have original

jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.

28 U.S.C. S 1343. [in relevant part] (a) The district courts shall

have original jurisdiction of any civil action authorized by law to

be commenced by any person: ...

(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 jurisdiction of the United

States; ....

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28 U.S.C. § 2201. In a case of actual controversy within its

jurisdiction, except with respect to Federal taxes other than actions

brought under section 7428 of the Internal Revenue Code of 1954

or 8 proceeding under section SOS or 1146 of title 11, any court of

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

declare the rights and other legal relations of any interested party

seeking such declaration, whether or not further relief is or could

be sought. Any such declaration shall have the force and effect of a

final }udgment or decree and shall be reviewable as such.

28 U.S.C. $ 2202. Further necessary or proper relief based on a

declaratory judgment or decree may be granted, after reasonadle

notice and hearing, against any adverse party whose rights have

been determined by such judgment.

R.S. § 1979 (42 U.S.C. $1983). Every person who, under color of

any statute, ordinance, regulation, custom, or usage, of any State or

Territory or the District of Columbia subjects, or causes to be

subjected, any citizen of the United 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 other

proper proceeding for redress. For the purposes of this section, any

Act of Congress applicable exclusively to the District of Columbia

shall be considered to be a statute of the District of Columbia.

R.S. § 722 (42 U.S.C. $1988). The jurisdiction in civil and

criminal matters conferred on the district courts by the provisions

of this Title, and of Title “CIVIL RIGHTS,” and of Title “CRIMES,” for

ix

the protection of all persons in the United States in their civil

rights, and for their vindication, shall be exercised and enforced in

conformity with the laws of the United States, so far as such laws

are suitable to carry the same into effect; but in ail cases where

they are not adapted to the object, or are deficient in the provisions

necessary to furnish suitable remedies and punish offenses against

law, the common law, as modified and changed by the constitution

and statutes of the State wherein the court having jurisdiction of

such civil or criminal cause is held, so far as the same is not

inconsistent with the Constitution and laws of the United States,

shall be extended to and govern the said courts in the trial and

disposition of the cause, and, if it is of acriminal nature, in the

infliction of punishment cn the party found guilty. In any action or

proceeding to enforce a provision of sections 1981, 1982, 1983,

1985, and 1986 of this title, title IX of Public Law 92-318 [20

U.S.C. 1681 et seg.], or title VI of the Civil Rights of 1964 [42

U.S.C. 2000d et seg.) , the court, in its discretion, may allow the

prevailing party, other than the United States, a reasonable

attorney's fee as part of the costs.

Michigan Compiled Law [MCL] Sections Involved

For clarity in multi- sentence sections each sentence has a

[bracketed number] added which is not in the law.

MCL 168.162. A general primary of all political parties shal] be

held in every election precinct in this state on the Tuesday

succeeding the first Monday in August preceding every general

November election, at which time the qualified and registered

electors of each political party within every senatorial district and

X

every representative district shall vote for party candidates for the

offices of state senator and representative, to be filled at the

November election: Provided, That this section shali not apply to

parties required to nominate candidates at caucuses or conventions.

MCL 168.163 [1] To obtain the printing of the name of @ person

as a candidate for nomination by a political party for the offices of

state senator or represeniative under a political party heading upon

the official primary ballots in the various election precincts of the

district when the district when the district is comprised of |

county or less, there shal] be filed with the county clerk of that

county, nominating petitions signed by a number of qualified and

registered electors residing in the district equal to not less than 1%

nor more than 4% of the number of votes cast by the party in the

district for secretary of state at the last preceding November

election; and, in the case of a candidate for either of the offices ina

district comprising more than 1 county to obtain the printing of the

name of a candidate of a political party under a particular party

heading upon the official primary ballots in the various election

precincts of the district, there shall be filed with the secretary of

state nominating petitions signed by a number of qualified and

registered electors residing in the district equal to not less than 1%

nor more than 4% of the number of votes cast by the party for

secretary of state in the district at the last preceding general

November election. [2] Nominating petitions shall be in the form as

prescribed in section 544. [3] The secretary of state and the

var ious County clerks shall receive nominating petitions for filing

in accordance with this act up to 4 p.m. the ninth Tuesday preceding

the August primary. [4] In a county entitled to 1 or more state

x)

ni eatin

representatives in the state legislature, to obtain the printing of

the name of a candidate of a political party under the particular

party heading upon the primary election ballots in the various

voting precincts of the district, there shall be filed by each

candidate with the county clerk of the county of which the district

forms 8 part, a nominating petition signed by a number of

registered and qualified electors residing in the district equal to not

less than 1% nor more than 4% of the number of votes that the

political party cast in the district for secretary of state at the last

preceding November election. [5S] In lieu of filing a nominating

petition, a filing fee of $100.00 may be paid to the county clerk, or

in the case of candidates in a district comprising more than |

county to the secretary of state, payment of the fee and certification

of the candidate's name paying the fee shall be governed by the same

provisions as in the case of nominating petitions.

(6] The fee shall be deposited in the general fund of the county or

state and shall be returned to al] candidates who shall be nominated

and to a like number of candidates who are next highest in order

thereto in the number of voies received in the primary election and

in case 2 or more candidates shall tie having the lowest number of

votes allowing a refund hereunder , the sum of $100.00 shall be

divided or prorated among them. [7] A refund of a deposit shall not

be made to a candidate who withdraws.

MCL 168.532 [1] A political party whose principal candidate

received less than 5% of the total vote cast for all candidates far the

office of secretary of state in the last preceding state election,

either in the state or in any political subdivision affected, shall not

make its nominations by the direct primary method. [2] The

xii

nominations of all candidates of such parties shall be made by means

of caucuses or conventions which shall be held and the names of the

party's nominations filed et the time and manner in section 686a of

this act. [3] The term “principal candidate” of any party shall be

construed to mean the candidate whose name shal! appear nearest

the top of the party column.

MCL 168. 560a. A political party the principal candidate of which

received at the last preceding general election a vote equal to or

more than 1% of the total number of votes cast for the successful

candidate for secretary of state at the last preceding election in

which a secretary of state was elected is qualified to have its name,

party vignette, and candidates listed on the next general election

ballot.

MCL 168.685 (1)[1] The name of a candidate of a new political

party shall not be printed upon the official ballots of an election

unless the chairman and secretary of the state central committee of

the party filed with the secretary of state, at least 3 months before

the primary election, a certificate signed by them bearing the name

of the party, and unless accompanying the certificate there was

filed petitions bearing the signatures of registered and qualified

electors equal to not less than 1% nor more than 4% of the number

of votes, the successful candidate for secretary of state received at

the last election in which a secretary of state was elected. [2] The

petitions shall be signed by at least 100 residents in each of at least

9 congressional districts of the state and not more then 35% of the

minimum required number of the signatures may be resident

electors of any | congressional district. [3] All signatures

xii)

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appearing upon the petitions sha!] have been obtained within 6

months immediately preceding the date of filing. [4] The validity

and authenticity of the signatures may be determined in the same

manner as provided for initatory and referendary petitions in

section 9 of article 2 of the state constitution of 1963. [5] The

petitions shall be in substantially the following form:

PETITION 10 FORM NEW POLITICAL PARTY

We, the undersigned, duly registered electors of the city,

township (strike one) Of 20.0.0... cece. | a state

of Michigan, residing at the places set opposite our names hereby

declare our intention to organize the .................. party, and

respectfully request the secretary of state, in accordance with

section 685 of Act No. 116 of the Public Acts of 1954, as amended,

to receive the certificate and vignette of our party, tendered

herewith, for filing, end place the names of our candidates on the

ballot at the 00... election.

Warning: Whoever knowingly signs petitions to organize more

than 1 new state political party, signs a petition to organize a new

state political party more than once or signs a name other than his

own, is violating the provisions of the Michigan election lew.

SEE EERE EEE EEE EE EERE EEE EEE EEE EEE EERE EEEEE

OEE EEE EEE EE EEE EEE EEE EEE EEEEEE EEE EEEEEEEEEE

SEE EEE EEE EEE EERE EERE EEE EERE EEE HEE EEE

(2) The size of all organizing petitions shall be 8- 1/2 inches

by 13 inches end shall be printed in the following type sizes. The

words “petition to form new political party “ and the name of the

proposed political party shall be in 24- point boldface type; the

word “werning” end the language contained therein shall be in 12-

XIV

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point boldface type.

(3) [1] A political party, the principal candidate of which

received a vote equal ot less than 1% of the total number of votes

cast for the successful candidate for the office of secretary of state

at the last preceding election in which a secretary of state was

elected shall not have the name of any candidate printed on the

ballots at the next ensuing election, nor shal] a column be provided

on the ballots for that party. [2] A party so disqualifed may again

qualify and have the names of its candidates printed in a separate

party column on each election ballot in the manner set forth in

subsection ( 1) for the qualification of new parties. [3] The term

“principal candidate” of any party means the candidate whose name

shall appear nearest the top of the party column.

(4) A political party which complied with this section is

subject to section S60b in order to have the name of that party, iis

vignette, and its candidates appear on the general election ballot.

MCL 168.686a [1] The nomination of candidates for political

parties entitled to 6 position on the ballot which failed to have at

least 1 candidate who polled at least S% of the total vote cast for all

candidates for secretary ai the last preceding election at which a

secretary of state was elected shall be made as provided in section

532. [2] If county caucuses and state conventions are held, they

shall be held at the times set forth hereafter: county caucuses at.

least 71 days before the the date set for the August primary: state

conventions at least 64 days before the date set for the August

primary.

[3] County caucuses may nominate candidates for the office of

representative in congress, state senator , and state representative

XV

if the offices represent districts contained wholly within the

courity, and for all county and township offices. [4] The names,

mailing addresses, and office to which nominated of al] candidates so

nominated shall be certified by the chairman and secretary of the

caucus to the county clerk with 24 hours after the conclusion of the

caucus. [5] Accompanying the certification shall be an affidavit of

identity for each candidate named in the certificate es provided in

section 558 and a separate written notice of acceptance of

nomination signed by each candidate named on the certificate. [6]

The form of the certificate of acceptance shall be prescribed by the

secretary of state. [7] The names of candidates so certified shall be

printed on the ballot for the forthcoming election. [8] The name of a

candidate shal! not be printed on the ballot unless the notice of

acceptance and the affidavit of identity accompanies he certificate.

[9] Candidates nominated and certified shall not be permitted to

withdrew.

[10] The county caucus may also select the number of delegates

to the state convention tou which the county is entitled and shall

select its own officers and name its own county committee.

[11] The state convention shall be held at the time and place

indicated in the call. [12] The convention shall consist of delegates

selected by the county caucuses. [13] The convention may fill

vacancies in a delegation from qualifed electors of that county

present at the convention. [ 14] The convention may nominate

candidates for all state offices. District candidates may be nomineted

at district caucuses held in conjunction with the state convention

attended by qualified delegates of the district. [15] If delegates of a

district are not present, a district caucus shall not be held for that

distr ict and candidates shal] not be nominated for that district. [16]

xvi

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district and candidates shal] not be nominated for that district. [16]

The names, mailing addresses, and offices to which nominated of the

candidates nominated for state or district offices, within 24 hours

after the conclusion of the convention, shall be certified and the

chairman and secretary of the state convention to the secretary of

state. [ 17] Accompanying the certification shall be an affidavit of

identity for each candidate named in the certificate as provided in

section 558 and a separate written notice of acceptance and

nomination signed by each candidate named on the certificate. [ 18]

The form of the certificate of acceptance shall be prescribed by the

secretary of state. [19] The names of candidates certified shall be

printed by the ballot for the forthcoming election. [20] The name of

acandidate shal] not be printed on the ballot unless the notice of

acceptance and the affidavit of identity accompanies the certificate.

[21] Candidates so nominated and certified shal] not be permitted to

withdraw.

XVii

This case procedurally involves the abstention doctrine in civil

cases and on the merits the facial constitutionality of ballot access

laws that are separate and unequal for candidates of different

political parties for the same office.

Jurisdiction in the District Court was alleged to arise under 28

U.S.C. SS 1331 and 1343 (a) (3). The district court dismissed the

case without prejudice on abstention grounds. A 3 judge panel of

the U.S. Court of Appeals for the Sixth Circuit affirmed such

dismissal. The complaint alleges that Michigan's ballot access laws

for a state district office (State Senator , District 3) on their face

violate the U.S. Constitution, the no State Title of Nobility clause of

Art. |, Sec. 10 and Section 1 of the Fourteenth Amendment.

Declaratory and injunctive relief and costs was requested in the

Complaint via 28 U.S.C. SS 2201, 2202 and 42 U.S.C. SS 1983,

1988.

STATEMENT OF FACTS

Petitioner Thomas W. Jones was nominated in a caucus of the

Libertarian Party ending on June 1, 1986 for the office of

Michigan state senator , district 3. On June 2, 1986 Jones

submitted a certificate of nomination, a certificate of acceptance and

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an affidavit of identity to Respondent Lawrence N. Verbiest

requesting that Jones's name and the logo of the Libertarian Party

of Michigan be placed on the November 2, 1986 general election

ballots in state senate district 3. Mr. Yerbiest was the Wayne

County [Michigan] Director of Elections and the agent of the Wayne

County Board of Election Commissioners which prepares the

general election ballots, MCL 168.689. Mr. Verbiest rejected such

papers citing MCL 168.686a which requires that “new” minor

parties (such as the Libertarian Party in 1986 in Michigan) to

have filed ballot access petitions at least 3 months (May 5, 1986)

prior to the August primary election (August S, 1986), MCL

168.685, and to have held their county or state nominating

conventions not later than 64 days (June 2, 1986) before the

primary. Mr. Jones filed a complaint (R1) on June 10, 1986

Claiming that Verbiest's rejection of the nominating papers violated

that part of the Article 1, Section 10 of the Constitution of the

United States which reads- "No State shall ... grant any Title of

Nobility.” and Section 1 of the Fourteenth Amendment. Jurisdiction

was asserted under U.S. Code, Title 28, SS 1331 and 1343 (a) (3)

with remedial sections Title 28, SS 2201 and 2202 and Title 42,

SS 1983 and 1988 applying. On July 24, 1986 the District Court

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issued @ notice for a scheduling conference on October 14, 1986

(R3). On August S, 1986 a regular primary election was held in

Michigan for nomination of the candidates of the “major” political

parties. On August 11, 1986 Jones submitted motions for leave to

amend the complaint (R4) and for emergency summary judgment

(RS) along with a brief in support of the complaint and such two

motions (R6). On August 13, 1986 the Libertarian Party of

Michigan by its counsel moved to intervene es a party plaintiff

(R7). On August 25, 1986 Verbiest filed a response and br ief

opposing the summary judgment motion (RY). On September 2,

1986 Jones filed a reply brief (R10).

In late September , 1986 the ballots for the November 2, 1986

general election were printed without Jones’ name on them. On

October 14, 1986 the Libertarian Party by its counsel submitted

its proposed intervening complaint (R 11). The scheduling

conference was held for about 10 minutes between the District

Judge, Mr. Jones and counsel for Mr. Verbiest (without counsel for

the Libertarian Party of Michigan). On November 2, 1986 the ©

general election wes held and Jones wes not elected. On November

17, 1986 the District Court issued an order of dismissal

dismissing the case without prejudice (R12). On December 9,

3

1986 Jones filed a notice of appeal of such order of dismissal to the

United States Court of Appeals for the Sixth Circuit (R13). In early

1987 Mr. Verbiest was succeeded in office by Ed Carey, Jr. On

January 4, 1988 a 3 judge panel of the Court of Appeals affirmed

the judgment of the District Court. This petition for a writ of

certiorari follows

ARGUMENT

| SUMMARY

28 U.S.C. § 1343 (4) (3) was repealed by implication, in

whole or part, by the 1980 amendment of 28 U.S.C. § 1331.

The failure to rule on en emergency motion for summery

judgment in @ ballot access case with time deadlines for the printing

of ballots violates the Federal Rules of Civil Procedure.

The abstention doctrine violates the acts of Congress defining

the jurisdiction of the U.S. District Courts and is thus

unconstitutional

If the abstention doctrine is constitutional it is improper to use

it when there was no state court case pending and the statutes have

been repeatedly construed and there 1s a certification procedure for

State law questions

Ballot access laws that are not equal for all candidates for the

4

same office violate the No Title of Nobility Clause of Art. |, Sec. 10

and Section 1 of the Fourteenth Amendment.

42 U.S.C. § 1983 has been badly misconstrued.

2. 1980 AMENDMENT OF 28 USC. S$ 133!

In Lynch v. Household Finance Corp., 405 U.S. 538>549 n. 17

(1972) this Court noted that

“Aseries of particular statutes grant jurisdiction,

without regard to the amount in controversy, in virtually all

areas that otherwise would fall under the general federal-

question statute. Such special statutes cover: [citing 19 district

court jurisdictional sections in Title 28)”.

In 1980 the Congress amended S 1331 and removed the amount

in controversy language. Of interest is this Court’s comments about

the equivalent jurisdictional statute in the District of Columbia in

Kendall v. United States, 12 Pet. (37U.S.)524, 622- 626

(1838). 28 U.S.C. § 1343 (4) (3) (as well as many other

jurisdictional statutes) has been repealed by implication, in whole

or part, even though repeals by implication are disfavored Lynch,

at $49.

3. SUMMARY JUDGMENT MOTION IMPROPERLY IGNORED

The District Court's failure to rule on the August 11, 1986

plaintiff's emergency motion for summary judgment was improper

under part I!A of Anderson y. Liberty Lobby. Inc., 477US.__,

106 S.Ct. 2505, 91 LEd2d 202, 21 1- 214 (June 25,1986) and

Celotex Corp. v. Catrett, 477U.S.___, 106 S.Ct. 2548, 91 LEd2d

265, 273-276 (June 25, 1986). Ballot access election cases

should especially be resolved as quickly as possible via summary

judgments due to time deadlines for printing ballots.

4. ABSTENTION UNCONSTITUTIONALITY

The District Court used the abstention doctrine and dismissed

the case without prejudice and the Court of Appeals affirmed such

dismissal. It is respectfully submitted that the abstention doctrine

of this Court starting with Railroad Commission of Texas v.

Pullman Co., 312 U.S. 496 (1941) violates Art. 1, Sec. 1, Art. 1,

Sec. 8, cl. 18 (Necessary and Proper Clause), Art. II], Sec. 1, Art.

Il, Sec. 2,Cl.1, Art. VI (Supremacy Clause as relates to Acts of

Congress) and Section 5 of the Fourteenth Amendment such that

Pullman and all of its progeny should be overruled.

Before Pullman, this Court repeatedly held that the Congress

defined the jurisdiction of the lower federal courts, Mayor v.

Cooper, 6 Wall. 247, 251-252 ( 1867), Insurance Co. v. Dunn,

19 Wall. 214, 226 (1873) and that it was the duty of the federal

courts to take jurisdiction as provided by Acts of Congress, Cohens

6

y. Virginia, 6 Wheat 264, 404 (1821), Fisher v. Cockerell, S Pet.

248, 259 (1831), Hyde v. Stone, 20 How. (61 U.S.) 170,175

(1857), Willcox v. Consolidated Gas Co. 212 U.S. 19, 39 (1909),

Kline v. Burke Construction Co., 260 U.S. 226, 234 ( 1922).

This Court even said writs of mandamus could be directed to the

lower federal court judges who did not take jurisdiction after

proper service , Inre Grossman, 177 U.S. 48, 49-S0 (1900).

This Court has recently declared that it does not “sit asa

super - legislature”, American Tobacco Co. v. Patterson, 456 U.S.

63, 72 n. 6 (1982) and has again affirmed the separation of

powers principle, Bowsher v. Synar, 478 US. _, 106 S.Ct.

3181, 3186- 3189, 92 LEd2d 583 ( 1986).

The underlying possible problem recognized in Pullman about

federal court constructions of state laws being overruled by state

court constructions of such state laws, 312 U.S., at 500, isa

problem for the Congress. The Courts take the law as they find it

and it is for the Congress to provide the judicial resources

necessary to execute its mandates. Reiter v. Sonotone Corp., 442

U.S. 330, 344 (1979). If the Congress does not went the lower

federal courts to construe state laws on an original jurisdiction

basis then the Congress can rewrite the laws regarding jurisdiction

7

over parties, subject matter (i.e. acts or omissions), remedies,

times and places.

S_ABSTENTION IMPROPER IN THIS CASE

There was not any pending state court case when the District

Court dismissed this case on abstention grounds. The decision of the

District Court to abstain is very strange since the federal courts

have repeatedly construed the Michigan ballot access system

without any need to abstain. Socialist Workers Party v. Hare, 304

F. Supp. 534 (E.D. Mich 1969); Jones v. Hare, 440 F2d 685 (CA

6, 1971) [Jones |], cert den 404 U.S. 911 (1971);

Communist Party v. Austin, 381 F. Supp. 554 (E.D. Mich 1974)

(3 judge court); Hudler v. Austin, 419 F. Supp. 1002 (E.D. Mich

1976) (3 judge court), summ aff'd sub nom Allen y. Austin, 430

U.S. 924 (1977); McCarthy v. Austin, 423 F. Supp. 990 (W.D.

Mich 1976) (3 judge court); Dean v. Austin, 602 F2d 121 (CA 6

1979), cert den 444 U.S. 1045 (1980); Hall v. Austin, 495 F.

Supp. 782 (E.D. Mich 1980); Goldman- Frankie v. Austin, 727

F2d 603 (CA 6, 1984) (deeming Jones | to have been overruled by

later cases of this Court) and Johnson v. Austin, S95 F. Supp. 103

(E.D. Mich 1984),

Neither the District Court or the Court of Appeals gave any

8

indication about exactly whet ienquage in the statutes are

“uncertain” so that Hawaii Housing Authority v. Midriff, 467 U.S.

229, 236- 237 ( 1984) was violated. See also City of Houston,

Texas Vv. Hill, 482 U.S. 107 S.Ct. 2502, 2512- 2515, 96

LEd2d 398 (1987).

The District Court also failed to make use of the certified

question procedure in U.S. District Court Rules, Eastern District of

Michigan, Rule 28 (see appendix D) and Michigan Court Rules

7.305 (ibid), Bellotti v, Baird, 428 U.S. 132, 150- 151 (1976)

and also failed to retain jurisdiction, American Trial Lawyers

Association v. New Jersey Supreme Court, 409 U.S. 467, 469

(1973).

6 UNEQUAL BALLOT ACCESS LAWS ARE UNCONSTITUTIONAL

In Socialist Workers Party v. Secretary of State, 412 Mich

$71,317 NW2d 1 (1982) the Michigan Supreme Court

extensively reviewed the ballot access system for new parties and

noted "Prior to the enactment of [Michigan] 1976 P[ublic] A[ct]

94, ‘new’ political parties could secure a place on the November

ballot by complying with a petition requirement. The petition

requirement has been continued.” 412 Mich, at 587.

A candidate for state senator (a district office) gets his or her

9

a

name printed on the general election ballot in one of four separate

end unequal ways- |. by winning ina “old major” statewide party's

primary, MCL Secs. 168.162, 168.163, 166.532; 2. by being

nominated in 6 caucus or convention of an “old minor” statewide

party, MCL Secs. 166.532, 168. 560a, 168. 686a; 3. by being

nom inated in @ caucus or convention of a “new minor” statewide

porty, MCL Secs. 168. 685, 168. 6860; or 4. by court order or

sdministrative action in the case of independent candidates,

Goldman- Frankie v. Austin, 727 F2d 603 (CA6, 1984).

Michigan has no law regarding the formation of new political

porties in any district (even if all electors in the district wanted to

vote for the candidates of such party in such district), Op. Att. Gen.

1984, No. 6230, p. 320.

In Brown v. Board of Education, 347 U.S. 483, 495 (1954)

this court said

“[1)n the field of public education the doctrine of

‘separate but equal’ has no place. Separate educational facilities

ere inherently unequal. [Plaintiffs] are, by reason of the

segregation complained of , deprived of the equal protection of

the laws quaranteed by the Fourteenth Amendment.”

The same principle applies to ballot access lews for all

Candidates for the same elective office. Unfortunately such Brown

10

aia eee

comments did not appear in Williams v, Rhodes, 393 U.S. 23

( 1968) or any of the Williams progeny. The Equal Protection

Clause requires that ballot access laws for all cendidates for the

same office be equal. See by analogy Moore v. Ogilvie, 394 U.S. 814

( 1969) (spread signature state law making voters signing

petitions unequal violates Equal Protection Clause). All the baliot

access cases since Williams have been wrongly decided or rightly

decided for the wrong reasons and should be overruled.

MCL Sec. 168. 532 gives ballot access for “major” party

candidates based on previous election results for a specific

candidate (secretory of state) of any such “major” party. Such

“heredity” based laws violate the No Title of Nobility Clause of Art.

|, Sec. 10 of the Constitution. The No Title of Nobility Clause has its

origin in the heredity based nature of British society as of 1776.

See Blackstone's Commenter ies, Book |,c. 5, p. 227 (St. George

Tucker edition, 1803 reprinted 1969) Id .c 7.p. 271, Id,c

XII, pp. 397, 399, 401, 402, 403 and 406- 407. Seven of the

pre- 1787 state constitutions had anti- special class declarations.

See The Federal and State Constitutions Compiled by Ben: Perley

Poore (2nd ed., 1924 reprinted 1972), pp. 1909, 1541, 820,

1409, 958, 1281, and 1868. State laws giving special rights,

1]

5 pees

privileges and immunities based on heredity elements violate the no

title of nobility clause of Art. |, Sec. 10. This Court has not yet

construed such clause.

7_MISCONSTRUCTION OF 42 USC $ 1983

This Court has catastrophically misconstrued 42 U.S.C. § 1983

since et least 1961 by failing to distinguish between

unconstitutional acts or omissions by stete persons done under

color of state law from those done under state office. See Flanders v.

Iweed ( Tweed’s Case), 16 Wall. (83 U.S.) 504,518-519

(1873), Tindal vy. Wesley, 167 U.S. 204, 219-221 (1897) and

McCain v. Des Moines, 174 U.S. 168, 174-175 (1899).

There has also been a tragic failure to review the veto of the

1866 Civil Rights Bill the overriding of such veto and the resulting

1866 Civil Rights Act. 14 Stat. 27. On March 27, 1866 the Senate

received President Johnson's veto message of the 1866 civil rights

bill. Congressional Globe, 39th Congress, Ist Session, pp. 1679-

1681:

[After President Johnson cited section | of the bill] “Thus a

perfect equality of the white and black races is attempted to be

fixed by Federal law, in every State of the Union, over the vast

field of State jurisdiction covered by these enumerated rights.

In no one of these can any State ever exercise any power of

discrimination between the different races.” ... [After citing

12

section 2 of the bill] ” This section seems to be designed to

apply to some existing or future law of a State or Territory

which may conflict with the provisions of the bill now under

consideration. It provides for counteracting such forbidden

legislation by imposing fine and imprisonment upon the

legislators who may pass such conflicting laws, or upon the

officers or agents who shall put, or attempt to put, them into

execution. It means an official offense, not a common crime

committed against law upon the persons or property of the

bleck race. Such an act may deprive the black man of his

property, but not of the right to hold property. It means a

deprivation of the right itself, either by the State judiciary or

the State Legislature. It is therefore assumed that under this

section members of State Legislatures who should vote for laws

conflicting with the provisions of the bill; that judges of the

State courts who should render judgments in antagonism with

its terms; and that marshals and sheriffs, who should, as

minister ial officers, execute processes, sanctioned by Stete

laws and issued by State judges, in execution of their

judgments, could be brought before other tribunals and there

subjected to fine and imprisonment for the performance of the

duties which such State laws might impose.” at 1680. ... “They

[details of the bill] interfere with the municipal legislation of

the States, with the relations existing exclusively between 4

State and its citizens, or between inhabitants of the same State-

en absorption and assumption of power by the General

Government which, if acquiesced in, must sap and destroy our

federative system of limited powers, and break down the

barriers which preserve the rights of the States.” at 1681.

13

On April 4, 1866 the Senate took up the veto message. Senator

Trumbull did most of the talking in supporting an override of the

veto. Globe, pp. 1755-1761.

"But, sir, the granting of civil rights does not, and never

did in this country, carry with it rights, or, more properly

| speaking, political privileges. A man may be a citizen in his

country without a right to vote or without a right to hold office.

The right to vote and hold office in the States depends upon the

legislation of the various States; the right to hold certain

offices under the Federal Government depends upon the

Constitution of the United States.” at 1757.

[After quoting section 2 of the bill he noted] “Who is to be

punished? Is the law to be punished? Are the men who make the

law to be punished? Is that the language of the bill? Not at all.

If any person, ‘under color of any law,” shail subject another to

the deprivation of a right to which he is entitled, he it to be

punished. Who? The person who, under the color of the law,

Goes the act, not the men who made the law. In some

communities of the South a custom prevails by which different

punishment is inflicted upon the blacks from that meted out to

whites for the same offense. Does this section propose to punish

the community where the custom prevails? Or is it to punish

the person who, under color of the custom, deprives the party

of the his right? It is a manifest perversion of the meaning of

the section to assert anything else.

But it is said that under the provision judges of the courts

and minister ial officers who are engaged in the execution of any

such [discriminatory] statutes may be punished; and that is

14

made an objection to this bill. | admit that a ministerial officer

or a judge, if he acts corruptly or viciously in the execution or

under color of an illegal act, may be and ought to be punished;

but if he acted innocently the judge would not be punished. What

is the crime? It is a violation of some public law, to constitute

which there must be an act and a vicious will in doing the act;

or , according the definition in some of the law-books, to

constitute a crime there must be a violation of a public law, in

the commission of which there must be a union or joint

operation of act or intent or criminal negligence; and @ judge

who acted innocently , and not viciously or oppressively, would

never be convicted under this act. But, sir, if he acted

knowlingly, viciously, or oppressively, in disregard of a law of

the United States, | repeat, he ought to be punished, and it is no

anomaly to prescribe a punishment in such a case. Very soon

after the organization of this Government, in the first years of

its existance, the Congress of the United States provided for

punishing officers who, under color of State law, violated the

laws of the United States. | read from the twenty-sixth section

of an act [ 1790 Crimes Act] passed in 1790, providing for the

punishment of certain offenses against foreign ministers,

consuls, &c.: ‘That in case any person or persons shall sue forth

or prosecute any such writ or process, such person or persons,

and all attorneys or solicitors prosecuting or soliciting in such

case, and all officers executing any such writ or process being

thereof convicted, shall be deemed violators of the laws of

nations and disturbers of the public repose, and imprisoned not

’ exceeding three years, and fined at the discretion of the

court.'[ 1 Stat. 118] By this provision all officers executing

IS

CN

~ ee

any writ or process in violation of the laws of the United States

are to be subject to a much longer imprisonment than is

provided by this bill.", at 1758. [ See also Sec. 25 of the act]

He went on citing various statutory crimes and civil

actions involving judges and court officers in a habeas corpus

context. Ibid.

"A law without a penalty, without a sanction, is of little

value to anybody.” Ibid.

“These words ‘under color of law’ were inserted as words of

limitation, and not for the purpose of punishing persons who

would not have been subject to punishment under the act if they

had been omitted. If an offense is committed against 6 colored

person simply because he is colored, in a State where the law

affords him the same protection as if he were white, this act

neither has not was intended to have anything to do with his

case, because he has adequate remedies in the State courts; but

if he discriminated against under color of State laws because he

is colored, then it becomes necessary to interfere for his

protection.

The assumption that State judges and other officials are not

to be held responsible for violations of United States laws, when

done under color of State laws or customs, is akin to the maxim

of the English law that the King can do no wrong. It places

officials above thie law. It is the very doctrine out of which he

rebellion was hatched.

Everything that was done by that wicked effort to overturn

our Government was done under color of law. The rebels

insisted that they had a right to secede. They passed ordinances

16

lain ene

of secession; they set up State governments; and all that they

did was done under color of law. And if parties committing these

high crimes are to go free because they acted under color of

law, why is not Jeff [erson] Davis and every other rebel chief

discharged at once? Why did this country put forth all of its

resources of men and money to put down the rebellion against

the author ity of the Government, except it a right to do so, even

6s against those who were acting under color of law? [Robert

E.) Lee, with his rebel hordes, thunder ing upon the outskirts of

this very city, wes acting under color of law. Every judge who

has held a court in the southern States for the lest four years,

and has tried and convicted of treason men guilty of no other

offense than loyalty to the Union, acted under color of lew.

Sir, if we had authority by the use of the Army and the war

power to put down rebels acting under color of law, | put the

question to every lawyer if we had not author ity to do that

through the courts and the judicial tribunals if it had been

practicable? ” Ibid.

“The right to punish persons who violate the laws of the

United States cannot be questioned, and the fact that in doing so

they acted under color of law or usage in any locality affords no

protection, because by the Constitution that instrument and the

laws passed in pursuance thereof are the supreme law law of

the land, and every judge, not only of the United States, but of

every State court, is bound thereby.” at 1759.

The veto was overridden in the Senate on April 6, 1866, Globe,

p. 1609, and in the House on April 9, 1666, Globe, p. 1861 so that

the bill became a lew.

17

EE

President Johnson's and Senator Trumbull’s comments

catastrophically (due mainly to very poor research by United

States lege! officers) do not eppesr at length in cases involving 18

U.S.C. $ 242 such as United States v_ Classic, 313 U.S. 299,

» Saas

325-326 (1941), Screws v. United States, 325 U.S. 91,

107-117 (Opinion of Douglas, J.), 115-116 (Opinion of

Rutledge, J.) or 141-149 (Roberts, J. dissenting) (1945) ,

Williams v. United States, 341 U.S.97, 99-100 (1951)

(Williams Il), United States v. Price, 383 US. 787, 791-796

(1966), Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) or the

“modern” series of 42 U.S.C. S$ 1963 cases beginning with Monroe

y. Pape, 365 U.S. 167(1961)

In “plain language” in 42 U.S.C. § 1983 the “statute, ordinance,

regulation, custom or usage, of any State or Territory” on its face

violates the Constitution or laws of the United Stetes. The “person”

executively or judicially enforces or threatens to enforce any such

unconstitutional “statute, etc., or usage” and thus “subjects, or

causes to be subjected” “any citizen of the United States or other

person with the jurisdiction thereof” “to the deprivation (ie

violation) of any rights, privileges, or immunities secured by (te.

declared in) the Constitution and laws”. Such “person” may be a

18

aE

state or local executive or judicial officer or a private person. The

statute does not apply, as presently written, to legislative officers

or bodies (or for that matter the voters) who enact any such

unconstitutional “statute, etc., or usage”.

Also as a matter of statutory construction, state or local

governments as such are not liable for any such unconstitutional

“color of law” ects by any such state or local officer although the

Congress can make such governments liable by additional language

However , if any state or local officer (that is, “under state or

local office”), legislative, executive or judicial, or any private

person, whether or not under color of state or local lew, violates

any other person's rights, privileges, or immunities secured by

(i.e. declared in) the Constitution, a Jaw or a treaty of the United

States then such officer or private person is subject to civi!

liability via 28 U.S.C. § 1331 (if the Constitution, law or treaty

allegedly violated gives standing in a private civil action to the

allegedly injured other person).

A state or local government can be civilly liable ina28USC.S§

1331 case (a) “directly” if the state or local government as such

“directly” violates the Constitution, laws or treaties of the United

States ( noting the fictions in such areas as government contracts

and government controlled property) or (b) “indirectly” if state or

local government officers violate the Constitution, laws or treaties

of the United States and the Congress provides a constitutionally

permissabdle remedy against the state or local government

(especially a remedy enforcing the various amendments to the

Constitution which contain restrictions on the States and thus state

and local officers).

Confusion in government and/or government officer cases has

arisen due to the various possible elements 1) parties- federal or

state or toca] governments or government officers or private

persons (7 possibilities); 2) the substantive “lew” violated-

federal, state or local; 3) which party does any alleged injury (i.e.

violates which substantive “law”): 4) the defenses- federal, state

—\

or local and 5) the remedial “law”, if any- federal, state or local

8. PRAYER

Petitioner Jones prays that this Honorabdle Court grant this

petition for writ of certiorari to correct the errors of the lower

courts

Respectfully submitted,

Dated March ral , 1988

Pi

: ig,

oe

EMERY E. JACQUES, JR

JACQUES AND/ZIE} /

990 DECKER RD

WALLED LAKE, MI 48088

(313) 624- 6330

Counsel for Petitioner

APPENDIX A

NOT FOR PUBLICATION

No. 86-2188

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Decided and filed January 4, 1988

THOMAS W. JONES,

Plaintiff- Appellant,

Vv.

LAWRENCE N. YERSIEST,

Defendant-Appelles.

/

BEFORE: KEITH, JONES AND MILBURN, Circuit Judges.

PER CURIAM. Plaintiff Thomas W. Jones appeals the

judament of the district court ordering abstenticn from the

determination of plaintiff's claim regarding the constitutional ity of

Michigan election laws. For the reasons that follow, we affirm.

i.

Plaintiff Thomas W. Jones alleges that he was nominated in a

caucus of the Libertarian Party on June 1, 1986, for the office of

Michigen State Senator from District Three. On June 2, 1986 Jones

submitted a certificate of nomination, a certificate of acceptance, a

party vignette, anc en affidevit of identity to defendant Lawrence N.

Verbiest, requesting that Jones’ name and the vignette of the

Libertarian Party of Michigan be placed on the November 4, 1986

general election ballots in State Senate District Three. Verbiest was

A-]

> —————————————————

the Wayne County Director of Elections.

Verbiest rejected plaintiff's submission on the ground that M.

C.L. A. § 168. 686a requires new, minor parties such es the

Libertarian Party to have filed ballot access petitions at least three

months prior to the August primary and to have held their county

or state nominating caucuses not later than sixty- four days before

the primary. Because the Michigan Secretary of State had not

certified the Libertarian Party as eligible for-placement on the

general election ballot, Verbiest was not authorized to accept

Libertarian Party nominations or place them on the ballot.

Plaintiff subsequently filed an action in the district court

against defendant Yerbiest, requesting @ declaration of the

unconstitutionality of the state statutes, an order placing his name

and the Libertarian Party vignette on the November 1986 general

election ballot, and also requesting the casts of the litigation.

Defendant answered, and plaintiff filed a motion for summary

judgment. The defendant filed a response, and the district court

dismissed the matter without prejudice on November 13, 1986. .

The district court concluded that “[t]he issues reised in plaintiff's

complaint present questions of state law thet should be first

A-2

I eae emeeeceaenmmeaneeailll

addressed by the courts of the State of Michigan, in order to avoid a

constitutional decision that might be rendered unnecessary by 4

subsequent state interpretation of the statutes in question.” This

eppeal followed. .

I.

In concluding that abstention was proper , the district court

relied upon the fect thet resolution of the issues presented in

plaintiff's complaint by reference to state law could render a

federal constitutional decision unnecessary. Thus, the district

court was consider ing this case within the framework of the most

common type of ebstention, as developed by the Supreme Court in

Railroad Commission v. PulllmenCo.,312U.S. 496(1941). In

Pullman, the Supreme Court concluded that when a construction of

state law may render a federal constitutional decision unnecessary ,

the federal court should sbstein in order to give the state courts the

first opportunity to pass on the validity of their own laws.

Pullman abstention is appropriate “when difficult and unsettled

Guestions of state law must be resolved before a substantial federal

constitutional question can be decided.” Hawaii Housing Author ity v

Mickff, 467 U.S. 229, 236 (1984). When a state constitution

A-3

contains a unique provision, and evaluation of the challenged statute

under this unique provision may obviate the need for a decision of

federal constitutional dimension, abstention is particular ly

appropriate. in City of Meridan v. Southern Bell Telephone and

Telegraph Co., 358 U.S. 639 (1959) (per curiam), the plaintiff

argued that it was not subject to the provisions of the a Mississippi

statute imposing 6 charge on public utilities. Plaintiff further

argued that if the statute was applicadle, it violated the state and

federal constitutions. The district court conciuded that the stetute

offended both the state and federal constitutions and was beyond the

power of the state legisleture to enact. The judgment was affirmed

On appeal and was subsequently presented to the Supreme Court for

resolution. The Supreme Court vacated the judgment of the court of

appeals and ordered the district court to abstain

[“]Proper exercise of federal jurisdiction requires

+’

that controversies involving unsettled questions of state law

be decided in the state tribunals preliminary to a federal

court's consideration of the underlying federal constitutional

questions. That is especially desirable where the questions of

state law are enmeshed with federal questions. Here, the

State law problems are delicate ones, the resolution of which

Is NOt without substantial difficulty -- certainly fora

federal court 'n such a case, when the state court's

A-4

interpretion of the statute or evaluation of its validity under

the Federal Constitution, the federal court should hold its

hand, lest it render a constitutional decision

unnecessar ily.["]

Id, at 640-41 (citations omitted). The continuing vitality of the

proposition espoused in City of Mer idan recognized by the Supreme

Court in Midkiff, 467 U.S. at 237 n. 4, and Pennzoil Co. v. Texaco

Inc., {__. U.S. ____.,] 107 S. Ct. 1519 (1987).

We conclude that the teachings of Pennzoil and City of

Mer idan militate in favor of the conclusion that abstention is

proper. We note that the Michigan Constitution contains a unique

provision more narrowly tailored to the plaintiff's claim than the

equal protection cleuse of the Fourteenth Amendment to the United

States Constitution. Specifically, art. 2, S 4 of the Michigan

Constitution gives the legislature the authority to regulate the place

and manner of elections. It directs the legislature to “enact laws to

preserve the purity of elections, to preserve the secrecy of the

ballot, to guard against abuses of the elective franchise, and to

provide for a system of voter registration and absentee voting.”

The Michigan Supreme Court has utilized this constitutional

provision to strike down Michigan laws challenging ballot access

A-5S

requirements. See Socialist Workers Party v. Secretary of State.

412 Mich. 571, 317N.W. 2d 1 (1982). Because a determination

that the Michigan law in question violates this unique constitutional

provision may obviate the need for a decision based on the United

States Constitution, we conclude that the district court was correct

in ordering abstention.

WI.

Accordingly, for the reasons stated above, the

judgment of the district court is AFFIRMED.

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CASE NO. 86- CY- 72480- DT

HON. BARBARA K. HACKETT

Entered November 13, 1986

THOMAS W. JONES,

Plaintiff,

Sf

LAWRENCE N. VERBIEST,

Wayne County Elections Director,

Defendant.

Plaintiff hes instituted this action seek ing declaratory

judgment that the Michigan election ballot system is unconstit-

A-6/ 6-1

utional under the Equal Protection Clause of the United States

Constitution. Plaintiff was selected by the Libertarian Party as its

nominee for state senator for the third district. He submitted

certificates of nomination and acceptance to the Wayne County

Elections Director , which were refused by the Elections Director

pursuant to MCL S 168. 162 and related statutes.

This court declines to exercise jurisdiction in this matter in

view of established rules of comity. The issues raised in plaintiff's

complaint present questions of state law that should be first

addressed by the courts of the State of Michigan, in order to avoid 4

constitutions! decision that might be rendered unnecessary by 6

subsequent state interpretation of the statutes in question. See

Chicago, Duluth and Georgian Bay Transit Co. v. Nims, 252 F.2d

317 (6th Cir. 1958); General Foods Corporation v. Henderson

334 F.Supp. 19,22(D.N.M. 1971). Accordingly,

IT IS HEREBY ORDERED that this case be dismissed without

prejudice.

/s/ Barbara K. Hackett

BARBARA K. HACKETT

UNITED STATES DISTRICT UUDGE

DATED: November 13, 1986

8-2

Appendix C

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

NO. 86- CV- 72480- DT

Filed June 10, 1986

THOMAS W. JONES,

‘Plaintiff

Vv.

LAWRENCE N. VERBIEST,

Wayne County Electioris Director,

Defendant

COMPLAINT

Plaintiff alleges:

1. This action erises under (a) the following portions of the

Constitution of the United States- (1) that part of Article |, Section

10 which reads “No State shall ...... grant any Title of Nobility.” and

(2) Section 1 of the Fourteenth Amendment and (b) United States

Code (1982 ed.) Title 28, Sections 1331,1343(a)(3), 2201 and

2202 and Title 42, Sections 1983 and 1988.

2. Plaintiff Thomas W. Jones is (a) acitizen of the United

States, (b) acitizen of the State of Michigan, (c) an elector of the

State of Michigan residing in precinct 20-1, City of Detroit, Wayne

County.

5. Defendant Lawrence N. Verbiest is individually a citizen of

the United States and a citizen of the State of Michigan.

4. Defendant Lawrence N. Ver biest is officially Wayne County

on

Elections Director and as such is responsible for carrying into

execution the election laws of the State of Michigan in Wayne County

and is representative of all the election officers in Wayne County

who are in any way involved in causing the printing of ballots in

Wayne County.

5. OndJune 2, 1986 Plaintiff Jones submitted to Defendant

Verbiest a party vignette, a Certificate of Nomination, a Certificate

of Acceptance, and an Affidavit of Identity relating to his nomination

és a candidate of the Libertarian Party of Michigan for State

Senator , District 3. Such 4 items are attached as Plaintiff's Exhibit

:

6. Defendant Verbiest, acting under color of law, namely MCL

Sec. 168.6862, rejected the submission of such 4 items as appears

in the Statement of Thomas W. Jones attached as Plaintiff's Exhibit

2

7. Such MCL Sec. 168.6864 is ciosely related to MCL Secs.

168.162, 168.163,168.532 [,168.560a] and 168.685 relating

to ballot access by candidates.

8 Defendant Verbiest's paragraph 6 rejection violated the

constitutional right of plaintiff Jones to obtain ballot status on an

“2

a TOE 2 OE PO | EWE AD i ERE NE! Fil NTA Sel MRI AN toe he OY FID

A tas SAAD IGT il hel PTI a i Aa MPT;

equal basis with all other candidates, partisan or independent, for

the office of State Senator , District 3

Prayer for Relief

Wherefore Plaintiff prays that this Honorable Court:

1. Adjudge and declare (1) that MCL Secs. 168.162, 168.163,

168.532, [168.560a,] 168.685 and 168.6862 violate that part of

Article |, Section 10 of the Constitution of the United States which

reads “No State snall ...... grant any Title of Nobility.” and/or

Section 1 of the Fourteenth Amendment end (2) that such two parts

of the Constitution require that al] candidates, partisan or

independent, for a given elective office undergo the same, equal

test(s) to obtain ballot status

2. _Enjoin Defendant Verbiest and his successor in office and ail

other election officers in Wayne County from enforcing MCL Secs.

168.162, 168.163, 168.532,[1638.560a,] 168.685 and

168.6862.

3. Direct Defendant Verbiest and all other election officers in

Wayne County to place the name and vignette of the Libertarian

Party, and the name of Thomas W. Jones on the November 4,1986

le ae at} ; x, " alis ne . -

generel election ballot in a separate row or column as 4 candidate

go Gd WwW UIUCLE

for State Senator , District 3.

4. Adjudge that Plaintiff shall recover his costs in this action

from defendant Verbiest as an individual

S. For such other relief as is just.

Dated June 10, 1986.

/s/ Thomas W. Jones

Thomas W. Jones, Plaintiff

15336 Cruse

Detroit,Mi 48227

(313) 837-1123

[Plaintiff's Exhibit 1, page 1]

TO: County Clerk , Wayne County

Certificate of Nomination

The following person was nominated for the indicated office by the

Wayne County Libertarian Party at the nominating caucus closing

on June 1, 1986. The office indicated is completely contained

within the limits of Wayne County, Michigan.

Name/Address Office

Thomas W. Jones State Senator , District 3

15336 Cruse

C-4

Detroit, Ml 48227

Dated: June 1, 1986

/s/ Thomas W. Jones

Thomes W. Jones

Caucus chairman-secretary

/ | 4

15336 Cruse

LIBERTARIAN

PARTY Detroit, MI 48227

[Plaintiff's Exhibit 1, Page 2]

Certificate of Acceptance

|, Thomas W. Jones hereby certify that | accept the nomination of

the Libertar ian Party for the office of State Senator , District 3 to

be voted for at the general election to be held on the 4 day of

November , 1986. | reside at 15336 Cruse, Detroit. My post office

address is 15336 Cruse, Detroit, MI 48227.

/s/ Thomes W. Jones

[Plaintiff's Exhibit 1, page 3)

Affidavit of identity

State of Michigan}

County of Wayne} ss.

Pe

|, Thomas W. Jones, being duly sworn, depose and say that: & | have

not changed my name within the past 12 years. 0 | have changed my

name within the past 12 years and wes formerly known as ____. |

reside at 15336 Cruse, Detroit, 48227 which is located in the City

of Detroit, County of Wayne, state of Michigan. My birthdate is Jan

12, 1944. Soc. Sec. No. 362- S2- 7393. | can be contacted at the

ini phone number 313 837-1123. | have resided in the

county indicated 42 years and in the state of Michigan 42 years. |

am registered to vote in Precinct 20-1, of the City of Detroit. | am

filing as a candidate for the office of State Senator District 3 on the

Libertarian party ticket. | am filing as a candidate for the above

office at the Primary Election tobeheld______, (or if

nominated at party convention at the General Election to be held on

Nov. 4, 1986,) for the following term of office: ® Regular term ,0

To fill vacancy- term ending , 0 Other- specify ___.. | am

filing this affidavit in conjunction with O Nominating petitions

containing approximately signatures O Filing fee of

$__ DAffidavit of candidacy (Judicial Incumbents Only)

B Certification of Nomination by party convention and my

Certificate of Acceptance. | request that my name appear on the

C-6

ballot as follows:

Thomas W. Jones

/s/ Thomas W. Jones

[Noter ization by notary public]

Plaintiff's Exhibit 2

Statement of Thomas W. Jones- See 28 U.S.C. Sec. 1746

1. On June 2, 1986 | submitted to Lawrence N. Verbiest, Wayne

County Elections Director, a party vignette, a Certificate of

Nomination, a Certificate of Acceptance, and an Affidavit of Identity

relating to my nomination as a candidate of the Libertarian Party of

Michigan in State Senate District 3. Mr. Verbiest rejected my

submission citing MCL Sec. 168.686a.

2. | declare under penalty of perjury that the foregoing is true and

correct.

Executed on June 10, 1986.

/s/ Thomas W. Jones

Thomas W. Jones

15336 Cruse

Detroit, MI 48227 .

Hall 4

Appendix D

U.S. District Court Rule, Eastern District of Michigan

Rule 28 Certification of Issues to State Courts

Upon motion or after a hearing ordered by the Judge sua sponte,

the Judge may certify an issue for decision to the highest court of

the state whose law governs its disposition. An order of certification

shall be accompanied by written findings that:

a. the issue certified is an unsettled issue of state law, and

b. the issue certified will likely control the outcome of the

federal suit, and

c. certification of the issue will not cause undue delay or

prejudice, and

d. citation to precedent, statutory or court rule authority

author izing the state court involved to resolve certified

questions.

In all such cases, the order of certification shal] stay federal

proceedings for a fixed time which shal] be sudsequently enlarged

only upon a showing that such additional time is required to obtain

state court decision and is not the results of dilatory actions on the

part of the litigants.

In cases certified to the Michigan Supreme Court, in addition to

the findings required by this Rule, the United States District Court

ae

must approve an agreed statement of facts which shall be

Subsequently transmitted to the Michigan Supreme Court by the

parties as an appendix to briefs filed therein.

Michigan Court Rule 7. 305 Certificated Questions (in part)

(B) From Other Courts

(1) When a federal court or state appellate court considers a

question that Michigan law may resolve and that is not controlled by

Michigan Supreme Court precedent, the court may on its own

initiative or that of an interested party certify the question to the

Michigan Supreme Court.

(2) Acertificate may be prepared by stipulation or at the

certifying court's direction, and must contain

(a) the case title;

(b) a factual statement; and

(c) the question to be answered

The presiding judge must sign it, and the clerk must certify it

under seal

(3) [not relevant]

(4) If the Supreme Court responds to the question certified. the

~ - =~ ~~ ~~ ~ - ~~ = i¢ Py ee

clerk shall send a cony to the certifying cour