Petition for a Writ of Certiorari — Democratic Organization of Cook County v. Shakman

— count °

IN THE

Supreme Court of the Guited

Octroser TERM, 1970.

*~ 29 6 6

THE DEMOCRATIC ORGANIZATION OF

COOK COUNTY, ET¢c., ET AL,

vs.

MICHAEL L. SHAKMAN anv PAUL M. LURIE, eEtc.,

Respondents.

Petitioners,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

' Epwarp V. HanraHan,

State’s Attorney of Cook County,

500 Civic Center,

Chicago, Illinois 60602,

Ricuarp L. Curry,

Corporation Counsel,

Marvin E. Aspen,

Special Assistant Corporation Counsel,

511 City Hall,

Chicago, Illinois 60602,

Micuae. Daey and

James M. O’SHAUGHNESSY,

33 North La Salle Street,

Chicago, Illinois 60602,

Danret P. Coman, Attorneys for Petitioners.

Assistant State’s Attorney,

Gaye F. Hacitunp, %

EpmunpD HatFIELD,

Assistant Corporation Counsel,

Of Counsel.

naman cemnncmeann naas <O

————— ee ae#

PAGE

Opinions Below ....---+-++rrersserresesestt 2

Sarvindbelbon! Si. a. se ese ie eee seer exe sre 3

Questions Presented ....-----+-+++srrrrtertt ines

Federal Constitutional Provisions Involved .....---- +

Statement of the Case ....-----+eerererrrrttt 8

Argument:

I. The Court Below Failed to Properly Apply the

Principle of Non-J usticiability as Was Outlined in

the Case of Marbury v. Madison ...----------- 9

Il. The Decision Below Unconstitutionally Invades

the Province of the Legislative Branch .......- 11

III. The Relief Countenanced by the Decision Below,

as the Dissenting Opinion Observed (Appendix B,

P. A18),Is Tantamount to Judicial Enlargement

of the Federal Hatch Act (5 U. 8S. C. § 7321

et seq.). To Encompass the Political Activity

of Local Government Employees ..-.---------- 13

IV. The Court Should Resolve the Apparent Conflict

Between the Decision Below and the Decision of

the Court of Appeals for the Kighth Circuit in

Irish v. Democratic-Farmer-Labor Party of Min-

nesota, 399 F. 2d 119 (1968) ....--->- Sauasvent 15

CommbenP. i avai ns ods cncins ofan oo oem nnn yen see $509 16

Appendix A, District Court Opinion .....------- er: |

Appendix B, Circuit Court of Appeals Opinion ....-. A9

il

TaBLE oF CaSES.

Baker v. Carr, 369 U. S. 186 (1962) ......-.+-+++0+: 3, 12

Irish v. Democratic-Farmer-Labor Party of Minnesota,

399 F. 2d 119 (1968) ....---. eee eee eee eees 3, 9, 11, 15

Marbury v. Madison, 1 Cranch (5 U.S.) 187 (1803) .. 9

Sweezy v. New Hampshire, 354 U. S. 234 (1957) ...... ‘11

United Public Workers v. Mitchell, 330 U. 8. 75 (1947) 13

ConsTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution:

Amendment I ........-ececeeeeeeeeeereeeecets 4,8

Amendment V ........ccccceeeeeeeeeeereeteees 4,8

Amendment XIV ........-cceceeeecemeeeeecess 4,8

5 U.S.C. §§ 7321 et Seq. ..-. ee eee eee e eee ee etter ees 3,13

98 U. S.C. §$1254(1) ... eee ceee sence eee e eee Lee 3

42 U. S. C. § 1983 ........-- ETE ST ee LET Eee 4,8

42 U. S. CO. $1985 2... cece cece cee e eee eee e ee ee eres 5,8

42 U.S. ©. $1986 ........----e- cae aeaeded savise 6, 8

42 U.S. C. $1988 2... cece cece e reece eee eee eens 6,8

Rule 19(b) of the Supreme Court of the United States 9

Ill. Rev. Stat. 1969, ch. 24, §§ 10-1-1 to 10-1-48 ........ 12

i cowie

IN THE

Supreme Court of the United States

Ocrorzr TzeM, 1970.

No. .........-»

THE DEMOCRATIC CRGANIZATION OF

COOK COUNTY, eEtc., ET AL,

Petitioners,

vs.

MICHAEL L. SHAKMAN anv PAUL M. LURIE, ere.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT.

Petitioners, The Democratic Organization of Cook

County, a corporation; Democratic County Central Com-

mittee of Cook County; City of Chicago, a municipal corpo-

ration; Richard J. Daley, individually and as President of

the Democratic Organization of Cook County, Chairman of

the Democratic County Central Committee of Ccok County,

Mayor of the City of Chicago and Democratic Party Ward

Committeeman for the Eleventh Ward of the City of

Chicago; Mathew Bieszczat, individually and as Secretary

of the Democratic Organization of Cook County, Secretary

of the Democratic County Central Committee of Cook

County, member of the Board of County Commissioners

of Cook County and Democratic Party Ward Committee-

2

man for the Twenty-Sixth Ward of the City of Chicago;

Claude W. B. Holman, individually and as Democratic

Party Ward Committeeman for the Fourth Ward of the

City of Chicego ; Marshall Korshak, individually and as

Treasurer of the City of Chicago and as Democratic Party

Ward Committeeman for the Fifth Ward of the City of

~ Chicago; James Ronan, individually and as Democratic

Party Ward Committeeman for the Seventh Ward of the

City of Chicago; Kenneth W. Campbell, individually and

as Democratic Party Ward Committeeman for the Twen-

tieth Ward of the City of Chicago; George W. Dunne, indi-

vidually and as President of the Board of County Com-

missioners of Cook County and as Democratic Party Ward

Committeeman for the Forty-Second Ward of the City of

Chicago; P. J. Cullerton, individually and as County Asses-

sor of Cook County and as Democratic Party Ward Com-

mitteeman for the Thirty-Eighth Ward of the City of

Chicago; Edward J. Barrett, individually and as County

Clerk and as Democratic Party Ward Committeeman for

the Forty-Fourth Ward of the City of Chicago; and

Matthew J. Danaher, individually and as Clerk of the Cir-

cuit Court of Cook County, pray that the Court will issue

a Writ of Certiorari to the United States Court of Appeals

for the Seventh Circuit to review judgment of that Court

dated October 23, 1970.

OPINIONS BELOW.

The 2-1 opinion of the Court of Appeals, not yet reported,

appears in Appendix B hereto.

The opinion of the District Court for the Northern Dis-

trict of Illinois is reported at 310 F. Supp. 1398 (1969).

It is reproduced in Appendix A.

JURISDICTION.

The judgment of the Court of Appeals for the Seventh

Circuit was entered on October 23, 1970. A timely petition

for rehearing in banc was denied on December 18, 1970, and

this petition for certiorari was filed within 90 days of that

date. This Court’s jurisdiciion is invoked under 28 U. S. C.

§ 1254(1).

QUESTIONS PRESENTED.

1. Whether the extension—considered innovative by both

the majority and dissenting opinions of the Court of

Appeals—of the constitutional rights recognized by this

Court in Baker v. Carr, 369 U. S. 186 (1962), and its

progeny, from the mechanical to the persuasion or elec

tioneering aspects of the electoral process effected by the

opinion below is unsound and inconsistent with Baker v.

Carf and the tenor of the decisions of this Court.

2. Whether the decision below unconstitutionally in-

vades the province of the legislative branch, as the dis-

senting judge thought.

3. Whether the relief countenanced by the decision below

is, as th> dissenting opinion observed, tantamount to

judicial enlargement of the Federal Hatch Act (5 U. S. C.

§ 7321 et seq.) to encompass the political activities of local

government employees.

4. Whether the decision below is in conflict with the

decision of the Court of Appeals for the Eighth Circuit in

Irish v. Democratic-Farmer-Labor Party of Minnesota,

399 F’. 2d 119 (1968), which held that the internal workings

f a political party present a non-justiciable political

question.

FEDERAL CONSTITUTIONAL PROVISIONS

INVOLVED.

1. CONSTITUTION OF THE UNITED STATES:

(a)

(b)

First Amendment :

Congress shall make no law... abridging the freedom

of speech, or of the press; or the right of the people

peaceably to assembly, and to petition the Govern-

ment for a redress of grievances.

Fifth Amendment:

... [Nor shall any person . . . be deprived of life,

liberty, or property, without due process of law....

(c) Fourteenth Amendment:

Section 1. All persons born or naturalized in the

United States, and subject to the 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 prop-

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

person within its jurisdiction the equal protection of

the laws... .

2. UNITED STATES CODE, TITLE 42:

§ 1983. Civil Action for deprivation of rights.

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

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

subjects, or causes to be subjectcd, any citizen of the United

States, or other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or immunities

5

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

party injured in an action at law, suit in equity, or other

proceeding for redress.

§ 1985. Conspiracy to interfere with civil rights—Prevent-

ing officer from performing duties.

* * * e a

Depriving persons of rights or privileges.

(3) If two or more persons in any State or Territory

conspire to go in disguise on the highway or on the prem-

ises of another, for the purpose of depriving, either directly

or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immuni-

ties under the laws; or for the purpose of preventing or

hindering the constituted authorities of any State or Terri-

tory from giving or securing to all persons within such

State or Territory the equal protection of the laws; or if

two or more persons conspire to prevent by force, intimida-

tion, or threat, any citizen who is lawfully entitled to vote,

from giving his support or advocacy in a legal manner,

toward or in favor of the election of any lawfully qualified

person as an elector for President or Vice President, or

as a Member of Congress of the United States; or to injure

any citizen in person or property on account of such support

or advocacy; in any case of conspiracy set forth in this

section, if one or more persons engaged therein do, or cause

to be done, any act in furtherance of the object of such con-

spiracy, whereby another is injured in his person or prop-

erty, or deprived or having and exercising any right or

privilege of a citizen of the United States, the party so

injured or deprived may have an action for the recovery of

damages, occasioned by such injury or deprivation, against

any one or more of the conspirators.

6

§ 1986. Same; action for neglect to prevent.

Every person who, having knowledge that any of the

wrongs conspired to be done, and mentioned in section

1985 of this Title, are about to be committed, and having

power to prevent or aid in preventing the commission of

the same, neglects or refuses so to do, if such wrongful

act be committed, shall be liable to the party injured,

or his legal representatives, for all damages caused by

such wrongful act, which such person by reasonable

diligence could have prevented ; and such damages may be

recovered in an action on the case; and any number of

persons guilty of such wrongful neglect or refusal may be

joined as defendants in the action; and if the death of

any party be caused by any such wrongful act and neglect,

the legal representatives of the deceased shall have such

action therefor, and may recover not exceeding $5000

damages therein, for the benefit of the widow of the

deceased, if there be one, and if there be no widow, then

for the benefit of the next of kin of the deceased. But

no action under the provisions of this section shall be

sustained which is not commenced within one year after

the cause of action has accrued.

§ 1988. Proceedings in vindication of civil rights.

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this chapter

and Title 18, for 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 all 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

7

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 Consti-

tution 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 a criminal nature, in the

infliction of punishment on the party found guilty.

LB

STATEMENT OF THE CASE.

On October 17, 1969, Respondents, Michael L. Shakman

and Paul M. Lurie, filed a Complaint in the United States

District Court for the Northern District of Tllinois seeking

(a) a declaratory judgment that the Constitution of the

United States prohibits the conditioning of any public em-

ployment within the County of Cook, Illinois, upon an

employee’s support of any official or candidate for public

office endorsed by the Democratic Party, and (b) a perma-

nent injunction barring the Petitioners from so condition-

ing any such employment. The Complaint also seeks com-

pensatory and exemplary damages and a preliminary in-

junction. The Complaint alleges in six (6) Counts that

certain practices constitute a denial of equal protection

of the law, freedom of association, freedom of speech and

due process of law, in violation of the First, Fifth and

Fourteenth Amendments of the Constitution of the United

States and the Civil Rights Act of 1871. (42 U. S. C. Sec-

tions 1983, 1985, 1986 and 1988.)

The District Court dismissed the Complaint on Novem-

ber 6, 1969 on the grounds that ‘‘ plaintiffs lack the requisite

standing to litigate this controversy”’ and the Complaint

‘sig conclusory.’’ (Appendix A, p. A8.) On October 23,

1970, the Court of Appeals for the Seventh Circuit reversed

the judgment of the District Court, and remanded the cause

for further proceedings, holding that the Constitution pro-

tects Respondents from the use of official power of public

employees which would create a political effort in favor of

certain candidates and, further, that the difficulties in the

areas of proof and in devising relief do not demonstrate

‘‘a lack of judicially discoverable and manageable standards

for resolving’’ the case. (Appendix B, p. A15.)

ARGUMENT.

This Court should grant Certiorari to review the judg-

ment of the United States Court of Appeals for the Seventh

Circuit in the instant case because this case comes within

the purview of Rule 19(b) of the Rules of the Supreme

Court of the United States (adopted June 15, 1970; effec-

tive July 1, 1970). There exists an apparent conflict be-

tween the decision below and the decision of the Court of

Appeals for the Eighth Circuit in Irish v. Democratic-

Farmer-Labor Party of Minnesota, 399 F. 2d 119 (1968).

The decision below also decided an important and novel

question of Federal law relative to the justiciability of this

cause, which law has not been, but should be, settled by

this Court.

I.

THE COURT BELOW FAILED TO PROPERLY APPLY THE

PRINCIPLE OF NON-JUSTICIABILITY AS WAS OUT-

LINED IN THE CASE OF MARBURY v. MADISON.

The issues raised in the instant complaint are political

in nature and should not be subject to judicial review. The

complaint is clearly a non-justiciable political question as

defined in Marbury v. Madison, 1 Cranch (5 U. 8.) 137

(1803). Many of the defendants herein are elected public

officials. Surely, the historic words of Chief Justice Mar-

shall in Marbury v. Madison (at 165, 166), apply to these

defendants to take them out of this lawsuit:

‘‘By the constitution of the United States, the presi-

dent is invested with certain important political

powers, in the exercise of which he is to use his own

discretion, and is accountable only to his country in

his political character and to his own conscience. To

10

aid him in the performance of these duties, he is

authorized to appoint certain officers, who act by his

authority, and in conformity with his orders.

‘<Tn such cases, their acts are his acts; and whatever

opinion may be entertained of the manner in which

executive discretion may be used, still there exists,

and can exist, no power to control that discretion. The

subjects are political. They respect the nation, not

individual rights, and being intrusted to the executive,

the decision of the executive is conclusive. The appli-

cation of this remark will be perceived by adverting

to the act of congress for establishing the department

of foreign affairs. This officer, as his duties were

prescribed by that act, is to conform precisely to the

will of the president. He is the mere organ by whom

that will is communicated. The acts of such an officer

ean never be examinable by the courts.

? & a & e

‘The conclusion from this reasoning is, that where

the heads of departments are the political or confiden-

tial agents of the executive, merely to execute the will

of the president, or rather to act in cases in which the

executive possesses a constitutional or legal discretion,

nothing can be more perfectly clear than that their acts

are only politically examinable.”’

In like manner, where the legislative branch has not

imposed on the executive civil service regulations as to the

appointment of certain officers and the hiring and dismissal

of certain employees, then the tenure of such persons is in

the sole discretion of the executive and is examinable only

politically.

This is not corruption, this is not unreasonable. Parties

stand for diverse policies, philosophies, interests. If the

voters choose candidates of one party in preference to

those of another, it usually means that the voters do not

simply prefer the successful candidates as individuals; it

means that the majority of the voters prefer certain pol-

11

icies and political philosophies and favor emphasis on and

pursuit of certain interests rather than others. The admin-

istration of preferred policies, even on the lowest echelon,

will benefit if it is in the hands of men sympathetic thereto,

men who think along those lines, who know and are known

to those who occupy the higher positions. As was noted

in the case of Irish v. Democratic-Farmer-Labor Party of

Minnesota, 399 F. 2d 119 (1968), at page 120, ‘‘[tjhe courts,

generally and consistently, have been reluctant to interfere

with the internal operations of a political party.’’

This is in accord with the principle enunciated by the

Supreme Court in Sweezey v. New H ampshire, 354 U.S. 234,

at 250 (1957) :

‘‘Bxercise of [First Amendment] freedoms in America

has traditionally been through the media of political

associations. Any interference with the freedom of a

party is simultaneously an interference with the free-

dom of its adherents.’’

IL.

THE DECISION BELOW UNCONSTITUTIONALLY INVADES

THE PROVINCE OF THE LEGISLATIVE BRANCH.

The dissenting Chief Judge felt the decision below in-

vades the province of the legislature. (Appendix B, p. A16.)

The tripartite division of the federal government is as

much a part of the Constitution as is the equal protection

clause of the Fourteenth Amendment. The state govern-

ment of Illinois is modeled on the federal government, and

the Illinois Constitution, imitating the federal, structures

state government on a tripartite plan. In areas of state

law and jurisdiction, the prerogatives of the state legisla-

ture are as entitled to such respect as is the Congress in

the federal area.

‘The nonjusticiability of a political question is,’’ accord-

12

ing to Baker v. Carr, 369 U. §. 186, at 210 (1962), ‘‘pri-

marily a function of the separation of powers.’’? Three of

the six criteria, laid down in that celebrated decision (at

217) as identifying a case involving a political question as

non-justiciable, relate to the doctrine of separation of

powers: (1) a textually demonstrable constitutional com-

mitment of the issue to a coordinate political department ;

(2) the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion ;

and (3) the impossibility of a court’s independent resolu-

tion without expressing lack of the respect due coordinate

branches of government. :

The Illinois General Assembly has shown itself well able

and willing to make policy decisions and formulate guide-

lines in the area sought to be invaded by plaintiffs’ com-

plaint. The legislative branch has enacted extensive civil

service statutes such as Ill. Rev. Stat. 1969, ch. 24, §§ 10-1-1

to 10-1-48 (civil service in cities). Section 10-1-31 pro-

vides :

‘‘No officer or employee of such municipality shall

discharge or degrade or promote, or in any manner

change the official rank or compensation of any other

officer or employee, or promise or threaten to do so for

giving or withholding or neglecting to make any con-

tribution of money or other valuable thing for any

party or political purpose, or for refusal or neglect to

render any party or political service.”’

If amplification of such measures is needed in Illinois, the

remedy lies in the Illinois General Assembly.

The dissenting Chief Judge was correct in his apprehen-

sion (Appendix B, p. A16) that:

‘‘In my opinion this case presents a nonjusticiable

controversy in the sense that it involves a ‘political

question’—one that should be dealt with by the state

legislature and not by the courts.”’

13

IIL.

THE RELIEF COUNTENANCED BY THE DECISION BELOW,

AS THE DISSENTING OPINION OBSERVED (APPENDIX

B, P. Al8), IS TANTAMOUNT TO JUDICIAL ENLARGE-

MENT OF THE FEDERAL HATCH ACT (5 U. 8. C. § 7821

ET SEQ.) TO ENCOMPASS THE POLITICAL ACTIVITY

OF LOCAL GOVERNMENT EMPLOYEES.

In upholding the Hatch Act many years ago, in United

Public Workers v. Mitchell, 330 U. S. 75 (1947), this Court

stated (at 95):

‘Of course, the question of the need for this regu-

lation is for other branches of government rather than

the courts. Our duty in this case ends if the Hatch

Act provision under examination is constitutional.”’

The enormity of the rule permitting restriction of the

political activity of government employees outside work-

ing hours, enunciated in United Public Workers v. Mitchell,

is itself open to question. It is at least arguable that the

strong dissents in that case (at 105-126) are more in har-

mony with the general tenor of this Court’s First Amend-

ment decisions in the interim since United Public Workers

was decided than the 1947 majority.

The petitioners are specifically raising here the point

that the relief prayed: for in the complaint herein, and ap-

parently approved in principle by the opinion of the Court

of Appeals, would be violative of the First Amendment

rights of local government employees and officials. This

issue was duly raised by the petitioners below. (Appellees’

Brief of City of Chicago, et al., in Court of Appeals, pp.

37-39.)

As Mr. Justice Black, dissenting in United Public

Workers v. Mitchell, warned (at 111, 112):

‘‘Legislation which muzzles several million citizens

14

threatens popular government, not only because it in-

jures the individuals muzzled, but also because of its

harmful effect on the body politic in depriving it of

the political participation and interest of such a large

segment of our citizens. Forcing public employees to

contribute money and influence can well be proscribed

in the interest of ‘clean politics’ and public adminis-

tration. But I think the Constitution prohibits legis-

lation which prevents millions of citizens from con-

tributing their arguments, complaints, and suggestions

to the political debates which are the essence of our

democracy; prevents them from engaging in organiza-

tional activity to urge others to vote and take an in-

terest in political affairs; bars them from performing

the interested citizen’s duty of insuring that his and

his fellow citizens’ votes are counted. Such drastic

limitations on the right of all the people to express

political opinions and take political action would be

inconsistent with the First Amendment’s guaranty of

freedom of speech, press, assembly and petition... .

‘There is nothing about federal and state employees

as a class which justifies depriving them or society of

the benefits of their participation in public affairs.

They, like other citizens, pay taxes and serve their

country in peace and in war. The taxes they pay and

the wars in which they fight are determined by the

elected spokesmen of all the people. They come from

the same homes, communities, schools, churches, and

colleges as do the other citizens. I think the Constitu-

tion guarantees to them the same right that other

groups of good citizens have to engage in activities

which decide who their elected representatives shall

be.”’ .

15

IV.

THIS COURT SHOULD RESOLVE THE APPARENT CON-

FLICT BETWEEN THE DECISION BELOW AND THE

DECISION OF THE COURT OF APPEALS FOR THE

: EIGHTH CIRCUIT IN IRISH v. DEMOCRATIC-FARMEBR-

2 LABOR PARTY OF MINNESOTA, 399 F. 2d 119 (1968).

The Court of Appeals for the Eighth Circuit has held

that the internal operation of a political party will not be

interfered with by the judiciary. The Court in the instant

case has obviously reached an opposite conclusion since by

its decision it announces its preparedness to enter into the

operation, management and control of political parties. It

is obvious that this Court should resolve the conflict .be-

tween these two decisions.

16

CONCLUSION.

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Seventh

Circuit.

_ Respectfully submitted,

Epwarp V. Hanranan,

State’s Attorney of Cook County,

509 Civic Center,

Chicago, Illinois 60602,

RicHarp L. Curry,

Corporation Counsel,

Marvin E. Aspen,

Special Assistant Corporation Counsel,

511 City Hall,

Chicago, Illinois 60602,

MicHakEL Datey and

James M. O’SHAUGHNESSY,

33 North La Salle Street,

Chicago, Illinois 60602,

Attorneys for Petitioners.

Danie. P. Coman,

Assistant State’s Attorney,

GayLe F. Hacuunp,

Fpmunp HatFIELD,

Assistant Corporation Counsel,

Of Counsel.

<

Al

APPENDIX A.

Unitep Srates Districr Court,

N. D. Tllinois, E. D.,

Nov. 6, 1969.

Michael L. SHAKMAN and Paul M. Lurie, on behalf of themselves

and all others similarly situated,

Plaintiffs,

v.

The DEMOCRATIC ORGANIZATION OF COOK COUNTY, a

corporation, et al.,

Defendants.

No. 69 C 2145.

MEMORANDUM OPINION.

Marovitz, District Judge.

Plaintiffs’ Preliminary Motions,

Defendants’ Motion to Dismiss.

This is a class action which alleges deprivations of free-

doms of speech and association as well as due process and

equal protection of the law in violation of the First, Fifth

and Fourteenth Amendments to the United States Constitu-

tion and of certain civil rights statutes, 42 U. S. C. §§ 1983,

1985, 1986, 1988, arising from an alleged political patronage

system. Plaintiff Shakman is an independent (not endorsed

by any political party) candidate for Delegate to the Illi-

nois Constitutional Convention. Plaintiff Lurie is one of

his supporters. Defendants are Democratic party organi-

zations and various officials of those organizations, the City

of Chicago, and various officials of the City and of Cook

County, Illinois.

In this six count complaint, Counts I and IV are brought

by Shakman as a candidate for public office, Counts II and

V are brought by both plaintiffs as voters, and Counts Il

and V1 are brought by both plaintiffs as taxpayers. Counts

IV, V, and VI differ from Counts I, H, and III respec-

tively in alleging conspiracy to commit the acts complained

of in the lower numbered counts. The various counts are

also brought on behalf of all others similarly situated.

Plaintiffs seek declaratory and injunctive relief plus com-

pensatory and exemplary damages.

All defendants have filed multifaceted motions to dis-

miss this complaint. Some of the reasons set forth by

defendants 2re without merit. Plaintiffs have not inexcus-

ably delayed instituting this action and are not barred by

laches. Loverich v. Warner, 118 F. 2d 690, 693 (3d Cir.

1941). Similarly, the complaint cannot be dismissed be-

cause the motion for preliminary injunction was not ac-

companied by a bond. Under the federal rules, security is

not required unless and until the equitable relief is to be

granted. Rule 65(c), F. R. Civ. P.; 7 Moore’s Federal

Practice Ch. 65, J 65.09, at 1656 (1968).

A considerably more serious issue is raised by defendants

when they suggest that the subject matter of this action

involves a political question which, therefore, renders the

lawsuit non-justiciable. The non-justiciability of political

questions is a doctrine which extends back to Marbury v.

A3

Madison, 1 Cranch (5 U. 8.) 137, 164-66 (1803). Further,

there can be no doubt that this complaint involves political

matters. Plaintiffs have alleged that defendants control

and exert coercion over patronage employees, who are de-

fined as those persons employed by Chicago and Cook

County governmental entities, hired on the basis of poli-

tical support and not protected by civil service or other-

wise against arbitrary discharge from employment. The

complaint further alleges that these employees are required

to take time off from their jobs in order to perform poli-

tical work, for which they are paid with public funds. As

a result of this alleged misuse of public funds and person-

nel, the rights of the Democratic patronage employees are

allegedly infringed in that they may not associate with

plaintiff candidate, speak on his behalf, vote freely, or re-

fuse to support defendant political organizations. Further

alleged unlawful results of the patronage system are that

plaintiff candidate is deprived of the right to associate with

these employees, that plaintiff cannot express himself

through patronage employees, that plaintiff’s supporters

cannot have their votes cast effectively, that the votes of

plaintiff and his supporters are debased, that the election

in which plaintiff is running will not be determined by

votes freely cast, that plaintiff is foreed to support poli-

tical organizations, policies, programs, and candidates to

which he is opposed, and that the electoral process is not

rudimentarily fair or free of substantial political inter-

ference. Complaint, { 38.

That these allegations are obviously politically oriented

does not automatically resolve the motion to dismiss for

if the political question doctrine is of long duration, it is

also of increasingly limited scope. In recent years, the

doctrine has been considerably narrowed. Thus the judi-

ciary has considered politically tainted issues of reappor-

tionment, e.g., Reynolds v. Sims, 377 U. S. 533 (1964),

A4

Baker v. Carr, 369 U. S. 186 (1962), petitioning for a place

on a ballot, e.g., Moore v. Ogilvie, 394 U. S. 814 (1969),

Williams v. Rhodes, 393 U. S. 23 (1969), ballot position,

e.g., Weisberg v. Powell, 417 F. 2d 388 (7th Cir. Oct. 3,

1969), and discrimination in party primaries, e.g., Terry v.

Adams, 345 U S. 461 (1953), Smith v. Allwright, 321 U. S.

649 (1944). At the same time, courts have maintained a

reluctance to interfere with the strictly internal opera-

tions of a political party. Irish v. Democratic-Farmer-

Labor Party of Minnesota, 399 F. 2d 119, 120 (8th Cir.

1968) ; Lynch v. Torquato, 343 F. 2d 370 (3d Cir. 1965).

A determination as to the justiciability of the political

issues in this case in the light of the standards set forth

in Baker v. Carr, 369 U. S. 186, 209, 217, 226 (1962), need

not be made, however, because plaintiffs lack the requisite

standing to litigate this controversy. Assuming for the

moment that plaintiff’s complaint is well pleaded, which

assumption is questionable in view of the vague conclusory

allegations, and further accepting for the purposes of this

motion similar allegations that thousands of patronage

employees are being coerced into making involuntary con-

tributions of time and money and that they are being de-

prived of their right to associate with, work for, contribute

money to and vote for plaintiff candidate ( Complaint, {| 39),

the proper parties to assert that those deprivations amount

to unlawful violations of their civil rights are the patron-

age employees, not plaintiff. Cf. Tileston v. Ullman, 318

U. S. 44, 46 (1943). Plaintiff has asserted that ‘‘these

employees are not free to assert themselves since they be-

lieve that to do so will lead to the loss of their patronage

jobs or other punishment in said jobs.’’ Complaint, J] 39.

Nevertheless, the issues presented are of such a serious

nature and have a potential impact across the country in

local, state, and national affiairs, that we cannot allow self-

appointed representatives of other persons federal rights,

A5

no matter how decent their intentions, to attempt to

remedy the alleged wrongdoing. If the patronage system

does concern upwards of 30,000 persons (Complaint, {] 27),

has existed for ‘‘many years’’ (Jd.), and is as coercive

and obnoxious as is claimed, there should be some patron-

age employees willing and able to assert their rights for

themselves and their class. Any other rule would risk

improper representation and prosecution of the claims of

these employees to say nothing of creating raising ques-

tions concerning the binding nature of a decision affecting

persons not before the court. The rule prohibiting reli-

ance on another’s constitutional rights is admittedly a rule

of self-restraint which may be disregarded in unique situa-

tions where, for instance, the act‘on of a state court might

result in a denial of constitutional rights to the absent

party, Barrows v. Jackson, 346 U. S. 249, 257 (1953). In

the instant case, we know of no similar impediment to the

attempted enforcement of an aggrieved party’s civil rights.

Of course, unlike the Tileston case, plaintiffs have alleged

deprivations of their own rights. Compare, Tileston v.

Ullman, 318 U. S. 44, 46 (1943). Yet, these asserted rights

are not infringed directly, but derivatively, i.e., because

rights of the patronage employees are allegedly infringed.

Thus, Candidate Shakman alleges he is deprived of his

freedom of speech and association because certain patron-

age employees are unlawfully deterred from associating

with or speaking or working for him. Recognizing that

standing ‘‘has been, and remains, one of the most enigmatic

areas of the law,’’ Investment Company Institute v. Camp,

274 F. Supp. 624, 632 (D. D. C. 1967), we think that plain-

tiff is the wrong party to complain about alleged wrongs

incurred by patronage workers.

Leaving aside the issue of standing to litigate, plaintiffs’

complaint is subject to dismissal because it is conclusory.

For purpose of testing the sufficiency of a complaint under

A6

Rule 12(b)(6), ‘‘the well pleaded material allegations of

the complaint are taken as admitted ; but conclusions of law

or unwarranted deductions of fact are not admitted.’? 2A

Moore’s Federal Practice Ch. 12, 12.08 at 2266-69 (1968).

In the Complaint, plaintiff contends that he is deprived of

the ‘‘right to associate’’ with certain patronage employees,

yet he has never alleged that he attempted to associate

with any such employee and was spurned. Similarly, plain-

tiff contends that he is deprived of the ‘‘right to express

and espouse”’ his candidacy through patronage employees.

Even assuming the First Amendment guarantees the right

to speak through other persons’ mouths, there has been

no allegation that plaintiff has attempted to engage patron-

age employees to speak for him. Plaintiff’s allegation

that he is being deprived of the ‘‘right to cast his vote

effectively and to have the election determined on the basis

of votes so cast’’ is another unwarranted deduction. Plain-

tiff has not alleged that he or any of his supporters who

are qualified to vote have been or are being denied access

to the polls. Nor has plaintiff alleged that the tally of

votes cast in Constitutional Convention elections is not an

accurate count of the votes made by qualified voters. Ina

like fashion, plaintiff has also alleged that votes of himself

and his supporters are ‘‘dilute(d) and debase(d).’’ This

conclusion is unwarranted for a number of reasons: there

has been no allegation that patronage employees in plain-

tiff’s district are not entitled to vote, there is no way of

precisely knowing which voter votes for which candidate,

and plaintiff candidate in fact received enough votes to

qualify as a candidate for the office he seeks. Similarly,

the conclusion is unwarranted that votes cast in the two

Constitutional Convention elections are not ‘‘freely cast.’’

Again, no one can say for sure which voter voted for which

candidate. See generally, Complaint, {] 38.

In addition, plaintiff has alleged that he and his sup-

AT

porters have been deprived of a fair electoral process free

of ‘‘substantial partisan interference.’’ Neither the fed-

eral constitution nor any civil rights law prohibits legiti-

mate activity including canvassing, poster hanging and poll

watching (Complaint, {| 38) by partisan political personnel

in an election. The patronage employees about whom

plaintiff is so concerned have as much right to support the

candidate of their choice as do plaintiff’s supporters. No

doubt plaintiff will respond in agreement, but contend that

the employees are coerced. If so, then as stated earlier,

it is not for plaintiff to assert the rights of others, rather

it is the patronage employees’ right to bring an action on

their own behalf.

Plaintiff has further contended that he is ‘‘force(d)...

to support and contribute’’ to a political organization to

which he is opposed. In all of plaintiff’s lengthy com-

plaint, we can find no factual allegations regarding coer-

cion as to him. The funds allegedly used by plaintiff’s

opponents are allegedly derived from coerced contributions

from patronage employees. Complaint, {{] 29, 30, 35. As

plaintiff has not alleged himself to be one of these coerced

contributors of time and money, the conclusion that he is

forced to support policies and personnel undesirable to him

is simply not justified. To the extent plaintiff complains

that taxpaying is a compelled involuntary contribution to

defendants and their policies, the complaint fails to state a

cause of action. Payment of taxes cannot be refused be-

cause of disagreement with governmental policies, whether

they include school busing, law enforcement or anything

else. The mere fact that some individual defendants are

not only government officials, but also political leaders does

not alter the propriety of paying properly assessed taxes.

Finally, plaintiff also alleges that the acts of the de-

fendants constitute ‘‘gross and invidious discrimination”’

against plaintiff as a candidate and voter. However, the

A8

relationship between the acts alleged and the result alleged

is not apparent. Plaintiff is not entitled to the support of

any or all political parties or their supporters. To allege

that they deny him aid or oppose him may indicate a lot of

things, but one of them is not unlawful discrimination.

In conclusion, viewed charitably, the complaint makes

several serious charges regarding the direct deprivation

of rights of a class of persons characterized as Democratic

patronage employees. Whether or not the complaint can

be said to state a cause of action on their behalf need not

be considered presently, because those employees are not

before this court. Further, given the gravity of the charges

and the absence of any allegation that plaintiff fairly repre-

sents the class of allegedly aggrieved employees, we find

that plaintiff does not have standing to assert the alleged

violations of the rights of said employees as set forth in

the Complaint, {| 39.

Nor do we think the complaint can be saved because

plaintiff has alleged that the harm done to the patronage

employees also harms him. The violations charged in the

Complaint, 38 are too conclusory to support a cause of

action upon which relief may be granted. Plaintiff has

simply not alleged facts sufficient to warrant the deduc-

tions and charges of alleged deprivation of rights as to

him and his supporters.

Plaintiff’s motion for injunctive relief is denied. De-

fendants’ motion to dismiss is granted.

A9

APPENDIX B.

In tHE Untrep States Count or APPEALS

For the Seventh Circuit.

SEPTEMBER TERM, 1969 JANUARY SEssION, 1970

No. 18043 a

Micuar. L. SHakman and

Pau M. Lurr, Appeal from the

United States Dis-

plies cc ma . trict Court for the

v8. Northern District

Tue Democratic ORGANIZATION OF a ae Eastern

vision.

Coox County, et al,

Defendants-A ppellees. |

OctosEr 23, 1970.

Before Swycert, Chief Judge, Farrcnmp and Cum-

mines, Circuit Judges.

Fatrcuitp, Circuit Judge. This action challenges the

use of patronage in the city of Chicago and Cook County

in a manner which allegedly puts at an electoral disad-

vantage those who desire the election of candidates in

opposition to those in power. In briefest outline, plaintiffs

allege that officers of the city and county require city

and county employees, as a condition of holding their

jobs and drawing their salaries from the public treasuries,

to furnish votes, campaign work, and money to elect

candidates chosen by the regular democratic organization,

A10

and that this practice makes more difficult and often

prevents the election of other candidates.

The district court dismissed the complaint and plaintiffs

appealed.

The two plaintiffs allege that they are residents, voters,

and taxpayers within the 24th state senatorial district,

within the city of Chicago and Cook County. Plaintiff

Shakman was a candidate, not endorsed by any party,

at the election held November 18, 1969 for delegates to the

Illinois constitutional convention. Plaintiff Lurie supported

Shakman. This action was commenced about a month

before the election. Although the particular election is

over, the practices challenged are allegedly of a continuing

nature, and the case is not moot."

Plaintiffs set out six counts, so as separately to seek

redress for deprivation of constitutional rights on behalf

of (1) Shakman, and all other independent candidates,

including those at future elections, as candidates; (2)

both plaintiffs, and all others similarly situated, as voters ;

(3) both plaintiffs, and all others similarly situated, as

taxpayers; and separately to predicate each such claim

upon an averment of conspiracy to effect such deprivation.

The defendants include the mayor and treasurer of the

city, the president of the board of county commissioners,

the county assessor, the county clerk, and the clerk of

circuit court. There has been no argument that these

defendants are not acting under color of law in making

the appointments which allegedly implement the patron-

age system under attack. The democratic county central

committee, which is a statutory party organ, several of

its members, several aldermen and county commissioners,

and a not for profit corporation known as The Democratic

Organization of Cook County are additional defendants.

1. Cf. Moore v. Ogilvie (1969). 394 U. S. 814, 816.

All

It is alleged that all conspired to deprive plaintiffs of

rights.

Jurisdiction is claimed under 28 U. S. C. § 1331, of a

controversy arising under the constitution, and a juris-

dictional amount is alleged. Jurisdiction is also claimed

under 28 U. S. C. § 1343(3) of an action to redress the

deprivation under color of state law, of rights secured

by the constitution. Assuming justiciability, the oxistence

_ of jurisdiction, at least under § 1343(3), is clear.’

The complaint defines a democratic patronage employee

(DPE) as a person employed by the city or county on

the basis of his political support of the county democratic

organization, of which the mayor is president, and who

is not protected by law against arbitrary discharge. It is

alleged that there are between 8,000 and 30,000 DPEH’s:;

that many are hired on a basis where one’s employment

must be renewed each several months if it is to continue;

that most DPH’s are required, as a condition of keeping

their jobs, or in order to escape discipline, to contribute

money to the county democratic organization, or its

affiliates, or endorse candidates, and to do political work

for such organizations and candidates. Some of such

allegedly coerced work is done during regular working

hours and some on the DPE’s own time. The defendants,

it is alleged, coerce DPEs by this means to give votes,

political support, campaign work, and money to candidates

endorsed by the organization and its affiliates.

Plaintiffs ask, among other things, for a declaration

that the practices of defendants violate constitutional

and other federal rights of candidates, voters, and tax-

payers of Chicago, an injunction against those practices,

and damages.

2 See Bell v. Hood (1946), 327 U. S 678: Baker v. Carr

(1962), 369 U. S. 186, 198.

A12

One of the reasons given by the district court for

dismissing the complaint is that plaintiffs lack standing

to seek redress for the injury to the rights of the DPEs

resulting from the alleged coercion. Plaintiffs point out

that there are decisions permitting vicarious vindication

of constitutional rights for reasons of policy.* But here,

in any event, plaintiffs are seeking redress for injuries

to their own interests and the interests of others similarly

situated. Assuming the truth of plaintiffs’ averments,

and assuming that interests of theirs which are allegedly

injured are rights, privileges, or immunities secured by

the federal constitution, their standing to bring a § 1983

or $1985 action is apparent.*

Plaintiffs also aver that they are taxpayers, challenging

the misuse of tax funds in that DPEs are allegedly

required, as a condition of continuing to receive their

compensation out of public money, to vote for and assist

candidates selected by defendants and opposed by plain-

tiffs. Plaintiffs are asserting that the practice causes

injury to their interests as candidates and voters, and

‘f those interests are constitutionally protected from the

type of injury alleged, it will be unnecessary to decide

whether their taxpaver interest alone would give them

standing.®

The other reason given by the district court for dis-

missing the complaint is that it is conclusory. The court

pointed to a number of assertions in the portion of the

complaint where the pleader attempted to describe the

impact of the practice complained of on plaintiffs’ right

of association, right to express one’s self as a candidate,

3. See examples cited in Smith v. Board of Education of

Morrilton Sch. Dist. No. 32 (8th Cir., 1966), 365 F. 2d 770, 776.

4. Baker v. Carr (1962), 369 U. S. 186, 204.

5 See Doremus v. Board of Education (1952), 342 U. S. 429,

434.

Al3

right to vote effectively, and the like. The district court

did not agree, and we do not, with much of plaintiffs’

expression of the legal analysis of such impact. Most

§ 1983 complaints contain material in this area, and we

agree that a pleader’s abstract assertion that one or

another constitutional right has been violated does not

require the court to decide that a claim has been ade-

quately stated.

But the averments concerning the operation of the

patronage system and the disadvantage it causes to

candidates and voters who attempt to use the election

process to change the direction of government are factual

and give adequate fair notice of the claim asserted.*

We consider the significant questions, unanswered to

this point, to be whether these disadvantages to the

interests of candidates and voters amount to deprivation

of any rights, privileges, or immunities secured by the

constitution, and whether for any reason this area of

controversy must be deemed nonjusticiable.

It is clear that at least some aspects of the interests

of candidates in an equal chance and of the interests of

voters in having an equally effective voice are rights

secured from state action by the equal protection clause

of the fourteenth amendment.

The interests of candidates in official treatment free

from intentional or purposeful discrimination are entitled

to constitutional protection.’ ‘‘Where discrimination is

sufficiently shown, the right to relief under the equal

protection clause is not diminished by the fact that the

discrimination relates to political rights.’

6. See 2A Moore, Federal Practice f 8.13, pp. 1695-1700.

7. Snowden v. Hughes (1944), 321 U. S. 1, 8. See Weisberg v.

Powell (7th Cir., 1969), 417 F. 2d 388, 392.

8. 321 U. S. 11.

Al4

The equal protection clause secures from invidious

official discrimination the voter’s interest in a voice in

government of equal effectiveness with other voters.”

We acknowledge that the decisions just referred to

involved mechanical aspects of the election process: ¢.9.,

the right to cast a vote, a candidate’s place on the ballot,

and equal size in districts entitled to a representative.

The interest in an equal chance and an equal voice is

allegedly impaired in the case before us by the misuse

of official power over public employees so as to create a

substantial, perhaps massive, political effort in favor of

the ins and against the outs. We conclude that these

interests are entitled to constitutional protection from

injury of the nature alleged as well as from injury

resulting from inequality in election procedure.

We see no ground upon which to decide that the con-

troversy suggested by plaintiffs’ claims is nonjusticiable.

‘In the instance of non-justiciability, consideration of

the cause is not wholly and immediately foreclosed ;

rather, the Court’s inquiry necessarily proceeds to the

point of deciding whether the duty asserted can be

judicially identified and its breach judicially deter-

mined, and whether protection for the right asserted

can be judicially molded.’’”

had * a

‘Prominent on the surface of any case held to involve

a political question is found a textually demonstrable

constitutional commitment of the issue to a coordinate

political department; or a lack of judicially discover-

able and manageable standards for resolving it; or

9. Baker v. Carr (1962), 369 U. S. 186; Gray v. Sanders

(1963), 372 U. S. 368; Reynolds v. Sims (1964), 377 U. 8. 533,

565; Carrington v. Rash (1965), 380 U. S. 89; Williams v. Rhodes

(1968), 393 U. S. 23; Avery v. Midland County (1968), 390 U. S.

474; Moore v. Ogilvie (1969), 394 U. S. 814; Hadley v. Junior

College District (1970), 397 U. S. 50.

10. Baker v. Carr (1962), 369 U. S. 186, 198.

Al5

the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial dis-

cretion; or the impossibility of a court’s undertaking

independent resolution without expressing lack of the

respect due coordinate branches of government; or

an unusual need for unquestioning adherence to a

political decision already nmiade; or the potentiality

of embarrassment from multifarious pronouncements

by various departments on one question.’’?!

One may forsee that in the areas of proof, and devising

relief if the claims be proved, care will be required in order

to distinguish between compelled and voluntary political

support by public employees. Except to the extent some

statute validly restricts political expression or activity by

public employees, such individuals enjoy the same right of

political association and expression, on their own time, as

anyone else.

We do not view possible difficulties of the sort just men-

tioned as demonstrating ‘‘a lack of judicially discoverable

and manageable standards for resolving’’ the case or as

requiring, at the pleading stage, a decision that plaintiffs’

claim is not justiciable. :

Defendants rely upon the eighth circuit decision in Irish

v. Democratic Farmer-Labor Party of Minnesota? There

the court held that there was nothing of constitutional sig-

nificance in an alleged malapportionment of representation

in the state convention of a political party. The court went

on to say that the case presented a nonjusticiable political

question. We think that the nature of the problem there,

with respect to the internal operations of a political party,

is sufficiently different from the problem presented in the

complaint before us, that Irish offers no guidance here.

Because of the difference, it is unnecessary to decide

whether we agree with the reasoning of Irish.

11. Ibid. p. 217.

12, (8th Cir., 1968), 399 F. 2d 119,

Alé

We note the argument, made by several defendants, that

the complaint is fatally defective for failure to join as

defendant the Republican Party. We find no merit in the

proposition.

Plaintiffs have asked that in addition to reversing the

order of dismissal we direct the district court to grant a

preliminary injunction. We deem it inappropriate, how-

ever, at this time, to preempt the district court’s discretion

with respect to a preliminary injunction.

The judgment is reversed and the cause remanded for

further proceedings.

Swycert, Chief Judge, dissenting.

I would sustain the district court’s dismissal of the com-

plaint, but on a ground different from those assigned by

the district judge. In my opinion this case presents a non-

justiciable controversy in the sense that it involves a

‘‘political question’’—one that should be dealt with by the

state legislature and not by the courts.

A distinction should be drawn in this area between the

rights of voters and candidates for public office to be given

equal treatment by the state in the ‘‘mechanical aspects of

the election process,’’ to use Judge Fairchild’s apt phrase,

and remedies for alleged abuses of the persuasion or elec-

tioneering aspects of the process. For example, in Baker

v. Carr, 369 U. S. 186 (1962), it was held that the citizens

of a state suffer a ‘‘debasement of their votes’’ and thereby

a denial of equal protection of the laws when the state

legislature refuses or fails to allocate its legislative repre-

sentation on an equal basis among the voters of the state.

In Moore v. Ogilvie, 394 U. S. 814 (1968), the Supreme

Court held that a state may not discriminate against the

residents of the more populous sections of a state in favor

Seinen hea nnn, Peek rs nes RNA MR ata eNoae RT Sn Fe lhe anton

A17

of the less populous by requiring a rigid, arbitrary number

of signatures from each county on petitions for independent

candidates for political office. In Weisberg v. Powell, 417

F. 2d 388 (7th Cir. 1969), this court had before it a case

concerning an arbitrary and discriminatory procedure

adopted by the Illinois Electoral Beard in the placement

on the ballot of candidates to a state constitutional con-

vention. All three cases, which are illustrative of the

decisions in this area, dealt with procedures enacted, by

state legislatures relating to the democratic elective proojes

directed to attain representative government. |

In the instant case we are not asked to apply the equal

protection test to a legislative enactment governing the

elective process or even to a deviation from such an enact-

ment by those statutorily charged to carry out its mandate.

Rather, we are asked to go one step further and hold that

the conduct of a public official is constitutionally proscribed

when he allegedly requires employees whom he appoints

and can summarily discharge to contribute money and

‘‘public’’ time to the*candidacy of those favored by him.

In Baker v. Carr, the Supreme Court recognized that

there may be areas of activity relating to the elective

process that are not justiciable because of the ‘‘inappro-

priateness of the subject matter for judicial consideration.’’

The Court then set forth the applicable test: ‘‘In the in-

stance of nonjusticiability, consideration of the cause is not

wholly and immediately foreclosed; rather, the Court’s in-

quiry necessarily proceeds to the point of deciding whether

the duty asserted can be judicially identified and its breach

judicially determined, and whether protection for the right

asserted can be judicially molded.’’ 369 U.S. at 798. When

this test is applied to the claims made by plaintiffs, it is

apparent that the instant case should be classified as non-

justiciable. Assuming proof of the claims, it is not difficult

to contemplate the problems facing the district court in

A18

molding a proper remedy and, perhaps more important,

with its enforcement. }

I agree with the observation made by defendants that the

relief requested is tantamount to asking the court to en-

large the Federal Hatch Act, 5 U. S. C. §§ 7321 et seq., to

encompass the political activity of local government em-

ployees. Whether coverage should be extended to such

employees as a matter of public policy is not the question.

The question is whether a federal court should attempt to

formulate ‘‘judicially discoverable and manageable stand-

ards,’” relating to suck activity and whether it should be

called on to mold a peacemeal remedy by injunctive decree.

In my judgment this case presents issues of which the

courts should not take cognizance. It is a matter that

should be left to the legislature.

1. Baker v. Carr, 369 U. 8. 186, 217 (1962).