Opposition Brief — Johnson v. Knowles
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Supreme Coust, U.S.
FILE OD
No. 97-503 OCT 22 1997
@LERK
In The
Supreme Court of the United States
October Term, 1997
2 —
PAUL JOHNSON; KEVIN WADSWORTH;
LAUREN COOPER; RAY SEBASTIAN; and
BARBARA SEBASTIAN, individually and on
behalf of all others similarly situated,
Petitioners,
VS.
DAVID KNOWLES, et al.,
Respondents.
*
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Ninth Circuit
*
RESPONDENTS’ BRIEF IN OPPOSITION
+
Marjorie E. MANNING
BOLLING, WALTER & GAWTHROP
8880 Cal Center Drive, Suite 400
Sacramento, California 95826
(916) 369-0777
Counsel of Record for Respondents:
Republican Central Committee Dan Dellinger
of El Dorado County Tom Emigh
Steven Bailey Michael Frenn
Robert Becker Maloa Gribkoff
Ed Borba Kevin Hanley
Bernard Carlson Tom Schumacher
Merlin Chardi John Stelzmiller
Christina Cowell Laveta Stelzmiller
Charles Chrisman David Titus
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
PARTIES TO THE PROCEEDING
The Petition accurately lists the parties to the pro-
ceeding except as follows:
1) There is no evidence Susan Emigh ever appeared
in this action and her inclusion as a party defendant in
the First Amended Complaint was neither sought nor
authorized by the District Court;
2) The inclusion of Lauren Cooper, Ray Sebastian
and Barbara Sebastian as party plaintiffs in the First
Amended Complaint was neither sought nor authorized
by the District Court.
This opposition brief is submitted on behalf of the
following Respondents: Republican Central Committee of
El Dorado County, Steven Bailey, Robert Becker, Ed
Borba, Bernard Carlson, Merlin Chardi, Christina Cowell,
Charles Chrisman, Dan Dellinger, Tom Emigh, Michael
Frenn, Maloa Gribkoff, Kevin Hanley, Tom Schumacher,
John Stelzmiller, Laveta Stelzmiller, and David Titus.
il
TABLE OF CONTENTS
Page
Pasties to Gee Proceetie. . .. .. 5-5-5 0essvaesevenes i
See OE RI 5 o.oo vino sain eceeecnd oie ii
Dae Se PD 5 ov ss ei i aecksh eee eee iii
PIII 5 oso 6a 0 64450 seine Ov ue 0 ewmeee ee ee 1
SUS OE le A ss os 5s vb eck 2
A. The petition misconstrues the standard of
review employed by the Ninth Circuit....... 2
B. There is no support for the Petition’s assertion
that the Ninth Circuit ignored facts pled or
re er 6
C. The Petition misconstrues the state action anal-
ysis employed by the Ninth Circuit.......... 8
D. The Petition fails to disclose that Plaintiffs
waived their right to challenge the District
Court’s disposition of any purported claim
under 42 U.S.C. sections 1985(3) and 1986... 13
E. In attacking the Panel’s decision, the Petition
consistently and erroneously equates status as
a public official with conduct under color of
UE ov ancns nbcndanecsnaneweeghounteeawneian 14
Reasons for Denying the Writ ..................... 16
A. Contrary to the Petition’s assertion, no recur-
ring issue of national and exceptional impor-
tance is presented by this case .............. 16
B. The internal management decisions of political
parties cannot be subjected to judicial review
under the guise of civil rights litigation...... 17
CON oss ct ob a eaekns 63 5enb eee ee 19
iii
TABLE OF AUTHORITIES
Page
Cases CITED:
Federal Cases
Adickes v. Kress, 398 U.S. 144 (1970)............. 11, 12
Anthony v. County of Sacramento, 845 F.Supp.
I ME OO occ casts nc scccnc sce 15, 16
Baker v. Cuomo, 58 F.3d 814 (2d Cir. re 5
Banchy v. The Republican Party of Hamilton
County, 898 F.2d 1192 (6th Cir. 1990) .............. 5
Blank v. Heineman, 771 F.Supp. 1013 (D. Neb.
es es nach vs cep esssecvcccescccc. 5
Blum v. Yartesky, 457 U.S. 991 (1982) ............... 11
Burton v. Wilmington Parking Authority, 365 U.S.
he aac a uve ccnvscccscccscccccece 12, 13
California Republican Party v. Mercier, 652
F.Supp. 928 (C.D. Cal. 1986)..................0005. 5
Cousins v. Wigoda, 9 U.S. 477 (1975)............. 17, 18
Dang Vang v. Vang Xiong X. Toyed, 944 F.2d 476,
RE Ra 14
Delcambre v. Delcambre, 635 F.2d 407 (5th Cir.
EEE SES ET 10
Democratic Party of the United States v. Wiscon-
EN | 18
Federspiel v. Ohio Republican Party, 867 F.Supp.
ME I cece een cccccccee 5
iv
TABLE OF AUTHORITIES - Continued
Page
Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978) .... 10
Hurley v. Irish-American Gay, Lesbian and Bisex-
ual Group of Boston, 132 L.Ed.2d 487 (1995)...... 18
Jackson v. Metropolitan Edison Co., 419 U.S. 345
CERI N a h Vle ase keen se ehe res cas esesteabiadinaee a, a0
Lillard v. Shelby County Bd. of Ed., 76 F.3d 716
Re ae SO oc ae oe aeee Wok ee dS ee sewees ek bees 4
Lugar v. Edmondson Oil Co., 457 U.S. 345 (1974) ..... 8
March Fong Eu v. San Francisco County Demo-
cratic Central Committee, 489 U.S. 217 (1989)...... 5
Murphy v. Chicago Transit Authority, 638 F.Supp.
ee ere rte eer ere 10, 15, 16
Officers for Justice v. Civil Serv. Comm., 979 F.2d
ime. Bt Se ee ae et eee 14
Polk County v. Dodson, 454 U.S. 312 (1981)......... 10
Rosario v. Rockefeller, 410 U.S. 752 (1973)........... 18
San Francisco County Democratic Central Com-
mittee v. Eu, 826 F.2d 814 (9th Cir. 1987) ....5, 7, 13
Smith v. Allwright, 321 U.S. 649 (1943)........... 11, 17
Storer v. Brown, 4175 US. 724 (197@ .......6.000008. 18
Tashjian v. Republican Party of Connecticut, 479
CS. 2D GE a nove veers. ee eT ene are 18
Terry v. Adams, 345 U.S. 461 (1953).............. 10, 17
West v. Atkins, 487 U.S. 42 (1988)................... 14
Western Mining Council v. Watt, 643 F.2d 618 (9th
CR FE seek yo seun des ae keene see iy awk te wene ste 6
V —
TABLE OF AUTHORITIES - Continued
Page
State Cases
Moore v. Panish, 32 Cal.3d 535 (Cal. ne 5
Unger v. Superior Court, 37 Cal.3d 612 (Cal. 1984) ..... 5
STATUTES CITED:
Federal Statutes
ee i a xk shat ov os a0 Kha ek eee ent 2, 4
EO ee 13
ee oe aso oe av osb oe ob odo ok kidacl es 13
STATE STATUTES
Cal. Elections Code §§ 7400 et seg.................... 6
Cal. Elections Code § 7440........................... 6
Cal. Elections Code § 7443........................... 7
Ru es CItep:
Bi We SOW We BN oa oon ti oko oS dow Sone vnc. 4
INTRODUCTION
The Republican Central Committee of El Dorado
County is a local branch of the California Republican
Party whose members are chosen by registered Republi-
cans in the County through primary elections. This law-
suit challenges the ouster by the Committee of two of its
members for conduct deemed injurious to party inter-
ests.’ Cast in terms of emotional rhetoric and provocative
accusations of homosexual discrimination, the Complaint
invites the judiciary to reinstate the ousted members,
rewrite the bylaws of the Republican Party, pass judg-
ment on its platform, and ultimately delegate to a jury the
power to usurp the Committee’s decisions concerning
internal party management. Dismissal of the federal
claims predicated on 42 U.S.C. section 1983 was affirmed
on the ground plaintiffs had not pled and could point to
no facts suggesting the challenged action was undertaken
by or fairly attributable to the state.
The Petition’s primary assertion, that the reviewing
court employed an unduly restrictive or otherwise
improper standard of review, ignores both the language
of the decision and the significant distinction between
operative facts and legal conclusions. Also misconstrued
is settled law pertaining to Section 1983 claims in general
and the “state action” analysis employed by the Ninth
‘ The “conduct” cited in the Complaint encompasses (1)
plaintiffs’ departures from an “official party line”, (2) renting of
plaintiffs’ property to a Democratic fund raising group, (3)
plaintiffs’ public criticism of Committee members, (4) plaintiffs’
support of Democratic candidates, and (5) the fact of plaintiffs’
homosexuality.
Circuit in this case. Finally, Petitioners seek to breathe
new life into an argument they abandoned on appeal,
namely, that their Section 1985 claim predicated on viola-
tion of the Fifteenth Amendment should survive notwith-
standing any state action deficiency because a party
committee’s removal of a homosexual from its ranks is
tantamount to depriving Afro-Americans of the right to
vote in public elections.
In addition to the foregoing specific impediments,
Petitioners’ entire analysis is infected by a steadfast
refusal to appreciate the constitutional ramifications of
governmental interference in the internal workings of
associations formed for expressive purposes. Simply put,
Petitioners have articulated no theory of recovery which
can be reconciled with the Committee’s constitutional
guarantee of free association, which requires that the
courts refrain from playing any role in the resolution of
intra-party factionalism.
STATEMENT OF THE CASE
Paul Johnson and Kevin Wadsworth initiated this
action by filing their original Complaint in United States
District Court, Eastern District of California, on May 8,
1995. Original Complaint, Rsp. App. 1. Included in the
pleading were claims for relief alleging violation of civil
rights pursuant to 42 U.S.C. sections 1983, 1985(3), and
1986. In essence, plaintiffs asserted they were punished
for “stands they took”, deprived of the fundamental right
to vote (along with “class members” theoretically sim-
ilarly situated), and afforded disparate treatment as
2 ae a oe
ee ee
homosexuals. Resp. App. 1. The Complaint also sought a
declaration that the Committee bylaws were vague,
overly broad and unconstitutional. Id.
Defendants moved to dismiss all of plaintiffs’ federal
claims on the grounds no basis for state action had been
pled, no deprivation of fundamental rights had been
identified, and judicial interference in the internal man-
agement of the party was impermissible pursuant to con-
trolling authority. The District Court granted the motions,
expressed doubt a viable constitutional claim could be
pled under these circumstances, but granted leave to
amend to attempt to state a viable-4983 claim based on
First and/or Fourteenth Amendment violations. Order
Granting Motion to Dismiss, Resp. App. 26. The District
Court stressed any such amendment should not rely on
the fundamental right to vote because interference with
an election was not claimed and plaintiffs’ ouster was
from party office, not public office. Id.
Plaintiffs’ First Amended Complaint (AX E to Peti-
tion) mirrored all the deficiencies in the original plead-
ing, apart from deleting the purported claim under
Section 1985(3). Following dismissal for failure to allege
conduct under color of state law, plaintiffs appealed to
the Ninth Circuit Court of Appeals. As detailed below,
Petitioners have misrepresented the nature and scope of
the Ninth Circuit Panel’s review.
A. The Petition misconstrues the standard of review
employed by the Ninth Circuit.
Petitioners claim the Panel failed to mention, and
therefore must have ignored, the following requirements
of de novo review: (1) to draw reasonable inferences in
favor of the pleader, (2) to scrutinize civil rights plead-
ings with “special care”, and (3) to allow a “novel legal
theory” to develop factually. Petition (Pet.), at pp. 8-9.
The text of the decision reveals otherwise. It expressly
states that all allegations of material fact must be con-
strued in the light most favorable to the plaintiffs. Pet.,
AX A-5. It also acknowledges dismissal pursuant to Fed-
eral Rule of Civil Procedure 12(b)(6) is improper “unless
it appears beyond doubt that the plaintiffs can prove no
set of facts in support of their claim”. Id. The Petition’s
assertion a different standard applies here is disin-
genuous. Lillard v. Shelby County Bd. of Ed., 76 F.3d 716
(6th Cir. 1996), cited for the proposition civil rights plead-
ings must be “scrutinized, with special care”, employed
precisely the same standard of review as that enunciated
by the Panel in this case. Id., at p. 724.
Equally unavailing is the Petition’s implication the
review undertaken by the Panel was unduly restrictive.
Pet., at p. 9. The language quoted from this Court's
decision in Felder v. Casey, 487 U.S. 131, 139 (1988) is of no
assistance to Petitioners. That Section 1983 provides a
“uniquely federal remedy” against incursions upon fed-
eral constitutional rights and should be accorded “a
sweep as broad as its language” is not disputed. But the
“sweep” of the statute is expressly limited to incursions
“under color of law”. 42 U.S.C. § 1983. It is Petitioners,
A AES STOR AL Hah bet, Piss Hk
not Respondents or the Ninth Circuit, who choose to
ignore that federal mandate.?
The Petition stops short of defining the “novel legal
theory” which the Ninth Circuit supposedly failed to
realize “can best be assessed after factual development”.
Pet., at p. 9. This omission is telling. The proposition that
party central committees are arms of government for
“state action” purposes is not “novel”; it has been raised
repeatedly, and in the context presented here, uniformly
rejected. San Francisco County Democratic Central Commit-
tee v. Eu, 826 F.2d 814, 825-826 (9th Cir. 1987), affd., March
Fong Eu v. San Francisco County Democratic Central Com-
mittee, 489 U.S. 217 (1989); Banchy v. The Republican Party
of Hamilton County, 898 F.2d 1192 (6th Cir. 1990); Blank v.
Heineman, 771 F.Supp. 1013 (D. Neb. 1991); Federspiel v.
Ohio Republican Party, 867 F.Supp. 617 (S.D. Ohio 1994);
California Republican Party v. Mercier, 652 F.Supp. 928
(C.D. Cal. 1986); Unger v. Superior Court, 37 Cal.3d 612
(Cal. 1984); Moore v. Panish, 32 Cal.3d 535, 545 (Cal.
1982).3
2 See, e.g., Petition at p. 24, fn.7 (“[t]he public office / private
post distinction should not control”).
3 Baker v. Cuomo, 58 F.3d 814 (2d Cir. 1995), cited at page 9 of
the Petition, is readily distinguishable. Baker arose from a sua
sponte dismissal of a pro se litigant’s complaint which the
defense conceded raised issues in an unsettled area of the law. Id.,
at p. 819.
B. There is no support for the Petition’s assertion that
the Ninth Circuit ignored facts pled or capable of
being pled.
The Petition takes the Ninth Circuit to task for its
supposed disregard of “facts pled or capable of being
pled”. Pet., at p. 9. The rule recognizing liberality in
pleading speaks to the degree of factual specificity neces-
sary to state a viable claim, not to the pleader’s efforts to
enlarge the parameters of viable constitutional claims.
Thus the court does not assume the truth of legal conclu-
sions merely because they are cast in the form of factual
allegations. Western Mining Council v. Watt, 643 F.2d 618
624 (9th Cir. 1981). Nor should it “construe the complaint
so liberally as to extend our jurisdiction beyond its con-
stitutional limits”. Id., at p. 624. These principles appear
to be lost on Petitioners, who have pointed to no facts
“capable of being pled”, and are seemingly unable to
distinguish between the pleading of material facts and
the assertion of legal conclusions.
The contention that county central committees exist
and operate solely by virtue of and in furtherance of the
laws of California is neither a statement of fact nor an
accurate statement of California law. The California Elec-
tions Code purports to regulate some aspects of county
central committees. CEC §§ 7400 et seq. However, neither
the Elections Code nor any other provision of State law
suggests central committees or some facsimile thereof
would not exist absent statutory authority. Nor does any
provision of California law suggest that the function of
central committees is to uphold or “further” State law. To
the contrary, committees are recognized as having
“charge of the party campaign”. CEC § 7440. In addition,
they “perform any other duties and services for this
political party as seem: to be for the benefit of the party.”
CEC § 7443. Petitioners’ liberal use of citations to the
California Elections Code merely illustrates statutory reg-
ulation of central committees, a reality which is not dis-
positive of whether Respondents acted under color of
state law within the factual context of this case. Case law
is legion that heavy regulation of private organizations
does not transform their conduct into “state action”. Jack-
son v. Metropolitan Edison Co., 419 U.S. 345, 358 (1974).4
Petitioners’ next example of a supposedly “ignored”
material fact is the allegation Johnson and Wadsworth
leased their ranch to a Democratic candidate for a fund
raiser, whereas one other defendant engaged in the same
practice without suffering the same consequences. Pet., at
p. 10. The quoted excerpt from the Complaint is not
material to the issue of whether the Committee acted
under color of law in removing Johnson and Wadsworth
from party management. While it is unquestionably Peti-
tioners’ goal to entice this Court into the substantive
merits of their political grievance by implying one stated
ground for ouster was a pretext for discrimination, the
fact remains the Panel did not “reach the Defendants’
alternative argument that the Plaintiffs also failed to
allege violations of their First and Fourteenth Amend-
ment rights.” Pet., AX A-14.
4 See also, San Francisco County Democratic Central Committee
v. Eu, 826 F.2d at p. 825: “Even if the California Elections Code
had expressly characterized the committees as public agencies,
we would reject the State’s premise that a state can strip a
voluntary political association of First Amendment rights by
legislating it into an arm of the State.”
The third string of alleged facts purportedly over-
looked by the Panel consists of the following: (1) that
Assemblyman Knowles maintained his “local legislative
office” in the same suite as that which the Committee
occupied, (2) that Knowles displayed campaign materials
on his behalf on Committee premises in violation of State
law, (3) that among those voting for Johnson’s and Wad-
sworth’s ouster were Knowles’ former legislative aide
and appointee, and (4) that Knowles urged Petitioners’
ouster “on the official time and expense of the California
State Assembly”. Pet., p. 11. Apart from the fact there is
no evidence the Panel ignored these allegations, they are
not dispositive of the state action issue at hand. The
contrary argument, which will be addressed in further
detail below, rests on the erroneous assumption that sta-
tus as a state official is co-extensive with conduct under
color of law.
{
C. The Petition misconstrues the state action analysis
employed by the Ninth Circuit.
The Petition accuses the Panel of “interpreting the
four state action tests narrowly instead of broadly in this
civil rights case, per Felder v. Casey, supra.” Pet., at p. 20.
First, Felder does not address the four state action tests,
much less dictate their broad application. Second, this
Court has long held that “careful adherence to the state
action requirement preserves an area of individual free-
dom by limiting the reach of federal law and federal
judicial power.” Lugar v. Edmondson Oil Co., 457 U.S. 922,
936 (1982). Third, the text of the decision here shows the
Panel employed an appropriate construction of state
—_—$—— $s TT
action pleading. It affirmed only after determining that
“Plaintiffs have failed to show that the Defendants acted
under color of state law and failed to point to any way that
such action can be shown”. Pet., AX A-6; emphasis added.
In assessing the nature of the Assemblyman’s alleged
wrongful conduct, the court below observed that “even
as a public official,” Knowles’ conduct cannot be deemed
under color of state law “unless it is some way related to
the performance of his duties as a public official.” Pet.,
AX A-6. It concluded the key determination was whether
“Knowles’ actions related to the duties and powers of his
position as an Assemblyman or instead related to his role
as a member of the Republican Party.” Id., at pp. A-6-A-7.
This language does not reflect a narrow interpretation of
state action pleading.
Despite its contrary assertion, the Petition fails to
identify any nexus between Knowles’ official duties and
the conduct which purportedly contributed to Johnson’s
and Wadsworth’s ouster. Instead, page after page of the
Petition is devoted to glorifying to the point of mythical
proportions the power and potential influence of a Cali-
fornia assemblyman, a characterization no more or less
applicable to any public official, and one which does not
address conduct in any event. Indeed, if Petitioners’ legal
theories were taken at face value, it would be impossible
for any elected public official to function in a private
capacity as a member of his or her party.
While Petitioners make much of the contention
Knowles’ party politicking occurred on the “official time”
of the Assembly and that he utilized office space in the
same building employed for Committee meetings, these
“facts” in no way compromise the Panel’s analysis. That
10
conduct occurs on state premises or during the work
hours of a state employee is not sufficient to render it
state action. Polk County v. Dodson 454 U.S. 312 321 (1981);
Delcambre v. Delcambre 635 F.2d 407 (5th Cir. 1981); Mur-
phy v. Chicago Transit Authority 638 F.Supp. 464 468 (N.D.
Ill. 1986). For this reason alone, the contention the “joint
action test” was satisfied by “Petitioners’ allegations of
how Assemblyman Knowles caused their removal” is
seriously misguided. Pet., at p. 25.
The Petition also accuses the Panel of misreading
Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978), which
supposedly interpreted the public function doctrine as
embracing elections other than those which produce the
uncontested choice of public officials. Pet., p. 20. It is
Petitioners who misconstrue Flagg. The decision states
without equivocation that the public function doctrine
applies only if the election in question will produce “the
uncontested choice of public officials”. Id., at p. 158. The
Panel correctly. concluded that because the election
referred to in the Complaint at bar produced party offi-
cials, not public officials, the doctrine would not apply
even if interference with an election had been alleged,
which is not the case.°
No contrary authority is to be found in Terry v.
Adams, 345 U.S. 461 (1953). First, Terry addressed the
refusal of a political party to allow African-Americans to
vote in primary elections which routinely produced the
nominee for the subsequent general election. Second,
5 Petitioners concede Respondents did not violate their
constitutional rights “by conducting an election in an
unconstitutional manner”. Pet., at p. 24, fn.7.
<<“
11
county officials participated in the primary. Third, the
case was decided on Fifteenth Amendment grounds,
thereby arguably implicating a prohibition against pri-
vate discrimination in elections. Fourth, even under those
circumstances, the dissent concluded the conduct in ques-
tion was neither under color of state law nor unlawful.
Finally, Terry drew on the rationale of Smith v. Allwright,
321 U.S. 649 (1943), which held that when the privilege of
membership in the party is also an essential qualification
for voting in a primary to select nominees for the general
election, the state cannot deny African-Americans the
right to vote on the ground they are not members of the
party. Id., at p. 664. No such considerations are present
here.
With respect to the “state compulsion test”, the Peti-
tion concludes the Panel erred in failing to recognize state
action was present pursuant to the rationale of Adickes v.
Kress, 398 U.S. 144 (1970). Pet., at p. 25. As the Ninth
Circuit correctly observed, state action may exist under
the compulsion test where the state has “exercised coer-
cive power or has provided such significant encourage-
ment, either overt or covert, that the [private actor’s]
choice must in law be deemed to be that of the State.”
Blum v. Yartesky, 457 U.S. 991, 1004 (1982). Pet., AX A-11.
Adickes fits squarely within that scenario. It arose from
the arrest of a Caucasian teacher who sought service in a
segregated public restaurant while accompanied by Afri-
can-American students. Her Section 1983 action against
Kress (the department store in which the restaurant was
located) alleged not only a custom in the community to
segregate races, but also a conspiracy between the store
and the police which resulted in her arrest. Id., at p. 147.
12
It is not difficult to discern why the Ninth Circuit
decided Adickes “simply bears no similarity to the present
case.” Pet., at p. 25. Petitioners’ contrary analysis is at
best tortured. Faced with the inescapable conclusion that
no provision of the California Elections Code compels or
encourages removal of committee members on the basis
of sexual orientation, the Petition concludes the enact-
ment must have “set the basis for an uncodified practice
or custom of removing committee members on the basis
of homosexuality.” Id. Conspicuously absent is any expla-
nation of how a statute which contains no mention of
sexual orientation or discrimination can form the founda-
tion for an “uncodified practice” of discrimination on the
basis of homosexuality. This is not surprising; the premise
advanced is patently illogical.
Finally, in attempting to analogize this case to the
“nexus” test exemplified by Burton v. Wilmington Parking
Authority, 365 U.S. 715 (1961), the Petition asserts
Knowles used the prestige of his office to insinuate him-
self into a position of interdependence with the Commit-
tee. Pet., at p. 26. But the point is not whether Knowles
and the Committee are interdependent, but rather,
whether the Committee and the State are interdependent.
The hallmark of the symbiotic relationship between the
state and private actors which occasionally satisfies the
state action requirement is the rendering of mutual bene-
fits. In Burton, owners of a restaurant which leased space
in an automobile parking building owned by the state,
refused to serve African-Americans. Crucial to the find-
ing of state action was the conclusion “that the state had
so far insinuated itself into a position of interdependence
with the restaurant that it was a joint participant in the
13
enterprise.” Jackson v. Metropolitan Edison Co., supra, 419
U.S. at 357-358. Here, absent any factual allegation sug-
gesting Knowles acted on behalf of the State or otherwise
exercised his official duties in urging Johnson’s and
Wadsworth’s ouster, the claimed nexus between the State
and the Committee is wholly illusory.
Petitioners know this. Their last-ditch attempt to
invoke the Burton rationale is found in the allegation that
membership on a central committee is a de facto prerequi-
site to elected office at all levels of government. Pet., at p.
26. But what the Petition attempts to characterize as a
material fact reflecting “political reality” is actually a
legal conclusion which not only dismisses the right of
public officials to function within their party of choice,
but also ignores the fact that “[u]nlike the sovereign,
party central committees are expected to serve party
interests, not the interest of the public at large.” San
Francisco County Democratic Central Committee v. Eu, supra,
826 F.2d at p. 826, fn.20.
D. The Petition fails to disclose that Plaintiffs waived
their right to challenge the District Court's disposi-
tion of any purported claim under 42 U.S.C. sec-
tions 1985(3) and 1986.
Included in Petitioners’ Statement of the Case is the
bold misrepresentation that “[uJnaddressed by the Panel
was the question timely preserved and presented of
whether homosexuals are a protected class for purposes
of Petitioners’ 42 U.S.C. §§ 1985(3) and 1986 claims”. Pet.,
at p. 7. Petitioners’ opening brief to the Ninth Circuit was
devoid of any challenge to the District Court’s dismissal
14
of their Section 1985 and 1986 claims. Resp. App. 42. The
right to claim relief under these sections was abandoned.
Officers for Justice v. Civil Serv. Comm., 979 F.2d 721,
725-726 (9th Cir. 1992). This impediment could not have
escaped Petitioners’ notice, as it was brought to the Ninth
Circuit’s attention in Respondents’ brief on appeal. Resp.
App. 94, fn.2. To suggest the Ninth Circuit simply
ignored claims which instead were abandoned is uncons-
cionable.
E. In attacking the Panel’s decision, the Petition con-
sistently and erroneously equates status as a public
official with conduct under color of law.
One acts under color of state law when exercising
power made possible only because the wrongdoer is
clothed with the authority of state law. West v. Atkins, 487
U.S. 42, 49 (1988). Thus the pivotal question faced by the
Panel was not Knowles’ status as a member of the Assem-
bly, but rather, evidence of facts establishing the requisite
causal link between his State-created official duties and
the conduct which created the alleged deprivation of
constitutional rights. Dang Vang v. Vang Xiong X. Toyed,
944 F.2d 476, 479 (9th Cir. 1991). The Petition takes great
pains to avoid this issue, opting instead to focus on subtle
distinctions between various provisions of the California
Elections Code which the Panel purportedly misun-
derstood. Pet., at pp. 11-16. To the extent this exposition
is intelligible, it is often contradictory and at best irrele-
vant.
In arguing the Ninth Circuit “downplayed” Knowles’
position and power (which is not the issue anyway),
——————————————————
15
Petitioners first assert the Panel erred in finding his “ex
officio membership on the Committee derives from
Knowles’ position as the Republican nominee for the
Assembly, not from his status as 4 California assembly-
man.” Pet., at p. 11. Yet the Petition concedes Knowles
“obtained his position as a nominee”. Pet., at p. 12, fn.2.
That he “could not have kept it if a write-in Republican
had been elected to the Assembly instead of him” is
completely irrelevant. Id. The point is that Knowles’
membership on the Committee derives from his status as
a Republican. Petitioners’ contention the Panel should
have accepted as true and controlling the “material alle-
gation” that Knowles’ status on the Committee existed
solely by virtue of his status as an assemblyman is not a
material allegation at all. It is merely one of many
attempts to obscure the fact this Complaint says nothing
about effecting constitutional deprivation through the exer-
cise of Knowles’ official duties as a member of the Assembly. In
tacit admission of that problem, the Petition returns to
the familiar refrain that “Knowles’ greater power for
influence and its misuse was possible only because his
Assembly seat gave him power undiminished by Com-
mittee discretion and a Committee seat less subject to
loss.” Pet., at p. 14. Its other deficiencies aside, the quoted
sentence does not even attempt to establish a connection
between the exercise of official power as an agent of
government and Petitioners’ ouster from the Committee.
Similarly misguided is the Petition’s criticism of the
Panel for ignoring the District Court decision in Anthony
v. County of Sacramento, 845 F.Supp. 1396 (E.D. Cal. 1994),
while “stretching across circuit lines” to find Murphy v.
Chicago Transit Authority, supra, 638 F.Supp. 464. Pet., at p.
16
14. It is obviously the result reached in Anthony which
Petitioners find appealing, not the test employed. The
fact the complaint in Anthony depicted a work environ-
ment made racially and sexually hostile by supervisory
individuals acting under color of law is of no assistance
to Petitioners in the factual context of this case. Id., at p.
1401. And the test employed in Anthony is no different
from that enunciated by the Panel in this case:
Action under color of law is always identified
by reference to the relationship between defen-
dant’s alleged misconduct and his state-created
duties and powers, rather than the status of the
parties. Id., at p. 1401.6
¢
REASONS FOR DENYING THE PETITION
A. Contrary to the Petition’s assertion, no recurring
issue of national and exceptional importance is pre-
sented by this case.
Petitioners seek certiorari “on the grounds that recur-
ring issues of national and exceptional importance relat-
ing to the fundamental right to vote remain unresolved in
this case.” Pet., at pp. 7-8. Neither the Complaint nor the
Amended Complaint alleges that anyone involved in this
case was deprived of the right to vote. It is not claimed
6 The test enunciated in Murphy v. Chicago Transit Authority,
supra, is not materially different either: “ ... A person acts
‘under color of state law’ when he engages in conduct that is
related to state authority conferred on the person, even though
that authority does not in fact permit the conduct.” 638 F.Supp.
at pp. 467-468.
——
17
that any individual or group of individuals was denied
access to the polls, that anyone’s vote was not counted, or
that the elections in question were otherwise conducted
improperly. Indeed, Petitioners have conceded they were
duly elected in properly conducted proceedings. The
essence of their grievance is the Committee's subsequent
decision to oust them for conduct deemed injurious to the
party. Whether the injury perceived by Respondents con-
sisted of Petitioners’ departure from an official party line,
public criticism of Respondents, support for Democratic
candidates, derogation of Republican candidates, or John-
son’s and Wadsworth’s status as homosexuals is irrele-
vant. The ouster was post-election conduct, not
interference with an election.
Furthermore, the Petition points to no decision which
has found a fundamental right to vote in any context
other than elections for public office. The factual distinc-
tions between the case at bar and the “White primary
cases” was addressed above. To date, no case has
expanded the rationale of Terry v. Adams or Smith v.
Allwright outside the context of a race-based ban on vot-
ing, and here no registered Republican was denied the
right to vote at all, much less for discriminatory reasons.
B. The internal management decisions of political par-
ties cannot be subjected to judicial review under
the guise of civil rights litigation.
While there is no doubt that the right of political
parties to govern their internal affairs without state inter-
ference involves an issue of significant national impor-
tance, it was resolved long ago. In Cousins v. Wigoda, 9
18
U.S. 477 (1975), this Court held that “any interference
with the freedom of a party is simultaneously an interfer-
ence with the freedom of its adherents.” Id., at p. 488.
Democratic Party of the United States v. Wisconsin, 450 U.S.
107 (1981) recognized the freedom identified in Cousins
necessarily presupposes that the courts may not interfere
in the Party’s internal management on the ground they
view “a particular expression as unwise or irrational”. Id.,
at pp. 123-124. In Rosario v. Rockefeller, 410 U.S. 752 (1973)
and Storer v. Brown, 415 U.S. 724 (1974), this Court upheld
state laws designed to preserve the integrity of political
parties by preventing “raiding”. While Petitioners relied
heavily on the latter two cases in their arguments to the
Ninth Circuit, they have never acknowledged the import
of Tashjian v. Republican Party of Connecticut, 479 U.S. 208
(1986), which mandates that the rationale of Rosario and
Storer applies only to potential disruption of political
parties from without, and cannot be invoked to prevent
parties from taking internal steps to govern their associa-
tions from within. Id., at pp. 223-224.
These authorities teach that any construction of the
state action requirement which equates internal manage-
ment of political parties with the official action of govern-
ment is constitutionally flawed. Since the purpose of the
state action requirement is to preserve individual free-
dom, and freedom of political association is at the heart
of the First Amendment, no result other than that reached
by the Panel could be tolerated under the Constitution.
See, Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, 132 L.Ed.2d 487, 504 (1995).
¢
19
CONCLUSION
For the reasons and pursuant to the authorities set
forth hereinabove, Respondents respectfully submit the
Petition should be denied.
Dated: October 22, 1997
Respectfully submitted,
Marjorie E. MANNING
BOLLING, WALTER & GAWTHROP
8880 Cal Center Drive, Suite 400
Sacramento, California 95826
(916) 369-0777
Counsel of Record for Respondents
Republican Central Committee
of El Dorado County
Steven Bailey
Robert Becker
Ed Borba
Bernard Carlson
Merlin Chardi
Christina Cowell
Charles Chrisman
Dan Dellinger
Tom Emigh
Michael Frenn
Maloa Gribkoff
Kevin Hanley
Tom Schumacher
John Stelzmiller
Laveta Stelzmiller
David Titus
Resp. App. 1
LAW OFFICES OF
G. MICHAEL GERMAN - 103312
A Professional Corporation
444 Market St. — Suite 930
San Francisco, CA 94111
Telephone (415) 433-4500
Attorney for Plaintiffs
PAUL JOHNSON, KEVIN WADSWORTH,
individually and on behalf of
all others similarly situated.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
PAUL JOHNSON, KEVIN
WADSWORTH, individually
and on behalf of all others
similarly situated,
Plaintiffs,
vV.
DAVID KNOWLES; REPUBLI-
CAN CENTRAL CMMITTEE
[sic] OF EL DORADO
COUNTY; STEVEN BAILEY;
ROBERT BECKER; ED BORBA;
BERNARD CARLSON; MER-
LIN CHARDI; CHRISTINA
COWELL; CHARLES CHRIS-
MAN; DAN DELLINGER;
TOM EMIGH; MICHAEL
FRENN; MALOA GRIBKOFF;
KEVIN HANLEY; TOM
SCHUMACHER; JOHN
STELZMILLER; LAVETA
STELZMILLER; DAVID TITUS
and DOES 1-25, inclusive,
Defendants.
CIV-S-95-835 MLS PAN
No. CV5-95-
CLASS ACTION COM-
PLAINT FOR DAMAGES
AND FOR DECLARA-
TORY AND EQUITABLE
RELIEF
[CIVIL RIGHTS (42 USC
§§1983 & 1985(3));
UNRUH ACT (CAL.
CIVIL CODE §§51-52.1;
NEGLIGENT & INTEN-
TIONAL INFLICTION OF
EMOTIONAL DISTRESS;
INTERFERENCE WITH
BUSINESS; INVASION OF
PRIVACY; DEFAMATION;
& COMMON LAW FAIR
PROCEDURE]
JURY TRIAL
DEMANDED
Resp. App. 2
INTRODUCTORY ALLEGATIONS
(Filed May 8, 1995)
1. Jurisdiction herein is based on 28 USC §§1331,
1343, 1357, 1367 2201 and venue is proper in this district
because all Defendants, named and unnamed, reside
herein.
2. At all times herein mentioned, Defendant
REPUBLICAN CENTRAL COMMITTEE OF EL DORADO
COUNTY (Central Committee) was and is a political
organization subject to the laws of this State and of the
United States, organized, existing and operating under
and in furtherance of the laws of this State, including, but
not limited to, Cal. Elections Code (CEC) §§7250-7470 and
18540-18700, whose chairman is Defendant DAVID
TITUS.
3. Plaintiffs are informed and believe, and allege
thereon, that at all times herein mentioned, Defendants
STEVEN BAILEY; ROBERT BECKER; ED BORBA; BER-
NARD CARLSON; MERLIN CHARDI; CHRISTINA
COWELL; CHARLES CHRISMAN; DAN DELLINGER;
TOM EMIGH; MICHAEL FRENN; MALOA GRIBKOFF:
KEVIN HANLEY: TOM SCHUMACHER; JOHN STEL-
ZMILLER; LAVETA STELZMILLER and DAVID TITUS
were and/or are duly elected, alternate or appointed
members of Defendant Central Committee and were act-
ing under and in furtherance of the laws of this State,
including, but not limited to, CEC §§7250-7470 and
18540-18700. Plaintiffs are similarly informed and believe
that Defendant DAVID KNOWLES is an elected Republi-
can member of the California Assembly for the 4th
Assembly District who employs Defendant BECKER as
Resp. App. 3
his legislative aide. Said Defendants are sued individu-
ally, without prejudice to Plaintiffs’ right to recover and/
or satisfy judgment against them or any other defendant
in any other capacity.
4. Plaintiffs are ignorant of the true names and
capacities of Defendants sued herein as DOES 1 through
25, inclusive, and therefore sues these Defendants by
such fictitious names. Plaintiffs will amend this complain
to allege such Defendants’ true names and capacities
when ascertained. Plaintiffs are informed and believe,
and allege thereon, that each such Defendant resides in
this district, is responsible in some manner for the occur-
rences herein alleged and that Plaintiffs’ damages were
proximately caused by their conduct, acts and/or omis-
sions.
5. Plaintiffs are informed and believe, and allege
thereon, that named and DOE Defendants are, and at all
times herein mentioned were, the agents and co-conspira-
tors of their co-defendants, and in doing the things
alleged herein were acting within the course and scope of
such agency and conspiracy and with the supervision,
permission, instruction and consent, express or implied,
of said co-defendants.
6. From September, 1978, and at all times since,
Plaintiffs PAUL JOHNSON and KEVIN WADSWORTH
have been, and have held themselves out to third parties
as, exclusive life partners in a loving relationship; have
shared living expenses, space and resources; have
exchanged religious vows of commitment to each other;
have traveled and vacationed together; and, more
recently, have filed income tax returns consistent with
Resp. App. 4
their relationship and have made Provisions by testamen-
tary disposition to care for the other in the event either is
incapacitated. Each is sole heir to the estate of the other,
an estate held in joint tenancy.
7. Plaintiffs JOHNSON and WADSWORTH had or
have been longtime (10+ years), members of the Califor-
nia Republican party, registered to vote thereunder and
previously serving with distinction on other Central
Committees in this State, and were, in 1992 and 1994,
elected and reelected by their fellow Republicans of El
Dorado County, Supervisorial District III, to two-year
seats on Defendant Central Committee, which seats they
held with integrity and dedication from January, 1993,
until ousted therefrom by Defendants as pled below.
JOHNSON and WADSWORTH received in the June, 1994,
primary election 1,585 and 1,562 votes, respectively and
they are informed, believe and recall that they received a
substantially similar number of votes in the June, 1992,
primary election as well. JOHNSON and WADSWORTH
won the June, 1994, primary election despite the best
efforts of certain of their colleagues on the Central Com-
mittee and other California Republicans, including but
not limited to Defendants KNOWLES and CARLSON,
who vowed “We've got to get rid of those faggots,” and
actively worked to do so.
8. Together, Plaintiffs JOHNSON and WAD-
SWORTH own and reside at the premises known as The
Lone Antler Ranch (Ranch), located in El Dorado County.
Plaintiffs occasionally rent portions of the Ranch to per-
sons or groups for receptions, fundraising and other
legitimate purposes for profit, without discrimination
therein as required by applicable California law. Proceeds
Resp. App. 5
from Ranch rentals are used, in part, to defray the cost of
medical treatment for WADSWORTH, who is a disabled
Vietnam-era Marine Corps veteran suffering from AIDS.
9. On August 25, 1994, Plaintiff JOHNSON executed
a written lease contract with the Katie Hirning For Con-
gress Campaign for a September 17, 1994, fundraiser for
Ms. Hirning, the Democratic candidate for the November,
1994, 4th Congressional District election, in which she
opposed incumbent Republican Congressman John Doo-
little. Pursuant to governing provisions of Defendant
Central Committee’s bylaws and of the CEC, the contract
specifically provided that the names of neither JOHN-
SON nor WADSWORTH would appear thereon. The con-
sideration for the contract was $100, the fundraiser was
held as scheduled and neither JOHNSON nor WAD-
SWORTH took part therein except as lessors of the Ranch.
10. On September 5, 1994, one week before the reg-
ularly scheduled meeting of Defendant Central Commit-
tee, Plaintiffs JOHNSON and WADSWORTH learned that
JOHNSON’S father had died in Ohio that day. Both Plain-
tiffs immediately made plans to travel to Ohio to attend
the funeral and advised Defendants SCHUMACHER and
LAVETA STELZMILLER thereof by telephone and FAX
that same day, noting it was possible each would not be
able to attend the September 12, 1994, meeting, to which
no Defendant responded. WADSWORTH did not travel to
Ohio due to his need to receive regularly scheduled
experimental medical AIDS treatment at Marshall Hospi-
tal. Such treatments are lengthy, painful and leave the
patierit feeling weak and nauseous for several days after
administered.
Resp. App. 6
11. Plaintiff WADSWORTH underwent such treat-
ment beginning at 11:00 am on September 12, 1994, and
appeared at the meeting of Defendant Central Committee
at 7:30 p.m. that same day. The meeting was called to
order by Defendant TITUS and proceeded with its busi-
ness, including the election of Defendant BECKER to the
Central Committee, until WADSWORTH began to feel ill.
WADSWORTH then gave the Central Committee a check
in the amount of $69.75 representing the closing balance
from his reelection campaign committee, Riff Raff Repub-
licans PAC, pursuant toe operative provisions of the CEC
and left. Prior to that point in the meeting, neither its
notice, agenda nor any discussion once underway gave
WADSWORTH any sign that any action was to be taken
against him.
12. Thereafter, under the direction of Defendant
TITUS, Defendant Central Committee purported to go
into “Executive Session,”despite any provision therefor in
the governing bylaws of the Central Committee or the
CEC, where Defendant EMIGH initiated discussion of
Plaintiffs JOHNSON’S and WADSWORTH’S role in the
Hirning fundraiser held at the Ranch and moved that
each be removed from the Central Committee for
allegedly failing to support Republican candidates and
for providing support to Democratic candidates. After
discussion supporting the motion from Defendants
CARLSON and BECKER, the motion was passed as fol-
lows:
AYES: 13 (BAILEY, BECKER, BORBA, CARLSON,
CHRISMAN, DELLINGER, EMIGH, FRENN, GRIBKOFF,
HANLEY, L. STELZMILLER, J. STELZMILLER & TITUS;
CHARDI, alternate)
Resp. App. 7
NAYS: (Gilmore) ABSTENTIONS: 3 (Aguiar, Col-
lens & Messenger)
13. Defendant Central Committee never informed
either Plaintiff of its action in removing them; they
learned of it through at least two articles in the local
press, which quoted Defendant TITUS as Stating both
Plaintiffs were“unanimously ousted.” While WAD-
SWORTH vowed to continue as a Republican and, in
January, 1995, to take his seat on the Central Committee
he had won in the June, 1994, primary, JOHNSON
resigned his longstanding Republican party membership
in disgust and reregistered as a Democrat.
14. Plaintiffs are informed and believe, and allege
thereon, that on or between December 31, 1994, and Janu-
ary 3, 1995, Defendant LAVETA STELZMILLER mailed
notice to members of Defendant Central Committee of its
January 9, 1995, Organizational Meeting. Enclosed in that
notice was a proposed resolution urging the dismissal of
Doug Wheeler as Secretary of the California State
Resources Agency, but no agenda or any other document
relating to matters to be considered at the January 9,
1995, meeting. At the Organizational Meeting, Plaintiff
WADSWORTH was sworn into his elected office as mem-
ber for Supervisorial District III of the Central Committee
and Defendants TITUS, SCHUMACHER, BECKER and
GRIBKOFF were elected Chairman, Vice-Chairman, Sec-
retary and Treasurer, respectively. While it is, and has
been, customary for those elected officials, including, but
not limited to Defendant KNOWELES and Congressman
John Doolittle, who have the right to appoint members to
the Central Committee under CEC §§7250-7470 to do so
Resp. App. 8
at this Organizational Agenda Meeting, neither Defen-
dant KNOWLES nor Congressman Doolittle then did so.
14. At the January 9, 1995, meeting, an Organiza-
tional Agenda given to those present listed “Adoption of
By-laws” as item III, but a copy of the proposed bylaws
was not included with the notice. Although Plaintiff
WADSWORTH objected to the consideration of these pro-
posed bylaws as out of order, because of this lack of
adequate notice, Defendant TITUS ruled his objection
out-of-order and Defendant SCHUMACHER’S motion to
adopt the bylaws was seconded by Defendant CARLSON
and approved. A true and correct copy of the new bylaws
adopted by Defendant Central Committee on January 9,
1995, is attached hereto as Exhibit A.
15. Plaintiff WADSWORTH is informed and
believes, and alleges thereon, that Defendant TITUS had
directed Defendant BECKER to draft these new bylaws in
advance of the January 9, 1995, meeting and that other
Defendants hereto, including, but not limited to Defen-
dants EMIGH and KNOWLES, but not including WAD-
SWORTH, knew that the new bylaws would be so drafted
and presented for adoption on January 9, 1995. Defendant
EMIGH then stated his intention to seek removal of
WADSWORTH at Defendant Central Committee’s next
meeting, set for February 13, 1995, purportedly under
bylaw Article XIX “for engaging in actions injurious to
the Committee.”
16. On February 6, 1995, Defendant BECKER mailed
a notice of the February 13, 1995, meeting to all members
of Defendant Central Committee, accompanied by an
agenda which listed as item IXA “Disciplinary Action.”
Resp. App. 9
At the meeting, Defendant EMIGH moved, and Defen-
dant CARLSON seconded, the removal of Plaintiff WAD-
SWORTH “for engaging in actions deemed injurious
to"the Central Committee. After discussion of the motion
from, among others, Defendants BECKER, CARLSON,
and EMIGH and SCHUMACHER, including, but not lim-
ited to, alleged statements made and actions taken by
WADSWORTH prior to January 9, 1995; statements crit-
icizing the Central Committee allegedly made by WAD-
SWORTH and overheard by Susan Emigh, wife of
Defendant EMIGH, in a restaurant on January 19, 1995; a
December 15, 1995, letter allegedly sent by Katie Hirning
to her “supporters,” which letter was neither then shown
to WADSWORTH nor seen by him at any time prior or
since the meeting; concern that the Central Committee
beware of expelling members who rent property to Dem-
ocrats, in light of SCHUMACHER’s regularly renting
property jointly owned by him and a registed Democrat
to Democrats; and Defendant KNOWLES’ admission to
SCHUMACHER that his reason for pushing, directly or
indirectly through his aide BECKER and other members
or appointees to the Central Committee, the removal of
WADSWORTH therefrom was due to his “being homo-
sexual,” the motion was passed as follows:
AYES: 9 (BECKER, CARLSON, COWELL,
DELLINGER, EMIGH, GRIBKOFF, SCHUMACHER, J.
STELZMILLER & TITUS)
NAYS: 3 (Colvin, Gilmore & WADSWORTH)
ABSTENTIONS: 1 (CHRISMAN) Thereafter, on March i,
1995, Defendant LAVETA STELZMILLER and Cecil Rig-
genberg were elected to fill the seats of JOHNSON and
Resp. App. 10
WADSWORTH by acclamation of those members of the
Central Committee then present.
17. Said Defendants’, and each of their, aforesaid
acts or omissions towards Plaintiffs JOHNSON and
WADSWORTH were intended to cause injury to said
Plaintiffs, or, alternatively, were done recklessly or with a
knowing, willful, grossly negligent and conscious disre-
gard of the consequences to all Plaintiffs’ personal and
Constitutional rights and well-being, in an oppressive,
malicious, overbearing, despicable, deliberately indif-
ferent and demeaning manner so as to entitle all Plaintiffs
to awards of punitive damages against said Defendants,
and each of them, in the jury’s discretion, according to
the legal standards governing the respective causes of
action pled herein.
18. As a proximate result of Defendants’, and each
of their acts or omissions, Plaintiffs JOHNSON and WAD-
SWORTH were damaged generally and specially by suf-
fering physical and severe mental injuries, including, but
not limited to, pain, nausea, nervousness, fear, shock,
outrage, anguish, humiliation, embarrassment, alienation,
helplessness and despair; and all Plaintiffs were damaged
by suffering loss of their electoral rights, all in sums to be
proven at trial.
19. In doing the acts and omissions aforesaid,
Defendants and each of them, conspired among them-
selves, and/or with others and/or in degrees presently
unknown to Plaintiffs, to damage and deprive all Plain-
tiffs of their personal and Constitutional rights. Said
Defendants, and each of them, had knowledge of and
agreed to both the means and ends of injuring Plaintiffs,
Resp. App. 11
either expressly or tacitly; committed the wrongful acts
and/or omissions alleged herein pursuant to such knowl-
edge and agreement and damaged Plaintiffs thereby, all
as aforesaid.
20. The legal remedy of damages available to Plain-
tiffs provides them only with partial, not full, relief, since
Defendants’ conduct towards Plaintiffs JOHNSON and
WADSWORTH evidences a continuing and unremitting
pattern of abuse and prejudicial discrimination on the
basis of their sexual orientation, actual, as exaggerated
and/or as perceived. More than a substantial likelihood
of future violations of all Plaintiffs’ Statutory, personal
and constitutional rights is shown by Defendants’ arbi-
trary and capricious ouster of WADSWORTH from
Defendant Central Committee; Defendant's refusal to seat
him thereon ignores the mandate of the electorate and
constitutes an active and ongoing violation of their rights
as aforesaid. All Plaintiffs will therefore continue to suf-
fer substantial, immediate and irreparable harm in the
form of their effective disenfranchisement, which harm _
can only be ended by an award of mandamus or injunc-
tive relief, which when coupled with damages and
declaratory relief, will give full relief to all Plaintiffs.
CLASS ACTION ALLEGATIONS
21. Plaintiffs JOHNSON and WADSWORTH bring
this action on behalf of themselves and all persons sim-
ilarly situated, who together form the class of registered
Republican voters in Supervisorial District III of E] Dor-
ado County who voted for said Plaintiffs for membership
on Defendant Central Committee in the June, 1992 and
Resp. App. 12
1994, primary elections and whose votes were thereafter
twice nullified by the acts of Defendants, and each of
them, as aforesaid.
22. This case satisfies the requisites of FRCVP 23a as
follows:
Numerosity - The class has a membership of
between 1,500 and 2,500 persons, as based upon election
returns from the June, 1992 and 1994, primaries in which
Plaintiffs JOHNSON and WADSWORTH were elected.
Commonality - The damages suffered by both
names Plaintiffs and the members of they [sic] class they
represent stem from the same nucleus of operative facts
pled above. Specifically, all members share the prejudice
to and dilution and deprivation of their rights as voters
effected by Defendants’ twice removing both names
Plaintiffs from Defendant Central Committee, and all
members would benefit by equitable relief restoring
Plaintiff WADSWORTH to his elected seat on Defendant
Central Committee, by declaring the new bylaws inopera-
tive in whole or in part and by awarding money damages
as prayed for.
Typicality - Names Plaintiffs uniquely satisfy
this requirement as longstanding registered Republicans
who reacted to Defendants’ actions in divergent ways
that span the range of responses of unnamed class mem-
bers to Defendants’ acts. Thus, the likelihood that named
Plaintiffs possess both the same interest and have suf-
fered the same injury as the unnamed class members is
increased, not lessened, by their different reactions to
Defendants’ acts, which comprise the same events and
provide the same basis for legal and equitable relief for
aaa
Resp. App. 13
all Plaintiffs’ claims. Given the conspiracy allegations
pled, typicality is also satisfied. Moreover, the allegations
clearly show actual injuries to named Plaintiffs and any
deficiency in degree between the injuries suffered by
named Plaintiffs and those by unnamed Plaintiffs
enhances named Plaintiffs’ ability to act adequately as
class representatives.
Adequacy of representation - That the proposed
class is formed of voters who twice elected named Plain-
tiffs to the positions from which Defendants ousted them
is the best indicator they will “fairly and adequately
protect the interests of the class.” Plaintiffs’ counsel is
well qualified, as shown by his resume attached hereto as
Exhibit B, and as by his kinship in the group discrimi-
nated against by Defendants: gay, politically active mem-
bers of the Republican party.
23. This case is maintainable as a class action under
the provisions of FRCVP 23b2 since Defendants have
acted in a manner generally affecting the class, making
equitable and declaratory relief appropriate to the class
as a whole, with such ancillary awards of money dam-
ages allowable as deemed just according to proof.
1ST CAUSE OF ACTION -
CIVIL RIGHTS (42 USC §1983)
(By All Plaintiffs Against All Defendants)
24. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
25. In doing the things heretofore alleged, Defen-
dants, and each of them, knew or should have known
Resp. App. 14
that ousting named Plaintiffs from Defendant Central
Committee was done without reasonable and probable
cause or other justification, in arbitrary and capricious
abuse of legitimate legal processes and in violation of
clearly and long established rights guaranteed to all
Piaintiffs under Article I, Section 10 and the I, V, IX, X,
XIV and XV Amendments to the Constitution of the
United States, since named Plaintiffs had twice been
elected to the Central Committee by their fellow regis-
tered Republicans; since the bylaws drafted by Defendant
BECKER and purportedly adopted by the Central Com-
mittee on January 9, 1995, both as written and enforced,
were overbroad, vague and incapable of Constitutional
comprehension; and since the enforcement of those
bylaws against Plaintiff WADSWORTH was invalid as an
ex post facto act violative of all Plaintiffs’ rights.
26. In so acting, and in failing to prevent their co-
Defendants from so acting, Defendants, and each of them,
willfully, recklessly, deliberately, callously, indifferently
and/or grossly negligently deprived Plaintiffs of their
substantive civil rights of freedom of expression and
association, voting and membership on Defendant Cen-
tral Committee, freedom from deprivation thereof with-
out due process and from operation of ex post facto laws,
as guaranteed by Article I, Section 10 and the I, V, IX, X,
XIV and XV Amendments to the U.S. Constitution.
27. To the extent that Plaintiffs must so plead
against Defendant Central Committee, but without in any
way admitting any legal requirement that they do so or
waiving their challenge to such requisites, the aforesaid
acts and omissions of Defendants, and each of them, were
Resp. App. 15
performed or suffered to occur under written and unwrit-
ten, pervasive and unequally applied customs and poli-
cies of the Central Committee which, among others, were
directed against homosexuals and their friends and sup-
porters solely by nature of their status, and not by nature
of their conduct, and which sought to squelch any differ-
ence of opinion or dissent, however raised, from a sup-
posed “official party line,” whether arising in, or imposed
upon from without, the Central Committee. If not actu-
ally instituted by, said customs or policies, among others,
were ratified and allowed to continue, fester and multiply
by Defendants KNOWLES, CARLSON, EMIGH and
TITUS before and after the two ousters complained of
herein occurred, as shown by the history of discrimina-
tion against both named Plaintiffs and others and by the
refusal of Defendant TITUS to publicize meetings of the
Central Committee in advance, as duly, moved, seconded,
passed and funded in an earlier meeting of the Central
Committee, thereby further insulating the Central Com-
mittee from representing its constituents and further
institutionalizing such customs and practices.
28. Defendants’, and each of their, acts or omissions
were done under color of state law and of their authority
as elected members of Defendant Central Committee and
deprived Plaintiffs of the rights guaranteed them under
Article I, Section 10 and the I, V, IX, X, XIV and XV
Amendments to the U.S. Constitution without due pro-
cess and/or equal protection of law and of the substan-
tive rights guaranteed thereunder. As a proximate result
of the conduct of said Defendants, and each of them, all
Plaintiffs were and remain damaged as aforesaid, and is
entitled to recover as alleged herein, including reasonable
—
Resp. App. 16
attorney’s fees pursuant to 42 USC §1988 and punitive
damages under governing standards of federal law.
2nd CAUSE OF ACTION -
CIVIL RIGHTS CONSPIRACY
(42 USC §§1985(3) & 1986)
(By All Plaintiffs Against All Defendants)
29. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 28, inclusive, of this Class
Action Complaint.
30. In doing the things heretofore alleged, Defen-
dants, and each of them, actively conspired among them-
selves for the purpose of depriving Plaintiffs, directly and
indirectly, of the equal protection of, and of the equal
privileges and immunities of, the aforesaid substantive
and procedural rights guaranteed by the U.S. Constitu-
tion, and said Defendants acted in furtherance of the
object of that conspiracy by injuring Plaintiffs in their
persons and property and deprived them from having
and exercising the rights and privileges guaranteed citi-
zens of the United States by its statutes and Constitution.
Defendants knew or should have known that subjecting
Plaintiffs to the aforesaid wrongful and otherwise
improper acts, and in conspiring to do so, was done
without reasonable and probable cause or other justifica-
tion and in violation of clearly and long established rights
guaranteed under the I, V, IX, X, XIV and XV Amend-
ments to the U.S. Constitution. Further, in knowing that
the acts forming such a conspiracy against Plaintiffs were
about to be committed and, despite their having the
power to prevent them from being committed, neglected
or refused to prevent their commission, Defendants, and
ee
Resp. App. 17
each of the, are liable to all Plaintiffs for their aforesaid
damages proximately caused thereby.
3rd CAUSE OF ACTION - UNRUE CIVIL
RIGHTS ACT (CAL. CIVIL CODE §§51-52.1)
(By All Plaintiffs Against All Defendants)
31. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
32. At all times relevant hereto, Defendant Central
Committee was and is a business enterprise engaged in
promotion of Republican candidates and political inter-
ests in El Dorado County, headquartered at 3181 Cameron
Park Blvd., Suite 107, Cameron Park, California, as
shown, inter alia, by its raising and disbursing funds,
contracting for goods and services, employing and reim-
bursing persons and companies and by being regulated,
both in its membership and in its operations, by the
aforesaid provisions of the CEC.
33. Plaintiffs JOHNSON and WADSWORTH are
informed and believe, and allege thereon, that the rea-
sons, among others, for the aforesaid unreasonable and
wrongful acts of differential treatment, discrimination
and deprivation of their protected personal and property
rights was their sexual orientation as gay males who
legitimately exercised their legal and political freedoms
of expression and association on and off Defendant Cen-
tral Committee according to their own beliefs consistent
with the laws of the United States and of California and
of the properly adopted bylaws of Central Committee,
Resp. App. 18
but not in accord with any actual or purported “party
line” imposed or ratified by Defendants herein.
34. Asa result of Plaintiffs JOHNSON’s and WAD-
SWORTH’s exercise of their rights as aforesaid, they were
expelled from Defendant Central Committee by Defen-
dants, and each of them, to their own, and all Plaintiffs’
damage as to be shown at trial. Defendants’ wrongful
conduct is continuing since Plaintiff WADSWORTH
remains expelled from the Central Committee, despite his
clear, elected eligibility for membership thereon, since
those voters who elected him thereto have effectively had
their votes nullified by the acts and omissions of Defen-
dants, and each of them, and since the new bylaws pur-
portedly adopted on January 9, 1995, remain in force and
effect, thereby increasing the likelihood they will be used
to deprive others of similar rights on the Central Commit-
tee in the future. For these reasons, an award of damages,
equitable and declaratory relief is just and proper, as
more specifically prayed for herein.
4th CAUSE OF ACTION - NEGLIGENT
INFLICTION OF EMOTIONAL DISTRESS
(By All Plaintiffs Against All Defendants)
35. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
36. As a proximate result of the negligent acts or
omissions of Defendants, and each of them, Plaintiffs
suffered severe humiliation, embarrassment, chagrin,
anger and emotional distress and have been injured in
mind and body by suffering headaches, nervousness,
~ Resp. App. 19
sleeplessness, and feelings of personal and political help-
lessness, alienation, frustration and despair, all to Plain-
tiffs’ damage as aforesaid so that Plaintiffs are entitled to
recover as alleged herein.
Sth CAUSE OF ACTION - INTENTIONAL
INFLICTION OF EMOTIONAL DISTRESS
(By Plaintiffs JOHNSON and
WADSWORTH Against All Defendants)
37. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
38. The acts or omissions of Defendants to this
cause of action, and each of them, were intentional, outra-
geous, despicable, oppressive and malicious and were
done in conscious or reckless disregard of Plaintiffs’ well-
being and personal and political rights for the sole pur-
pose of causing Plaintiffs severe emotional distress. Fur-
ther, Defendants knew, or should have known, that
subjecting a person with, AIDS, such as Plaintiff WAD-
SWORTH, to their acts and omissions, would stress and
weaken his already compromised state of health and
well-being.
39. As a proximate result of these acts or omissions
of Defendants, and each of them, Plaintiffs suffered
severe humiliation, embarrassment, chagrin, anger and
emotional distress and have been injured in mind and
body by suffering headaches, nervousness, sleeplessness,
and feelings of personal and political helplessness, alien-
ation, frustration and despair, all to Plaintiffs’ damage as
aforesaid and Plaintiffs are entitled to recover as alleged
Resp. App. 20
herein. Further, Plaintiff WADSWORTH’s already com-
promised state of health and well-being due to AIDS was
stressed and weakened by Defendants’, and each of their,
acts or omissions, with the result that his life expectancy
has been shortened and his T-Cell count has dropped
dramatically since September, 1994.
6th CAUSE OF ACTION - INTENTIONAL
INTERFERENCE WITH BUSINESS INTEREST
(By Plaintiffs JOHNSON & WADSWORTH
Against All Defendants)
40. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 though 23, inclusive, of this Class
Action Complaint.
41. At all times relevant hereto, Defendants, and
each of them, knew or should have known that Plaintiffs
JOHNSON and WADSWORTH rented out portions of the
Ranch and used the proceeds therefrom to help defray
the expensive costs of WADSWORTH’s AIDS treatment
and medication. In acting as aforesaid, Defendants to this
cause of action, and each of them, intentionally sought to
interfere with said Plaintiffs’ legitimate business use of
their property and with a significant — and literal - means
of WADSWORTH’s life support.
42. As a proximate result of these acts by said
Defendants, and each of them, Plaintiffs were injured and
damaged as aforesaid.
Resp. App. 21
7th CAUSE OF ACTION - INVASION OF PRIVACY
(By Plaintiffs JOHNSON & WADSWORTH
Against Defendants KNOWLES, CARLSON & TITUS)
43. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
44. At all times herein mentioned, Plaintiffs had a
reasonable and legitimate right and expectation of pri-
vacy and sanctity in their persons and reputations, pri-
vate and commercial. By the acts and omissions above
described, Defendants to this cause of action, and each of
them, invaded that right, without any reasonable or legit-
imate privilege or justification whatsoever, by casting
Plaintiffs in the false light of disloyal Republicans,
“moles” “those homosexuals,”“ faggots” (by which term is
implied a promiscuous, ridiculous male homosexual
undeserving of respect), or other negative attributes
which lessened the respect Plaintiffs had in their commu-
nity. Defendant TITUS further cast Plaintiffs in the false
light of social and/or political outcasts by his false state-
ment that the September 12, 1994, vote to remove them
from Defendant Central Committee was “unanimous,”
when it was, in fact, not.
45. As a proximate result of these acts by said
Defendants, and each of them, Plaintiffs were injured and
damaged as aforesaid. Said Plaintiffs further suffered
special damages in the form of lost rental income from
the Ranch as a proximate result of Defendants’ and each
of their, false statements, and other items of special dam-
age stemming from their loss of standing in their commu-
nity, as to be shown at trial.
Resp. App. 22
8th CAUSE OF ACTION - DEFAMATION
(By Plaintiffs JOHNSON & WADSWORTH
Against Defendants KNOWLES, CARLSON & TITUS)
46. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1-23, and 44 & 45, inclusive, of this
Class Action Complaint.
47. By their statements, acts and omissions above
described, Defendants to this cause of action, and each of
them, defamed Plaintiffs, without any reasonable or legit-
imate privilege or justification whatsoever, by calling
Plaintiffs disloyal Republicans, “moles,” “those homosex-
uals,” “faggots” (by which term is implied a promis-
cuous, ridiculous male homosexual undeserving of
respect), or otherwise uttered and/or caused to be
printed words causing them to be shunned, derided and
eventually ejected negative attributes that lessened the
respect Plaintiffs had in their community. Defendant
TITUS further defamed by his false statement that the
September 12, 1994, vote to remove them from Defendant
Central Committee was “unanimous,” when it was, in
fact, not.
48. Some or all of there defamations were heard by
both co-Defendants and non-parties hereto, who under-
stood them to be defamatory as to Plaintiffs JOHNSON
and WADSWORTH.
49. As a proximate result of these acts by said
Defendants, and each of them, Plaintiffs were injured and
damaged as aforesaid. Said Plaintiffs further suffered
special damages in the form of lost rental income from
the Ranch as a proximate result of Defendants’ and each
Resp. App. 23
of their, false statements, and other items of special dam-
age stemming from their loss or standing in their commu-
nity, as to be shown at trial.
9th CAUSE OF ACTION - DECLARATORY RELIEF
(28 USC §2201)
(By All Plaintiffs Against All Defendants)
50. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
51. An actual controversy has arisen and now exists
between the parties relating to the legal rights of all
Plaintiffs and all Defendants in relation to the validity of
the new bylaws adopted at the January 9, 1995, meeting
of Defendant Central Committee, for which Plaintiffs
desire a declaration of rights, including, but not limited
to, a finding by this Court that said bylaws are null, void
and unenforceable.
52. A declaratory judgment is necessary since Plain-
tiffs contend that the bylaws are inherently infirm and
inconsistent with the U.S. and California Constitutions, as
written, adopted and/or applied, and Defendants, and
each of them, deny the same.
10th CAUSE OF ACTION - COMMON LAW
FAIR PROCEDURE
(By All Plaintiffs Against All Defendants)
53. Plaintiffs incorporate as though fully set forth
herein Paragraphs 1 through 23, inclusive, of this Class
Action Complaint.
Resp. App. 24
54. By virtue of the long-established provisions of
the common law, Plaintiffs JOHNSON and WAD-
SWORTH had and have a right to be afforded the benefits
of fair procedure, including, but not limited to, the rights
of prior and adequate notice and the opportunity to
defend themselves and present and examine witnesses in
a fair and neutral hearing, before suffering any depriva-
tion of their associational rights as members of Defendant
Central Committee.
55. As a proximate result of Defendants’ and each
of their, acts and omissions aforesaid, Plaintiffs were
damaged and are entitled to recover as alleged herein.
WHEREFORE Plaintiffs pray for trial by jury and dam-
ages as follows:
1. For general damages;
2. For special damages according to proof;
3. For fines, penalties, costs, pre- and post-judg-
ment interest and attorneys fees according to law;
4. For punitive damages against all Defendants,
including both statutory and discretionary punitives;
5. For a permanent injunction and/or issuance of a
writ of mandamus directing Defendants to reinstate
Plaintiff WADSWORTH to Defendant Central Committee;
6. For a declaration of the rights and duties of the
parties in relation to the new bylaws adopted January 9,
1995, and for a declaration that said bylaws’ are invalid
and have been without effect;
6. For such other and further relief as proper.
Resp. App. 25
DATED: May 8, 1995
LAW OFFICES OF
G. MICHAEL GERMAN
/s/ G. Michael German
Attorney for Plaintiffs
ES ee en
Resp. App. 26
T.D. Bolling, Jr., SBN 33236
Marjorie E. Manning, SBN 118643
BOLLING, WALTER & GAWTHROP
A Professional Corporation
(SPACE BELOW
FOR FILING
STAMP ONLY)
8880 Cal Center Drive, Suite 400
Sacramento, CA 95826
Telephone No. (916) 369-0777
Telecopier No. (916) 369-2698
Attorneys for Defendants
REPUBLICAN CENTRAL COMMITTEE OF EL DORADO
COUNTY; STEVEN BAILEY; ROBERT BECKER;
ED BORBA; BERNARD CARLSON; MERLIN CHARDI;
CHRISTINA COWELL; CHARLES CHRISMAN;
DAN DELLINGER; TOM EMIGH; MICHAEL FRENN;
MALOA GRIBKOFF; KEVIN HANLEY; TOM
SCHUMACHER; JOHN STELZMILLER; LAVETA
STELZMILLER; and DAVID TITUS
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
PAUL JOHNSON; KEVIN
WADSWORTH, individu-
ally and on behalf of all
others similarly situated,
Plaintiffs,
v.
DAVID KNOWLES;
REPUBLICAN CENTRAL
COMMITTEE OF EL DOR-
ADO COUNTY; STEVEN
BAILEY; ROBERT BECKER;
ED BORBA; BERNARD
CARLSON; MERLIN
CHARDI; CHRISTINA
CASE NO. CIV-S-95-835
MLS PAN
ORDER FOLLOWING
HEARING ON
DEFENDANTS’
MOTIONS TO
DISMISS
DATE: October 20, 1995
TIME: 9:00 a.m.
COURTROOM: The
Honorable Milton L.
Schwartz
(Filed Nov. 20, 1995)
Resp. App. 27
COWELL; CHARLES
CHRISMAN; DAN
DELLINGER; TOM
EMIGH; MICHAEL
FRENN; MALOA
GRIBKOFF; KEVIN
HANLEY; TOM SCHUM-
ACHER; JOHN STEL-
ZMILLER; LAVETA
STELZMILLER: DAVID
TITUS; and DOES 1-25,
inclusive,
Defendants.
Defendants’ motions to dismiss were heard October
20, 1995 before the Honorable Milton L. Schwartz.
Michael German appeared on behalf of plaintiffs, Mark
Spring of Diepenbrock, Wulff, Plant & Hannegan
appeared on behalf of defendant David Knowles and
Marjorie E. Manning of Bolling, Walter & Gawihrop
appeared on behalf of defendants Republican Central
Committee of El Dorado County, Steven Bailey, Robert
Becker, Ed Borba, Bernard Carlson, Merlin Chardi, Chris-
tina Cowell, Charles Chrisman, Dan Dellinger, Tom
Emigh, Michael Frenn, Maloa Gribkoff, Kevin Hanley,
Tom Schumacher, John Stelzmiller, Laveta Stelzmiller, and
David Titus. The Court announced its disposition of the
motions and its reasons therefor into the record and
ordered Ms. Manning to prepare a formal order consis-
tent therewith.
For the reasons set forth in the attached transcript of
proceedings, defendants’ motions to dismiss the
Resp. App. 28
complaint are granted. Plaintiffs shall have 45 days from
the date of hearing within which to amend their com-
plaint to state a claim pursuant to 42 USC § 1983 based on
the deprivation of their First and/or Fourteenth Amend-
ment rights and to seek appropriate declaratory relief. To
the extent plaintiffs’ section 1983 claim is based upon
deprivation of their rights protected by Article I, Section
10 of the United States Constitution or the Fifth, Ninth,
Tenth and Fifteenth Amendments to the United States
Constitution, the claim is dismissed without leave to
amend. Plaintiffs’ section 1985(3) and section 1986 claims
are also dismissed without leave to amend.
IT IS SO ORDERED.
DATED: November 20, 1995
/s/ Milton L. Schwartz
MILTON L. SCHWARTZ,
UNITED STATES
DISTRICT JUDGE
COURT: U.S. District Court, Eastern District of Cali-
fornia
CASE NO.: CIV-S-95-835 MLS PAN
CASE NAME: Johnson v. Knowles, et al.
PROOF OF SERVICE
I am a citizen of the United States, employed in the
County of Sacramento, State of California. My business
address is 8880 Cal Center Drive, Suite 400, Sacramento,
California 95826. I am over the age of 18 years and not a
party to the above-entitled action.
Resp. App. 29
I am readily familiar with Bolling, Walter & Gaw-
throp’s practice for collection and processing of corre-
spondence for mailing with the United States Postal
Service. Pursuant to said practice each document is
placed in an envelope, the envelope is sealed, the appro-
priate postage is placed thereon and the sealed envelope
is placed in the office mail receptacle. Each day’s mail is
collected and deposited in a U.S. mailbox at or before the
close of each day’s business. (CCP § 1013a(3).)
On November 8, 1995, I caused the within ORDER
FOLLOWING HEARING ON DEFENDANTS’
MOTIONS TO DISMISS, the original of which was pro-
duced on recycled paper, to be served via
X MAIL -
Placed in the United States Mail at Sacramento, Cali-
fornia.
G. Michael German, Esq.
Law Offices of G. Michael German
22 Second Street, Suite 310
San Francisco, CA 94105
Dennis Murphy, Esq.
DIEPENBROCK, WULFF, PLANT & HANNEGAN
300 Capitol Mall, Suite 1700
Sacramento, CA 95814
I declare that I am employed in the office of a mem-
ber of the bar of this court at whose direction the service
was made and that this Declaration is executed on
November 8, 1995 at Sacramento, California.
ARTEEMAS GREENE /s/ Arteemas Greene
Resp. App. 30
UNITED STATES DISTRICT COURT
IN AND FOR THE
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO, CALIFORNIA
PAUL JOHNSON, et al.,
~~"
Plaintiffs,
vs. CASE NO.
CIV-S-95-835
; REPUBLICAN
DAVID KNOWLES UBLIC MLS PAN
CENTRAL COMMITTEE OF
EL DORADO COUNTY; et al.,
Defendants.
ee
REPORTER’S TRANSCRIPT
Held in the United States District court in and for the
Eastern District, on Friday, October 20, 1995 before the
Honorable Milton L. Schwartz, judge.
For the Plaintiffs: LAW OFFICES OF
G. MICHAEL GERMAN
22 Second Street, Suite 310
San Francisco, California 94105
BY: G. MICHAEL GERMAN
For the Defendants: BOLLING, WALTER & GAW-
THROP
A Professional Corporation
8880 Cal Center Drive, Ste. 400
Sacramento, California 95826
BY: MARJORIE E. MANNING
Resp. App. 31
For Defendant DIEPENBROCK, WULFF, PLANT
Knowles: & HANNEGAN
300 Capitol Mall, Ste 1700
Sacramento, California 95814
BY: MARK SPRING
Reported by: Diane J. Shepard, CSR #6331 RPR
[p. 2] SACRAMENTO, CALIFORNIA, FRIDAY, OCTO-
BER 20, 1995
THE COURT: This matter is before the Court on
Defendants’ motions to dismiss brought pursuant to Fed-
eral Rule of Civil Procedure 12(b)(6) (which I will refer to
hereafter just as that rather than going through the entire
name.)
Plaintiffs filed suit seeking damages and injunctive
and declaratory relief for claims arising under 42 U.S.C.
Sections 1983, 1985(3) and 1986 and also under state law.
Plaintiffs allege that Defendants ousted them from their
seats on the Republican Central Committee for El Dorado
County (which I'll refer to as simply “the Committee”)
because of Plaintiffs’ status as homosexuals. They seek to
represent the class of quote, “registered republican voters
in Supervisorial District III of El Dorado County who
voted for said Plaintiffs for membership on the committee
in the June 1992 and June 1994 primary elections and
whose votes were thereafter twice nullified by the acts of
Defendants.” unquote Defendants are: (1) David
Knowles, Republican member of the California Assembly
for the Fourth Assembly District; (2) the Committee; and
(3) sixteen individual members of the Committee.
[p. 3] Specifically, Plaintiffs allege that they are long-
standing members of the California Republican Party
Resp. App. 32
who for seventeen years have been and have held them-
selves out to third parties to be exclusive life partners. In
June 1992 and again in June 1994 they were elected to
two-year terms on the Committee via the El Dorado
County primary election ballots. However, Plaintiffs were
removed from their seats for the 1993 to 1995 term pur-
suant to a vote taken at the September 12, 1994 Commit-
tee meeting. Neither Plaintiff was in attendance at the
meeting at the time the vote was taken. Thereafter, Plain-
tiff Johnson resigned his membership in the Republican
Party, but Plaintiff Wadsworth resolved to take his seat on
the Committee for the 1995 to 1997 term.
At a noticed organizational committee meeting held
on January 9, 1995, Plaintiff Wadsworth was sworn in as a
committee member for the 1995-1997 term. Over his
objection, the Committee then adopted bylaws. Included
in these bylaws is Article XIX, which allows for the
removal of any member, quote, “acting in a manner
deemed injurious to the Central Committee or its pur-
poses.” unquote On February 13, 1995, a motion to
remove Wadsworth [p. 4] from the Committee for the
1995-1997 term was passed. Plaintiffs allege that Defen-
dants’ actions removing them from their seats on the
Committee were motivated by and based on Plaintiffs’
homosexuality.
Defendants now move to dismiss pursuant to Rule
12(b)(6) on the grounds that Plaintiffs have failed to state
any federal claim.
A Rule 12(b)(6) motion is decided by primary refer-
ence to the allegations in the complaint. quote, “For pur-
poses of the motion to dismiss, the complaint is construed
—E*~
Resp. App. 33
in the light most favorable to the plaintiff and its allega-
tions are taken as true.” unquote Cruz v. Beto, 405 USS.
319, 322 (1972). The court may not dismiss the complaint
under Rule 12(b)(6) unless it appears beyond doubt that
plaintiffs can prove no set of facts that would entitle them
to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73,
(1984). But the court is not to assume that plaintiffs can
prove facts not alleged or that defendants have violated
the law in ways that have not been alleged. Associated
General Contractors v. California State Council, 459 US. 319,
526 (1983).
First, Defendants maintain that Plaintiffs [p. 5] have
not stated a claim under Section 1983. To state a Section
1983 claim, Plaintiffs must show two essential elements:
(1) that Defendants acted under color of state law; and (2)
that Defendants caused them to be deprived of a right
secured by the Constitution and laws of the United
States. Howerton v. Gabrica, 708 F.2d 380, 382 (9th Cir.
1983). The court finds that Plaintiffs have failed to satisfy
the first element, and with respect to some of the alleged
constitutional deprivations, have also failed to satisfy the
second element.
As to the first element, a person acts under color of
law when exercising or purporting to exercise power.
quote “possessed by virtue of state law and made Possi-
ble only because the wrongdoer is clothed with the
authority of state law.” unquote Dang Vang v. Vang Xiong
X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991).
Generally, public officials or employees act under
color of law while acting in their official capacity or while
exercising responsibilities pursuant to state law. Dang
Resp. App. 34
Vang, 944 F.2d at 479. Defendant Knowles, in his capacity
as a member of the State Assembly, is unarguably a
public official. However, quote “the Ninth [p. 6] Circuit
looks to the nature of the conduct involved, as well as the
surrounding circumstances, and not simply to the defen-
dant’s official capacity,” unquote to determine whether a
public official acted under color of law. Anthony v. County
of Sacramento, Sheriff's Dept., 845 F. Supp. 1396, 1400 (E.D.
Cal. 1994). Accordingly, the Court must determine
whether Knowles’ actions were related to the duties and
powers incidental to his public position.
The Court has examined all the complaint’s allega-
tions regarding the conduct of Knowles. It does not
appear that the conduct of which Plaintiffs complaint
relates to Knowles’ performance of his duties as a mem-
ber of the Assembly. Rather, it appears that Knowles was
acting in his private-capacity as a member of the Republi-
can Party. Without any allegations connecting the conduct
complained of to Knowles’ duties as an Assembly mem-
ber, Plaintiffs have failed to sufficiently allege that
Knowles was acting under color of law by virtue of his
status as a public official.
The remaining defendants include the Committee
and individual members of the Committee. Plaintiffs’
contention that the Committee is a [p. 7] public agency
and its members are public officials by virtue of state
regulations via the California Elections Code is contrary
to controlling law. See Jackson v. Metro. Edison Co., 419
U.S. 347, 350 (1974). Therefore, the remaining Defendants
must be considered to be private parties.
Resp. App. 35
A private individual or entity acts under color of law
where there is quote “significant state involvement in the
action.” unquote. Howerton, 708 F.2d at 382. Accordingly,
the Court must examine the actions of private defendants
to determine if they meet this standard.
Although the requirement that a person act under
color of state law is technically separate from the Four-
teenth Amendment's state action requirement, in cases
such as this where all of the alleged constitutional depri-
vations require state action, the two requirements can be
treated as equivalent. Collins v. Womancare, 878 F.2d 1145,
1148 (9th Cir. 1989), cert. denied, 493 U.S. 1056 (1990).
The Supreme Court has articulated the following
tests to determine when the actions of a private individ-
ual or entity amount to state action: (1) the public func-
tion test; (2) the [p. 8] joint action test; (3) the state
compulsion test; and (4) the nexus test. That’s from the
same citation in Howerton. Plaintiffs maintain that they
meet both the public function test and the joint action
test.
Under the public function test, a private party can be
found to be a state actor where the private party exercises
powers that are traditionally exclusively reserved to the
state, such as holding elections. Flagg Brothers v. Brooks,
436 U.S. 149, 157-158 (1978). Plaintiffs contend that
Defendants engaged in state action because Plaintiffs
were elected to office via the primary election ballot, and
Defendants’ action ousting them from their offices nulli-
fied the election results. This simply stretches the public
function test too far.
Resp. App. 36
The cases holding that conducting elections amounts
to state action concerned the election of public officials.
See Smith v. Allwright, 321 U.S. 649 (1944); Terry v. Adams,
345 U.S. 461 (1953). Although plaintiffs here were elected
to their positions via the primary election ballots, they
were not elected to public offices but rather to positions
within the internal organization of the [p. 9] Committee.
The management of the internal governance of a political
party is simply not a power traditionally exclusively
reserved to the state. See Banchy v. The Republican Party of
Hamilton County, 898 F.2d 1192, 1196 (6th Cir. 1990).
Therefore, Plaintiffs have failed to satisfy the political
function test.
Next, Plaintiffs contend that they satisfy the joint
action test. This test is met where the private party is a
quote “willful participant in joint activity with the State
or its agents”. Howerton, 708 F.2d at 383. One way to
establish joint action is to demonstrate a conspiracy
between private parties and the government. That’s from
the same citation in Howerton. Plaintiffs maintain that
they have sufficiently alleged a conspiracy between
Knowles and the other Defendants to oust Plaintiffs from
their positions on the Committee. However, because
Plaintiffs have failed to show that Knowles was acting
under color of law, they have not demonstrated a conspir-
acy between the private defendants and a government
actor. Thus, Plaintiffs have not satisfied the joint action
test.
[p. 10] Accordingly, the Court finds that Plaintiffs
have failed to sufficiently allege that any of the Defen-
dants were acting under color of state law.
Resp. App. 37
As to the second element of a Section 1983 claim,
Defendants maintain that Plaintiffs have failed to ade-
quately allege the deprivation of any federal constitu-
tional or statutory right. Plaintiffs’ complaint alleges that
Defendants violated their rights protected by Article I,
Section 10 of the United States Constitution and by the
First, Fifth, Ninth, Tenth, Fourteenth and Fifteenth
Amendments to the United States Constitution. Plaintiffs,
however, concede that they cannot state a claim for depri-
vations of their rights guaranteed by Article I, Section 10
or the Fifth, Ninth and Tenth Amendments. Therefore,
the Court needs only to determine whether Plaintiffs
have stated a claim under the First, Fourteenth and Fif-
teenth Amendments.
After carefully reviewing the complaint, the Court
finds that the allegations purporting to show a violation
of the First Amendment are too vague to be reasonably
analyzed under the Rule 12(b)(6) standard. Therefore, to
the extent that Plaintiffs’ Section 1983 claim depends on a
[p. 11] deprivation of their First Amendment rights, it is
dismissed sua sponte for failure to comply with Federal
Rule of Civil Procedure 8(a).
That's the rule that requires a plain, clear and simple
statement of the cause of action and the jurisdiction on
which it’s based.
As to Plaintiffs’ claim of a deprivation of their Four-
teenth Amendment rights, the Court recognizes that
homosexuals do not constitute a Suspect or quasi-suspect
class. See High Tech. Gays v. Defense Industry Sec. Clearance
Off., 895 F.2d 563, 574 (9th Cir. 1990). This, however, does
not preclude Plaintiffs’ claim because they may be able to
Resp. App. 38
show that Defendants’ actions were not rationally related
to any legitimate interest. From the same citation.
Next, the Court finds that Plaintiffs have not alleged
a deprivation of their Fifteenth Amendment rights. The
Fifteenth Amendment prohibits the denial of the right to
vote on account of race, color or previous condition of
servitude in, quote “any election in which public issues
are decided or public officials selected.” end quote That's
from Terry, 345 U.S. at 468.
Plaintiffs’ claim of a deprivation of their [p. 12] Fif-
teenth Amendment rights fails for two reasons. First, the
votes that Plaintiffs claim were nullified were not for the
selection of public officials. Second, Plaintiffs do not
allege that anyone’s right to vote was denied on account
of race, color or previous condition of servitude. There-
fore, Plaintiffs have failed to allege a deprivation of their
Fifteenth Amendment rights.
In summary, Plaintiffs’ Section 1983 claim is deficient
for the following reasons: (1) they have failed to allege
that any Defendants acted under color of state law; (2)
they have conceded that they cannot state a claim for the
violation of Article I, Section 10 of the U.S. Constitution
or the Fifth, Ninth and Tenth Amendments to the United
States Constitution; (3) their allegations of a deprivation
of their First Amendment rights do not meet the require-
ments of Federal Rule of Civil Procedure 8(a); and (4)
they have failed to adequately allege a deprivation of
their Fifteenth Amendment rights. Additionally, the
Court finds that the deficiencies of Plaintiffs’ Section 1983
claim to the extent it relies on a deprivation of their
Resp. App. 39
Fifteenth Amendment rights cannot be cured by amend-
ment. Therefore, Defendants’ motions with [p. 13] respect
to Plaintiffs’ Section 1983 claim are GRANTED, and Plain-
tiffs are granted leave to amend their complaint to prop-
erly allege a Section 1983 claim only insofar as the claim
relies on a deprivation of their First and/or Fourteenth
Amendment rights.
The Court now addresses whether Plaintiffs have
stated a claim under 42 U.S.C. Sections 1985(3) and 1986.
To state a claim under Section 1985(3) a plaintiff must
allege: (1) a conspiracy; (2) to deprive any person or class
of persons of the equal protection of the laws or of equal
privileges and immunities under the laws; (3) an act by
one of the conspirators in furtherance of the conspiracy;
and (4) a personal injury, property damage or deprivation
of any right or privilege of a citizen of the United States.
United Brotherhood of Carpenters & Joiners v. Scott, 463 U.S.
825, 828-29 (1983) (citing Griffin v. Breckenridge, 403 U.S.
§ 8, 102-03 (1971)). Homosexuals are not a, quote “class”
unquote,vithin the meaning of Section 1985(3). DeSantis
v. Pacific Tel. and Tel. Co., Inc., 608 F.2d 327, 333 (9th Cir.
1979). Therefore, Plaintiffs have failed to state a claim [p.
14] under Section 1985(3).
Section 1986 imposes liability on individuals who
knowingly fail to prevent a violation of Section 1985.
Because Plaintiffs have failed to state a claim under Sec-
tion 1985(3), they also have failed to state a claim under
Section 1986. Accordingly, Defendants’ motions with
respect to Plaintiffs’ Sections 1985(3) and 1986 claims are
GRANTED. Because the Court finds that amendment as
Resp. App. 40
to these claims would be futile, they are dismissed with-
out leave to amend.
Finally, because Plaintiffs have failed to state a claim
that would give this court jurisdiction to award declara-
tory relief under 28 U.S.C. Section 2201, Defendants’
motions to dismiss Plaintiffs’ claim for declaratory relief
are GRANTED with leave to amend. See Skelly Oil Co. v.
Philips Petroleum Co., 339 U.S. 667, 671 (1950).
Finally, the Court finds that Plaintiffs have failed to
state a claim pursuant to 42 U.S.C. Sections 1983, 1985(3)
and 1986 and have failed to establish that the Court has
jurisdiction to award declaratory relief pursuant to 28
U.S.C. Section 2201.
[p. 15] Accordingly, for the foregoing reasons, the
court GRANTS Defendants’ motions to dismiss. Plain-
tiff’s are hereby granted 45 days’ leave to amend their
complaint to state a Section 1983 claim based on the
deprivation of their First and/or Fourteenth Amendment
rights and to seek appropriate declaratory relief. To the
extent that Plaintiffs’ Section 1983 claim is based upon
deprivations of their rights protected by Article I, Section
10 of the United States Constitution or the Fifth, Ninth,
Tenth and Fifteenth Amendments to the United States
Constitution, the claim is DISMISSED without leave to
amend. Plaintiffs’ Section 1985(3) and Section 1986 claims
are also DISMISSED without leave to amend.
MS. MANNING: Thank you, your Honor.
MR. GERMAN: Your Honor, I would ask one
indulgence from the Court and from Counsel, and that 45
Resp. App. 41
days to leave to amend be granted. The reason for that
is -
THE COURT: That’s fine.
[p. 16]REPORTER’S CERTIFICATE
STATE OF CALIFORNIA )
)
COUNTY OF SACRAMENTO )
I, DIANE SHEPARD, certify that I was the Official
Court Reporter, Pro tem, and that | reported verbatim in
shorthand writing the foregoing proceedings; that I there-
after caused my shorthand writing to be reduced to type-
writing, and the pages numbered 1 through 15, inclusive,
constitute as complete, true and correct record of said
proceedings:
COURT: United States District Court
JUDGE: The Honorable Milton L. Schwartz
CAUSE: Johnson, et al. v. Knowles, et al.
DATE: October 20, 1995
IN WITNESS WHEREOF, I have subscribed this cer-
tificate at Sacramento, California, on this 25th day of
October, 1995.
/s/ Diane J. Shepard
DIANE J. SHEPARD
CSR NO. 6331, RPR
Resp. App. 42
NINTH CIRCUIT CASE NO. 96-15852
E.D. CAL. CASE NO. CIV-S-95-835 MLS (PAN)
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL JOHNSON; KEVIN WADSWORTH;
LAUREN COOPER; RAY SEBASTIAN &
BARBARA SEBASTIAN, individually and on
behalf of all others similarly situated,
Plaintiffs / Appellants,
Vv.
DAVID KNOWLES; REPUBLICAN CENTRAL
COMMITTEE OF EL DORADO COUNTY; STEVEN
BAILEY; ROBERT BECKER; ED BORBA;
BERNARD CARLSON; MERLIN CHARDI;
CHRISTINA COWELL; CHARLES CHRISMAN;
SAN [sic] DELLINGER; SUSAN EMIGH; TOM
EMIGH; MICHAEL FRENN; MALOA GRIBKOFF;
KEVIN HANLEY; TOM SCHUMACHER; JOHN
STELZMILLER; LAVETA STELZMILLER; DAVID
TITUS & DOES 1-25
Defendants / Appellees.
/
OPENING BRIEF OF PLAINTIFFS/APPELLANTS
APPEAL FROM THE UNITED STATES
DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
NO. CIV-S-95-835 MLS (PAN)
HONORABLE MILTON L. SCHWARTZ, JUDGE
Resp. App. 43
G.MICHAEL GERMAN - 103312
LAW OFFICES OF
G. MICHAEL GERMAN,
A Professional Corporation
22 Second Street - Suite 310
San Francisco, CA 94105-3406
(415) 536-1838
Attorney for Plaintiffs / Appellants
PAUL JOHNSON;
KEVIN WADSWORTH;
LAUREN COOPER;
RAY SEBASTIAN &
BARBARA SEBASTIAN,
individually and
on behalf of all others similarly
situated.
TABLE OF CONTENTS
Ee i
py iii
STATEMENT OF SUBJECT MATTER & APPELLATE
et odanecucscencseesoesesecon 1
REQUEST FOR ATTORNEYS FEES................. 1
STATEMENT OF ISSUES PRESENTED FOR REVIEW. 1
STATEMENT OF THE CASE....................... 2
A. Nature of the Case, Course of Proceedings and
ELIE a
EE 3
Resp. App. 44
i oo ee OL eee dae aveseuwen
i Oe ee uc eae
I. DEFENDANTS’ ACTIONS WERE STATE
ACTION FOR PURPOSES OF § 1983 LAW ....
A. Assemblyman David Knowles’ Actions
Were Done Under Color of Law ..........
B. The Committee and Its Members Acted
See GC Or Be os nnn xcs cccencenceace
1. Defendants’ Actions Satisfy the Public
UMN IRS 6 0.054 0405000000450 00000
2. Defendants’ Actions Satisfy the Joint
I ee cap eekbstcdtaessenss ceh.s
WwW
Defendants’ Actions Satisfy the State
ee RTC T TUTE TET EEE T Ee
4. Defendants’ Actions Satisfy the Nexus
| BE Rn ree yan ee en
Il. PLAINTIFFS HAVE PLED DEPRIVATIONS OF
HS. yey eisy 6 Re . ey > Re
es Re ee rey ee rr ere
STATEMENT OF COMPLIANCE ...................
STATEMENT OF RELATED CASES ................
DECLARATION OF G. MICHAEL GERMAN &
EXHIBITS THERETO IN ADDENDUM TO PLAIN-
TIFFS’/APPELLANTS’ BRIEF; REQUEST FOR
MS OE cin é con vec ddcccse nceass as
13
19
19
28
31
Resp. App. 45
TABLE OF AUTHORITIES
I. Cases
Able v. US, (ED, NY: 1995) 880 FS 968 .............. 38
Adickes v. Kress, (1970) 398 US 144............... 29, 31
Allison v. California Adult Authority, (CA9: 1969)
My Nia Ca acceso cul css cone ous mous cd coe cs 12
Anthony v. County of Sacramento, (ED, CA: 1994)
a ok SR re nee ae 17
Baker v. Cuomo, (CA2: 1995) 58 F3d 814............. 12
Banchy v. The Republican Party of Hamilton County,
(CAG: 1990) GB FOG 1192... on. ccc ccc cccccscccen 24
Blank v. Heineman, (NE: 1991) 771 FS 1013........... 25
Blum v. Yaretsky, (1982) 457 US 991 .............. 13, 31
Burton v. Wilmington Parking Authority, (1961) 365
Se EG ee ches Ge gen clea hoes os eee ere ee as 33
Burson v. Freeman, (1991) - US -, 112 SC 1846....... 26
Chapman v. King, (CA5: 196) 154 F2d 460............ 33
Cohen v. California, (1971) 403 US 15................ 38
Columbia Natural Resources, Inc. v. Tatum, (CA6:
co RR er rr ae ia, i9, 32
Conley v. Gibson, (1957) 355 US 41 ............... bi, 2
Cook v. Houston Post, (CA5: 1980) 616 F2d 791....... 29
Dahl v. Secretary of US Navy, (ED, CA: 1993) 830 FS
We a) Planes Vash cdhveudeeeuecannunasedendvns 38
Resp. App. 46
Dang Vang v. Vang Xiong X. Toyed, (CA9: 1991) 944
FO GO ccnscscecsessisésdetsonaerarpeee 13, 16, 17
Eu v. SF County Demo. Cen. Com., (1989) 489 US
BO. ctkcndviccdeeetsostetanssanetsaaneee 21, 22
Evans v. Romer, (CO: 1993) 854 P2d 1270............ 35
Evans v. Romer, (CO: 1994) 882 P2d 1335............ 35
Everest & Jennings v. American Motorists Ins., (CA9:
DOPED BP FOG BAO bent vsacsdsanctdndigenes 12, 15, 33
Ex parte Yarbrough, (1884) 110 US 651............... 27
Federspiel v. Ohio Republican Party, (SD, OH: 1994)
Oe Be OSE oc 00086554 ganeiadaentesieeeeeeee 23
Felder vo. Casey, (1908) 467 US 151 .....cscccscccsvess 12
Flagg Brothers, Inc. v. Brooks, (1978) 436 US 149
60b-bnwnebdhed asi eee eee 19, 20, 28, 30
Gamza v. Aguirre, (CA5: 1980) 619 F2d 449.......... 26
Gay Law Students Assn. v. Pacific Tel. & Tel. Co.,
te ere er ees 36
Gertz v. Robert Welch, Inc., (1974) 418 US 323........ 18
Glendora v. Cablevision Systems Corp., (CA2: 1995)
OD Fe OO vdnccdacvocsencnsanesasatgaess eee 12
Gray v. Sanders, (1963) 372 US 368 .................. 33
Griffin v. Burns, (CA1: 1978) 570 F2d 1065........... 27
Haddock v. Bd. of Dental Examiners of Calif., (CA9:
oo Pe | PPro ere ea 12
Howerton v. Gabica, (CA9: 1983) 708 F2d 380..13, 19, 28
Jackson v. Metropolitan Edison Co.,; (1974) 419 US
WNL, &-66:00:4.0s ccna nn eee cae 20, 21, 30, 34
Resp. App. 47
Laxalt v. McClatchy, (NV: 1985) 622 aes 18
Lugar v. Edmondson Oil Co., Inc., (1982) 457 US
EGER EMG RN we Lies eg heaeS vce vce vececsce. 13, 17
Lynch v. Torguato, (CA3: 1965) 343 F2d 370.......... 25
an v. City of Costa Mesa, (CA9: 1989) 886 F2d -
Moose Lodge No. 107 v. Irvis, (1972) 407 US 163
SEU UEE ENS G6 56.0 p46 044665 cs00000000. 29, 30, 31, 32
Morse v. Republican Party of Virginia, (1996) 116 SC
EAS a i ee 20, 23, 30, 36
Neitzke v. Williams, (1989) 490 US 319............... 12
Palmore v. Sidoti, (1984) 466 US 429................. 37
Plessy v. Ferguson, (1896) 163 US 537................ 35
Republican Party of Arkansas v. Faulkner County,
Arkansas, (1995) 49 F3d 1289................... 20, 23
Reynolds v. Sims, (1963) 377 US 533.............. 26, 36
Romer v. Evans, (1996) 116 SC 1620............... 34, 35
Rosario v. Rockefeller, (1973) 410 US 752, 761......... 22
SF County Demo. Cen. Com. v. Eu, (CA9: 1987) 826
gs gnc n ven c ce ncn ncncee 21, 22
SF County Demo. Cen. Com. v. Eu, (CA9: 1986) 792
ee ole iw acdc sccescucceces., 22
Smith v. Allwright, (1944) 321 US 649................ 20
State ex rel Hayes v. Jennings, (1962) 173 Ohio St.
Me Oe WM OD nce ec ccc ncccee 24
Resp. App. 48
Tashjian v. Republican Party of Connecticut, (1986)
8 rp err rrr errr errr rey rrr rt 22
Terracom v. Valley National Bank, (CA9: 1995) 49
errr r rrr Irae eT Serer eT oT TT Cy 11
Terry v. Adams, (1953) 345 US 461............ 19, 20, 34
(Re eR eS... Seeereerrerrr rs 17
U.S. v. Mosley, (1915) 238 US 383 ............64.. 23, 36
Watkins v. US Army, (CA9: 1989) 875 F2d 699....... 36
Went wo. Alii, CEFR) GF UF OF oc soc ves kia sccccns. 16
Yick Wo v. Hopkins, (1886) 118 US 356............... 26
II. Statutes
U.S. Constitution, Amdts. I & XIV...2, 4, 9, 10, 21, 31, 32
y BR) a: ere Er rrr ry Srre rrr rr ee rer. 1
Be RE IE sh okies <ccawene eee euen eee ee eR eee 1
, os ee Se Tre eee re cerre rrr rere 1
ee 5 ae Pee eee Ae ead e neon CeaN ee eee any ee 1
yA er Te eer eer rT rere re ree 2
Gs TOE oe twa eek ac canes hanna samen saees 19
y ee Pere peer rT err eee reer re. 1, 2 ©
42 USC §1983
eRe Ae RENE EAN SANE OES 1, 2, 3, 12, 13, 16, 19, 27, 26, X%
ee a ere er re peer ee rrr Tr 1
Pee eT Pere Orerrerreerer ery eT Teer res e \ Po ee Fe |
es Cee Ti a 6 in os 6 he kw cdeda ccd 06s 1
Resp. App. 49
Cal. Civil Code §§51-52.1........................... 10
Cal. Code of Civil Procedure §410.30a................ 3
Cal. Code of Civil Procedure SS ae >
Cal. Elections Code §7250-7470. . .4, 8, 14, 22, 23, 25, 32
NNN 5 5 5d. ¥-o'e 06 6G 444 vb bee uvesnccce., 23
I is ea ois coc eee 4, 10, 32
Ohio Revised Code, §305.02...................... 24, 25
III. Treatise
Prosser & Keeton on Torts, 5d, §8 at ae. 27
STATEMENT OF SUBJECT MATTER
& APPELLATE JURISDICTION
This appeal follows the district court’s dismissal of
Plaintiffs’ first amended class action complaint without
leave to amend, which pled federal question and state
tort law supplemental jurisdiction under the provisions
of 28 USC §§1331, 1343, 1357 and 1367 pursuant to 42
USC §1983 civil rights and 28 USC §2201 declaratory
relief claims stemming from a pair of election disputes.
This court has appellate jurisdiction as an appeal of
right of a final decision of a district court pursuant to 28
USC §1291. Plaintiffs’/ Appellants’ Notice of Appeal was
timely filed under FRAP 4a on April 18, 1996, within 30
days after entry of the district court’s March 20, 1996,
order and judgment.
Resp. App. 50
REQUEST FOR ATTORNEYS FEES
Per Ninth Circuit Rule 28-2.3, Plaintiffs will seek
recovery of attorneys fees for this appeal under the inher-
ent powers of the court and pursuant to 42 USC §1988.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
Whether ousters of duly elected members of a county
Republican central committee by other members of that
‘committee, including an active state Assemblyman sitting
ex officio on the committee and his appointee, constitute
state action for purposes of pleading Plaintiffs’ federal
civil rights and declaratory relief claims.
Whether Defendants deprived Plaintiffs of a feder-
ally protected Constitutional right.
STATEMENT OF THE CASE
A. Nature of the Case, Course of Proceedings and
Prior Disposition
Plaintiffs PAUL JOHNSON and KEVIN WAD-
SWORTH, are two gay men who have been life partners
since 1978 — and politically active Republicans for almost
as long. CR 28 at {46 & 7. Twice elected by fellow El
Dorado County Republicans, who knew both their per-
sonal and political proclivities, to their county’s central
committee, they were twice ousted from it by a case of
intolerant members whose leaders vowed “to get rid of
those faggots.” Id. Plaintiffs then filed a class action com-
plaint, on behalf of themselves and their fellow Republi-
cans who elected them to office, for damages and for
Resp. App. 51
declaratory and equitable relief, including Wadsworth’s
reinstatement to the committee, based upon 42 USC
§1983. CR 1.
Defendants David Knowles, an active member of the
California Assembly and ex officio member of the central
committee, and 16 other committee members who voted
to oust Johnson and Wadsworth, moved to dismiss Plain-
tiffs’ complaint under FRCvP 12b for failure to state a
claim upon which relief can be granted. Per stipulation of
counsel after an early status conference, it was agreed
that Defendants would first challenge only Plaintiffs’ fed-
eral claims, leaving the state law tort claims to be
addressed if federal jurisdiction was found. CR 14. Defen-
dants’ motions to dismiss were granted and all but Plain-
tiffs’ I and XIV Amendment claims under 42 USC §1983
and their declaratory relief claims under 28 USC §2201
were dismissed without leave to amend. CR 26 & 27.
Joined by fellow Republicans Ted and Lauren Cooper
and Ray and Barbara Sebastian, Plaintiffs timely filed a
first amended class action complaint, to which Susan
Emigh was added as a Defendant. CR 28. Defendants
again moved to dismiss under FRCvP 12b6 for failure to
state a claim and their motion was granted. CR 40. As
before, and now, the crucial issue for decision was
whether or not Defendants’ actions in ousting Johnson
and Wadsworth were state action, a necessary component
of any §1983 civil rights claim. In again rejecting Plain-
tiffs’ argument that “defendants engaged in state action
because Johnson and Wadsworth were elected to office
via the primary election ballot and defendants’ action
ousting them from their offices nullified the election
Resp. App. 52
results,” the court noted that Plaintiffs’ contention “sim- |
ply stretches the public function test too far.” CR 27 at
8:12-17; CR 40 at 9:17-22.
Judgment thereafter issued upon the order of dis-
missal, CR 41, and this appeal of right was timely filed on
April 18, 1996. CR 44. Pursuant to 28 USC §1367d, Plain-
tiffs timely filed a verified class action complaint in the
Superior Court of California, in and for El Dorado
County, similar to their first amended complaint forming
the subject of appeal but purged of its federal claims and
of Ted Cooper as a co-Plaintiff. Per Defendants’ timely
motion therein, that action has since been stayed pending
the results of this appeal, pursuant to Cal. Code of Civ.
Prodedure (CCP) §§410.30 and 418.10a2. Exs. A and B to
Addendum.
B. Statement of Facts
The first amended complaint identifies Defendant
Republican Central Committee of El Dorado County
(committee) as
“existing and operating solely by virtue of,
under and in furtherance of the laws of this
State, including, but not limited to Cal. Elections
Code (CEC §7250-7470 and 18540-18700, whose
chairman is Defendant DAVID TITUS and
whose meetings are held at 3161 Cameron Park
Drive, Suite 107, Cameron Park, CA. Member-
ship in the Central Committee is composed pri-
marily by the election thereto of registered
members of the Republican Party resident in El
Dorado County by their fellow Republican elec-
tors resident in El Dorado County voting in
eli
Resp. App. 53
primary elections, noticed, organized, con-
ducted, supervised and officially reported by
the State of California. Membership in the Cen-
tral Committee is recognized as a de facto prereq-
uisite to higher office, both elected and
appointed, within the Republican Party at the
county, state and national levels, and within
municipal, county, state and national govern-
ment, and thereby benefits government by pro-
viding it with a pool of persons presumably
experienced in the workings of the democratic
process within the republican form of govern-
ment guaranteed by the Constitution, of and
throughout, the United States. Running and
casting and receiving votes for membership on
the Central Committee is also a legitimate exer-
cise of the most elementary form of participa-
tory democracy in a local forum as guaranteed
by the I and XIV Amendments to the U.S. Con-
stitution protecting the fundamental rights of
voting, assembling and petitioning for redress
and participating equally in the political pro-
cess.” CR 28 at 2.
“Defendant DAVID KNOWLES is an elected
Republican member of the California Assembly
for the 4th Assembly District who has and con-
tinues to maintain his local legislative office at
3161 Cameron Park Drive, Suite 214, Cameron
Park, CA, which suite number Plaintiffs are
informed, believe and allege thereon does not
exist separately from Suite 107, per the records
of the El Dorado County Assessor. Plaintiffs also
are informed, believe and expect to discover
facts supporting their further allegation that by
virtue of his status as a member of the Califor-
nia Assembly, Defendant KNOWLES has the
Resp. App. 54
right and power to appoint members to the Cen-
tral Committee under CEC §§7250-7470 and,
using that power, exercised influence, direct and
indirect, over the decisions, workings and
administration of the Central Committee rele-
vant hereto, as evidenced by his January, 1993,
appointment of Defendant LAVETA STELZ-
MILLER to the Central Committee, by his direct-
ing his former legislative aide Defendant
BECKER and other members of his legislative
staff, on the “official” time and expense of the
California State Assembly, to vote against adop-
tion of the Central Committee’s 1994 platform
drafted by Plaintiff WADSWORTH and to there-
after bring about the ouster of Plaintiffs JOHN-
SON and WADSWORTH from the Central
Committee and by his directing the placement
of campaign signs and literature supporting
himself displayed to the public and within the
premises of Suite 107/214 of 3161 Cameron Park
Drive, Cameron Park, CA, in violation of those
statutes and bylaws of El Dorado County and of
the State of California prohibiting such politick-
ing in Central Committee offices, but acquiesced
to by certain members of the Central Commit-
tee, including but not limited to Defendants
herein.” CR 28 at 43.
The remaining individual Defendants are all duly
elected and/or alternate appointed members of the com-
mittee who likewise acted pursuant to the same govern-
ing California statues. Id.
Since 1978, Plaintiffs Paul Johnson and Kevin Wad-
sworth have lived together as exclusive life partners and
held themselves out to third parties as the same, sharing
Resp. App. 55
living expenses, space and resources. CR 28 at 46. Plain-
tiffs have been longtime registered members of the Cali-
fornia Republican Party and have served with distinction
on other central committees in this state, and were,
“in 1992 and 1994, elected and reelected by their
fellow Republicans of El Dorado County, Super-
visorial District IIL, including, but not limited to
Plaintiffs TED COOPER, LAUREN COOPER,
RAY SEBASTIAN & BARBARA SEBASTIAN, to
two-year seats on Defendant Central Commit-
tee, which seats they held with integrity and
dedication from January, 1993, until ousted
therefrom by Defendants as pled below. JOHN-
SON and WADSWORTH received in the June,
1994, primary election 1,585 and 1,562 votes,
respectively and they are informed, believe and
recall that they received a substantially similar
number of votes in the June, 1992, primary elec-
tion as well. JOHNSON and WADSWORTH won
the June, 1994, primary election despite the best
efforts of certain of their colleagues on the Cen-
tral Committee and other California Republi-
cans, including but not limited to Defendants
KNOWLES and CARLSON, who vowed “We’ve
got to get rid of those faggots,” and actively
worked to do so.” CR 28 at 47 and Exhibit C
thereto.
Johnson and Wadsworth’s El Dorado County home is
“The Lone Antler Ranch,” which they occasionally lease
for receptions, fund-raising and other uses. Proceeds
from Ranch rentals are used to defray the cost of medical
treatment for Wadsworth, who is a disabled Vietnam-era
Marine Corps veteran suffering from AIDS. CR 28 at 48.
Johnson leased the Ranch to the Katie Hirning For Con-
gress Campaign for a September 17, 1994, fundraiser for
Resp. App. 56
Ms. Hirning, the Democratic candidate for the November,
1994, 4th Congressional District election, in which she
opposed incumbent Republican Congressman John Doo-
little. Per the Committee’s bylaws, the lease specifically
provided that neither Johnson’s nor Wadsworth’s name
would be used in connection with the fundraiser, which
was held as scheduled. Neither Johnson nor Wadsworth
took part in it except as lessors, CR 28 at 9, a practice
also engaged in by at least one other Defendant with
respect to his own property, but without the same conse-
quences that Plaintiffs suffered. CR 28 at {16.
“On September 5, 1994, one week before the
regularly scheduled meeting of Defendant Cen-
tral Committee, JOHNSON and WADSWORTH
learned that JOHNSON’s father had died in
Ohio that day. Both Plaintiffs immediately made
plans to travel to Ohio to attend the funeral and
advised Defendants SCHUMACHER and
LAVETA STELZMILLER thereof by telephone
and FAX that same day, noting it was possible
each would not be able to attend the September
12, 1994, meeting, to which no Defendant
responded. WADSWORTH did not travel to
Ohio due to his need to receive regularly sched-
uled experimental medical AIDS treatment at
Marshall Hospital. Such treatments are lengthy,
painful and leave the patient feeling weak and
nauseous for several days after administered.”
CR 28 at 410.
“Wadsworth underwent such treatment
beginning at 11:00 am on September 12, 1994,
and appeared at the meeting of Defendant Cen-
tral Committee at 7:30 p.m. that same day. The
meeting was called to order by Defendant
a
Resp. App. 57
TITUS and proceeded with its business, includ-
ing the election of Defendant BECKER to the
Central Committee, until WADSWORTH begin
to feel ill. WADSWORTH then gave the Central
Committee a check in the amount of $69.75,
representing the closing balance from his reelec-
tion campaign committee, Riff Raff Republicans
PAC, pursuant to operative provisions of the
CEC and left. Prior to that point in the meeting,
neither its notice, agenda nor any discussion
once underway gave Wadsworth any sign that
any action was to be taken against him.” CR 28
at 911.
“Thereafter, under the direction of Defen-
dant TITUS, Defendant Central Committee pur-
ported to go into “Executive Session,” despite
any provision therefor in the governing bylaws
of the Central Committee or the CEC, where
Defendant EMIGH initiated discussion of Plain-
tiffs JOHNSON’s and WADSWORTH'’S role in
the Hirning fundraiser held at the Ranch and
moved that each be removed from the Central
Committee for allegedly failing to support
Republican candidates and for providing sup-
port to Democratic candidates. After discussion
supporting the motion from Defendants CAR-
LSON and BECKER, the motion was passed as
follows:
AYES: 13 (BAILEY, BECKER, BORBA,
CARLSON, CHRISMAN, DELLINGER, EMIGH,
FRENN, GRIBKOFF, HANLEY, L. STEL-
ZMILLER, J. STELZMILLER & TITUS; CHARDI,
alternate)
NAYS: 1 (Gilmore) ABSTENTIONS: 3
(Aguiar, Collens & Messenger)
Resp. App. 58
Plaintiffs are informed, believe and allege
thereon that Defendant KNOWLES instructed,
prevailed upon or otherwise influenced Defen-
dants BECKER and LAVETA STELZMILLER to
vote for Plaintiffs’ ouster.” CR 2B at 412.
The Committee never informed either Plaintiff of its
action in removing them; they learned of it from articles
in the local press, which quoted Defendant Titus as stat-
ing both Plaintiffs were “unanimously ousted.” Wad-
sworth vowed to continue as a Republican but Johnson
realigned his longstanding Republican party membership
in disgust and re-registered as a Democrat. CR 28 at 413.
Between December 31, 1994, and January 3, 1995,
Laveta Stelzmiller mailed Committee members notice of
its January 9, 1995, organizational meeting. Enclosed was
a proposed resolution urging the dismissal of a state
employee but no agenda. At that meeting, Wadsworth
was sworn into his elected committee office and Defen-
dants Titus, Schumacher, Becker and Gribkoff were
elected Chairman, Vice-Chairman, Secretary and Trea-
surer, respectively. While it has been customary for those
elected officials, such as Knowles and Congressman Doo-
little, who have the right to appoint members to the
committee under CEC §§7250-7470 to do so at this Orga-
nizational Meeting, neither Knowles nor Doolittle then
did so. CR 28 at 414.
An organizational agenda given to those present at
the meeting listed “Adoption of By-laws” as item III, but
a copy of the proposed bylaws was not included with the
notice. Wadsworth objected to consideration of these pro-
posed bylaws as out-of-order, because of this inadequate
Resp. App. 59
notice, but Titus ruled his objection out-of-order. Schum-
acher’s motion to adopt the bylaws was seconded by
Carlson and approved. CR 28 at 8:14-20 and Exhibit A
thereto.
Plaintiffs pled on information and belief that Titus
had directed Becker to draft these new bylaws prior to
the January 9, 1995, meeting and that other Defendants,
including but not limited to Tom Emigh and Knowles,
knew that the new bylaws would be drafted and pre-
sented for adoption on January 9, 1995. Once adopted,
Emigh stated his intention to seek Wadsworth’s removal
at the Committee’s next meeting, set for February 13,
1995, purportedly under new bylaw Article XIX “for
engaging in actions injurious to the Committee.” CR 28 at
{15.
“On February 6, 1995, Defendant BECKER
mailed a notice of the February 13, 1995, meet-
ing to all members of Defendant Central Com-
mittee, accompanied by an agenda which listed
as item IXA “Disciplinary Action.” At the meet-
ing, Defendant EMIGH moved, and Defendant
CARLSON seconded, the removal of Plaintiff
WADSWORTH “for engaging in actions deemed
injurious to” the Central Committee. After dis-
cussion of the motion from, among others,
Defendants BECKER, CARLSON, and EMIGH
and SCHUMACHER, including, but not limited
to, alleged statements made and actions taken
by WADSWORTH prior to January 9, 1995;
statements criticizing the Central Committee
allegedly made by WADSWORTH and over-
heard by Defendant SUSAN EMIGH, wife of
Defendant EMIGH, in a restaurant on January
19, 1995, and thereafter memorialized by her in
Resp. App. 60
“sworn testimony” not produced at the meeting;
a December 15, 1995, letter allegedly sent by
Katie Hirning to her “supporters,” which letter
was neither then shown to WADSWORTH nor
seen by him at any time prior or since the meet-
ing; concern that the Central Committee beware
of expelling members who rent property to
Democrats, in light of SCHUMACHER’s regu-
larly renting property jointly owned by him and
a registered Democrat to Democrats; and Defen-
dant KNOWLES’ admission to SCHUMACHER
that his reason for pushing, directly or indirectly
through his aide BECKER and other members or
appointees to the Central Committee, the
removal of WADSWORTH therefrom was due to
his “being homosexual,” the motion was passed
as follows:
AYES: 9 (BECKER, CARLSON, COWELL,
DELLINGER, EMIGH, GRIBKOFF, SCHUMACHER, J.
STELZMILLER & TITUS)
NAYS: 3 (Colvin, Gilmore & WAD-
SWORTH) ABSTENTIONS: 1 (CHRISMAN)” CR 28 at
q16.
Plaintiffs pled on information and belief that
Knowles instructed, prevailed upon or otherwise influ-
enced Becker to vote for Wadsworth’s ouster. On March
13, 1995, Laveta Stelzmiller and Cecil Ringgenberg were
elected to fill the seats of Johnson and Wadsworth by
acclamation of those members of the committee then
present. Plaintiffs similarly pled that these Defendants
knew that Laveta Stelzmiller had failed to win enough
votes in the June, 1994, primary to be elected to the
committee, but elected her to membership despite this
Resp. App. 61
knowledge “in direct contravention of the will of the
electorate.” Id.
In ousting Plaintiffs, Defendants acted without prob-
able cause
“In arbitrary and capricious abuse of legitimate
legal processes and in violation of clearly and
long established rights guaranteed to all Plain-
tiffs under the I and XIV Amendments to the
Constitution of the United States, since named
plaintiffs had twice been elected to the Central
Committee by their fellow registered Republi-
cans; since the bylaws drafted by Defendant
BECKER and purportedly adopted by the Cen-
tral Committee on January 9, 1995, both as writ-
ten and enforced, were overbroad, vague and
incapable of Constitutional comprehension; and
since the enforcement of those bylaws against
Plaintiff WADSWORTH under the provisions of
CEC §§7250-7470 and 18540-18700, violated all
Plaintiffs’ I and XIV Amendment rights without
rational connection to any legitimate purpose.”
CR 28 at 425.
The specific Constitutional rights infringed by Defen-
dants, individually and in conspiracy among themselves,
were Plaintiffs’
“fundamental I Amendment rights of freedom
of speech, expression and association, and of
their right to participate in the electoral and
political process by peaceably assembling and -
petitioning their government for redress of
grievances by twice invalidating Plaintiffs’ elec-
tion of Plaintiffs JOHNSON and WADSWORTH
to the Central Committee by ousting them there-
from as aforesaid and thereby stifling political
Resp. App. 62
debate in and electoral input to Defendant Cen-
tral Committee. Defendants likewise deprived
all Plaintiffs of their fundamental XIV Amend-
ment rights against abridgement of their privi-
leges or immunities as citizens of the United
States and deprived all Plaintiffs of their pro-
tected liberty interests in a republican form of
government without due process of law by
twice invalidating Plaintiffs’ election of Plain-
tiffs JOHNSON and WADSWORTH to the Cen-
tral Committee by ousting them therefrom as
aforesaid, in violation of their fundamental
rights to participate in the electoral process by
casting votes and having those votes count and
determine who their elected representatives will
be, without subsequent invalidation except as
done in a manner consistent with due process
and rationally related to some legitimate inter-
est.” CR 28 at 126.
Defendants were alleged to have acted under color of
state law, including but not limited to CEC §§7250-7470
and 18540-18700, and the committee’s 1995 bylaws. CR 28
at 428. Plaintiffs’ remaining claims pled state constitu-
tional, statutory (Unruh Civil Rights Act [Cal. Civil Code
§§51-52.1]) and common law tort theories of relief, along
with a federal declaratory relief claim under 28 USC
§2201 directed against the 1995 bylaws. CR 28 at 16-21.
They prayed for jury trial; special, general and punitive
damages; costs, interest, and attorneys fees; injunctive
relief in the form of reinstating Wadsworth to the com-
mittee; and for a declaration of the 1995 bylaws’
invalidity.
Although class certification was neither sought nor
determined prior to dismissal, certain of the class action
Resp. App. 63
allegations are relevant to this appeal. Thus, Johnson and
Wadsworth sued on behalf of themselves and those regis-
tered Republicans in their electoral district who voted for
them in the June, 1992 and 1994 primaries and “whose
votes were thereafter twice nullified” by Defendants’
acts. As based upon those elections’ returns, the potential
class has a membership of 1,500-2,500 persons and its
members share common damages by suffering “prejudice
to and dilution and deprivation of their rights as voters
effected by Defendants’” twin ousters of Johnson and
Wadsworth. CR 28 at ¥421 and 22.
SUMMARY OF ARGUMENT
Each Defendant acted under color of state law under
any of the four tests adopted by the Supreme Court for
finding state action, whether individually or in conspir-
ing with each other to deprive Plaintiffs of their federally
protected right to participate equally in the political pro-
cess.
ARGUMENT
Standard of Review
FRCvP 12b6 dismissals for failure to state a claim
upon which relief can be granted are reviewed de novo.
Terracom v. Valley National Bank (CA9: 1955) 49 F3d 555,
558. “A complaint should not be dismissed for failure to
state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Id., quoting Conley v.
Gibson (1957) 355 US 41, 45-46, 78 SC 99, 102. Applying
Resp. App. 64
this standard, all material allegations in the complaint are
accepted as true, id., as are any reasonable inferences
therefrom, Everest & Jennings v. American Motorists Ins.
(CA9: 1994) 23 F3d 226, 228, and are construed in the
light most favorable to the pleader, Moore v. City of Costa
Mesa (CAQ9: 1989) 886 F2d 260, 262, even if susceptible to
more than one inference. Columbia Natural Resources, Inc.
v. Tatum (CA6: 1995) 58 F3d 1101, 1109. Nor should a
complaint be dismissed by reliance upon the improper
legal theory; it should be allowed to proceed if the facts
support any valid theory of relief, Haddock v. Board of
Dental Examiners of California (CA9: 1985) 777 F2d 462,
464, no matter how unlikely or improbable of proof the
alleged facts are. Neitzke v. Williams (1989) 490 US 319, 109
SC 2827, 1833 and Allison v. California Adult Authority
(CA9: 1969) 419 F2d 822, 823 (prisoners’ civil rights
claim). Dismissals are “especially disfavored in cases
where the complaint sets forth a novel legal theory that
can best be assessed after factual development,” Baker v.
Cuomo (CA2: 1995) 58 F3d 824, 828-19 (sua sponte dis-
missal of prisoners’ pro se §1983 voting rights claim), or in
certain civil rights actions, Glendora v. Cablevision Systems
Corp. (CA2: 1995) 45 F3d 36, 37 (pro se claim). Indeed, in
§1983 cases
“a
the central objective of the Reconstruction-era
civil rights statutes . . . is to ensure that individ-
uals whose federal constitutional or statutory
rights are abridged may recover damages or
secure injunctive relief.’ . . . §1983 provides a
‘uniquely federa. remedy against incursions
... upon rights secured by the Constitution and
laws of the Nation,’ . . . and is to be accorded ‘a
sweep as broad as its language.’” Felder v. Casey
Resp. App. 65
(1988) ‘a sweep as broad as its language.’” Felder
v. Casey (1988) 487 US 131, 139, 108 SC 2302,
2307 and cases cited therein.
I. DEFENDANTS’ ACTIONS WERE STATE ACTION
FOR PURPOSES OF §1983 LAW
A. Assemblyman David Knowles’ Actions Were
Done Under Color of Law
To state a claim under 42 USC §1983, it must be
shown that defendants acted under color of state law to
deprive plaintiffs of a right secured by the Constitution
and laws of the United States. Lugar v. Edmondson Oil Co.,
Inc. (1982) 457 US 922, 931, 102 SC 2744, 2750; Howerton v.
Gabica (CA9: 1983) 708 F2d 380, 382. As the trial court
noted, “faithful adherence to the ‘state action’ require-
ment . . . requires careful attention to the gravamen of the
plaintiff's complaint.” CR 40 at 5:9-11, quoting Blum v.
Yaretsky (1982) 457 US 991, 1003, 102 SC 2777, 2785: Medi-
caid patients’ class action against state officials under XIV
Amendment was “obviously different from those cases in
which the defendant is a private party and the question is
whether his conduct has sufficiently received the
imprimatur of the State so as to make it ‘state’ action for
purposes of the Fourteenth Amendment.”
The district court recognized that while Defendant
David Knowles was an Assembly member, it “must deter-
mine whether Knowles’ actions were related to the duties
and powers incidental to his public position.” See, Dang
Vang v. Vang Xiong X. Toyed (CA9: 1991) 944 F2d 476, 480.
Looking to the nature of his conduct alleged in the first
amended complaint, the court determined that “plaintiffs
read too much into the designation of Knowles as an ex
Resp. App. 66
officio member of the Committee and his power to
appoint an alternate member of the Committee.” CR 40 at
6:14-16. While the court rightly noted that Knowles’ ex
officio status derived from his position as his party’s
nominee for his Assembly seat, not from his Assembly
membership, and that his appointive power is limited to
one alternate member of the committee, the court may
have misconstrued CEC §7406 when it stated that “the
only advantage gained by virtue of Knowles’ status as an
Assembly member is that the Committee cannot with-
draw his power to appoint an alternate,” in comparison
to the committee’s “discretion to give this authority to
any ex officio member, whether an incumbent
officeholder or not.” CR 40 at 7:3-4. Review of § 7406 in
relation to §§7404 and 7405 reveals that all incumbent, ex
officio members of the committee have appointive author-
ity unfettered by committee discretion; non-incumbent ex
officio members have only discretionary appointive
authority from the committee. Appendix, Ex. C.
At least one reason used by the district court to find
that Knowles’ abuse of his position did not constitute
state action is thus fundamentally flawed. Where one
appointive power is tempered by committee discretion
and the other is not, the reasonable inference is that he
who holds unqualified power thereby wields greater
power and influence over those who exercise discretion
over persons with lesser power, i.e., committee members
who have discretion over non-incumbent ex officio mem-
bers. Further, it is reasonable to infer that unrestricted
members’ views receive greater credence and respect
from committee colleagues than do those of one subject to
committee discretion, in addition to that enhanced status
Resp. App. 67
and credibility that normally accompanies public office,
whether as a party’s nominee or as the eventual
officeholder.
Further, where it has been specifically pled that
Knowles used his greater power to exercise influence
over the decisions, working and administration of the —
committee by appointing Laveta Stelzmiller to the com-
mittee in 1993, where she later voted to oust Plaintiffs
from the committee; directing his former legislative aid
Robert Becker “and other members of his legislative staff,
on the ‘official’ time and expense of the California State
Assembly, to vote against adoption of the Central Com-
mittee’s 1994 platform” drafted by Wadsworth, and that
Becker twice voted to remove Plaintiffs from the commit-
tee; illegally placing his own campaign signs and litera-
ture in the offices of the committee without fear of having
it take any action against him for doing so, CR 28 at 3;
and vowing with his co-Defendant Bernard Carlson
“We've got to get rid of those faggots,’ and actively
worked to do so,” CR 28 at 5:15, it is clear that an abuse
of state-sanctioned political power has been pled, the
only relevant issue at this level of inquiry.
The district court was obliged to draw all reasonable
inferences from these factsEverest & Jennings, supra, and
to construe them in the light most favorable to the
pleader, Moore, supra, even if susceptible to more than one
inference. Columbia, supra. Instead, the court drew lim-
ited, unfavorable or no inferences from them in holding
that “taken as a whole, the factual allegations of the
complaint more readily typify conduct of one who hap-
pens to be a public official acting in the role of a private
individual pursuing a personal political agenda.” CR 40
Resp. App. 68
at 7-B. The district court thus erred in finding Plaintiffs
did “not allege facts demonstrating that Knowles’ actions
were related to the duties and powers incidental to his
public position.” Rather, they flowed directly from it. The
facts pled and the inferences drawn from them demon-
strate that “by virtue of his position in the Assembly.”
Knowles abused the political power conferred upon him
by operation of California statutes to Plaintiffs’ detri-
ment.
The cases relied upon by the district court support
Plaintiffs’ position. What occurred was precisely the
underhanded abuse of power that was recognized in
Dang, supra. There, a rapacious Laotian state social
worker regularly seduced refugee girls, in situations vari-
ously contended as on and off the job. The Ninth Circuit
first cited West v. Atkins (1988) 487 US 49-50, 108 SC
2255-2256 for the rule that “a defendant in a §1983 suit
acts under color of state law when he abuses the position
given to him by the state.” Dang, supra, at 479. Here,
Knowles was an unfettered ex officio member of the com-
mittee by operation of Art. III, §2A of its bylaws, which
incorporate the provisions of former CEC §§9324-9325
(recodified as §§7405-7405), a state-sanctioned grant of
authority properly subject to judicial notice. Appendix,
Ex. C.
It was properly alleged that Knowles abused his
position in a manner constituting state action by not only
advocating and assisting in the ouster of Johnson and
Wadsworth, but by depriving the remaining potential
class member Plaintiffs of their fundamental Constitu-
tional right to vote and have that vote stand until Consti-
tutionally canceled or confirmed in another election. As
Resp. App. 69
with refugee girls in awe of government officials, id., at
480, it is conceivable a jury could conclude from evidence
supporting the pleadings in this case that Knowles “used
his government position to exert influence and-
- control” over his co-Defendants’ to Plaintiffs’ detri-
ment. Clearly, if such evidence resulted in a verdict
against Knowles, it would stand appellate scrutiny under
Dang. “Misuse of power, possessed by virtue of state law
and possible only because the wrongdoer is clothed with
the authority of state law, is action taken under color of
law.” U.S. v. Classic (1941) 313 US 299, 326, 61 SC 1031,
1043, cited with approval in Lugar, supra, at 929, 102 SC
2750 and in Dang, supra, at 479. Knowles’ greater poten-
tial for influence and eventual misuse of it were possible
only because his nomination to his office gave him power
unaffected by discretion, as authorized by the commit-
tee’s bylaws and by California’s elections statutes.
The district court cited its earlier decision in Anthony
v. County of Sacramento (ED, CA: 1994) 845 FS 1396 in
dismissing Plaintiffs’ complaint. However, the question of
Whether or not “Knowles’ actions were related to the
duties and powers incidental to his public position,”
must be answered in the affirmative. The facts pled reveal
a clear connection between Knowles’ ex officio status on
the Committee, his appointive power and resultant
enhanced credibility and prestige, and the subsequent
ouster of Johnson and Wadsworth and violation of his
Own constituents’ Constitutional voting rights. Just as a
Sheriff’s duties include protecting his inmates’ rights, an
Assemblyman’s include safeguarding his constituents’
Resp. App. 70
rights. Just as “[t]he Government is prohibited from retal-
iating for the lawful exercise of constitutional rights,” id.,
at 1400, its elected officials must be likewise bound.!
The district court cited Laxalt v. McClatchy (NV: 1985)
622 FS 737 to support its holding that while “the prestige
of Knowles’ office may have added to his influence on the
Committee [that] is not enough to convert private action
into action taken under color of law.” CR 40 at 8:2-6. The
conduct complained of in Laxalt was use of Senate sta-
tionery to demand a retraction, as required by Nevada
libel law. “In so doing, he acted as would have any
private citizen considering the possibility of filing suit for
libel.” Id., at 747. Indeed, a public official with “greater
access to the channels of effective communication,” id., at
748, quoting Gertz v. Robert Welch, Inc. (1974) 418 US 323,
344, 94 SC 2997, 3009, “must exercise that opportunity.”
Id., at 747. Here, though, there was no such obligation
incumbent upon Knowles. His obligations as an elected
Assemblyman were to respect, defend and uphold the
laws of the republican form of government that gave him
his seat, including the will of the electorate that put both
him and Johnson and Wadsworth into office. Laxalt has
neither precedential nor factual value in resolving the
state action question presented by this appeal. As to
Defendant David Knowles, that question must be
answered positively.
1 When and wherever they might so act, contrary to any
argument that Knowles’ actions were a “lark and frolic” so as to
take him outside ambit of state action, as in workers
compensation cases.
EC Se ge eee) OS eee ee, ee een
Resp. App. 71
B. The Committee and Its Members Acted Under
Color of Law
1. Defendants’ Actions Satisfy the Public
Function Test
The district court’s November 20, 1995, Order cor-
rectly recognized the gravamen of Plaintiffs’ complaint as
their claim that “defendants engaged in state action
because Johnson and Wadsworth were elected to office
via the primary election ballot and Defendants’ action
ousting them from their offices nullified the election
result.” However, the court held “this simply stretches
the public function test too far.” CR 40 at 9:21-22.
The public function test is one of four methods the
Supreme Court has set forth to determine if state action
exists in sufficient degree to support a §1983 claim. How-
erton, supra, at 383. The public function test supports a
finding of state action where a private party exercises
powers traditionally reserved to or delegated by the state,
including conducting “state-regulated elections or elec-
tions conducted by organizations which in practice pro-
duce ‘the uncontested choice of public officials.’ ” Flagg
Brothers, Inc. v. Brooks (1978) 436 US 149, 158, 98 SC 1729,
1734, quoting Terry v. Adams (1953) 345 US 461, 484, 73 SC
809, 820.
That lesser contests could involve state action was
hinted at in Flagg, when the Court specifically noted “that
the conduct of the elections themselves is an exclusively
public function” and further distinguished the “ordinary
commercial transaction presented” in that case as not
meriting the “special provision to protect equal access to
Resp. App. 72
the ballot” codified in 42 USC §1971a1. Id., at 158 and fn.
7. While Plaintiffs make no claim under §1971, and are
mindful of the difference between elections to public
office and private posts, the Court’s reference to that
statute and the cases interpreting it is significant: the
political arena is especially deserving of Constitutional
safeguards as one of the “very few . . . ‘exclusively
reserved to the State.’ ” Flagg, supra, at 58.
In Morse v. Republican Party of Virginia (1996) 116 SC
1186, the Supreme Court expanded both this theme and
when party action could constitute state action in the
context of a Voting Rights Act challenge to a purported
poll tax imposed by Virginia Republicans upon their
members. The issue for the Court was the same jurisdic-
tional one in this appeal: what activity by a private politi-
cal party amounts to state action? Moving beyond the
bounds set by Flagg, the Court held that “the Party exer-
cised delegated state power when it certified its nominee
for automatic placement on Virginia’s general election
ballot.” Morse, supra, at 1193-4.
Central to its decision was the Court’s reliance upon
the Texas “white primary cases,” which underlay the 1965
Act. Id., at 1201-6, Terry, supra, and Smith v. Allwright
(1944) 321 US 649, 64 SC 757. The Court rejected argu-
ments that those cases were to be limited to race discrimi-
nation election disputes, id., at 1204 and see Republican
Party of Arkansas v. Faulkner County, Arkansas (1995) 49
F3d 1289, 1293: “The White Primary cases teach that
realities, not labels, must guide our review of election
laws,” [collecting cases]; that either Flagg or Jackson v.
Metropolitan Edison, infra, precluded finding state action
by a political party “unless its nominees are virtually
Resp. App. 73
certain to win the general election,” id., at 1207: and
disposed of any claim that finding jurisdiction will
“abridge associational rights protected by the First
Amendment.” Id. at 1209-10.
Plaintiffs do not contend that all actions of a political
party, or of any of its subdivisions such as the Committee
or its members, constitute state action; they do contend
that some such actions, like Defendants’ here, may
impinge the fundamental right to vote by negating it
under an act of state delegated authority. This contention
is based upon a careful review of Ey v. SF County Demo-
cratic Cen. Com. (1989) 489 US 214, 109 SC 1013. In affirm-
ing this Court’s holding in SF County Democratic Cen.
Com. v. Eu (CA9: 1987) 826 F2d 814, that certain California
regulations governing political parties violated the free
speech and associational rights guaranteed their mem-
bers by the I and XIV Amendments, the Supreme Court
recognized that while California “heavily regulates its
political parties,” Eu, supra, at 216, 109 SC 1016, this itself
is not enough; heavy regulation of Private entities alone
will not make them state actors or their conduct state
action. Jackson v. Metropolitan Edison (1974) 419 US 345,
350-353, 95 SC 449, 453-454 (no state action found in
§1983 claim against utility where obligation to furnish
regulated service Operates against utility, not state: 3
Defendants’ obligation to abide by the voters’ will and
governing law.) However, neither the Supreme Court nor
the Ninth Circuit ultimately found that the actions of
central committees could never be State action.2
* This assertion stems from this Court’s first opinion, SF
County Democratic Cen. Com. v. Eu (CA9: 1986) 792 F2d 802,
Resp. App. 74
While “how a party organizes itself, how it conducts
its affairs and how it selects its leaders are decisions that
must be left to the discretion of the party unless the state
has a compelling interest that would justify state interfer-
ence,” CR 40 at 10:9-14 (quoting Eu, supra, at 230, 109 SC
1024), what occurred here went beyond mere internal
management: the results of two primaries, even if “only”
for party office, were nullified. “A State indisputably has
a compelling interest in preserving the integrity of its
election process,” id., at 231, 109 SC 1024, citing Rosario v.
Rockefeller (1973) 410 US 752, 761, 93 SC 1245, 1251-2, and
“a State may enact laws that interfere with a party’s
internal affairs when necessary to ensure that elections
are fair and honest. Id., citing Storer v. Brown (1974) 415
US 724, 730, 94 SC 1274, 1279.5 Unlike Eu, the instant
vacated by the US Supreme Court and remanded “for further
consideration in light of Tashjian v. Republican Party of
Connecticut,” in Eu v. SF County Democratic Cen. Com. (1987) __
US __, 107 SC 864. Subsequently, in Eu II, this Court concluded
“that Tashjian supports our previous decision and [we]
accordingly reinstate our judgment affirming the district court
for the reasons set forth in this modified opinion.” SF County
Democratic Cen. Com. v. Eu (CA9: 1987) 826 F2d 814, 818
[emphasis added.] However, the closest characterization this
Court could reach was that “The status of these committees
under the [former] Elections Code is less clear than the State
would have us believe.” Id. What this convoluted procedural
history makes clear is that there is no controlling authority
foreclosing a finding that state action exists in the facts of this
appeal.
3 California’s post-Eu Elections Code shows a high degree
of state regulation of central committees consistent with finding
state action. CEC §§7400-7470 constitute a comprehensive
regulatory plan embracing which state officers hold or may
appoint to committee membership (§§7404-7406); the
Resp. App. 75
appeal is “a case where intervention is necessary to pre-
vent the derogation of the civil rights of party adherents,”
suffered by Johnson, Wadsworth and their fellow Repub-
licans who twice elected them to leadership posts. Id., at
232, 109 SC 1025, as quoted with approval in Morse, supra,
at 1210.
Defendants engaged in state action when they twice
ousted Johnson and Wadsworth from the committee
under the authority of the Elections Code. (Cf, CEC
§7413, delegating to committees the power to remove
members popularly elected to them with CEC
§§11000-11386, relating to recall.) It will not do to distin-
guish discrimination against gay candidates or their sup-
porters from discrimination against their Black
counterparts, cf., Morse, supra, at 1204; the right protected
~ the right to vote and to have one’s vote counted (U.S. v.
Mosley (1915) 238 US 383, 386, 35 SC 904, 905) - is funda-
mental and its guarantees apply across all class lines.
“Generally speaking, the Supreme Court has required
that parties be inclusive, allowing all interested persons
to participate in party activities.” Republican Party of
Arkansas, supra, at 1294. What no court has required, and
what Plaintiffs do not seek, is judicially mandating that
one particular viewpoint replace the democratic debate
requirement of an oath under Article XX, Sec. 2 of the state
constitution (§7408); how vacancies are to be filled (§§7409 &
7410); how removals are to be effected (§7413); monthly use of
State buildings for committee meetings without charge (§7430)
and how committees may make rules and regulations (§7442).
These statutes show considerable interplay between the state
and central committees, all for the benefit and protection of the
voters and our republican form of government.
Resp. App. 76
among the voters’ elected representatives to a party, the
give and take of our republican form of government. By
allowing Plaintiffs to be excluded from this process how-
ever, it is threatened at its most elementary level and
cannot long stand.
Other decisions recognize central committees may
engage in state action in some circumstances. Banchy v.
Republican Party of Hamilton County (CA6:1990) 898 F2d
1192 involved §305.02 of the Ohio Revised Code, which
made its county central committees “responsible for fill-
ing vacancies that occur in certain county offices formerly
held by party members.” Id., at 1194. The Sixth Circuit
held that while not
“all actions of a central committee constitute
state action[, w]hen performing the narrow
duties assigned to it under section 305.02, the
Central Committee of the Republican Party may
well be engaging in state action. State ex rel
Hayes v. Jennings, 173 Ohio St. 370, 374, 182
N.E.2d 546 (1962) (“[t]he power conferred by
Section 305.02, Revised Code, upon central com-
mitteemen makes them public officers.”)”
“Intra-party elections of officers is not ‘state
action.’ Banchy, supra, at 1194-96. (See also, Fed-
erspiel v. Ohio Republican Party (SD, OH: 1994)
867 FS 617, 623: “some of the duties of the
Central Committee, including replacing incum-
bents, may be interpreted as “state action”, that
in turn does not make all of its acts state
action.”) [emphasis added.]
The public office/ private post distinction should not
control here; the disenfranchisement of a large number of
voters by a small number of party officials who undid
oe REN ae a
Resp. App. 77
their votes should. While in Banchy popularly elected
committee members retained their elective office within
the party and lost, if anything, only their immediate
opportunity to elect their own intra-party officers, Plain-
tiffs lost must more: Johnson and Wadsworth, their posi-
tions as committeemen elected in the 1992 and 1994
primaries; the other named and potential class Plaintiffs,
their votes and elected representatives on the committee,
through whom they sought to influence its actions during
Johnson’s and Wadsworth’s terms. A finding of state
action is justified not because there exists in §305.02 a
statutory mandate similar to that found in CEC §7410
(allowing for filling of committee vacancies by committee
vote), but because the effect of Defendants’ action tran-
scends mere management of intra-party matters by undo-
ing the result of an election. The same distinctions exist
between Federspiel, supra (committee officers and execu-
tive committee members) and this appeal: elementary
elective office, the basis of a republican form of govern-
ment, was violated by Defendants’ acts, not just higher
intra-party office.
Blank v. Heineman (NE: 1991) 771 FS 1013 held in the
context of analyzing whether a I Amendment 42 USC
§1985(3) civil rights conspiracy claim had been pled, that
“ “The normal role of party leaders in conduct-
ing internal affairs of their party, other than pri-
mary or general elections, does not make their
party offices governmental offices or the filling
of those offices state action.’ ” Id., at 1018, quot-
ing Lynch v. Torquato (CA3: 1965) 343 F2d 370,
372: disputed election of chairman of committee.
[emphasis added.]
_ Resp. App. 78
In Blank, a committee chairmanship was lost but com-
mittee membership remained intact; no state action was
found. Id., at 1014. Here, Defendants disallowed even that
vestige of the electorate’s trust in Plaintiffs and directly
contravened the expressed will of the electorate, who
were stripped of the candidates they had chosen and
saddled with a candidate they had rejected. If such an
abuse of the fundamental right to vote does not shock the
conscience, it certainly goes beyond a simple intra-party
dispute and violates the essential integrity of the electoral
process, the basis for any democracy. Burson v. Freeman
(1992) _ US __, 112 SC 1846, 1859; Reynolds v. Sims
(1964) 377 US 533, 561-562, 84 SC 1362, 1377 and Yick Wo
v. Hopkins (1886) 118 US 356, 371, 6 SC 1064, 1071. In
doing so, it was tantamount to an act of the state.
Moreover, it is the voters’ normal role to determine
membership on central committees, not that of other
committee members, except in limited circumstances,
such as Knowles’ statutory right to do so or in ways
beyond the scope of this appeal and its focus on the
pleadings. By ousting Johnson and Wadsworth from the
committee, Defendants altered the results of primaries
and engaged in state action just as if they had mounted a
recall election. Thus, it is no impediment to Plaintiffs’
claim that they do not challenge the “manner in which
the[ir] election was conducted.” That they were twice
ousted from the committee by Defendants after twice
being elected to it is enough: whether acting before, dur-
ing or after the election, Defendants compromised its
results just as surely as if the state had not allowed it to
go forward in the first place. Indeed, with two elections
and two ejections a matter of public record, the situation
Resp. App. 79
is demonstrably one “capable of repetition, yet avoiding
review” for jurisdictional purposes.
Gamza v. Aquirre (CA5: 1980) 619 F2d 449 set forth a
guide for determining whether a particular challenge to a
state election practice rises to a level deserving of federal
protection:
4
- whether it was inflicted intentionally or
accidentally whether it is part of a pattern that
erodes the democratic process or whether it was
more akin to a negligent failure properly to
carry out the state ordained electoral process
and whether state officials have succumbed to
‘temptations to control . . . elections by violence
and corruption.’” Id., at 453, quoting Ex parte
Yarbrough (1884) 110 US 651, 666.
There can be no doubt that Plaintiffs’ allegations
meet this test. Intentional conduct has been pled, a tradi-
tional basis for expanding liability, Prosser & Keeton on
Torts, 5d, §8 at 9.37, and the factual allegations show that
it was no accident that Johnson and Wadsworth were
ousted from the committee and replaced by a candidate
they had trounced only months before - the same Laveta
Stelzmiller who David Knowles had appointed to the
Committee in 1993. CR 28 at G13 and 16. Defendants’
longstanding animus against Johnson and Wadsworth,
extending back to 1992, and their secrecy in preparing
and presenting the new bylaws adopted in January, 1995,
show a pattern of activity directed against Johnson, Wad-
sworth and those who twice voted them into office. In
light of these allegations, it is hardly hyperbole to con-
clude Defendants readily succumbed to the temptation to
Resp. App. 80
control the elections in E] Dorado County through a gross
form of political corruption.
Griffin v. Burns (CA1: 1978) 570 F2d 1065 also found
federal intervention warranted in an election class
action/§1983 case stemming from a public office primary.
After reciting, at 1074-5, the caselaw protecting the fun-
damental right to vote, and repeating the admonition that
federal courts should not endorse §1983 suits in “garden
variety election irregularities,” id., at 1076, the court rec-
ognized that
“the right to vote remains, at bottom, a federally
protected right. If the election process itself
reaches the point of patent and fundamental
unfairness, a violation of the due process clause may
be indicated and relief under §1983 therefore in
order. . . . there is precedent for federal relief
where broad-gauged unfairness permeates an
election, even if derived from apparently neutral
action.
In cases falling within such confines, we think a
federal judge need not be timid, but may and
should do what common sense and justice
require.” Id., at 1077-8, finding both class action
status and relief under §1983 appropriate.
[emphasis added.]
Can it be seriously questioned that Defendants’ oust-
ing Johnson and Wadsworth from the Central Committee
breached the federally protected right of their co-Plain-
tiffs/electors to have their votes count? Can Defendants
seriously contend that a point of judicial intervention is
never reached because of a barrier built by an allegedly
private entity and its actors, regardless of whether 1, 2, 4,
or 400 candidates or elections are nullified? The action
Resp. App. 81
taken was fundamentally unfair since it violated a funda-
mental right. This Court should have no hesitation in
finding state action and in allowing Plaintiffs to prove
their claims at trial.
2. Defendants’ Actions Satisfy the Joint
Action Test
State action may also be shown by joint action
between the state and a private party, where the private
party is a “willful participant in joint activity with the
State or its agents.” Howerton, supra, at 383 and Flagg,
supra, at 164-5, 98 SC 1737. “One way to establish joint
action is to demonstrate a conspiracy between private
parties and the government.” CR 40 at 10:19-21.
Contrary to the district court’s interpretation, how-
ever, a conspiracy can - and most do - run two ways.
Private parties may be held liable under §1983 if conspir-
ing with persons performing state action, Adickes v. Kress
(1970) 398 US 144, 150-152, 90 SC 1598, 1605, even if
conspiring with state actors who have immunity for their
acts. Cook v. Houston Post (CAS: 1980) 616 F2d 791, 794.
The pleadings and inferences reasonably flowing there-
from demonstrate how all Defendants conspired to oust
Johnson and Wadsworth from the committee and to vio-
late the voters’ rights. CR 28, 443, 5, 7, 12-16 and 19.
Whether Knowles or the committee members were the
State actors and the other merely willing participants is
irrelevant since it is only necessary for one group of
Defendants to engage in state action to bind the other in
conspiracy terms. The allegations of the amended com-
plaint and the arguments advanced herein demonstrate
Resp. App. 82
that all Defendants en
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