# Opposition Brief — Johnson v. Knowles

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1997
- **Citation:** 522 U.S. 996

## Text

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.

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

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 engaged in state action under the
various tests for that component of Plaintiffs’ case.

The joint action test may be met in other ways. Thus,
if there is a symbiotic relationship between the state and
the private party, state action may exist. Moose Lodge No.
107 v. Irvis (1972) 407 US 163, 175, 92 SC 1965, 1972. Such
a relationship exists in the close interaction between the
state and the central committees under the guidance of
the CEC. From fielding candidates who are voted upon in
an official, state sponsored and supervised primary elec-
tion, to certifying the election results and administering
the oath required of the winners in the primary, the state
and the committees act jointly and willingly with each
other in identifying and producing players in first the
political and, ultimately if not concomitantly, in the gov-
ernmental process. But for the primary, there would be no
committee; but for the committee, there would be no
republican state government, a dictatorship or lottery
might function as well. Once formed, the committees may
meet monthly in state-owned buildings free of charge and
remain subject to state regulation in how they conduct
their meetings and govern themselves. Clearly, in the
matter of the elections that serve to form them, the activ-
ities of the committees and of the state are so inextricably
intertwined that one could not exist without the other.
And, where the outcome of those elections is voided by
the a [sic] political creature who owes its political exis-
tence to this symbiotic system, that same state action
justifies federal relief.

Nothing in Flagg, supra, is to the contrary. There, as
elsewhere, the Supreme Court took care to distinguish
election cases from the creditor’s lien case before it for

;

Resp. App. 83

purposes of state action analysis. Id., at 158-164, 98 SC
1734-1736. In light of the Court’s recent pronouncement
and expansion of its views of state action in elections
contexts in Morse, supra, reliance upon Flagg, Moose Lodge,
Jackson and other non-election cases grappling with the
state-private action continuum is especially inadvisable.
Moreover, consideration of the “feature of exclusivity”
common to the public function doctrine analyzed in
Flagg, yields the predictable conclusion that “the conduct
of the elections themselves is an exclusively public func-
tion,” id., at 158, 98 SC 1734, including any restrictions
imposed upon that conduct by purely party procedures.
Morse, supra, at 1194-1195, 1200-1205.

3. Defendants’ Actions Satisfy the State Com-
pulsion Test

The state compulsion test is the third method by
which state action may be shown, although its applica-
tion here is initially questionable since neither the State of
California, nor any of its political subdivisions, is a defen-
dant. (Cf., Blum v. Yaretsky (1982) 457 US 992, 102 SC ye tp
Medicaid patients’ suit against state social services com-
missioners.) Where applicable, state action may be found
if a state has “exercised coercive power or has provided
such significant encouragement, either overt or covert,
that the choice must in law be deemed to be that of the
State... .” Id., at 1004, 102 SC 2786. [citations omitted. ]

Of the cases relied upon by the Supreme Court in
Blum in analyzing the state compulsion test, only Moose
Lodge and Adickes were anti-Black discrimination cases
similar to the anti-gay discrimination case at bar; neither

Resp. App. 84

was ever cited by the district court in either of its orders
dismissing Plaintiffs’ suit. Review of these two decisions
reveals that Adickes is the more similar to this appeal, an
action not against a state but against allegedly private
entities. There, the Supreme Court held that

“for state action purposes it makes no difference
of course whether the racially discriminatory act
by the private party is compelled by a statutory
provision or by a custom having the force of law
— in either case it is the State that has com-
manded the result by its law.” Id., at 171, 90 SC
1615.

It must be recalled that Plaintiffs seek declaratory
relief in their suit: that the bylaws adopted on January 9,
1995, are invalid and repugnant to the I and XIV Amend-
ments. CR 28 at 22:18-20. Similarly, it is alleged that those
bylaws, as written and enforced, were overbroad, vague
and incapable of Constitutional comprehension, and their
“enforcement against Plaintiff WADSWORTH under the
provisions of CEC §§7250-7470 and 18540-18700 violated
all Plaintiffs’ 1 and XIV Amendment rights.” CR 28 at 425.
Thus, it has been alleged that Defendants, by relying
upon these provisions of the CEC to justify their ouster of
Wadsworth under bylaws adopted under the same
authority, received at least covert, if not outright, encour-
agement from the state for their actions. And, even if
Knowles’ appointee Laveta Stelzmiller voted at a meeting
the district court characterized as devoted to intra-party
management, the effect of that vote - ouster of both
Plaintiffs - was action that only the state could have

enforced.

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Resp. App. 85

Indeed, as apparently inspired by CEC §7413, added
in 1994, post-Eu, supra, the new CEC provided impetus
for all Defendants’ conspiratorial acts, first in amending
their bylaws and then in ejecting Wadsworth from the
committee under this grant of authority. It is reasonable
to infer that without assurance that their actions would
be backed up by the power of the state expressed in these
provisions of the CEC, Defendants would, at least, not
have acted as summarily as they did, if they had acted at
all, to Plaintiffs’ detriment.* That an alternative inference
is available - Defendants’ motivation was purely per-
sonal, as evidenced by the homophobic remarks of
Knowles and Carlson - does not make the initial infer-
ence unreasonable or unsupportive of Plaintiffs’ claims.
Everest & Jennings and Columbia, supra.

4. Defendants’ Actions Satisfy the Nexus Test

The final test for state action, the nexus test, is simi-
lar to, if not subsumed within, the public function and
joint action tests. All of the previous factors showing the
high degree of interaction between California and its
county central committees through the provisions of the
CEC apply with equal force here. Moreover, language
from the seminal case developing the nexus test, Burton v.
Wilmington Parking Authority (1961) 365 US 715, 81 SC
856, though not an election dispute, was quoted in Gray v.

* (Cf. Moose Lodge, supra, at 179, 92 SC 1974: enforcement of
“concededly discriminatory private rule” under neutral
regulation “would violate the Fourteenth Amendment.”

Resp. App. 86

Sanders (1963) 372 US 368, 83 SC 801, and other voting
rights cases:

“We think these provisions [of Georgia’s
regulations for party primaries] show that the
State, through the managers it requires, collabo-
rates in the conduct of the primary, and puts its
power behind the rules of the party. It adopts
the primary as a part of the public election
machinery. The exclusion of voters made by the
party by the primary rules become exclusions
enforced by the State.’ ” Id., at 374, 83 SC 805,
quoting Chapman v. King (CAS: 196) 154 F2d 460,
464; cf., Burton, supra, at 725, 82 SC 862: the state
“has elected to place its power, property and
prestige behind the admitted discrimination.
The State has so far insinuated itself into a posi-
tion of interdependence with [private entity]
that it must be recognized as a joint participant
in the challenged activity, which, on that
account, cannot be considered to have been so
“purely private” as to fall without the scope of
the Fourteenth Amendment.”

This state action is especially obnoxious to the funda-
mental Constitutional right to vote when it results in a
person who lost an election being subsequently appointed
to replace those who won the same election, as occurred
here when Laveta Stelzmiller replaced Wadsworth, who,
like Johnson, had received more votes than she did in the
June, 1994, primary election. CR 28, Ex. C. See, also, Terry,
supra, at 463, 73 SC 820, recognizing political reality of a
“private” county political association controlling “every
county-wide official elected since 1889.” That Stelzmiller

was Assemblyman Knowles’ one-time appointee to the

Resp. App. 87

committee highlights the degree of Defendants’ depriva-
tion of Plaintiffs’ rights.

Nothing in Jackson, supra, is to the contrary. That
Supreme Court decision found no state action in a §1983
claim against a utility, not the state, and took pains to
distinguish election disputes from the case before it. Id.,
at 352, 95 SC 454. Here, all Defendants’ took oaths oblig-
ing them to protect, defend and uphold the state and
federal Constitutions and thus abide by the voters’ will
and governing law. Yet, supposedly mindful of their obli-
gations by the oath they took to uphold them, Defendants
acted under the CEC to violate, not protect, Plaintiffs’
rights. For all these reasons, Defendants acted under
color of state law.

Il. PLAINTIFFS HAVE PLED DEPRIVATIONS OF
CONSTITUTIONAL RIGHTS

In Romer v. Evans (1996) 116 SC 1620, the Supreme
Court struck down an amendment to the Colorado consti-
tution purporting to prevent any legislative, executive or
judicial action designed to protect gays or lesbians from
discrimination. In the first of two decisions, Colorado’s
Supreme Court had held the amendment subject to strict
scrutiny analysis on the ground that “the Equal Protec-
tion Clause of the United States Constitution protects the
fundamental right to participate equally in the political
process.” Evans v. Romer (CO: 1993) 854 P2d 1270, 1282.
Following remand, the Colorado Supreme Court over-
turned the amendment on its merits, which were found to
be few. The concurring opinion of Justice Scott devoted

Resp. App. 88

considerable discussion to the privileged position partici-
pation in the political process merits under our law. Evans
v. Romer (CO: 1994) 882 P2d 1335, 1351-1356.

The U.S. Supreme Court affirmed the Colorado deci-
sion and agreed the amendment “infringed the funda-
mental right of gays and lesbians to participate in the
political process.” Romer, supra, at 1624. That the Supreme
Court viewed discrimination against gays and lesbians in
much the same light it saw discrimination against Blacks
was clear from the beginning of its opinion, which quoted
from Plessy v. Ferguson (1896) 163 US 537, 559: our Consti-
tution “neither knows nor tolerates classes among citi-
zens.” Romer, supra, at 1623. Continuing its critique, the
Supreme Court noted:

“It is not within our constitutional tradition
to enact laws of this sort. Central both to the
idea of the rule of law and to our own Constitu-
tion’s guarantee of equal protection is the prin-
ciple that government and each of its parts
remain open on impartial terms to all who seek
its assistance. . . . A law declaring that in general
it shall be more difficult for one group of citi-
zens than for all others to seek aid from the
government is itself a denial of equal protection
of the laws in the most literal sense.” Id., at 1628.

In seeking relief under §1983, Plaintiffs pled viola-
tions of their fundamental Constitutional rights under the
I and XIV Amendments of participating in the political
process by voting and other means; of free speech,
expression and association; of peaceably assembling; and
of due process. The right to vote is a fundamental right
which “is preservative of other basic civil and political
rights,” Reynolds v. Sims (1964) 377 US 533, 561-562, 84 SC

Resp. App. 89

1064, 1071-72, and includes the right to have one’s vote
counted. U.S. v. Mosley (1915) 238 US 383, 386, 35 SC 904,
905. As noted in Morse v. Republican Party of Virginia
(1996) 116 SC 1186, the Supreme Court rejected limiting
the scope of the Texas “white primary cases” to racially-
tinged election disputes. Id., at 1201-6; see, Terry, supra,
and Smith v. Allwright (1944) 321 US 649, 64 SC 757.
“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.

Diverse decisions and courts recognize that

“the struggle of the homosexual community for
equal rights . . . must be recognized as a political
activity. Indeed, the subject of the rights of
homosexuals incites heated political debate
today, and the “gay liberation movement”
encourages its homosexual members to attempt
to convince other members of society that
homosexuals should be accorded the same fun-
damental rights as heterosexuals. The aims of
the struggle for homosexual rights, and the
tactics employed, bear a close analogy to the
continuing struggle for civil rights waged by
blacks, women and other minorities. (See, e.g.,
Gay Students Org. of Univ. of New Hampshire v.
Banner (1st Cir. 1974) 509 F2d 652, 657; Acanfora
v. Board of Education of Montgomery County (4th
Cir. 1974) 491 F2d 498 cert. den., 419 U.S. 836
[42 L.Ed.2d 63, 95 S.Ct. 64]; Aumiller v. Univer-
sity of Delaware (D.Del. 1977) 434 F.Supp. 1273,
1292-1302.) [emphasis added. ]

Consequently, one important aspect of the strug-
gle for equal rights is to induce homosexual

Resp. App. 90

individuals to “come out of the closet,”
acknowledge their sexual preferences, and to
associate with others in working for equal
rights.” Gay Law Students Assn. v. Pacific Tel. &
Tel. Co. (1979) 24 C3d 458, 488. Cf., the concur-
rence of Judge Norris in Watkins v. US Army
(CA9: 1989) 875 F2d 699, 727.

No better definition of political activity can be found
and the longstanding efforts of Johnson and Wadsworth
along those lines provide no better evidence of what got
them elected to the committee, whose electors knew both
these Plaintiffs’ politics and orientation and endorsed
them with their votes.5 Conversely, no better example of
bigoted, spiteful prejudice can be found than in Defen-
dants’ record of harassment that culminated in the ous-
ters of Johnson and Wadsworth from the Committee and
their replacement with a one-time Knowles’ appointee
who never received the voters’ approval. Just as in cases
of racial bias, Palmore v. Sidoti (1984) 466 US 429, 433 held:

“The Constitution cannot control such preju-
dices but neither can it tolerate them. Private
biases may be outside the reach of the law, but
the law cannot, directly or indirectly, give them
effect.

5 CR 28, YZ 6, 7, 10, 12-16 and 25-28, and see Exhibit C
thereto, which shows that Ms. Colvin, who received the most
votes in the 1994 election, twice voted against ouster. Note also
that Mr. Gilmore, the second highest votegetter, also voted
against ouster. Of the 1994 candidates elected, only John
Stelzmiller, Laveta’s husband, twice voted to oust. Significantly,
he also received the fewest votes of the five candidates who
were elected in 1994.

Resp. App. 91

Given that both the right to vote and participate in
the political process and the right to speak freely are
fundamental rights, any discrimination against either
must be tailored to serve a compelling state interest.
Unlike the military cases, there is no need to show defer-
ence to some other policy or branch of the government:
this case involves only speech and politics. There can be
no justification — rational or compelling — for Defendants’
actions in removing Johnson and Wadsworth from the
positions to which they were elected. There can only be
constitutional condemnation for Defendants’ infringe-
ment of all Plaintiffs’ fundamental speech and political
rights. As the district court noted in a different context in

Dahl v. Secretary of the Navy (ED, CA: 1993) 830 FS 1319,
1331:

“[P]olicies based on or motivated by the preju-
dice of one group toward another do not further
any conceivable legitimate government interest
and must be deemed irrational as a matter of
law.”

As stated in Cohen v. California (1971) 403 US 15, 24:
“the premise of individual dignity and choice upon
which our political system rests” is the sort of speech
protected. It does not stretch to suggest that requiring
Wadsworth to trade his individual dignity as expressed
in his sexual orientation for the right to exercise his rights
of free speech and political involvement asks, both in
Constitutional and in personal terms, simply too much.
See, Able v. US (ED, NY: 1995) 880 FS 968, 972-980.

Johnson’s and Wadsworth’s rights were not the only
ones violated; those of each and every registered Republi-
can who voted for them in the 1992 and 1994 primary

Resp. App. 92

elections were also jeopardized in a manner that cannot
be reconciled with strict scrutiny. Specific facts have been
pled showing that Defendants applied a double standard
to Johnson and Wadsworth: Defendant Schumacher
might jointly own property with, and rent it to, registered
Democrats, but Plaintiffs could not; public and private
criticism of Johnson and Wadsworth was permitted, but
of the committee [sic] was not. CR 28 at 416. For all these
violations of Plaintiffs’ fundamental right to participate
in the political process relief should be made available by
allowing their §1983 action to proceed.

CONCLUSION

Plaintiffs’ amended complaint more than adequately
alleges invasions of fundamental Constitutional rights

relating to free speech, due process and participation in
the political process by Defendants’ pattern of activity
that culminated in their twice ejecting Johnson and Wad-
sworth from the elected office to which they had been
twice returned. All Defendants’ actions constituted state
action under any one of the four tests for that necessary
component of a 42 USC §1983 claim. The Court should
reverse the decision of the district court and remand for
trial on the merits.

DATED: August 19, 1996

LAW OFFICES OF G. MICHAEL
GERMAN, APC

/s/ G. Michael German
Attorney for Plaintiffs /
Appellants

EA, (Te ER + NERS NY — ee =

ial pes Le tt .

FD Ek cle het rn Pe 0 a

Resp. App. 93

STATEMENT OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32e4, I certify that
Plaintiffs’ / Appellants’ Opening Brief is monospaced, has
10 characters per inch, contains 10,825 words and does
not exceed 40 pages.

DATED: August 19, 1996

LAW OFFICES OF G. MICHAEL
GERMAN, APC

/s/ G. Michael German
Attorney for Plaintiffs /
Appellants

STATEMENT OF RELATED CASES

Pursuant to Circuit Rule 28-2, Plaintiffs/ Appellants
PAUL JOHNSON, KEVIN WADSWORTH, LAUREN
COOPER, RAY SEBASTIAN & BARBARA SEBASTIAN,
individually and on behalf of all others similarly situated,
advise the Court that they know of no cases related to
this appeal presently pending before this or any other
federal court. Plaintiffs’/Appellants’ state law claims
contained in their action now on appeal herein were
timely filed in the Superior Court of California, in and for
El Dorado County, pursuant to 28 USC §1367d, where
they are now stayed pending resolution of the instant
federal appeal. Exs. A and B to Addendum.

DATED: August 19, 1996

LAW OFFICES OF G. MICHAEL
GERMAN, APC

/s/ G. Michael German
Attorney for Plaintiffs /
Appellants

Resp. App. 94

NINTH CIRCUIT CASE NO. 96-15852
E. D. CALIFORNIA CASE NO. CIV-S-95-835 MLS (PAN)

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PAUL JOHNSON; KEVIN WADSWOTH; LAUREN
COOPER; RAY SEBASTIAN and BARBARA
SEBASTIAN, individually and on behalf of all others
similarly situated

Plaintiffs/ Appellants
v.

DAVID KNOWLES; REPUBLICAN CENTRAL
COMMITTEE OF EL DORADO COUNTY; STEVEN
BAILEY; ROBERT BECKER; ED BORBA; BERNARD

CARLSON; MERLIN CHARDI; CHRISTINA

COWELL; CHARLES CHRISMAN; DAN
DELLINGER; SUSAN EMIGH; TOM EMIGH;
MICHAEL FRENN; MALOA GRIBKOFF; KEVIN
HANLEY; TOM SCHUMACHER; JOHN
STELZMILLER; LAVETA STELZMILLER;
DAVID TITUS

Defendants / Appellees

DEFENDANTS/APPELLEES’ ANSWERING BRIEF

Appeal from the United States District Court
for the Eastern District of California
The Honorable Milton L. Schwartz

Resp. App. 95

MARJORIE E. MANNING, SBN 118643
T. D. BOLLING, JR., SBN 33236
BOLLING, WALTER & GAWTHROP
8880 Cal Center Drive, Suite 400
Sacramento, California 95826
916/369-0777

Attorneys for Defendants/Appellees

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

TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................... iii
STATEMENT OF SUBJECT MATTER AND APPEL-

MABE FURIGOIC TION o.oo. ccc cccecccctcccencse. 1
REQUEST FOR ATTORNEYS’ FEES................ 1
STATEMENT OF ISSUES FOR APPELLATE REVIEW l
SUMMARY OF THE ARGUMENT ................. 2
STATEMENT OF THE CASE....................... 3

A. Factual Allegations of First Amended Com-

spo gun EE re a aa ne 3

B. Procedural History .......................... 5

STANDARD OF REVIEW.......................... 6

PI hg Peedaccues eee eoe 8

I.

II.

Resp. App. 96

THE COMPLAINT DOES NOT ALLEGE
ACTIONABLE CONDUCT UNDER COLOR OF
PEPER GE is 5560 EN Ss ene oeesnAde bean sese

A. Controlling Law Recognizes Political Parties
and Their Members As Private Actors.....

B. The Public Function Doctrine Cannot Be
Invoked to Transform the Committee’s Pri-
vate Actions into State Action.............

C. The Joint Action Test Cannot Be Invoked to
Transform the Committee’s Private Actions
i NE ne tne con ek

D. The State Compulsion Test Cannot Be
Invoked to Transform the Committee’s Pri-
vate Actions into State Action ............

E. The Nexus Test Cannot Be Invoked to Trans-
form the Committee’s Private Actions into
ee iain bee anode

EVEN IF THE CONDUCT OF WHICH PLAIN-
TIFFS COMPLAIN COULD BE CONSTRUED AS
STATE ACTION, NO DEPRIVATION OF A CON-
STITUTIONAL REGHT IS PLED................

A. The Internal Management Decisions of Polit-
ical Parties Cannot Be Subjected to Judicial
Review Under the Guise of Civil Rights Liti-

B. Plaintiffs’ Section 1983 Claim Cannot Be Based
on Deprivation of the Right to Vote.........

C. No Support for Plaintiffs’ Position Is Found

ee gg ee ee oe

D. The Complaint Pleads No Facts to Support a
Claim of Deprivation of Free Speech or
ET Per Tere errr rere re

9

10

13

16

18

20

21

26

29

|

Resp. App. 97

E. The Complaint Does Not Allege Unconstitu-
tional Conduct Against a Protected Class __ 34

ila en snore ws PELE TTT CETTE ree 38
STATEMENT OF COMPLIANCE.................. 39
STATEMENT OF RELATED CASES .............___ 40
Srna sistas sue TROTTER TET T OEE T TTR Te Te

TABLE OF AUTHORITIES
FEDERAL CASES

Adickes v. Kress, 398 U.S. 144 (1970).............. 16,17
Anthony v. County of Sacramento Sheriffs Dept.,

845 F.Supp. 1396 (E.D. Cal. tite, PO Oe aE 13
Associated General Contractors v. California State

Council of Carpenters, 459 U.S. 519 sees 7
Baker v. Wade, 769 F.2d 289 (Sth Cir. 1985) ......... 35
Banchy v. The Republican Party of Hamilton

County, 898 F.2d 1192 (6th Cir. 1990) ............. 11
Blank v. Heineman, 773 F.Supp. 1013 (D. Neb.

satin: pide wee Oe aE aE 10, 11
Board of Education of City of Oklahoma vy.

National Gay Task Force, 470 U.S. 903 (5980) ..... 35
Bowers v. Hardwick, 478 US. 186 (1986)............ 35
Burton v. Wilmington Parking Authority, 365 U.S.

OWN hi ih devised sedis Ges Gated. cc. 19, 20
California Republican Party v. Mercier, 652

F.Supp. 928 (C. D. Cal. PS rec oe ot he 9
Collins v. Harker Heights, 507 U.S. 115 (1992)........ 7

Cousins v. Wigoda, 419 U.S. 477 2 | a ees ai, aa

Resp. App. 98

Crumpton v. Gates, 947 F.2d 1418 (9th Cir. 1991)..... 8
Dahl v. Secretary of U. S. Navy, 840 F.Supp. 1319

ks Se Ss OD oe seus ce cecnscsenaduvemweduase 31
Dang Vang v. Vang Xiong X Toyed, 944 F.2d 476

Se GE Es Fi ebinss hoses de +s ueisheuata 13, 14, 15
DeSantis v. Pacific Tel. & Tel. Co., Inc., 608 F.2d

Se ee a ern obs Celia Eis centen Greens 35

Democratic Party of the United States v. Wiscon-
oie Ge TER Sr GRO s 6 vei kis ce kcswawens 22, 23, 36

Federspiel v. Ohio Republican Party, 867 F.Supp.
| OF a TCO, Fe ike din ahi cneeicncnnd 10, 18

Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978) ...10, 12
Fred Meyer, Inc. v. Casey, 67 F.3d 412 (9th Cir.

SEs writin-caades suchen OOM Nadwecehs Leanne eee ou we 8
Gamza v. Aguirre, 619 F.2d 449 (5th Cir. 1980)...... 12
Gray v. Sanders, 372 U.S. 368 (1963) ............. 19, 20
Griffin v. Burns, 570 F.2d 1065 (5th Cir. 1978)....... 12

Haygood v. Younger, 769 F.2d 1350 (9th Cir. 1985) .... 15

Holloway v. Schweiker, 724 F.2d 1102 (4th Cir.
WUE sac a a ot oe ee, 7

Howerton v. Gabica, 708 F.2d 380 (9th Cir. 1983) .... 13

Hurley v. Irish-American Gay, Lesbian, and Bisex-
ual Group of Boston, 515 U.S. ___ [132 L.Ed.2d

re MNEs a:5.bek sea NAG Owe ee uke eee 31, 32, 33, 34
In re Verifone Securities Litigation, 11 F.3d 865
Geer Wn 6066 ee deacceaceestiassscnedis. 7

Jackson v. Metropolitan Edison Co., 419 U.S. 345
CRPD vine cc ead aes Wwe awe week heeuan ee Nase 9, 19

Resp. App. 99

Laxalt v. McClatchy, 622 F.Supp. 737 (D. C. Nev.

EO AS ha RY TE 15
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) .... 13
March Fong Eu v. San Francisco County Demo-

cratic Central Committee, 489 U.S. 214 (1989) ...9, 26
Mathis v. Pacific Gas & Electric Co., 75 F3d 498

cowie. ap. ee iaE 6, 18
Melara v. Kennedy, 541 F.2d 802 (9th Cir. 1976) ..... 18
Morse v. Republican Party of Virginia, 517 U.S.__

[134 L.Ed.2d 347] (1996) .................. 0... 27
N.L. Industries, Inc. v. Kaplan, 792 F.2d 896 (9th

i SS RRC Sener ae 7
National Gay Task Force v. Board of Education of

Oklahoma City, 729 F.2d 1270 (10th Cir. 1984)..... 35
Northstar International v. Arizona Corporation

Commission, 720 F.2d 578 (9th Cir. 1983) .......... 7
Officers for Justice v. Civil Serv. Comm., 979 F.2d

ee nck... 6
Republican Party of Arkansas v. Faulkner County,

Arkansas, 49 F.3d 1289 (8th Cir. 1995) ............ 12
Robertson v. Bowen, 803 F.2d 808 (5th Cir. 1986) ..... 7
Romer v. Evans, 517 US. _._ « [134 L.Ed.2d 855]

IN Ge Seid ccnd idedaka ok acs: 29, 30, 34
Rosario v. Rockefeller, 410 US. fan CI9GF)......... 24, 28
San Francisco County Democratic Central Com-

mittee v. Eu, 826 F.2d 814 (9th Cir. 1987)

NE RENONGNG Un Se wedniécwaien sens 9, 10, 12, 15, 25, 27, 35
Storer v. Brown, 415 U.S. 724 PD Gin cba a vice 24, 28

Resp. App. 100

Tashjian v. Republican Party of Connecticut, 479

ce 8 RPT ry ey ee rere re ee 23, 28
Teeey v. Adams, BES US. GGL (UPB) i a ieicns dec ccceses. 27
United States, ex rel. Chunie v. Ringrose, 788 F.2d

is ee I St I he She oe hanna ds peers ov se ees 1
West v. Atkins, 487 U.S. 42 (1988)................... 13

Woodward v. U.S., 871 F.2d 1068 (Fed. Cir. 1989) .... 35

STATE CASES
Gay Students Law Assn. v. Pacific Tel. & Tel. Co.

oe be 8 eee err rr eee 35
Hart v. Cult Awareness Network, 13 Cal.App.4th

Pe atic sands canes Wiea eee akhanieawenss 36
Moore v. Parrish, 32 Cal.3d 535 (1982) ............... 9
Warfield v. Peninsula Golf & Country Club, 10

Se ED a idles tc KGC aa Kd SERA « cee ee enews 36

FEDERAL STATUTES

er es I I, pos tevin ike cake db aveseeaess 1
RS a er re Pere errr 1
ee PED ch Chpiwin cb dank c's 0b WES C00 adenrns 1
ee We IE BE oon vv viene nan es eevandukousnue ue 1
ee es I 5 6h hee bobs eG deeebuaemnueeean 1
ee a cI I os co's au nae penne cd eek seen 1
Oe What PU SEE 8 og 65 ks sc accssnwdocnns passim
Be Tic, CE. PE a6 ones eve bees ewtavkevayese 6

ee ee ee I bs ve oe dsc veueese excel evereecs 1

Resp. App. 101

STATE STATUTES

California Elections Code Section 7406.............. 14
California Elections Code Section Pekan 8, 18
California Elections Code Section 7443.............. 18
RULES
Federal Rules of Civil Procedure, Rule 8............ 31
Federal Rules of Civil Procedure, Rule 12(b)(6)....... 6
Ninth Circuit Rule 28-2............................. 39
Ninth Circuit Rule 28-2.3............................ 1
Ninth Circuit Rule 32...................000000..... 38

STATEMENT OF SUBJECT MATTER AND
APPELLATE JURISDICTION

Plaintiffs have appealed from the judgment of the
district court following dismissal of their first amended
complaint without leave to amend. Jurisdiction in the
district court was based on 28 U.S.C. sections 1331, 1343,
1357, 1367 and 2201. Jurisdiction in this Court is appro-
priate pursuant to 28 U.S.C. section 1291, as the appeal is
taken from the district court’s final decision.

REQUEST FOR ATTORNEYS’ FEES

Pursuant to Ninth Circuit Rule 28-2.3, defendants
advise they will seek recovery of attorneys’ fees in this
appeal pursuant to 42 U.S.C. section 1998, United States,
ex rel. Chunie v. Ringross, 788 F.2d 638, 647 (9th Cir. 1986),
cert. den. 479 U.S. 1009 (1986), and the inherent power of
this Court.

Resp. App. 102

STATEMENT OF ISSUES FOR APPELLATE REVIEW

1. Does a private political committee’s removal of a
member for conduct it deems injurious to the committee
constitute “state action”?

2. Does a state assemblyman’s mere presence as a
ex-officio member on a private political committee render
the committee’s decisions “state action”?

3. Does the recognized right of political parties to
govern their internal affairs without state interference
encompass the right to remove committee members
whose actions it deems injurious to the Party/

4. Does the United States Constitution embody a
fundamental right to membership at the managerial level
ot a political committee?

SUMMARY OF THE ARGUMENT

Despite its captivating label, this is not a case involv-
ing the deprivation of civil rights. It is a dispute between
warring factions of a political party over internal man-
agement, platform, and basic ideology. The defendants
are the Republican Central Committee of El Dorado
County (“Committee”), a subsection of the California
Republican Party, and a number of its members including
Assemblyman David Knowles (an ex-officio member).
Plaintiffs Johnson and Wadsworth are ex-members of the
Committee who were ousted from their positions for
conduct deemed injurious to the Committee. That ouster,
according to plaintiffs, amounts to an impermissible
deprivation of fundamental constitutional protections.

Resp. App. 103

They also complain defendants’ conduct was based in
part on plaintiffs’ status as homosexuals.

In the face of established United States Supreme
Court authority recognizing political parties as autono-
mous private organizations entitled to manage their
internal affairs without interference by the state, the dis-
trict court granted defendants’ motions to dismiss. That
ruling was entirely correct. No section 1983 claim has
been or could be stated under these circumstances. First,
the Committee and its members are private actors. Sec-
ond, plaintiffs have not been deprived of any federally
protected right. Finally, disputes concerning the internal
management of political parties, however phrased, are
beyond the reach of the courts.

STATEMENT OF THE CASE
A. Factual Allegations of First Amended Complaint

The complaint alleges plaintiffs are homosexual
males who have been registered members of the Republi-
can Party for approximately ten years. CR 28, 11 6, 7.1 In
June 1992 and June 1994, they were elected to two-year
terms on the Committee in a Republican Primary in El
Dorado County. CR 28, ¥ 7.

Thereafter, Johnson entered into an agreement to
lease for $100 property owned by him and Wadsworth

' Appellants’ opening brief uses the designation “CR”
(presumably “court record”) to refer to the district court record.
To maintain continuity, the same designation will be used
herein.

Resp. App. 104

(the Lone Antler Ranch) to the “Katie Hirning for Con-
gress Campaign.” CR 28, {1 8, 9. The lease secured a
location for a fundraiser for Ms. Hirning, the Democratic
candidate for the November 1994 Fourth Congressional
District election in which she opposed incumbent Repub-
lican John Doolittle. CR 28, { 9.

On September 12, 1994, at a regularly scheduled
meeting of the Committee, defendant Emigh initiated
discussion of Johnson’s and Wadsworth’s roles in the
Hirning fundraiser, and proposed that both be removed
from the Committee for failing to support Republican
candidates and for providing support to Democratic can-
didates. The motion passed 13 to 1 with 3 abstentions. CR
28, J 11, 12. Thereafter, Johnson “reregistered as a Demo-
crat.” CR 28, { 13.

On January 9, 1995, a meeting of the Committee was
held pursuant to notice mailed to all members. CR 28,
q 14, 15. Wadsworth was sworn in as a member of the
Committee and officers were elected. Id. Bylaws were
presented for adoption over Wadsworth’s objection on
the ground of inadequate notice. Id. The bylaws were
then approved and adopted by the Committee. Id. Defen-
dant Emigh announced at this meeting that he intended
to seek Wadsworth’s removal at the next Committee
meeting, which was set for February 13, 1995. CR 28,
{ 15.

On February 6, 1995, all members were mailed notice
of the February 13 meeting, along with an agenda which
indicated “Disciplinary Action” would be among the
matters considered. CR 28, 4 16. At the February 13
meeting, which was attended by Wadsworth, a motion

Resp. App. 105

was made and seconded that Wadsworth be removed “for
engaging in actions deemed injurious” to the Committee.
Id. Stated grounds for removal included Wadsworth’s
public criticisms of the Committee and his support of
Democratic candidate Katie Hirning, as evidenced by a
letter from her to Wadsworth, which he claimed not to
have seen. Id. Wadsworth was removed by a vote of 9 to 3
with one abstention. He was among those voting “No.” Id.

Defendant Knowles is an ex-officio member of the
Committee by virtue of his status as a Republican Assem-
blyman. CR 28,] 3. Knowles did not vote on Wadsworth’s
removal and the complaint does not allege he was present
at the February 13 meeting. CR 28, | 16. However, the
complaint alleges Knowles told defendant Schumacher
that he encouraged Wadsworth’s removal because of his
homosexuality. CR 28 | 16. Plaintiffs also claim Knowles
and defendant Carlson discussed removal of Wadsworth
on that ground. Id. .

In addition to asserting their individual claims, John-
son and Wadsworth purport to represent the interests of a
class defined as all Republican in El Dorado County
supervisorial District III who voted for them in the 1992
and 1994 party primaries. CR 28, ¥ 21. The complaint
concludes the entire class would benefit from an award of
monetary damages and a declaration the Committee’s
bylaws adopted in 1995 are unconstitutional, which
allegedly would allow Wadsworth to be reinstated. CR
28, { 22.

Resp. App. 106

B. Procedural History

Plaintiffs initiated this action by filing their original
complaint in United States District Court, Eastern District
of California, on May 8, 1995. CR 1. Included in the
complaint were counts 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 similarly
situated), and afforded disparate treatment as homosex-
uals. Id. The complaint also sought a declaration that the
Committee’s 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. CR 6, 15. The district court granted the
motions, expressed doubt a viable constitutional claim
could be pled under these circumstances, but granted
plaintiffs leave to amend to attempt to state a section 1983
claim based on First and/or Fourteenth Amendment vio-
lations. The court stressed any such amendment should
not rely on the fundamental right to vote because inter-
ference with an election was not claimed and plaintiffs
ouster was from party office, not a public office CR 24, 26.

Plaintiffs filed a first amended complaint thereafter
which, apart from deleting a claim under 42 U.S.C. sec-
tion 1985(3), corrected none of the deficiencies in the

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Resp. App. 107

original pleading.? Defendants again moved to dismiss
on essentially the same grounds asserted previously. CR
28, 33, 34. The district court granted the motions without
leave to amend, ruling no wrongful conduct was alleged
under color of state law. CR 38, 40. Since the complaint
failed to satisfy even the first prong of a section 1983
claim, the court did not address the substantive basis of
the alleged constitutional claims. CR 40.

STANDARD OF REVIEW

De novo review of a district court’s dismissal under
Rule 12(b)(6) of the Federal Rules of Civil Procedure is
proper. Mathis v. Pacific Gas & Electric Co., 75 F.3d 498, 501
(9th Cir. 1996). The court accepts as true all material
allegations in the complaint and reasonable inferences
drawn therefrom, and construes the pleading in the light
most favorable to the plaintiff. N.L. Industries, Inc. v.
Kaplan, 792 F.2d 896, 898 (9th Cir. 1986); Northstar Interna-
tional v. Arizona Corporation Commission, 720 F.2d 578, 580
(9th Cir. 1983). However, conclusory allegations of law
and unwarranted inferences are insufficient to sustain the

pleading. In re Verifone Securities Litigation, 11 F.3d 865,
868 (9th Cir. 1993).

Similarly, the mere contention a constitutional viola-
tion has occurred is insufficient to raise a colorable claim
to provide subject matter jurisdiction. Robertson v. Bowen,
803 F.2d 808, 810 (5th Cir. 1986); Holloway v. Schweiker, 724

Plaintiffs have abandoned their claim under 42 U.S.C.
section 1985(3) as it is not addressed in their brief. Officers for
Justice v. Civil Serv. Comm., 979 F.2d 721, 725-726 (9th Cir. 1992).

Resp. App. 108

F.2d 1102, 1105 (4th Cir. 1984), cert. den. 467 U.S. 1217
(1984). Instead, the court must focus on the factual allega-
tions in the complaint and determine not only that the
plaintiff has described a legitimate constitutional right at
stake, but also that unconstitutional conduct by the state
deprived the plaintiff of that right. Collins v. Harker
Heights, 507 U.S. 115, 124, 117 L.Ed.2d 261, 273 (1992). If
such facts are absent, dismissal is appropriate. The court
may not assume the plaintiff “can prove facts that it has
not alleged or that the defendants have violated [the law]
in ways that have not been alleged.” Associated General
Contractors v. California State Council of Carpenters, 459
U.S. 519, 526, 74 L.Ed.2d 723, 731 (1983).

ARGUMENT

I. THE COMPLAINT DOES NOT ALLEGE ACTION-
ABLE CONDUCT UNDER COLOR OF STATE LAW

A plaintiff seeking relief under 42 U.S.C. section 1983
must allegé facts showing the defendant, while acting
under color of state law, caused the deprivation of a
federal right. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th
Cir. 1991). This “state action” requirement, which is
designed to ensure that the challenged conduct is fair

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1444%3A3. Public record. Not legal advice.