The opinion of the court was delivered by: LUONGO
Plaintiff, Bernard H. White, is a candidate for the Republican nomination for the United States House of Representatives in the 7th Congressional District which includes Delaware County, Pennsylvania. He seeks here a preliminary injunction against defendants, Frank A. Snear, Jr., Harry A. McNichol and Edward A. McErlean, County Commissioners of Delaware County, to prevent their giving county employees the day off on Primary Election Day, May 19, 1970, to engage in political activities. Plaintiff's argument is that these employees will be used by a certain segment of the Republican party to frustrate his bid for the nomination, thus depriving him of the equal protection of the laws.
Defendants have filed both a Motion to Dismiss and an Answer to the Complaint. Defendants assert that the conduct complained of does not discriminate against plaintiff, but even if it does, plaintiff is not entitled to relief. They contend further that (1) the court lacks subject matter jurisdiction; (2) the court lacks jurisdiction because the conduct complained of is "political" in nature, and hence non-justiciable; (3) plaintiff lacks standing to present the claim; and (4) the complaint fails to state a claim upon which relief can be granted.
Hearing has been held and relevant evidence submitted. The motion to dismiss will be denied, and an appropriate order will be entered enjoining defendants from continuing certain practices.
The complaint alleges that plaintiff will be deprived of the equal protection of the laws in violation of the Fourteenth Amendment, and states with some specificity the State conduct complained of, and that this conduct affects plaintiff's rights. This is sufficient to state a claim upon which relief may be granted and this court has jurisdiction of such a claim under 28 U.S.C. § 1343(3).
The complaint reveals that plaintiff has a "personal stake" in the outcome of this controversy and that the dispute touches upon the legal relations of parties having adverse legal interests. This is all that is required to give plaintiff standing in this court. See Flast v. Cohen, 392 U.S. 83, 88 S. Ct. 1942, 20 L. Ed. 2d 947 (1967); Lemon v. Kurtzman, 310 F. Supp. 35 (E.D. Pa., filed November 28, 1969) (Opinion by Troutman, J.)
Defendants also contend that this suit involves a dispute which is "political" in nature, and hence outside the jurisdiction of the courts since "political" issues are non-justiciable controversies. In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), the Supreme Court of the United States held that the concept of non-justiciability of "political" issues is limited to questions involving disputes among the three branches of the federal government and has no application to the jurisdiction of federal courts over State action which is alleged to violate an individual's political rights. The Court stated that "the mere fact that the suit seeks protection of a political right does not mean it presents a political question." Baker v. Carr, supra, at 209, 82 S. Ct. at 706. I conclude, therefore, that the complaint raises a justiciable controversy and may properly be considered on the merits.
The motion to dismiss will be denied.
II. Equal Protection Claim.
In order to properly understand the nature of plaintiff's complaint, some factual background must be set forth.
Plaintiff is a candidate for the Republican nomination for Congress for the 7th Congressional District of Pennsylvania. The defendants are the County Commissioners of Delaware County,
and are thereby also ex officio members of the Salary Board of Delaware County which is the body charged with establishing regulations concerning pay scales, sick leave, and vacation. 16 P.S. § 4820 et seq. Defendants' Exhibit #1. Defendants Snear and McNichol are the Republican County Commissioners. They are also members of the Republican Board of Supervisors for Delaware County which controls the regular Republican party in the county.
Although the Salary Board in 1964 adopted a regulation declaring Primary Election Day as a holiday during which the "Court House and other County Buildings shall be closed", [Defendants' Exhibit #1], in fact that the offices are not closed. Instead the offices are kept open and a skeleton force maintained. The majority of employees, although absent from their jobs and actually electioneering, are recorded as present and working. By contrast, on legal holidays, all county offices are closed and no personnel work.
Defendants candidly concede that non-civil service employees of the county are appointed under the patronage system, that is, one seeking employment with the county must first gain approval of his local Republican committeeman or committeewoman and local member of the Republican Board of Supervisors. Defendants also admit that these employees are "requested"
to make voluntary contributions to the campaign treasury established by the Board of Supervisors ...