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ORLOSKI v. DAVIS

April 11, 1983

Kathy Law ORLOSKI, Plaintiff,
v.
William R. DAVIS, Secretary of the Commonwealth, Defendant, v. Edward M. MEZVINSKY and Pennsylvania Democratic State Committee, Intervenors



The opinion of the court was delivered by: RAMBO

 RAMBO, District Judge.

 I. Background

 Plaintiff filed a three count complaint in the captioned action on March 1, 1983. Count one challenges the constitutionality of 42 Pa.Cons.Stat.Ann. § 3133 (Purdon) (1981). *fn1" Count two challenges the constitutionality of cross-filing in statewide judicial races which plaintiff contends defendant has permitted under Pa.Stat.Ann. tit. 25, § 2870(f) (Purdon) (West Supp.1982). *fn2" Count three challenges the constitutionality of the combined effect of the two statutes. Jurisdiction is based upon 42 U.S.C. § 1983 and the first and fourteenth amendments. The complaint seeks preliminary and permanent injunctive relief enjoining defendant from, among other things, enforcing § 3133 and from permitting registered Republicans to run in the Democratic primary for statewide judicial offices. Plaintiff filed a motion for a preliminary injunction on March 2, 1983. On March 4, 1983 Edward Mezvinsky and the Pennsylvania Democratic State Committee filed an unopposed motion to intervene under Federal Rule of Civil Procedure 24 which was granted. Intervenors support plaintiff's position on count one and part of count three, but oppose her position on count two and part of count three. The court consolidated plaintiff's motion for a preliminary injunction with trial on the merits and held a hearing on March 16, 1983. The court finds no constitutional violations and will enter judgment in favor of defendant.

 The parties stipulated to the following facts at the hearing. (1) Plaintiff, a resident of Allentown, Pennsylvania, is a duly elected Democratic Committeeperson representing the Third District of South Whitehall Township, Lehigh County, Pennsylvania. (2) Defendant, as Secretary of the Commonwealth of Pennsylvania, certifies nominees of the political parties in the primary and winners in the municipal *fn3" elections of 1983. (3) In 1983, the following statewide judicial vacancies are to be filled: one justice of the Supreme Court of Pennsylvania, five judges of the Superior Court of Pennsylvania, three judges of the Commonwealth Court of Pennsylvania. (4) In the 1983 statewide judicial primary elections, defendant will accept otherwise valid nominating petitions from a statewide judicial candidate regardless of whether he or she is a candidate for nomination for the same office of any party other than the one designated in the nomination petition. If otherwise valid, the defendant will certify the candidate's name for placement on the ballot to the county election board for the primary election of 1983. (5) In both the primary and municipal elections of 1983, defendant intends to apply § 3133 to the election of Commonwealth Court candidates. Accordingly, voters in the Democratic primary will only be permitted to vote for two candidates, and voters in the Republican primary will only be permitted to vote for two candidates. The two highest vote getters in both primaries will be listed on the ballot for the municipal election in 1983. The three highest vote getters in the municipal election will then be certified as the winners for the purpose of filling the three Commonwealth Court vacancies.

 II. Discussion

 A. Limited Voting under § 3133

 Plaintiff and intervenors allege that § 3133 violates their fourteenth amendment right to one man one vote by diluting their voting power. Intervenors specifically argue that the "majority party votes which are cast for the two (2) candidates limited to the majority party are worth less in electing their preferred choices than the fewer minority party votes are worth in electing their single candidate." (Intervenor's brief, Doc't # 12 at p. 8).

 Plaintiff and intervenors also argue that § 3133 violates their fourteenth amendment rights to equal protection and due process. They contend that § 3133 is arbitrary, capricious and unreasonable because it only applies to Commonwealth Court judges and not to judges of the Superior or Common Pleas Courts or justices of the Supreme Court. In his brief defendant contends that neither plaintiff nor intervenor Mezvinsky has standing to raise the rights of judicial candidates. At oral argument, defendant specifically contended that neither plaintiff nor intervenor Mezvinsky are candidates for Commonwealth Court vacancies. Defendant also rejects intervenor Mezvinsky's argument that as Chair of the Democratic State Committee he represents the rights of the three Democratic endorsed candidates. Defendant maintains that the candidates are unnamed as intervenors and Mezvinsky himself cannot vindicate the rights of others. Defendant relies on Warth v. Seldin, 422 U.S. 490, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975).

 The court believes that plaintiff, intervenor Mezvinsky and intervenor Democratic State Committee have standing to raise their claim. "A federal court's jurisdiction . . . can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action . . . '" Warth, 422 U.S. at 499, 95 S. Ct. at 2205 (citations omitted). Plaintiff and intervenor Mezvinsky's alleged injury from the limited voting statute arise from their first amendment rights as voters. In several ballot access cases the United States Supreme Court has articulated the intertwining relationship between candidates and voters: "the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters." Bullock v. Carter, 405 U.S. 134, 143, 92 S. Ct. 849, 855, 31 L. Ed. 2d 92 (1972); "The right of a party or an individual to a place on the ballot is entitled to protection and is intertwined with the rights of voters." Lubin v. Panish, 415 U.S. 709, 716, 94 S. Ct. 1315, 1320, 39 L. Ed. 2d 702 (1974). While the cited cases involved restrictions on candidate access to the ballot which is not the situation here, the cases are instructive on the close relationship between candidates and voters. Since § 3133 limits the voter's ability to vote for a full slate of candidates to fill all vacancies on the Commonwealth Court which restriction does not apply to any other state judicial election, the voter is arguably sufficiently injured so as to have standing to challenge the statute on equal protection and due process grounds.

 Regardless of the standing of plaintiff and intervenor Mezvinsky, the court finds that intervenor Pennsylvania Democratic State Committee, as an association representing the rights of its members, has standing to challenge § 3133. Although unbriefed by the parties, it appears to the court that the Committee meets the tests for standing set forth in Warth, 422 U.S. at 511, 95 S. Ct. at 2211 and Hunt v. Washington Apple Advertising Commission, 432 U.S. 333, 97 S. Ct. 2434, 53 L. Ed. 2d 383 (1977). The requirements are that: (1) the association members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of a sort that would give them standing to sue in their own right; (2) the interests that the association seeks to protect are germane to the organization's purpose; (3) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Warth, 422 U.S. at 511, 95 S. Ct. at 2211; Hunt, 433 U.S. at 343, 97 S. Ct. at 2441. The Pennsylvania Democratic Committee alleges that, as the official representative body of the Pennsylvania Democratic Party, it endorses and supports candidates for each statewide judicial office in the Commonwealth. It alleges that it represents all Democratic electors of the Commonwealth and the Committee's three Democratic endorsed judicial candidates for Commonwealth Court. Thus three of the organizational members are suffering injury from the statute in question such that they themselves could have filed suit. It appears that the interest the Committee seeks to protect, in this case, unlimited voting for Democratic candidates to the Commonwealth Court, is germane to its organizational purpose. Finally, it arguably appears that neither the claim asserted nor the relief requested requires participation of individual members. Presuming, therefore, that adequate standing has been established, the court will address the equal protection and due process challenges.

 The court believes that § 3133 passes muster under the equal protection clause using either the traditional rational relationship test or the more rigorous strict scrutiny test. Under traditional equal protection analysis, legislatures are presumed to have acted constitutionally and their classifications need only bear some rational relationship to a legitimate state end. Classifications are set aside only if they are based solely on reasons totally unrelated to the pursuit of the State's goals and only if no grounds can be conceived to justify them. McDonald v. Board of Election, 394 U.S. 802, 809, 89 S. Ct. 1404, 1408, 22 L. Ed. 2d 739 (1969). Under strict scrutiny, a law found to have a real and appreciable impact on a fundamental right will be closely scrutinized and must be reasonably necessary to the accomplishment of a legitimate state objective. Bullock, 405 U.S. at 144, 92 S. Ct. at 856.

 The clear intent of the Pennsylvania legislature in enacting limited voting for Commonwealth Court candidates was to encourage minority party representation. Thiemann v. Allen, 485 Pa. 431, 444, 402 A.2d 1348, 1354 (1979). This court agrees with the three judge panel convened in Kaelin v. Warden, which stated that "nothing in the Constitution militates against a scheme which is designed to encourage some minority representation, unless it can be shown that it results in invidious discrimination, which we cannot find." 334 F. Supp. at 605 (citation omitted). The court held that encouraging minority party representation in the election of county commissioners was a legitimate political goal and that the limited voting procedure was a constitutional method of achieving that goal. This court finds the same rationale applicable in this case. The same ...


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