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February 2, 1994


The opinion of the court was delivered by: WILLIAM W. CALDWELL

 We are considering the plaintiff's motion for a preliminary injunction and the defendants' motion to dismiss. The plaintiff, Philip Valenti, filed this civil rights action alleging that the defendants are violating his right to equal protection under the fourteenth amendment and his rights under the first amendment to freedom of speech and freedom of association. The defendants are the Pennsylvania Democratic State Committee (State Committee); State Senator J. William Lincoln, the Chairman of the State Committee; Richard Bloomingdale, its Executive Director; Dianne Beecher, its Political Director; and Rena Baumgartner, its Vice-Chairman.

 The plaintiff, a registered Democrat and a candidate for the Democratic nomination for governor of Pennsylvania, is contesting a decision by the State Committee that candidates for the Democratic nomination for several statewide offices may not distribute, in support of their candidacy at an endorsement meeting to be held by the State Committee, literature that has been written and produced by a third party independently of the candidate's campaign.

 We held a hearing on the motion for injunctive relief on Monday, January 31, 1994. Based on the testimony and exhibits produced at that hearing and the plaintiff's complaint, the following is the background to this litigation.

 The Pennsylvania primary election is scheduled for May 10, 1994. At that election, the members of the political parties in the Commonwealth will select the candidates to represent the parties in the general election in the fall of this year for various statewide offices, including the governorship. On February 4, 1994, the State Committee will hold a meeting of its Nomination Recommendation Endorsement Committee. The purpose of the meeting is to select by vote of the members of the Endorsement Committee those candidates the party will officially endorse for the statewide offices. In accord with Rule V of the Rules of the Pennsylvania Democratic Party, (plaintiff's exhibit 6), the endorsement committee includes several hundred Democrats from around the Commonwealth. At the meeting, candidates will have the opportunity to make presentations to members of the Committee concerning their stands on the issues relevant to the election.

 As part of this process, the candidates will be allowed to set up tables containing campaign literature. However, defendant Bloomingdale, in conjunction with defendant Lincoln, has decided that no candidate will be permitted to distribute literature written and produced by another person independent of the candidate's campaign. The candidate will only be allowed to possess and circulate literature written and produced by the candidate's campaign for the purposes of the campaign. That literature may incorporate the ideas of a third person, but it may not consist solely of the third person's writings unconnected to the candidates's campaign. *fn1"

 In moving to dismiss, the defendants argue that the plaintiff cannot establish an essential legal element of his federal claim. They contend that Valenti cannot show that the defendants are acting under color of state law, a requisite element of a 42 U.S.C. § 1983 action, see Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982), or as they alternatively put it, in light of the fourteenth amendment, he cannot show there is any state action involved in their decision to limit the literature to the candidates' own. Id.

 In support of their argument the defendants cite, among other cases, Kay v. New Hampshire Democratic Party, 821 F.2d 31 (1st Cir. 1987), aff'g, Kay v. Bruno, 605 F. Supp. 767 (D. N.H. 1985); Koczak v. Grandmaison, 684 F. Supp. 763 (D. N.H. 1988); McIntosh v. White, 582 F. Supp. 1244 (E.D. Ark. 1984), subsequent history summarized in McIntosh v. Arkansas Republican Party - Frank White Election Committee, 856 F.2d 1185 (8th Cir. 1988); and McMenamin v. Philadelphia County Democratic Executive Committee, 405 F. Supp. 998 (E.D. Pa. 1975). In all of these cases, the courts held that civil rights claims could not be pursued against political parties or their officers for actions involving internal party affairs.

 In opposition to the defendants' motion, the plaintiff relies on Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757, 88 L. Ed. 987 (1944); Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); and Redfearn v. Delaware Republican State Committee, 362 F. Supp. 65 (D. Del. 1973), rev'd on other grounds, 502 F.2d 1123 (3d Cir. 1974), on remand, 393 F. Supp. 372 (D. Del. 1975), aff'd 524 F.2d 1403 (3d Cir. 1975) (table), judgment vacated by, 429 U.S. 809, 97 S. Ct. 42, 50 L. Ed. 2d 68 (1976). In these cases, the courts permitted civil rights actions to proceed on the basis that the state had sufficiently involved political parties in the operation of primary elections so that the conduct of the party could be considered state action.

 To buttress his contention that there is similar involvement of the state in the instant case, the plaintiff cites certain provisions of the Pennsylvania Election Code which define a political party and provide a role for political parties in the conduct of state primary elections; specifically, 25 P.S. § 2831(a) (Purdon Supp. 1993-94), 25 P.S. § 2831(c) (Purdon 1963), 25 P.S. § 2832 (Purdon 1963), 25 P.S. § 2834 (Purdon Supp. 1993-94), 25 P.S. § 2839.1 (Purdon Supp. 1993-94), 25 P.S. § 2840 (Purdon 1963), 25 P.S. § 2841 (Purdon 1963), 25 P.S. § 2861 (Purdon 1963), 25 P.S. § 2872.1 (Purdon Supp. 1993-94), and 25 P.S. § 2911 (Purdon & Purdon Supp. 1993-94).

 Another case cited by the plaintiff, Tiryak v. Jordan, 472 F. Supp. 822 (E.D. Pa. 1979), did not directly involve an election but is easily distinguishable. In that case, the court allowed a civil rights action to proceed against two party members after they had assaulted the plaintiff at a polling place on election day. In accord with state law, the party had designated the two defendants as poll watchers, which entitled them to present at the polling place the entire day. Hence, the assault had been made possible because of authority conferred on them by state law to be at the polling place.

 The instant case is different because we deal only with a meeting of Democrats from around the Commonwealth to decide which Democratic candidates in the primary election will be endorsed by the state Democratic party. This meeting will not determine which candidates may appear on the primary ballot. Any Democrat can be listed on the ballot as long as he meets the requirements imposed by state law, see section 2872.1, supra. Further, if that candidate wins the primary, he will be the Democratic nominee in the general election, regardless of which candidate was endorsed by the party. Thus, we deal here purely with internal matters of the Pennsylvania Democratic party, which are in fact, conversely to the plaintiff's position, entitled to constitutional protection based on the associational rights of members of the party to designate the ...

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