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BARLEY v. CASEY

August 4, 1995

JOHN E. BARLEY; THOMAS B. STISH; MATTHEW J. RYAN; JOHN M. PERZEL, plaintiff
v.
ROBERT P. CASEY, Governor of the Commonwealth of Pennsylvania; ROBERT N. GRANT, Secretary of the Commonwealth; JOHN J. ZUBECK, Chief Clerk of the Pennsylvania House of Representatives; LUZERNE COUNTY BOARD OF ELECTIONS; ROSE S. TUCKER; FRANK P. CROSSIN; JIM PHILLIPS, Members of the Luzerne County Board of Elections; defendants; MICHAEL EDMISTON; REIZDAN MOORE, unknown



The opinion of the court was delivered by: CALDWELL

 I. Introduction.

 In this civil-rights action under 42 U.S.C. § 1983, the plaintiffs, John E. Barley, Thomas B. Stish, Matthew J. Ryan and John M. Perzel, all members of the Pennsylvania House of Representatives, allege, in part, that the defendants, the Luzerne County Board of Elections, and two members of the three-member Board, Rose S. Tucker and Frank P. Crossin, violated their right to freedom of association under the first amendment. The plaintiffs are all members of the Republican party, but Stish used to be a Democrat, and his conversion to the Republicans has given rise to this action. Tucker and Crossin are Democrats.

 Pursuant to Fed. R. Civ. P. 12(b)(6), the defendants have filed a motion to dismiss the plaintiffs' amended complaint. In deciding their motion, we must accept as true the factual allegations of the plaintiffs' pleading and construe any inferences to be drawn from the complaint in the plaintiffs' favor. See Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993). With this standard in mind, we briefly set forth the background to this litigation, as the plaintiffs allege it.

 II. Background.

 On November 8, 1994, Pennsylvania held a general election to fill various elected positions at the state and local level. Stish was a candidate for the seat in the House of Representatives representing the 116th Legislative District, located in Luzerne County. (Amended complaint, PP 15 and 16). He was a registered Democrat and had won the Democratic primary election to determine the Democratic candidate for the seat. (Id., P 16). Stish won the election as a Democrat. (Id., P 17).

 On or about November 14, 1994, the Board recorded Stish as the winner. (Id., P 17). On or about the same date, Stish announced he was becoming a Republican, (id., P 18), and was going to join the House Republican Caucus. (Id.). Ryan is the leader of the Republican Caucus, (id., P 4), and Perzel and Barley are members of the Caucus leadership. (Id., PP 5 and 6). Pursuant to state law, the Board shortly thereafter certified the County election returns to the Secretary of the Commonwealth, thereby certifying Stish as the winner of the election (Id., P 19).

 In response to Stish's announcement, three Democratic voters filed suit against the Board in the Court of Common Pleas of Luzerne County, alleging that Stish's change in parties after the election amounted to a "'fraudulent misrepresentation'" and they sought to prevent or nullify his certification. (Id., P 24).

 On December 22, 1994, the County court issued an order requiring the Board to investigate the voters' claim and to suspend Stish's certification. (Id., P 25). On December 23, 1994, Crossin and Tucker, the two Democratic members of the Board, wrote a letter to the Secretary of the Commonwealth, suspending his certification pursuant to the court order. (Id., P 26). On December 28, 1994, the County court vacated that part of its order requiring the Board to suspend the certification as having been "improvidently granted." (Id., P 28). On Friday, December 30, 1994, the Board issued a notice of its intent to hold a public meeting on Tuesday, January 3, 1995, at 9:00 a.m. to decide if the suspension of Stish's certification should be continued. (Id., P 29).

 That was also the date members of the new House of Representatives were to be sworn in. (Id., P 31). The Clerk of the House would normally use a certified list of winners compiled by the Secretary of the Commonwealth from the reports of the various County Boards of Elections to prepare the master roll of representatives. (Id.). However, the Board voted two to one, along party lines (Tucker and Crossin in the majority), to continue the suspension. A letter to that effect was received by the Secretary at about 11:45 a.m. on January 3. (Id., P 35).

 Consequently, the Secretary did not appear as scheduled in the House with a certified list of the winners as required by state law. Instead, he sought a declaratory judgment from the Pennsylvania Commonwealth Court temporarily suspending his obligation to do so. (Id., P 36). In the afternoon of January 3, the court denied his request, reasoning that the Board's suspension of Stish's certification was not justified by the statutory authority it cited in its letter. (Id., P 38).

 The Secretary then sent a letter to the Clerk of the House certifying that a list previously sent to the Clerk, including Stish's name, should be considered the certified list of winners, (id., P 39), and all the House members were eventually seated on January 3. Subsequently, the County court also assumed jurisdiction of the Democratic voters' suit. (Id., P 40).

 The plaintiffs allege that Tucker and Crossin acted against Stish because he "exercised his first amendment rights of freedom of speech and association and switched his party affiliation from Democrat to Republican." (Id., P 44). In support, they aver that none of the statutory grounds for the Board to consider suspending Stish's election results existed since no one had alleged that the election had been conducted fraudulently as to how the votes had been cast or counted. (Id., P 34). They also assert that his rights to equal protection and due process were violated. As to the other plaintiffs, they aver that their first amendment right of political association was violated. The plaintiffs seek both compensatory and punitive damages against Tucker and Crossin, the latter damages based on their "malicious[ ]" conduct. (Id., P 44) (brackets added). The plaintiffs also ...


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