violation. They also contend that the other plaintiffs were injured by the same conduct and that they have suffered additional injury because the defendants have chilled their associational rights by discouraging other Democrats from switching parties. They further argue that equitable relief is not moot because the Board could still conduct harassing investigations of Stish.
The first amendment protects a person's right to associate with those who share his political views. Rutan v. Republican Party of Illinois, 497 U.S. 62, 69, 110 S. Ct. 2729, 2734, 111 L. Ed. 2d 52, 63 (1990); Kusper v. Pontikes, 414 U.S. 51, 56, 94 S. Ct. 303, 307, 38 L. Ed. 2d 260, 266 (1973), and this right specifically extends to the "right to associate with the political party of one's choice." Id., 94 S. Ct. at 307, 38 L. Ed. 2d at 266. Further, the amendment protects legislators as well as private citizens. Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966) (first amendment right of free speech extends to state legislator).
In light of these principles, we conclude that Stish has stated a cause of action for violation of his right to freedom of association based on the January 3 suspension. This suspension injured him because it put in doubt whether he would take his seat as a member of the House of Representatives. It is irrelevant that any delay in taking his seat was brief. That fact would have an impact only on the amount of compensatory damages, if any, Stish could recover. If Tucker and Crossin suspended Stish from an improper motive, Stish would be entitled to at least nominal damages of $ 1.00 for the violation of his fundamental right to association. See Carey v. Piphus, 435 U.S. 247, 98 S. Ct. 1042, 55 L. Ed. 2d 252 (1978) (nominal damages approved for violation of right to procedural due process).
The remaining defendants have not alleged a valid associational claim. They argue that they have been injured by the suspension as well, but we reject this. The suspension was directed at Stish, not the other plaintiffs. They also argue that their associational rights have been injured because other Democrats have been frightened from switching parties. If true, this could be an injury entitling the plaintiffs to relief. However, as the defendants have pointed out, they did not plead this injury in the complaint, relying instead solely on the suspension issued to Stish. Fed. R. Civ. P. 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief . . . . " Since the other plaintiffs have failed to allege any injury, we will dismiss their claims.
In regard to the claim for equitable relief, while it does seem farfetched that the Board would be conducting any further investigations in this matter (especially since the County court has reassumed jurisdiction of the Democratic voters' lawsuit), we can deal with this issue if it arises as this case proceeds. We see no need at this juncture to flatly refuse to consider equitable relief.
The defendants next argue that they are entitled to absolute immunity because they were acting under a court order. However, as we noted above, the court order did not require any particular result and we reject this argument.
The defendants also argue that they are entitled to qualified immunity under 42 Pa. C.S. § 8546 and federal case law. In support, they again assert that they only investigated Stish because they had been ordered to do so by the court. Further, they maintain they consulted with counsel before doing so.
We agree with the plaintiffs that this immunity argument must be rejected. First, state law cannot immunize a person against a federal civil-rights action. Good v. Dauphin County Social Services, 891 F.2d 1087 (3d Cir. 1989); Wade v. City of Pittsburgh, 765 F.2d 405 (3d Cir. 1985). Second, while there is no rule against considering a qualified immunity defense on a motion to dismiss, the defense is better considered in this case after some discovery has been conducted. See Schrob v. Catterson, 948 F.2d 1402, 1421 (3d Cir. 1991). The defendants rely on advice of counsel to justify their actions, but that assertion is not in the complaint, and cannot be considered in the current posture of the case.
The defendants next argue that the punitive-damages claim should be dismissed. A jury can award punitive damages in a section 1983 action when the defendants acted from "'evil motive or intent . . . or . . . reckless or callous indifference to the federally protected rights of others.'" Feldman v. Philadelphia Housing Authority, 43 F.3d 823, 833 (3d Cir. 1994) (quoting Smith v. Wade, 461 U.S. 30, 56, 103 S. Ct. 1625, 1640, 75 L. Ed. 2d 632, 651 (1983)). In the instant case, the plaintiffs allege that the defendants acted "maliciously," (amended complaint, P 44), because Stish "exercised his first amendment rights of freedom of speech and association and switched his party affiliation from Democrat to Republican." (Id.). In light of these allegations, we will allow the punitive-damages claim to proceed at this time. See Fed. R. Civ. P. 9(b) ("Malice, intent, knowledge ... may be averred generally.").
We will issue an appropriate order.
William W. Caldwell
United States District Judge
Date: August 4, 1995
AND NOW, this 4th day of August, 1995, upon consideration of the defendants' motion to dismiss the plaintiffs' amended complaint, it is ordered that:
1. The motion is granted in part and denied in part.