MARY McLAUGHLIN, District Judge
This action arises out of a decision made by Temple University to expel an undergraduate student, Kevin Furey, because of an altercation he had with Travis Wolfe, an off-duty police officer, near campus on April 5, 2008. Furey brings a number of claims against Temple University and various Temple employees relating to his expulsion. He seeks to have his expulsion vacated and a new hearing conducted.
The plaintiff names as defendants: Temple University; Theresa Powell, Vice President of Student Affairs; Anne Weaver Hart, President; Brian Foley, University Vice Code Administrator; Ainsley Carry, Dean of Students; Andrea Seiss, Associate Dean of Students; M. Moshe Parat, Dean, Fox School of Business; Temple University Review Board; Richard Greenstein, Professor and Chair of the University Disciplinary Committee; Keith Gumery, Professor and Vice-Chair of the University Disciplinary Committee; Diane Adler, Professor and member of the University Disciplinary Committee; Jonathan Scott, member of the Faculty Review Board; Bonita Silverman, member of the Faculty Review Board; Valerie Harrison, Judicial Officer of the Student Conduct Committee; and the Trustees of Temple University.
The defendants have moved for summary judgment on all claims. The Court will grant summary judgment on all claims except the claim that Temple and the individual defendants violated the plaintiff's right to procedural due process in the expulsion process. The Court finds that there are material issues of fact in dispute that preclude summary judgment as to Temple and several of the individual defendants on the due process claim. The Court will grant summary judgment on all claims as to certain defendants who were not at all involved in the expulsion process.
I. The Summary Judgment Record
On a motion for summary judgment, the Court considers the evidence in the light most favorable to the non-moving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
The summary judgment record consists of: Temple's Code of Conduct; the transcript of the hearing that led to the plaintiff's expulsion; depositions taken in this case; depositions from other cases; records of the criminal case that was brought against the plaintiff for the same incident that was the cause of his expulsion; records of the Internal Affairs Investigation of Officer Wolfe's conduct on the night of the incident; documents and letters concerning the plaintiff's hearing and appeal; and certain newspaper articles and internet materials.
A. Temple's Code of Conduct
The jurisdiction of Temple's Code of Conduct extends to behavior on the University's campus and 500 yards beyond. The Code's mission is to place reasonable limitations on student conduct to maintain a safe environment. Temple Code of Conduct, Def. Exhibit B, 2. ("Def. Ex. B") The Code furthers this mission by regulating academic integrity, behavior, alcohol and drug consumption, security on campus and by maintaining disciplinary procedures.
When an incident occurs that could be a violation of the Code, the University Code Administrator determines whether to charge the student with violations of the Code. After bringing charges, the Code Administrator must provide the student charged with a notice of the violations and with hearing information, the identity of witnesses and a description of any evidence filed with the charges. Def. Ex. B, 3.
The Administrator also determines the appropriate hearing process and notifies the investigative body. In making this determination, the Administrator considers the severity of the potential sanction and the complexity of the factual dispute. Def. Ex. B, 10-11.
There are five different bodies that hear charges of violations of the code. Complex cases, or those involving the most severe sanctions, are referred to the University Disciplinary Committee ("UDC") Hearing Panel ("Full Panel"). The Full Panel is composed of three faculty members, one of whom is the chair, and two students. Three other panels, including the Conference Board, handle less complex cases with less severe sanctions. The Review Board consists of two students, two faculty members and one administrator. Def. Ex. B, 11.
The Full Panel is a fact-finding panel and its proceedings are non-adversarial where rules of evidence, standards of proof, and other elements of court proceedings do not apply. Def. Ex. B, 3. A Full Panel hearing occurs thirty business days after the pre-hearing meeting, but the time limits may be extended. During the hearings, the University has the burden to prove the charges brought against the student under a more likely than not standard. Students have the opportunity to conduct a defense, offering their own testimony, witnesses, and evidence. Students also have the chance to question witnesses testifying at the hearing through the presiding chairperson. Id. at 12.
When a student wishes to present witnesses who are members of the Temple community, the student can request that the Code Administrator issue notices requiring the witnesses' appearance at the hearing. Def. Ex. B, 12. If evidence is presented that was not included with the original hearing notice, the student may have time to examine and respond to it. Id. at 13. Students are permitted to have an advisor or attorney help in preparing for the hearing and attend the hearing itself. The advisor or attorney cannot question witnesses or address the hearing body, but can advise the student during the hearing. The Dean of the School that the student attends, the Dean of Students, and the Vice President for Student Affairs or their designee may attend hearings as observers. The hearing body deliberates and determines a violation by majority vote and then recommends a sanction.
When a student is found to have committed a violation of the Code and receives a sanction of suspension or expulsion, the student may appeal directly to the Review Board. Def. Ex. B, 14. The appeal must be based upon (1) availability of new evidence, (2) procedural defects preventing a full and fair hearing, (3) insufficiency of evidence supporting the decision, or (4) sanctions grossly disproportionate to the offense. The appeal must be filed with the Code Administrator, and must state the reasons for appeal. If the Review Board decides that the sanctions are grossly disproportionate, they may recommend modified sanctions. If the Review Board finds procedural defects preventing a fair hearing, they will recommend that there be a new hearing before a new panel. If the Review Board finds that the decision could not have been reached based on the evidence, they will recommend that the decision and sanctions be modified. These recommendations are conveyed to the Vice President of Student Affairs, who then reviews the entire record and makes a final decision, or has his or her designee do so. In his or her review, the Vice President for Student Affairs must give presumptive weight to the Review Board's recommendations. After the final decision, there is no further review of the decision or sanction.
B. Incident Criminal Proceedings
The facts surrounding the plaintiff's April 5, 2008, encounter with Officer Wolfe are disputed. Whether the defendants violated the plaintiff's rights in the expulsion process does not depend on whose version of events is correct, but a description of the undisputed and disputed aspects of the encounter is helpful to understand the issues surrounding the disciplinary process. The parties generally agree about the events leading to the incident, but diverge regarding certain details, which the Court will note.
In the spring of 2008, Kevin Furey was enrolled in Temple University as a full-time undergraduate student. Request for Admissions, Def. Exhibit H, 2. ("Def. Ex. H") On April 4th, 2008, he was visiting a friend just off Temple's campus. Hearing Transcript, Pl. Exhibit D, 134. ("Pl. Ex. D") After spending some time and consuming some alcohol at a party, the plaintiff returned to his friend's house in the early morning hours of April 5, 2008. The plaintiff's friend locked himself out of his bedroom, and the plaintiff went to retrieve a machete from his car to pry open the bedroom door. Id. at 135.
While the plaintiff was at or around the trunk of his car, a number of men, who the plaintiff believed might try to attack or mug him, approached him, and one of them had a gun. Pl. Ex. D, 136. There were shouts indicating that the man with the gun, Travis Wolfe, was a police officer, but the plaintiff hesitated to believe that and failed to drop his machete. The plaintiff eventually threw down the machete, and Wolfe threw him to the ground, kicking and eventually subduing him. Id. at 137-38. The plaintiff was subsequently arrested by Temple police officers, after Wolfe identified himself as an off-duty police officer. Id. at 140.
It is unclear whether Wolfe was alone or with others. The plaintiff claims that around 5 people approached him. Pl. Ex. D, 136. Wolfe claims that he got out of his car alone. Pl. Ex. D, 20. Wolfe's companions' statements support his claim that he got out alone. Robinson Deposition, Pl. Exhibit R ("Pl. Ex. R"), Anderson Statement, Pl. Exhibit S. ("Pl. Ex. S"), Carry Deposition, Pl. Exhibit T ("Pl. Ex. T")
Contrary to the plaintiff's assertions, Wolfe insists that he was in his car, saw an individual brandishing something that could have been a gun, and stopped and approached the plaintiff with his gun out, identifying himself as a police officer and showing his badge at his waist. Pl. Ex. D, 20. Wolfe contends that the plaintiff raised the machete in combat mode and approached him before eventually dropping it.
Because of the severity of his injuries, Police Central Booking refused to admit the plaintiff before he went to the hospital. Pl. Ex. D, 140. At the hospital, the plaintiff was triaged and had CAT scans to determine the nature of any head injuries. Id. at 141. The hospital records made no mention of the plaintiff testing positive for alcohol or of any suspicion of alcohol use.Id. at 169. The plaintiff's arrest occurred within 500 yards of Temple property, thus within the jurisdiction of Temple's Student Code of Conduct. Def. Ex. H, 2.
After his release, the plaintiff was charged with aggravated assault on a police officer. Preliminary Hearing Transcript, Def. Exhibit I. He appeared in Municipal Court before Judge Jimmie Moore in a preliminary hearing on April 15, 2008. Wolfe testified at the hearing. Judge Moore continued the case, and the plaintiff again appeared before Judge Moore on November 24, 2008. Preliminary Hearing Transcript, Def. Exhibit J. At this hearing, the plaintiff made a statement admitting the truthfulness of Wolfe's testimony and apologizing as a precondition to participating in the ARD proceedings.
The plaintiff asserts that his statement was a condition to being placed in the ARD program, and at the ARD hearing on June 10, 2009, the conditions were altered and he no longer had to agree to these terms, apologize or verify Wolfe's version. The plaintiff also states that he believed that he had no choice but to agree to the terms due to Internal Affairs' desire to protect Wolfe. Pl. Opp., 22-23.
C. Notice, Pre-Hearing and Hearing Scheduling
Temple began disciplinary proceedings against the plaintiff by a letter dated April 10th, 2008, notifying him that he was charged with violating the Code of Conduct and would be required to schedule a pre-hearing. The plaintiff was charged with violating Sections 3, 8, and 12 of the Code and given a version of the specifications of the events leading to the charge. Section 3 prohibits acts or threats of intimidation or physical violence towards another, including actual or threatened assault or battery. Section 8 prohibits the use or possession of articles endangering a person's health or safety, including knives or other weapons. Section 12 prohibits students from engaging in disorderly conduct. Letter to K. Furey, Def. Ex. A.
This statement of the events leading to the charge reflected Wolfe's version of the events.
The plaintiff requested and received a delay of the pre-hearing until after May 5th so he could finish the semester. The hearing was further delayed until December 2008. At the pre-hearing, the plaintiff and his lawyer/mother Margaret Boyce Furey met with Code Administrator Andrea Seiss and Associate General Counsel Valerie Harrison to discuss the incident and the hearing. Def. Ex. H, ¶ 23; Kevin Furey Deposition, Def. Ex. M, 79:5-24 ("Def. Ex. M")
The plaintiff claims that there was no explanation for the delay of the hearing. Pl. Opp., 23. The defendants claim that it was delayed because the plaintiff did not initially re-register at Temple, and it was his responsibility to reschedule the hearing. Def. Motion, 15.
The plaintiff requested the names and contact information of the men accompanying Wolfe, and eventually received the names Steven Robinson, Colin Anderson and Douglas Segars. However, Temple did not provide contact information for these witnesses. Letters between Pl. and Def., Pl. Ex. N.
The defendants claimed that they could not provide it under the Family Educational Rights and Privacy Act ("FERPA"). Colin Anderson and Douglas Segars are Temple University Students.
D. Hearing
On March 25th, 2009, the plaintiff's UDC Hearing was conducted before a full panel of five individuals. Pl. Ex. D, 6. Professor Richard Greenstein chaired the panel and the other faculty representatives were Professor Diane Adler and Professor Keith Gumery. The student panel members were Lisa Krestynick and Malcolm Kenyatta. Code Administrator Brian Foley and Associate General Counsel Valerie Harrison also attended the hearing. Greenstein, Adler, Foley and Gumery Depositions, Pl. Ex. H. Harrison had previously attended approximately six disciplinary hearings. Requests for Admissions, Pl. Ex. K. The plaintiff's mother and father attended, acting as his attorney/advisor and advisor respectively. Pl. Ex. D, 9. Absent from the hearing were the officers who helped Wolfe arrest the plaintiff and the three eyewitnesses accompanying Wolfe. Id. at 10-11. The plaintiff requested a continuance to obtain the witnesses' presence, which Greenstein denied. Id. at 13.
Temple has no power to subpoena the witnesses or in any other way compel them to attend beyond imposing disciplinary sanctions to the two Temple students who were contacted regarding the hearing, Anderson and Segars. Pl. Ex. D, 13. Segars' deposition indicates that he does not remember being contacted regarding the hearing and that he would have attended the hearing had he gotten the notice. Segars Deposition, Pl. Response Exhibit B, 129-130. ("Pl. R. Ex. B")
At the beginning of the the hearing, the plaintiff was charged with the three violations of the Code set forth in the notice sent to him, and the plaintiff confirmed that he received the incident specifications provided on a summary sheet. Pl. Ex. D, 7-8. The plaintiff and the panel then confirmed that the panel could be fair and impartial in considering the matter. Id. at 9. The panel was unaware of the specifics of the case prior to the hearing, but was provided with a sheet with background information that was not to be considered as evidence. This information sheet recited Wolfe's version of the events. Adler Deposition, Pl. Exhibit I, 39:11-14; Pl. Ex. D, 15. The panel acknowledged that they would make their decision entirely based on the evidence from the hearing.
First to testify for the University was Officer Wolfe, who described the events of the morning of April 5, 2008, in long, mainly uninterrupted statements. Pl. Ex. D, 19-23. Pursuant to the Code, the plaintiff was allowed to direct his questions to testifying witnesses only to the panel, specifically Professor Greenstein, who then posed questions to the witnesses.Id. at 16. During Officer Wolfe's testimony, the plaintiff posed a number of questions to the panel, some of which Greenstein was reluctant or refused to ask altogether. Id. at 40-41, 49, 79-81. The plaintiff disputed much of Officer Wolfe's testimony, and attempted to highlight the discrepancies via questions and paper evidence of Wolfe's prior testimony. Id. at 51. After a recess, while Wolfe was still under oath and testifying, Wolfe read a prepared written statement into the record, referring to his exoneration by an Internal Affairs Investigation and to the plaintiff's statements at his prior criminal hearing in which the plaintiff admitted Wolfe's version of events and apologized. After Wolfe made this statement, the plaintiff pointed out to the panel that it appeared that Officer Wolfe had been on the phone during the recess prior to making this prepared statement. Id. at 55-57.
The University then called Officer Brian Crawford and Sergeant Ken McGuire of the Temple Police Department. Pl. Ex. D, 101; 118. Both of these officers responded to the scene after Officer Wolfe took the plaintiff into custody. The officers who immediately responded to the scene and took the plaintiff to the hospital were not present at the hearing; both were unavailable for personnel or leave reasons. The plaintiff noted that he was not alerted to the unavailability of these witnesses and was not allowed to reschedule when important witnesses did not show up.Id. at 129-130.
The plaintiff then testified to the events himself. Pl. Ex. D, 134. In questioning the plaintiff about his fear of attack or robbery, Professor Greenstein stated to the plaintiff, "I'm trying to understand why a Philadelphia Police Officer would want to attack you for money." Id. at 149:3-5. The plaintiff and his father both state that while off-the-record, Professor Greenstein asked, "Why would a Philadelphia Police Officer lie?" K. Furey and G. Furey Depositions, Pl. Exhibit F, 148:21-24, 65:9-16. The plaintiff questioned Wolfe's credibility, bringing up his violence-influenced childhood. Pl. Ex. D, 150.
The plaintiff also testified to the behavior and appearance of Wolfe and others to explain his fear that he was being attacked by a gang. Pl. Ex. D, 157, 180. Professor Gumery asked the plaintiff for his definition of a gang and then inquired whether a group of people wearing Hawaiian shirts would be perceived as a gang. Id. at 180-81. During student Malcolm Kenyatta's questioning of the plaintiff, Kenyatta became confrontational, refusing to let the plaintiff clarify until Professor Greenstein interjected, "[l]et him clarify what he thinks he said." Id. at 159:13-14.
Professor Adler, a nursing school professor, questioned the plaintiff on the procedure used when he was brought to the hospital and on his alcohol consumption. Pl. Ex. D, 164-170. Professor Adler stated that according to the hospital record, he "tested positive for alcohol." Id. at 183:20. While questioning him, she said "[n]ot everybody can be lying and, you know, be wrong . . . Hillary heard of conspiracies too." Id. at 185:2-6.
The record did not indicate that the plaintiff tested positive for alcohol while at the hospital. Adler Deposition, Pl. Ex. E, 13-16; Letter from Dr. Alfred Sacchetti, Pl. Ex. MM.
The plaintiff testified to the reason he had a machete in the trunk of his car. He explained that his parents' property in Whitemarsh township was large and he had been clearing vines on the property, so he used the trunk of his car as a toolbox. Pl. Ex. D, 147-48. When driving to the city on the evening of the incident, he believed that he was going only to his friend's off-campus house near Temple, which he did not consider a part of Temple. Id. at 190. The plaintiff knew that he had his father's machete in the trunk of his car and decided to use it as a crowbar when his friend was locked out of his room. Id. At 135, 147. The plaintiff's father, George Furey, corroborated the plaintiff's testimony. He explained that their property had been unoccupied for a number of years and was overgrown. Id. at 222-23. He said that in the spring and fall, they cut through vegetation on the property and it was not uncommon for him and his son to have machetes and other tools in the trunks of their cars. G. Furey described the machete as having an 18-inch blade and a 4 or 5-inch handle. The machete could be purchased for $12 at any gardening center. Id. at 223.
After the plaintiff's own testimony, he called his friends John Fisher, Brian Bairden and Andrew Haff to testify about the events of the night and as character witnesses. Pl. Ex. D, 191; 212; 216. Finally, the plaintiff presented his mother and father as character witnesses. Id. at 223, 232.
<> Throughout the hearing, the panel was courteous to Wolfe and unchallenging to his testimony, allowing him to speak relatively uninterrupted. The plaintiff tried to question Officer Wolfe about whether he had been at a party, some statements he made at the plaintiff's preliminary hearing, and whether he telephoned Internal Affairs during the plaintiff's hearing. The panel refused to pose these questions to Officer Wolfe. Then (State of Georgia has an "important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's
candidate on the ballot."). This case is distinct from
Wamser, where individual members of an association suffered an injury-in-fact and had standing to sue when election officials refused to appoint them as voter registrars. By preventing the association members in
Wamser from registering new voters, the election officials injured the members of the coalition. 771 F.2d at 399. Plaintiff Meyer has not suffered a similar injury. No one has prevented Meyer from voting or from registering new voters. His right to vote has not been infringed. There is a substantial distinction between refusing to allow an individual member to vote and requiring a new political party to show a modicum of support before having a candidate on the ballot. Although Meyer would like to support a Constitution Party candidate for Governor, he has not suffered an injury caused by state action that gives rise to standing.
In certain instances, voters enrolled in political parties have constitutional standing to challenge a state voting law, such as where ballot access laws result in voters living in certain districts either having fewer choices on the ballot than other districts or having their individual vote otherwise diluted. See Rockefeller v. Powers, 74 F.3d 1367, 1376 (2d Cir. 1995) (voters had suffered special harm particular to them when the state law decreased their voting choices relative to voters in other districts). A voter also may have standing when his injury is derivative to the candidate who is a plaintiff. See Beltiskus v. Pizzingrilli, 343 F.3d 632, 641 (3d Cir. 2003). Relying uponBullock v. Carter, 405 U.S. 134 (1972), the Beltiskus court reasoned that injuries suffered by the voter and Green Party were derivative of the injuries of the candidate-plaintiffs who were unable to pay the mandatory filing fee and thus were unable to gain access to the ballot. Beltiskus, 343 F.3d at 641.
However, the only plaintiff who claims to be a candidate, Howe, did not suffer an injury in fact. Howe did not take steps to attempt to comply with the requisite petition process, and thus as explained above, does not have standing. Because Howe did not suffer an injury justifying standing, the voter Meyer did not suffer derivative injury to establish his standing.
Plaintiffs cite to the proposition that "laws that affect candidates always have at least some theoretical, correlative effect on voters" in so much that limiting candidate access to the primary ballot tends to limit the field of candidates from which voters might choose. See Bullock v. Carter, 405 U.S. 134, 143 (1972). The Supreme Court in Bullock recognized that the rights of voters and candidates cannot be neatly separated when determining what standard of review to properly invoke when the rights of candidates are at issue. See id. The correlative effect on voters is relevant to determining the proper standard of review to apply on state action, though not necessarily when determining whether the voters have indeed suffered an injury in fact giving rise to standing. Id. Plaintiff Meyer does not have standing to make the claims contained in the Complaint.
3. Plaintiff Mark Pickens
Plaintiff Mark Pickens is a resident of Arizona who wishes to circulate petitions in South Dakota, presumably for the Constitution Party. Plaintiff Pickens challenges the constitutionality of SDCL 12-1-3(9) which defines a petition circulator as "a resident of the State of South Dakota who is at least eighteen years of age. . . ." SDCL 12-1-3(9). Pickens is not registered to vote in South Dakota.
Pickens has standing to make a claim challenging the constitutionality of the residency requirement for petition circulators. Even though he did not submit such a petition, it would have been futile for him to do so because a non-resident of South Dakota is prohibited by statute from being a petition circulator. Id.; see also Pucket, 526 F.3d at 1162; Sporhase, 458 U.S. at 944 n. 2; S.D. Mining Ass'n, 155 F.3d at 1008-09. All parties recognize that Pickens' claim is separate and does not relate to the grounds on which Plaintiffs seek a preliminary injunction.
4. Plaintiff Constitution Party of South Dakota
Plaintiff Constitution Party of South Dakota maintains that it has "associational standing." An association or party may have associational standing on the basis of an injury to its members.See Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977); Wamser, 771 F.2d at 399. Associational standing exists only if: (1) the association's members would independently meet the Article III standing requirements; (2) the interests the association seeks to protect are germane to the purpose of the organization; and (3) neither the claim asserted nor the relief requested requires participation of individual members. See Hunt, 432 U.S. at 343. However, when no members of a party or group has at least attempted to take steps to satisfy the prerequisite to partake in an activity or benefit, and thus lacks standing, the party also lacks standing to sue on the members' behalf. See Warth, 422 U.S. at 515-16. In Warth, members of a homebuilders' association did not apply for a building permit or variance, and did not attempt to take advantage of remedial processes. Id. at 516. "To justify relief the association must show that it has suffered harm, or that one or more of its members are injured." Id. at 515. When an association seeks prospective relief, such as declaratory or injunctive relief, it will have standing as a representative of its members only if it can show the existence of any injury to its members sufficient to allow the members to bring suit themselves. Id. at 516.
Here, none of the members of the Constitution Party, either candidates or noncandidates, have standing to challenge the petition requirement for gubernatorial candidates. No member of the Constitution Party filed a nomination petition, and therefore, no member of the Constitution Party suffered an injury to justify standing to challenge the petition requirement. Peter Boeve attempted to satisfy the 250-signature requirement, but he failed to file the nominating petition with the Secretary of State or join in the lawsuit. Therefore, the Constitution Party lacks standing.
Plaintiff Pickens does not appear to belong to Plaintiff Constitution Party of South Dakota, as he is not a South Dakota resident. Whether the Constitution Party has associational standing as to Pickens' challenge to the constitutionality of SDCL 12-1-3(9) is questionable, but academic in light of the lack of merit of that challenge.
With respect to the second and third elements of associational standing, the Constitution Party seeks to protect its organization's interests and promote its goal of getting one of its candidates elected, see Storer, 415 U.S. at 745, and the type of relief sought would benefit its members, see Int'l Union v. Brock, 477 U.S. 274, 287-88 (1986). However, because none of the Constitution Party's members have standing to challenge the gubernatorial petition requirement, the Constitution Party itself does not have associational standing to bring a claim in this Court.
C. Constitutionality of South Dakota Statutes at Issue
Other than with respect to Plaintiff Pickens on Count II of the complaint, the Plaintiffs lack standing to sue for alleged constitutional violations. Thus, the Court need not reach the merits of Count I of the complaint. However, even if the Plaintiffs had standing on Count I, Defendant still would be entitled to summary judgment on both Counts I and II of the Complaint.
1. Standard of Review
The Supreme Court has recognized a candidate's constitutional rights under the First and Fourteenth Amendments to associate for political ends and to participate equally in the electoral process. See Burdick v. Takushi, 504 U.S. 428, 433 (1992);Anderson, 460 U.S. at 787-88. Ballot access restrictions implicate the constitutional rights of voters to associate and cast their votes effectively. See Williams v. Rhodes, 393 U.S. 23, 30 (1968). As discussed above, however, there is an "important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization's candidate on the ballot" as a way of "avoiding confusion, deception, and even frustration of the democratic process at the general election." Jenness, 403 U.S. at 442.
In Anderson, the Supreme Court directed lower courts to balance the competing interests by first considering "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments," and then evaluating "the precise interests put forward by the State as justifications for the burden imposed by its rule." Anderson, 460 U.S. at 789. In this evaluation of the candidates' rights and the State's interest, the court must determine the strength and legitimacy of the State's interests and whether those interests make it necessary to burden the candidates' rights. Id. Weighing all of these factors, the court then must determine whether the rule is constitutional. Id.
The standard of review of the challenged statute depends on the extent of the burden imposed and the character of the right. If the state election scheme imposes "severe burdens" on constitutional rights, it may survive only if it is "narrowly tailored and advance[s] a compelling state interest." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997). If, on the other hand, the scheme imposes "reasonable, nondiscriminatory restrictions" upon the plaintiff's First and Fourteenth Amendment rights, it will survive so long as the State shows an "important regulatory interest." Id. (quoting Burdick, 504 U.S. at 434).
The Eighth Circuit has held that when a statutory scheme severely limits "core political speech," it is subject to strict scrutiny and is likely unconstitutional unless the State can show that the requirement is narrowly tailored to a compelling state interest. See Meyer v. Grant, 486 U.S. 414, 421-22 (1988). Circulating a petition, for example, "involves both the expression of a desire for political change and a discussion of the merits of the proposed change," and thus constitutes "core political speech." Id. A statutory scheme that severely limits the number of people who can circulate the petition is subject to strict scrutiny. See Initiative Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) (a residency requirement for petition circulators triggered exacting scrutiny); Bernbeck v. Moore, 126 F.3d 1114 (8th Cir. 1997) (state statute requiring petition circulators to be registered voters was subject to exacting scrutiny).
The South Dakota law restricting petition circulators to South Dakota residents is a restriction on core political speech, and therefore, the law must be "narrowly tailored to serve a compelling state interest." Jaeger, 241 F.3d at 616. The Eighth Circuit in Jaeger, however, held that a law barring non-residents from circulating initiative petitions did not violate the plaintiff's First Amendment rights. 241 F.3d at 615.
The South Dakota law requiring 250 signatures for a new party gubernatorial candidate to achieve ballot access is not a restriction on core political speech because it does not limit the circulation of a petition or disqualify individuals from circulating a petition. Rather, it is a ballot access regulation. Therefore, rather than applying strict scrutiny by necessity, this Court must analyze the severity of the burdens on speech. If the signature requirement imposes only reasonable and nondiscriminatory restrictions, then the State's regulatory interests will likely be enough to justify the restrictions. Twin Cities Area New Party, 520 U.S. at 358.
2. First Amendment Challenge to Signature Requirement
Plaintiffs assert that South Dakota's 250-signature requirement violates the First and Fourteenth Amendments. The constitutionality of this requirement depends on whether the 250-signature requirement is a reasonable, non-discriminatory way of achieving the State's important regulatory interests. Timmons, 520 U.S. at 358.
In evaluating the reasonableness of the statute, this Court may consider "alleviating factors" provided in the statutory scheme.Swanson v. Worley, 490 F.3d 894, 903 (11th Cir. 2007); see also Storer, 415 U.S. at 740-41; Libertarian Party of Florida v. Florida, 710 F.2d 790, 794 (11th Cir. 1983). Alleviating factors that would make the statute reasonable include allowing voters to sign the petition regardless of party affiliation and allowing voters to sign more than one petition. In Libertarian Party, the Eleventh Circuit found that, in light of a 3% signature requirement, factors that eased the burden of getting signatures, and compelling state interests, the statute was valid. 710 F.2d at 794-95. Here, there are no identical alleviating factors, as all 250 petition signers must be members of the new party.
Relatedly, this Court may consider whether the state regulation diminishes the available pool of signatures. For example, inStorer, the challenged statute disqualified any voter who had voted in a partisan primary. 415 U.S. at 740-41. The South Dakota statute at issue here requires that a signatory be a registered voter of the new political party and limits a registered voter to signing only one petition. Although the Supreme Court found that disqualifying those who voted in a partisan primary from being eligible to sign the petition for the Independent Party was not itself unconstitutional, the Court stated that "it should be determined whether the available pool is so diminished in size by the disqualification . . . that the 325,000-signature requirement, to be satisfied in 24 days, is too great a burden on the independent candidates . . ." Id. at 740 (noting that gathering 325,000 signatures in 24 days "would not appear to be an impossible burden"). Here, the pool is not so diminished that the 250-signature requirement becomes unreasonable.
This Court also may consider past experience, that is, whether a minority party candidate has been successful in the past at obtaining access to the general ballot, as well as
the relationship between the showing of support through a petition requirement and the percentage of the votes the candidate is expected to receive in the general election. Id. at 742-43. The Constitution Party of South Dakota first became a political party in 2004, and succeeded in putting its candidate's name on the gubernatorial ballot in 2006 through the petition process. The Constitution Party gubernatorial candidate did not receive 2.5% of the gubernatorial vote, so the Constitution Party lost its status as a political party in South Dakota and had to refile to become a new political party. The Constitution Party's ability, however, to obtain access to the general ballot in 2006 suggests that the petition requirement is not excessive and sets a reasonable threshold of sufficient support to justify inclusion on the ballot.
In the analogous case of N.Y. State Bd. of Elections v. Lopez Torres, 552 U.S. 196 (2008), the Supreme Court of the United States considered a state law requiring an individual running for delegate to file a petition signed by 500 enrolled party members residing in the assembly district approximately two months before the delegate primary. Id. at 200. The delegate candidates had a 37-day window to obtain the 500 signatures of party members from their district. Id. The Supreme Court found the state-imposed ballot access requirement to be "far from excessive" and within the State's authority to demand a person to show a "minimum degree of support for candidate access to a primary ballot." Id. at 204.
The ballot access requirement that the Constitution Party claims to be unconstitutional is similar to the statute in Lopez Torres. The requirement to file a petition with 250 signatures of the new party members in order to gain access to the primary election ballot is half the number of the "entirely reasonable" 500-signature requirement in Lopez Torres. Id. The delegate candidates in Lopez Torres had to collect 500 signatures from enrolled party members within their district, and there were 150 assembly districts in New York. Id. at 200. The burden on a delegate candidate to collect 500 signatures from party members living in one of 150 assembly districts is greater than the burden imposed on a gubernatorial candidate in South Dakota to collect 250 signatures from new party members living anywhere in South Dakota. As explained in Lopez Torres, the State's authority to require candidates to demonstrate "a significant modicum of support" before they may gain access to the ballot applies equally to primary elections. Id. at 204. The signature requirement imposed by SDCL 12-5-1.4(1) is a reasonable, non-discriminatory means of achieving the state interest in requiring a minimum degree of support before placing a candidate on the primary ballot. See Jenness, 403 U.S. at 442 (state requirement that minor party candidates file nominating petition with 5% of eligible voters' signatures upheld); White, 415 U.S. at 782-83 (state requirement that gubernatorial candidate gather signatures equaling 1% of vote from previous election upheld).
Plaintiffs argue that the 250 petition signatures required from its party members to place a gubernatorial candidate on the South Dakota ballot is unconstitutional because the Constitution Party has only approximately 315 members in South Dakota. Thus, a gubernatorial candidate for the Constitution Party has to obtain the signatures of nearly 80% of the party membership. Plaintiffs cite no cases where a court has stricken down a similar statute based on such an analysis. When viewed more broadly, the 250-signature requirement is a reasonable and non-discriminatory means of requiring gubernatorial candidates to demonstrate a significant modicum of support in order to justify ballot access. See Jenness, 403 U.S. at 442. The number 250 is merely .03125% of the South Dakota population, .07451% of the number of voters who voted in the 2006 gubernatorial race, and far fewer than the 2.5% of the voters of the State of South Dakota that the Constitution Party had to collect to organize as a party under SDCL 12-5-1.
The population of South Dakota is approximately 800,000. U.S. Census Bureau, Population Estimates, http://www.census.gov/popest/states/NST-ann-est.html. (last visited Aug. 3, 2010).
The total number of voters in South Dakota in the gubernatorial race was 335,508. South Dakota Secretary of State Home Page, Election Official Returns for Governor Lt. Governor,
http://www.sdsos.gov/electionsvoterregistration/pastelections_electioninfo06_GEgovernorreturns.shtm (last visited Aug. 3, 2010).
This Court is sensitive to and mindful of the difficulties faced by minor political party candidates who, unlike candidates of major political parties, usually are not well-financed and lack access to resources available to established political parties. Nevertheless, this Court finds the 250-signature requirement to be reasonable. By mandating that a potential candidate for Governor file a nominating petition containing 250 signatures from members of the candidate's political party, the State achieves its regulatory interest in candidates attaining a sufficient modicum of support prior to being listed on the ballot. As explained above, because the signature requirement imposes only reasonable and nondiscriminatory restrictions, the State's regulatory interests are sufficient here to justify the restrictions.
3. Equal Protection Clause Challenge to Signature Requirement
Plaintiffs assert that imposing a different requirement on new political parties from that imposed on established political parties violates the Equal Protection Clause. However, a statute requiring that a candidate of a new political party for statewide office obtain nominating signatures, albeit different from the requirement imposed for established parties, does not facially violate the Equal Protection Clause. The Court must consider whether the burden on the Constitution Party is unreasonable and whether the burden was outweighed by the State's interest in, among other things, avoiding ballot clutter and ensuring viable candidates. See Jenness, 403 U.S. at 442. InJenness, the Supreme Court found that alternate ballot access rules for major and minor political parties are not per se unconstitutional. Id. at 441-42 ("[T]here are obvious differences in kind between the needs and potentials of a political party with historically established broad support, on the one hand, and a new or small political organization on the other. . . . [R]ecognizing these differences and providing different routes to the printed ballot" does not make a state guilty of "invidious discrimination."). However, the Supreme Court in Anderson stated that "[a] burden that falls unequally on new or small political parties or on independent candidates impinges, by its very nature, on associational choices protected by the First Amendment." 460 U.S. at 793.
As discussed above, South Dakota statutes impose a reasonable burden on those seeking to run for Governor from minor political parties, justified by South Dakota's interest in preventing ballot clutter and ensuring viable candidates. A 250-signature requirement of members of a new political party to place a gubernatorial candidate on the ballot is not an unreasonable requirement. The one percent requirement for major party candidates for governor obliges those candidates to obtain several times more signatures from members of their own party than does a Constitution Party candidate. The fact that signatures from 250 party members represent such a high percentage of Constitution Party members reflects the limited size of the Constitution Party of South Dakota rather than any violation of the Equal Protection Clause. A one percent requirement applied to the Constitution Party would result in a gubernatorial candidate from the Constitution Party needing just four signatures, which
plainly undermines the state interest in ensuring that gubernatorial candidates listed on the ballot have a sufficient modicum of support.
4. Challenge to Filing Deadline
The Plaintiffs argue that the deadline for filing a nominating petition for a primary election ballot, as provided in SDCL 12-6-4, is an unconstitutional burden. The relevant South Dakota statute provides:
[N]o candidate for any office to be filled, or nomination to be made, at the primary election, other than a presidential election, may have that person's name printed upon the official primary election ballot of that person's party, unless a petition has been filed on that person's behalf not prior to January first, and not later than the last Tuesday of March at five p.m. prior to the date of the primary election.
SDCL 12-6-4. The deadline imposed by the State applies equally to candidates from all political parties.
Plaintiffs argue that requiring signatures to be submitted in March has been found to be unconstitutional in Anderson. TheAnderson case, however, involved substantially different statutes and circumstances. The Supreme Court held that the early filing deadline in Anderson was unconstitutional because it placed an unconstitutional burden on the voting and associational rights of the independent candidate's supporters. 460 U.S. 780. InAnderson, an independent candidate for President was required to file a nomination petition in March in order to gain access to the general election ballot in November. Id. at 783. The supporters of the independent candidate attempted to file the nominating petition with the Ohio Secretary of State on May 16, but the Secretary of State refused it as too late. Id. at 782-83. The State of Ohio contended that the early deadline served the State's interest in voter education, ostensibly because the earlier deadline provided the voters with a longer opportunity to assess how Presidential candidates weather the scrutiny of a political campaign. Id. at 796. However, the Supreme Court found the deadline to be an unconstitutional burden on the independent party candidate and his supporters, as well as a violation of the First and Fourteenth Amendments, because the State failed to impose a comparable deadline for the candidates from other political parties. Id. at 805-06.
The South Dakota statute that imposes a March deadline for filing a nominating petition is distinguishable from the statute in Anderson. In Anderson, the March deadline was specific to independent party candidates. By contrast, SDCL 12-6-4 imposes a March deadline for filing the nominating petition for gubernatorial candidates for all parties. See SDCL 12-6-4. The statute in Anderson was unconstitutional because the major parties, who had "the political advantage of continued flexibility," did not have the additional burden of the March filing deadline that was considered a "correlative disadvantage" to the independents. 460 U.S. at 791. The early filing deadline inAnderson also imposed a burden on the signature-gathering efforts of independents because they were required to gather signatures well in advance of the election, before the major party candidates had necessarily been identified, thereby making it so volunteers and voters might have had less interest in the campaign. Id. at 792. The Supreme Court in Anderson noted that a "burden that falls unequally on new or small political parties or on independent candidates" will necessarily impinge on the associational choices protected by the First Amendment.Id. at 793. The South Dakota March filing deadline for gubernatorial candidate petitions does not impose a burden that falls unequally on new or small political parties. Instead, the burden falls on all political parties. Therefore, SDCL 12-6-4 does not impose a burden on the rights of the
Constitution Party voters and candidates any more than it burdens the rights of all other parties, voters, and candidates. SDCL 12-6-4, therefore, is not unconstitutional.
5. Challenge to Residency Requirement
Under SDCL 12-1-3(9), a petition circulator must be, amongst other qualifications, a resident of the State of South Dakota. The Plaintiffs argue that the State's ban on out-of-state petition circulators is an unconstitutional infringement on the First and Fourteenth Amendment rights to free speech and association. As discussed above, in determining whether a ballot-access provision is an unconstitutional infringement on free speech, a court applies a sliding standard of review; severe burdens on speech must be narrowly tailored to serve a compelling state interest, and lesser burdens need only be reasonable and non-discriminatory. See Timmons, 520 U.S. at 358. Based on prior Eighth Circuit rulings, this Court finds that the State's residency requirement for circulators of petitions is subject to strict scrutiny, but does not violate the Plaintiffs' constitutional rights.
In Jaeger, the Eighth Circuit considered a North Dakota statute similar to SDCL 12-1-3(9), in that both statutes contained a residency requirement for petition carriers. 241 F.3d at 615-16. The Eighth Circuit applied a heightened standard of review and found the residency requirement to be constitutional, reasoning that the residency requirement was necessary to achieving the compelling state interest in reducing fraud by ensuring that circulators would answer to the Secretary of State's subpoena power. Id. at 616-17. Furthermore, the Eighth Circuit found that the residency requirement did not unduly restrict speech, because it did not prevent non-residents from speaking to voters regarding political measures or accompanying the other circulators. Id. at 617.
Under Jaeger, the residency requirement for petition circulators in SDCL 12-1-3(9), even when subject to a heightened standard of review, is constitutional. There is no evidence that the Constitution Party was unable to hire sufficient numbers of circulators as a direct result of the residency requirement. The State did not bar Plaintiff Pickens from accompanying other circulators and speaking with potential voters about the candidate. Furthermore, the State's residency requirement serves the compelling interest of reducing fraud by confining petition circulators to those within the South Dakota Secretary of State's subpoena power, and no other less burdensome means are available for achieving this compelling state interest.
D. Denial of Preliminary Injunction
An injunction is an "extraordinary remedy" that is not routinely granted and generally reserved for when the right to relief is "clearly established." Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982); 11A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice Procedure, § 2942. In determining whether to issue such injunctive relief, this Court considers the factors set forth in Dataphase Sys., Inc., 640 F.2d at 113: (1) the threat of irreparable harm to plaintiffs; (2) the state of the balance between this harm and the injury that granting the injunction will inflict on the defendants; (3) the probability of plaintiffs' success on the merits; and (4) the public interest. See also Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008); Oglala Sioux Tribe v. C W Enter., Inc., No. 07-5024, 2009 U.S. Dist. LEXIS 25881, at *3 (D.S.D. Mar. 25, 2009) (applying Dataphase factors to TRO motion consideration). No single factor is determinative. Dataphase Sys., Inc., 640 F.2d at 113. The probability of the Plaintiffs' success is evaluated in context of the "relative injuries to the parties and the public." Id.
Because summary judgment is appropriate for the Defendant here on all claims, the Plaintiffs have no likelihood of success on the merits. The public interest favors protection of constitutional rights, but here, even if there were standing, the constitutional rights of the Plaintiffs are not violated by the South Dakota statutes at issue. The public interest favors preserving the integrity of the electoral process and "orderly election administration," and thus disfavors entry of an injunction here. See Estill v. Cool, 295 Fed.Appx. 25, 27 (6th Cir. 2008). After considering all of the Dataphase factors, the Court finds that there has not been an adequate showing to justify a preliminary injunction. Therefore, it is
ORDERED that the Plaintiffs' motion for a preliminary injunction (Doc. 5) is denied. It is further
ORDERED that the Defendant's motion for summary judgment (Doc. 20) is granted. It is further
ORDERED that judgment hereby enters for Defendant under Rules 56 and 58 of the Federal Rules of Civil Procedure.