                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-15-1998

Patriot Party Alghny v. Alghny Cty Dept
Precedential or Non-Precedential:

Docket 96-3677




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Recommended Citation
"Patriot Party Alghny v. Alghny Cty Dept" (1998). 1998 Decisions. Paper 142.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/142


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Filed June 15, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

Nos. 96-3677 and 97-3359

THE PATRIOT PARTY OF ALLEGHENY COUNTY

v.

ALLEGHENY COUNTY DEPARTMENT
OF ELECTIONS; MARK WOLOSIK,
Director of the Allegheny County
Department of Elections,
       Appellants

ON APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(Civil Action Nos. 93-cv-01884 and 95-cv-01175)

Argued December 12, 1997

Before: NYGAARD, ALITO, Circuit Judges, and
DEBEVOISE, District Judge.*

(Opinion Filed: June 15, 1998)

       Kerry Fraas
       Allan J. Opsitnick (Argued)
       Michael McAuliffe Miller
       Allegheny County Law Department
       300 Ft. Pitt Commons
       445 Ft. Pitt Blvd.
       Pittsburgh, Pa. 15219
        Attorneys for Appellants
_________________________________________________________________

*The Honorable Dickinson R. Debevoise, Senior United States District
Judge for the District of New Jersey, sitting by designation.
       Sarah E. Siskind
       Miner, Barnhill & Galland
       44 East Mifflin Street, Suite 803
       Madison, WI 53703

       Jonathan B. Robison
       712 Allegheny Building
       429 Forbes Avenue
       Pittsburgh, PA 15219

       Cornish F. Hitchcock (Argued)
       Public Citizen Litigation Group
       1600 20th Street, N.W.
       Washington, D.C. 20009-1001
        Attorneys for Appellee

OPINION OF THE COURT

ALITO, Circuit Judge:

The two appeals now before us require us to determine
whether this court's decision in Patriot Party of Allegheny
County v. Allegheny County Dep't of Elections, 95 F.3d 253
(3d Cir. 1996) (Patriot Party I), remains good law in light of
the Supreme Court's subsequent decision in Timmons v.
Twin Cities Area New Party, 117 S. Ct. 1364 (1997), which
upheld a Minnesota "anti-fusion" statute against a First
Amendment attack. Because Patriot Party I held that the
Pennsylvania statutes at issue here violated the Patriot's
Party right to the equal protection of the laws, as well as its
right to freedom of association, and because we conclude
that our panel is bound by Patriot Party I, at least insofar
as it held that the statutes violate equal protection, we
affirm the district court orders in both appeals.

I.

In both cases before us, the Patriot Party of Allegheny
County challenged 25 Pa. Con. Stat. Ann. SS 2936(e) and
2911(e)(5) as violating the Party's right to freedom of
association and its right to the equal protection of the law.
These Pennsylvania statutes are described in detail in the

                                2
opinion in Patriot Party I, 95 F.3d at 256-57, but in brief
they permit the major parties to "fuse" candidates for
certain local offices but preclude minor parties from
engaging in this same practice.1

In one of the two appeals (No. 97-3359), we are asked to
review the order entered by the district court after the
remand in Patriot Party I. That case began when the Patriot
Party challenged the constitutionality of the statutes as
applied to prevent the Party from nominating a particular
candidate for the position of local school director in 1993
because he had previously sought the nomination of the
major parties for that office.2 The district court rejected the
Party's free association and equal protection claims, holding
that the state's legitimate interest in regulating its ballot
justified the restraints that the election code placed on
minor parties. See Patriot Party I, 95 F.3d at 257. A divided
panel of our court then reversed and remanded. The
County and its director of elections petitioned
unsuccessfully for rehearing, see 95 F.3d at 272, but did
not seek a writ of certiorari. On remand, the district court
entered an order on December 11, 1996, declaring that 25
Pa. Con. Stat. Ann. SS 2936(e) and 2911(e)(5) place an
unconstitutional burden on the Patriot Party's rights to free
association and equal protection insofar as they prohibit
the Party from nominating any person as a candidate for
the offices in question because that person is also a major
_________________________________________________________________

1. "Fusion" is "the nomination by more than one political party of the
same candidate for the same office in the same general election." 117
S. Ct. at 1367, n.1, citing Twin Cities Area New Party v. McKenna, 73
F.3d 196, 197-98 (8th Cir. 1996).

2. In 1993, Michael Eshenbaugh sought the nomination of both the
Republican and Democratic Parties in the school director election.
Eshenbaugh won the Democratic (but not the Republican) nomination.
The Patriot Party then nominated its candidates for the school director
positions. Eshenbaugh was one such candidate. Eshenbaugh willingly
accepted the Patriot Party nomination. When Eshenbaugh attempted to
file his nominating papers, the County informed him that because he
had previously sought the nomination of the major parties, Pennsylvania
law prohibited him from filing nomination papers to run on a minor
party ticket. The Patriot Party then filed suit for declaratory and
injunctive relief in February 1994.

                               3
party candidate. The court also enjoined the County and its
director of elections from enforcing these statutes under
such circumstances. On April 28, 1997, the Supreme Court
handed down its decision in Timmons, and two days later,
the County filed a motion for relief from judgment pursuant
to Fed. R. Civ. P. 60(b). The district court denied the
motion, and the County appealed.

The other appeal (No. 96-3677) concerns a separate suit
in which the Patriot Party challenged the same
Pennsylvania provisions as they were applied to a 1995
school director election.3 In October 1996, (several months
before Timmons was decided), the district court granted the
Patriot Party's motion for summary judgment based on this
court's decision in Patriot Party I. The district court entered
an order granting the same declaratory and injunctive relief
as it did on remand in the case involving the 1993 election.
The County appealed that order as well.

II.

As noted, a prior panel of our court previously held in
Patriot Party I that 25 Pa. Con. Stat. Ann.SS 2936(e) and
2911(e)(5), which prohibit minor but not major parties from
nominating "fusion" candidates in certain local elections,
violate minor parties' rights to freedom of association and
equal protection of the laws, but the Supreme Court later
held in Timmons that a generally applicable anti-fusion law
did not infringe the associational rights of a political party
or voters. Needless to say, we are required to follow
decisions of the Supreme Court, but it is also our court's
tradition that a panel may not overrule or disregard a prior
panel decision unless that decision has been overruled by
the Supreme Court or by our own court sitting en banc.
_________________________________________________________________

3. On May 16, 1995, the Patriot Party nominated Barbara Childress for
the 1995 school director election in North Allegheny School District.
Childress filed the appropriate nomination papers with the County's
Department of Election. Childress then won the Republican and
Democratic nominations for the election. In late May, the Department
informed Childress that the Pennsylvania Code prohibited Childress from
seeking a nomination by a minor party since she had previously filed a
nomination petition.

                               4
See Nationwide Ins. Co. of Columbus, Ohio v. Patterson, 953
F.2d 44, 46 (3d Cir. 1991). Here, we conclude that Patriot
Party I's equal protection holding was not overruled by
Timmons and that while the reasoning underpinning that
holding is arguably in tension with the Supreme Court's
reasoning in Timmons, it is not clear that reconciliation is
impossible. Under these circumstances, we do not feel free
to disregard another panel's decision.

In Patriot Party I, a panel of this courtfirst concluded
that Pennsylvania's fusion ban violated the Patriot Party's
right to freedom of association. The panel looked to the
standard set out in Eu v. San Francisco County Democratic
Cent. Comm., 489 U.S. 214, 222 (1989), and Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983). Under this standard,
a court must first inquire whether a challenged election law
burdens First Amendment rights. 95 F.3d at 258. If it does,
the court must gauge the character and magnitude of the
burden and weigh it against the importance of any
countervailing state interests. Id. The court must examine
not only the legitimacy and strength of the state's proffered
interests, but also the necessity of burdening the plaintiff 's
rights in order to protect those interests. Id. If the burden
on the plaintiff 's rights is severe, the state's interests must
be compelling, and the law must be narrowly tailored to
serve the state's interests. Id.

Applying this standard, the Patriot Party I panel held that
the challenged Pennsylvania laws were unconstitutional. 95
F.3d 268. The court concluded that the statutes burdened
the Patriot Party in two ways: (1) by preventing the Party
from nominating the standard bearer whom the party
believes "will most effectively advance its program and
platform" and (2) by depriving the Party of its ability to
"fuse" its votes with those of a major party and thus make
inroads into the political process. Id. at 258-61. The panel
found that these burdens were severe and that
Pennsylvania was accordingly required to demonstrate that
the statutes were narrowly tailored to serve compelling
interests. Id. at 264. The panel decided, however, that the
County's proffered justifications for the fusion ban did not
meet this stringent test. Id. at 264. The court reviewed the
interests asserted by the County -- preventing sore loser

                               5
candidates, preventing independent candidates from
monopolizing the ballot or causing voter confusion,
preventing candidates from "bleeding off" independent
candidates, and encouraging new candidates to run as
independents -- and found each of them to be insufficient.
Id. at 267-68.

The panel then turned to the equal protection analysis,
noting that this analysis was "similar in many respects to
the balancing test that [the panel] applied to[the] free
association claim." 95 F.3d at 269. Under the equal
protection analysis, the panel followed the Supreme Court's
decision in Williams v. Rhodes, 393 U.S. 23 (1968). 95 F.3d
at 268. In accordance with that decision, the panel
examined whether the Pennsylvania laws created invidious
classifications. 95 F.3d at 269, (citing Williams, 393 U.S. at
30). Specifically, the panel measured the totality of the
burden that the laws placed on the voting and associational
rights of the Patriot Party against the justifications that
Pennsylvania offered to support the law. 95 F.3d at 269,
(citing Williams, 393 U.S. at 34). The panel then held that
Pennsylvania's decision to ban cross-nominations by minor
political parties and to allow cross-nomination by major
parties constituted the type of "invidious classifications"
prohibited by the Equal Protection Clause. 95 F.3d at 269.
The court noted that the Pennsylvania statutes laws treated
minor and major parties differently and placed a more
severe burden on minor political parties' rights. Id. at 269.
In weighing these burdens against Pennsylvania's proffered
justifications, the court restated its earlier conclusion that
the County had offered no compelling justification for
Pennsylvania's facially discriminatory laws. Id. at 269-70.
Indeed, the panel went so far as to state that the
Pennsylvania scheme "impose[d] . . . unequal burdens on
the right to vote and the right to associate without
protecting any significant countervailing state interest." Id.
at 269.

In Timmons, the Supreme Court, like the Patriot Party I
panel, applied the test established in Eu and Anderson to
determine whether Minnesota's general fusion ban violated
the right to freedom of association, but the Court concluded
that the Minnesota fusion ban did not violate this right.

                                6
117 S. Ct. at 1370-71. The Court determined that the
burdens imposed on the minor political parties'
associational rights by Minnesota's anti-fusion statute,
"though not trivial," were not severe. Id. at 1372. The Court
explicitly rejected the contention that the ban imposed a
severe burden because it might preclude a party from
nominating the individual whom it most desired as its
standard bearer. Id. at 1370 ("[t]hat a particular individual
may not appear on the ballot as a particular party's
candidate does not severely burden that party's
associational rights"). Additionally, the Court indicated that
the anti-fusion statute did not create a severe burden on
the party's attempts to organize: "Minnesota has not
directly precluded minor political parties from developing
and organizing . . . . Nor has Minnesota excluded . . . a
political party[ ] from participation in the election process."
Id. at 1371.

Because the Timmons Court found that the burdens on
minor political parties were not severe, the Court conducted
a "less exacting review" of Minnesota's proffered
justifications. 117 S. Ct. at 1370. Under this review,
"important regulatory interests" are enough to justify
"reasonable, nondiscriminatory restrictions." Id. Although
the Court declined to consider Minnesota's interest in
avoiding voter confusion, the Court concluded that the
burdens imposed on minor political parties by Minnesota's
fusion ban were justified by "correspondingly weighty" state
interests in ballot integrity and political stability. Id. at
1375.

Although Timmons, unlike the suits brought by the
Patriot Party, did not involve an equal protection claim,
there is plainly at least some tension between the Supreme
Court's reasoning in Timmons and the Patriot Party I panel's
equal protection analysis. As the Patriot Party I panel
opinion recognized, the balancing test used to determine
whether an election law violates a political party's right to
freedom of association is similar to the test employed to
determine whether an election law violates a political
party's equal protection rights. 95 F.3d at 269 ("our
analysis of the Patriot Party's equal protection claim is
similar in many respects to the balancing test that we

                               7
applied to its free association claim."). The Supreme Court's
reasoning in Timmons may thus affect the continuing
validity of the panel's equal protection analysis in Patriot
Party I. However, the anti-fusion law at issue in Timmons
did not facially discriminate, as does the fusion ban in the
present case. As a result, although the burdens imposed by
Pennsylvania's fusion ban are in some respects quite
similar to those created by the Minnesota statute, the
burdens on the Patriot Party may be magnified because
they are not applied equally to all political parties.

Furthermore, even if the burdens created by the two
states' fusion bans are regarded as essentially the same for
present purposes, and the Pennsylvania fusion ban places
less than severe burdens on the Patriot Party's rights, it is
not entirely clear that Pennsylvania's interests are
sufficiently weighty to justify those burdens. Because each
state's fusion ban serves different interests, we do not
believe that the Supreme Court's decision in Timmons is
necessarily fatal to this court's earlier conclusion that the
election laws do not protect significant state interests. See
Patriot Party I, 95 F.3d at 269. In addition, as the previous
panel noted, the fact that Pennsylvania permits major
parties to cross-nominate weakens the validity of
Pennsylvania's asserted interests. See 95 F.3d at 267. For
all these reasons, we do not feel free to disregard the panel
opinion in Patriot Party I.

III.

Because the Supreme Court's decision in Timmons did
not overrule the prior panel's equal protection holding in
Patriot Party I, there are no extraordinary circumstances to
justify granting the County's Rule 60(b) motion. Rule
60(b)(6) is available only in extraordinary circumstances.
Martinez-McBean v. Government of Virgin Islands, 562 F.2d
908, 911 (3d Cir. 1977).4 Intervening developments in the
law by themselves rarely constitute the extraordinary
circumstances required for relief under Rule 60(b)(6). Polites
_________________________________________________________________

4. The County originally moved for relief from judgment under Rule
60(b)(4) and (6). On appeal, however, they requested relief under Rule
60(b)(6).

                               8
v. United States, 364 U.S. 426, 433 (1960). However, this
rule is not to be inflexibly applied. Id.

Because the Supreme Court's decision in Timmons did
not clearly overrule the equal protection holding in Patriot
Party I, it does not provide the extraordinary circumstances
needed for Rule 60(b)(6) relief. As a result, that holding
remains binding circuit law, and the district court had no
basis for granting the County relief. We note that if
Timmons had explicitly overruled this court's equal
protection holding in Patriot Party I, that intervening change
in law, coupled with the prospective nature of the district
court's injunction and the district court's declaration that
Pennsylvania's statute was unconstitutional, might
constitute the extraordinary circumstances needed for relief
under Rule 60(b)(6). We need not decide this issue,
however, since the Patriot Party I equal protection holding
is binding on this panel.

IV.

For these reasons, we affirm the orders of the district
court in both of the appeals now before us.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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