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. e du/thir dc ir c uit_1998/142Filed 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 Unite d States District Judge for the District of New Jersey, sitting by de signation.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 determi ne whether this court's decision in Patriot Party of A llegheny 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 Pa triot's Party right to the equal protection of the laws, as well as its right to freedom of association, and because we con clude that our panel is bound by Patriot Party I, at leas t insofar as it held that the statutes violate equal protecti on, we affirm the district court orders in both appeals.

I.

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

2opinion 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 fr om engaging in this same practice.1

In one of the two appeals (No. 97-3359), we are ask ed to review the order entered by the district court afte r the remand in Patriot Party I. That case began when the Patriot Party challenged the constitutionality of the statu tes as applied to prevent the Party from nominating a part icular 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 claim s, holding that the state's legitimate interest in regulating its ballot justified the restraints that the election code pla ced 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, b ut did not seek a writ of certiorari. On remand, the distr ict court entered an order on December 11, 1996, declaring th at 25 Pa. Con. Stat. Ann. SS 2936(e) and 2911(e)(5) place an unconstitutional burden on the Patriot Party's righ ts to free association and equal protection insofar as they pr ohibit 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 pol itical party of the same candidate for the same office in the same gene ral election." 117 S. Ct. at 1367, n.1, citing Twin Cities Area New Pa rty v. McKenna, 73 F.3d 196, 197-98 (8th Cir. 1996).

2. In 1993, Michael Eshenbaugh sought the nominatio n of both the Republican and Democratic Parties in the school dir ector election. Eshenbaugh won the Democratic (but not the Republic an) nomination. The Patriot Party then nominated its candidates for the school director positions. Eshenbaugh was one such candidate. Eshen baugh willingly accepted the Patriot Party nomination. When Eshenba ugh attempted to file his nominating papers, the County informed him that because he had previously sought the nomination of the major p arties, 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.

3party 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 l ater, 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 1 995 school director election.3 In October 1996, (severa l months before Timmons was decided), the district court gra nted the Patriot Party's motion for summary judgment based o n this court's decision in Patriot Party I. The district c ourt entered an order granting the same declaratory and injuncti ve 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 hel d in Patriot Party I that 25 Pa. Con. Stat. Ann.SS 2936( e) and 2911(e)(5), which prohibit minor but not major part ies from nominating "fusion" candidates in certain local ele ctions, violate minor parties' rights to freedom of associa tion and equal protection of the laws, but the Supreme Court later held in Timmons that a generally applicable anti-fu sion law did not infringe the associational rights of a poli tical party or voters. Needless to say, we are required to foll ow decisions of the Supreme Court, but it is also our court's tradition that a panel may not overrule or disregar d a prior panel decision unless that decision has been overru led by the Supreme Court or by our own court sitting en ba nc.

___________________________________________________ ______________

3. On May 16, 1995, the Patriot Party nominated Bar bara Childress for the 1995 school director election in North Alleghen y School District. Childress filed the appropriate nomination papers w ith the County's Department of Election. Childress then won the Repu blican and
Democratic nominations for the election. In late Ma y, the Department informed Childress that the Pennsylvania Code prohi bited Childress from seeking a nomination by a minor party since she had previously filed a nomination petition.

4See Nationwide Ins. Co. of Columbus, Ohio v. Patter son, 953

F.2d 44, 46 (3d Cir. 1991). Here, we conclude that Patriot Party I's equal protection holding was not overrule d by Timmons and that while the reasoning underpinning t hat holding is arguably in tension with the Supreme Cou rt's reasoning in Timmons, it is not clear that reconcil iation is impossible. Under these circumstances, we do not fe el free to disregard another panel's decision.

In Patriot Party I, a panel of this courtfirst conc luded that Pennsylvania's fusion ban violated the Patriot Party's right to freedom of association. The panel looked t o the standard set out in Eu v. San Francisco County Demo cratic Cent. Comm., 489 U.S. 214, 222 (1989), and Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Under this st andard, a court must first inquire whether a challenged ele ction 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 i nterests must be compelling, and the law must be narrowly tailore d to
serve the state's interests. Id.

Applying this standard, the Patriot Party I panel h eld that the challenged Pennsylvania laws were unconstitutio nal. 95

F.3d 268. The court concluded that the statutes bur dened the Patriot Party in two ways: (1) by preventing th e 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 abi lity to "fuse" its votes with those of a major party and th us 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 demonstrat e that the statutes were narrowly tailored to serve compel ling interests. Id. at 264. The panel decided, however, that the County's proffered justifications for the fusion ba n did not meet this stringent test. Id. at 264. The court rev iewed the interests asserted by the County -- preventing sore loser

5candidates, preventing independent candidates from

monopolizing the ballot or causing voter confusion, preventing candidates from "bleeding off" independe nt candidates, and encouraging new candidates to run a s independents -- and found each of them to be insuff icient.

Id. at 267-68.

The panel then turned to the equal protection analy sis, noting that this analysis was "similar in many resp ects 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 invi dious 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 assoc iational rights of the Patriot Party against the justificati ons that Pennsylvania offered to support the law. 95 F.3d at 269, (citing Williams, 393 U.S. at 34). The panel then h eld 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 classifi cations" 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 mo re severe burden on minor political parties' rights. I d. at 269. In weighing these burdens against Pennsylvania's pr offered justifications, the court restated its earlier conc lusion 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 burden s on the right to vote and the right to associate withou t protecting any significant countervailing state int erest." Id.

at 269.

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

6117 S. Ct. at 1370-71. The Court determined that th e

burdens imposed on the minor political parties' associational rights by Minnesota's anti-fusion sta tute, "though not trivial," were not severe. Id. at 1372. The Court explicitly rejected the contention that the ban imp osed a severe burden because it might preclude a party fro m nominating the individual whom it most desired as i ts 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 ind icated that
the anti-fusion statute did not create a severe bur den on the party's attempts to organize: "Minnesota has no t directly precluded minor political parties from dev eloping and organizing . . . . Nor has Minnesota excluded . . . a political party[ ] from participation in the electi on 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 revi ew, "important regulatory interests" are enough to just ify "reasonable, nondiscriminatory restrictions." Id. A lthough
the Court declined to consider Minnesota's interest in avoiding voter confusion, the Court concluded that the burdens imposed on minor political parties by Minne sota's fusion ban were justified by "correspondingly weigh ty" state interests in ballot integrity and political stabili ty. 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 p anel opinion recognized, the balancing test used to dete rmine whether an election law violates a political party' s right to freedom of association is similar to the test emplo yed to determine whether an election law violates a politi cal party's equal protection rights. 95 F.3d at 269 ("o ur analysis of the Patriot Party's equal protection cl aim is similar in many respects to the balancing test that we

7applied to its free association claim."). The Supre me Court's

reasoning in Timmons may thus affect the continuing validity of the panel's equal protection analysis i n Patriot Party I. However, the anti-fusion law at issue in T immons did not facially discriminate, as does the fusion b an in the present case. As a result, although the burdens imp osed by Pennsylvania's fusion ban are in some respects quit e similar to those created by the Minnesota statute, the burdens on the Patriot Party may be magnified becau se they are not applied equally to all political parti es.

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 p laces less than severe burdens on the Patriot Party's rig hts, it is not entirely clear that Pennsylvania's interests ar e sufficiently weighty to justify those burdens. Beca use each state's fusion ban serves different interests, we d o not believe that the Supreme Court's decision in Timmon s is necessarily fatal to this court's earlier conclusio n that the election laws do not protect significant state inte rests. See Patriot Party I, 95 F.3d at 269. In addition, as th e previous panel noted, the fact that Pennsylvania permits maj or parties to cross-nominate weakens the validity of Pennsylvania's asserted interests. See 95 F.3d at 2 67. 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 hol ding in Patriot Party I, there are no extraordinary circums tances to justify granting the County's Rule 60(b) motion. Ru le 60(b)(6) is available only in extraordinary circums tances. Martinez-McBean v. Government of Virgin Islands, 56 2 F.2d 908, 911 (3d Cir. 1977).4 Intervening developments in the law by themselves rarely constitute the extraordina ry circumstances required for relief under Rule 60(b)( 6). Polites

___________________________________________________ ______________

4. The County originally moved for relief from judg ment under Rule 60(b)(4) and (6). On appeal, however, they requeste d relief under Rule 60(b)(6).

8v. 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 i n Patriot Party I, it does not provide the extraordinary circ umstances 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 interve ning change in law, coupled with the prospective nature of the district court's injunction and the district court's declara tion that Pennsylvania's statute was unconstitutional, might constitute the extraordinary circumstances needed f or 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 dist rict 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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