1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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.

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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. 

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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 

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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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