Young v. Democratic Party of Kentucky
(Beshear, Grimes, Conway, Hughes, Logsdon, et al)
Political parties are voluntary
associations for political purposes. They are governed by their own
usages, and establish their own rules. Members of such parties may
form them, reorganize them, and dissolve them at their will. The
voters constituting such party are, indeed, the only body who can
finally determine between contending factions or contending
organizations. The question is one essentially political, and not
judicial, in its character. It would be alike dangerous to the
freedom and liberty of the voters, and to the dignity and respect
which should be entertained for judicial tribunals, for the courts to
undertake in any case to investigate either the government, usages,
rules, or doctrines of a political party, or to determine between
conflicting claimants' rights growing out of its government. Davis v
Hambrick 58 S.W. 779, 780, 109 Ky. 276.
Court of Appeals of Kentucky in Davis
v. Hambrick, 109 Ky. 276, 58 S. W. 779:
Section 6 of Ky Constitution: All
elections must be fair and equal:
“The Kentucky Court of Appeals has
interpreted “fair and equal” to mean that election rules should
be uniform, impartial, and nondiscriminatory.”
Burns v Lackey, 1916;
The court ruled that the control of 30%
of a town's eligible voters through a secret organization by the
mayor and a candidate for commissioner amounted to an
unconstitutional intimidation and rendered the election invalid.
xxXxx
Davis v. Stahl, 1941; this section
doesn't apply to primary elections; (Ireland)
1941; Davis v Stahl;
Montgomery v. Chelf, 118 Ky. 766, 82
S.W. 388. 1904;
1954, Rosenberg; virtually identical to
Geoff Young's case;
1900 Davis v Hambrick
all of these are before 1975
overhaul of Judicial System; and the 1992 Amendment, which both
changed election? Laws.
xXx
The biggest blowout?
http://blog.lib.umn.edu/cspg/smartpolitics/2015/05/kentucky_2015_gubernatorial_pr.php
Kentucky Irish American: n. Saturday,
April 25, 1903.
https://www.elephind.com/?fes=1&a=q&r=1041&o=20&results=1&sf=byDA&puq=CASNSTILRL
Image 1 of Hopkinsville Kentuckian,
November 28, 1902
xxx
"Primary election May 9, 1903"
The Democratic State Executive
Committee is in session here today considering the method by which a
State ticket should be nominated next year, Gov. Beckham and his
following favoring primary election all over Kentucky, while the
friends of the other Gubernatorial candidates urge a continuance of
the old convention plan of making nominations. The fight between the
two factions promises to be long and bitter.
11/25/1902; “Leader”
xxx
In Eagan v.
Gerwe, 65 S.W. 437, this court said, “It seems reasonably clear
from these provisions that the legislative intent was to place
primary elections on the same plane as the regular elections.” When
a primary election has been called in the manner prescribed by the
statutes, the members of the committee who called and are required by
the law to conduct it became officer of the law, and are required to
respect and enforce the statutes enacted for the regulation of
primary elections. If they refuse to perform a duty imposed by
law—for instance, refuse to place the name of a candidate on the
ballot—a mandamus will lie to compel them to do so. Young v.
Beckham (Ky.) 72 S.W. 1092.
Eagan v. Gerwe.
65 S. W. 437, 23 Ky. Law Rep. 1495
https://books.google.com/books?id=7TMLAAAAYAAJ&pg=PA1083&lpg=PA1083&dq=beckham+changes+convention+primary+ballot+kentucky&source=bl&ots=TyX0cZmebF&sig=quAH2gv_DRPaox-XwAKkKsmEYOg&hl=en&sa=X&ei=ZAFhVY3zOIzioASw64KIDQ&ved=0CCsQ6AEwAzgK#v=onepage&q=beckham%20changes%20convention%20primary%20ballot%20kentucky&f=false
1951 Democratic
Primary:
Yes, in my answer filed 4/1/15 and
several filings since then. My contention is that a US Supreme Court
case from 1944 should trump dicta from a Kentucky case decided in
frikkin 1900, about 3 years before primaries were even widespread in
the Commonwealth. My normal procedure when arguing cases is to cite
very little case law myself. When the eedyit opposing lawyers cite
case law in their motions to dismiss, I methodically research each
case they cite, figure out how it actually supports my position &
undermines theirs, and write it down in my answer. Conway's lawyer is
less competent than a few others I've encountered since the
mid-1980s, but I've never seen a motion to dismiss that was worth the
paper it was written on. Here's one case I researched myself and
cited:
"Smith v. Allwright, 321 U.S. 649 (1944) held that the Democratic Party of Texas was a "voluntary association," "protected...from interference by the State except that: 'In the interest of fair methods and a fair expression by their members of their preferences in the selection of their nominees, the State may regulate such elections by proper laws.'" [Id. at 654-5] At issue was whether Negroes would be allowed to vote in Democratic primaries. A previous US Supreme Court decision, Nixon v. Herndon, 273 U.S. 536 (1927), had overturned a Texas law that had declared, "in no event shall a Negro be eligible to participate in a Democratic primary election in the State of Texas." The Texas Democratic Party and its Democratic-controlled legislature had reacted by giving "the State Executive Committee of a party the power to prescribe the qualifications of its members for voting or other participation. This article remains in the statutes. The State Executive Committee of the Democratic party adopted a resolution that white Democrats and none other might participate in the primaries of that party." [Smith v. Allwright at 658] The existence of a
'statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the State in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed on it by state statutes; the duties do not become matters of private law because they are performed by a political party.' [Id. at 663]
In Kentucky, at least since 1891, it has been an impeachable offense for "any person who, to procure his nomination or election, has, in his canvass or election, been guilty of any unlawful use of money, or other thing of value, or has been guilty of fraud, intimidation, bribery, or any other corrupt practice, and he shall be held responsible for acts done by others with his authority, or ratified by him." [Constitution Sec. 151] The Smith v. Allwright decision clarified to all American citizens that a political party's actions are subject to review by the courts even though it is a voluntary association and even if it is following its own bylaws and the laws of the state, if its methods are not "fair methods" and if they prevent "a fair expression by their members of their preferences in the selection of their nominees." [Id. at 654-5] Yet the five Defendants, in their Motions and Memoranda to Dismiss, are claiming that no court in the land may interfere in "an internal party matter," in which category they include primary elections and the selection of KDP chairpersons, even if the KDP's bosses have (or may be shown to have) engaged in a conspiracy to rig certain primary elections in May, 2014 and May, 2015, defraud Kentucky's Democratic voters, practice corruption and cronyism, and intentionally violate key KDP bylaws for their own personal gain.
Plaintiff wonders if he will hear Counsel try to argue in Court that dicta from a 1904 case, Montgomery v. Chelf, 118 Ky. 766, 82 S.W. 388, which they interpret to mean that in primaries anything goes, should trump the decision of the Supreme Court of the United States in Smith v. Allwright, 321 U.S. 649 (1944).
"Smith v. Allwright, 321 U.S. 649 (1944) held that the Democratic Party of Texas was a "voluntary association," "protected...from interference by the State except that: 'In the interest of fair methods and a fair expression by their members of their preferences in the selection of their nominees, the State may regulate such elections by proper laws.'" [Id. at 654-5] At issue was whether Negroes would be allowed to vote in Democratic primaries. A previous US Supreme Court decision, Nixon v. Herndon, 273 U.S. 536 (1927), had overturned a Texas law that had declared, "in no event shall a Negro be eligible to participate in a Democratic primary election in the State of Texas." The Texas Democratic Party and its Democratic-controlled legislature had reacted by giving "the State Executive Committee of a party the power to prescribe the qualifications of its members for voting or other participation. This article remains in the statutes. The State Executive Committee of the Democratic party adopted a resolution that white Democrats and none other might participate in the primaries of that party." [Smith v. Allwright at 658] The existence of a
'statutory system for the selection of party nominees for inclusion on the general election ballot makes the party which is required to follow these legislative directions an agency of the State in so far as it determines the participants in a primary election. The party takes its character as a state agency from the duties imposed on it by state statutes; the duties do not become matters of private law because they are performed by a political party.' [Id. at 663]
In Kentucky, at least since 1891, it has been an impeachable offense for "any person who, to procure his nomination or election, has, in his canvass or election, been guilty of any unlawful use of money, or other thing of value, or has been guilty of fraud, intimidation, bribery, or any other corrupt practice, and he shall be held responsible for acts done by others with his authority, or ratified by him." [Constitution Sec. 151] The Smith v. Allwright decision clarified to all American citizens that a political party's actions are subject to review by the courts even though it is a voluntary association and even if it is following its own bylaws and the laws of the state, if its methods are not "fair methods" and if they prevent "a fair expression by their members of their preferences in the selection of their nominees." [Id. at 654-5] Yet the five Defendants, in their Motions and Memoranda to Dismiss, are claiming that no court in the land may interfere in "an internal party matter," in which category they include primary elections and the selection of KDP chairpersons, even if the KDP's bosses have (or may be shown to have) engaged in a conspiracy to rig certain primary elections in May, 2014 and May, 2015, defraud Kentucky's Democratic voters, practice corruption and cronyism, and intentionally violate key KDP bylaws for their own personal gain.
Plaintiff wonders if he will hear Counsel try to argue in Court that dicta from a 1904 case, Montgomery v. Chelf, 118 Ky. 766, 82 S.W. 388, which they interpret to mean that in primaries anything goes, should trump the decision of the Supreme Court of the United States in Smith v. Allwright, 321 U.S. 649 (1944).
xxx
With a successful legislative session
behind him, Beckham made a bold political move in June 1906: he
orchestrated an effort to set the Democratic gubernatorial and
senatorial primaries in November – a full year before the
gubernatorial election and two years before the senatorial election.
Beckham wanted the Senate seat, and moving the primary up two years
would allow him to secure his party's nomination while he was still
governor. It also allowed him to use his influence as governor to
sway the party's choice of his potential successor as governor. State
Auditor Samuel Wilbur Hager was Beckham's choice for governor and
easily won the early primary over challenger N.B. Hays. Former
governor James B. McCreary challenged Beckham for the senatorial
nomination, but Beckham won by more than 11,000 votes.
Xxx
In considering a motion to dismiss, the
allegations of the complaint are taken as true and construed in the
light most favorable to the non-moving party. Louisville v. Stock
Yards Bank and Trust, 843 S.W.2d 327 (Ky. 1992). It is appropriate to
dismiss an action if it appears that the plaintiff would be unable to
prevail under any set of circumstances at trial. Pari-Mutuel Clerk's
Union, Local 541 v. Kentucky Jockey Club, 551 S.W.2d 801 (Ky. 1977).
This is a political question that is
not appropriate to be determined by this Court. Intraparty political
disputes are not jusiciable. The judiciary will not interfere in
matters that are essentially political rather than judicial. This
issue is a matter of First Amendment protection of the political
process and has been addressed in Davis v. Hambrick, 58 S.W. 779 at
780 (Ky. 1900) as the following:
Political parties are voluntary
associations for political purposes. They are governed by their own
usages, and establish their own rules. Members of such parties may
form them, reorganize them, and dissolve them at their will. The
voters constituting such party are, indeed, the only body who can
finally determine between contending factions or contending
organizations. The question is one essentially political, and not
judicial, in its character.
Because Plaintiff only identifies
alleged violations of the KDP bylaws in the Complaint, the Court does
not find any statutory prohibition or other authority that provides
this Court with justification for judicial intervention.
Wherefore, the Defendant's Motion to
Dismiss is Granted and the Plaintiff's Complaint is hereby Dismissed
with prejudice for failure to state a claim upon which relief may be
granted pursuant to CR 12.02.
This order is final and appealable and
there is no just cause for delay.
Ordered May 1, 2015
Signed
Thomas D. Wingate
xxx
2 court cases by Beshear and Co:
Rosenberg v. Republican Party of
Louisville and Jefferson County, 270 S.W.2d 171 (Ky. 1954)
Montgomery v. Chelf, 118 Ky. 766, 82
S.W. 388, (1904)
xxXxx
Wingate's Ruling:
Davis v. Hambrick, 58 S.W. 779
at 780 (Ky. 1900)
This issue is a matter of First
Amendment protection of the political process and has been addressed
in Davis v. Hambrick, 58 S.W. 779 at 780 (Ky. 1900) as the following:
“Political parties are voluntary
associations for political purposes. They are governed by their own
usages, and establish their own rules. Members of such parties may
form them, reorganize them, and dissolve them at their will. The
voters constituting such party are, indeed, the only body who can
finally determine between contending factions or contending
organizations. The question is one essentially political, and not
judicial, in its character.”
xxXxx
Davis v. Hambrick (Ky 1900)
119.020 Repealed, 1974. Catchline at
repeal: Political parties must nominate candidates by primary --
Exceptions -- Vacancy in nomination. History: Repealed 1974 Ky. Acts
ch. 130, sec. 198, effective June 21, 1974. -- Amended 1964 Ky. Acts
ch. 142, sec. 7. -- Amended 1948 Ky. Acts ch. 81, sec. 5. --
Recodified 1942 Ky. Acts ch. 208, sec. 1, effective October 1, 1942,
from Ky. Stat. secs. 1550-1c, 1550-1e, 1550-1f, 1550-5.
http://www.lrc.ky.gov/Statutes/statute.aspx?id=27722
xxx
COURT OF APPEALS OF KENTUCKY
July 19, 1954
ROSENBERG
v.
REPUBLICAN PARTY OF LOUISVILLE AND JEFFERSON COUNTY, ET AL.
Cammack
H. A. I. Rosenberg, a candidate seeking
the Republican Party's nomination for United States Representative in
the Third Congressional District, brought suit in the Jefferson
Circuit Court to restrain the local Republican Party organization
from endorsing and actively supporting John M. Robsion in the coming
August primary election.
He alleged in general terms that the
appellees were engaged in a common conspiracy to use the local
organization's money, influence, machinery and personnel to bring
about the nomination of Mr. Robsion in the primary election. He
stated that he, being a candidate for the same nomination, would
suffer great and irreparable injury unless the appellees were
restrained from so doing. The appellee's motion to dismiss the
complaint was sustained on the ground that the court did not have
jurisdiction to entertain the action. The appellant then attempted to
file an amended complaint, but the court sustained the appellee's
objection to that also.
The only question before us on this
appeal is whether the complaint stated a claim which a court of
equity will entertain.
The appellant relies upon section 6 of
the Kentucky Constitution, KRS 119.020, and the Constitution and
By-Laws of the Jefferson County Republican Executive Committee.
Section 6 of our Constitution provides
that, "All elections shall be free and equal.' That section has
been construed by this Court as applying only to general elections.
Davis v. Stahl, 287 Ky. 629, 154 S.W.2d 736; Montgomery v. Chelf, 118
Ky. 766, 82 S.W. 388. Clearly it has no application to this case.
KRS 119.020 provides in part:
"* * * every political party shall
nominate all of its candidates for elective offices to be voted for
at any regular election at a primary election held as provided in
this chapter, and the governing authority of any political party
shall have no power to nominate any candidate for any elective office
or to provide any method of nominating candidates for any elective
office other than by primary elections as provided in this chapter.'
This statute sets forth the method by
which a political party may nominate its candidates. Clearly the
statute does not prevent a party organization from taking part in a
primary election. Whether the Constitution and By-Laws of the
Jefferson County Republican Executive Committee prohibit such action
does not concern us. Courts do not interfere with internal party
matters. Smith v. Howard, 275 Ky. 165, 120 S.W.2d 1040; Davis v.
Hambrick, 109 Ky. 276, 58 S.W. 779, 51 L.R.A. 671.
The appellant has failed to allege an injury from which a court of
equity will protect him by injunction.
Judgment affirmed. 19540719
xxx
Rosenburg vs. GOP of Louisville, 1954.
Section 6 of our Constitution provides
that, "All elections shall be free and equal.' That section has
been construed by this Court as applying only to general elections.
Davis v. Stahl, 287 Ky. 629, 154 S.W.2d
736 (1941);
Montgomery v. Chelf, 118 Ky. 766, 82
S.W. 388.
xxx
KRS 118.105(1).
118.105 Nominations by political
parties -- Vacancy in candidacy -- Replacement candidates --
Exceptions -- Ineligibility of Senior Status Special Judge. (1)
Except as provided in subsections (3) and (4) of this section and
in KRS 118.115, every political party shall nominate all of its
candidates for elective offices to be voted for at any regular
election at a primary held as provided in this chapter, and the
governing authority of any political party shall have no power to
nominate any candidate for any elective office or to provide any
method of nominating candidates for any elective office other than by
a primary as provided in this chapter. (2) Any political
organization not constituting a political party as defined in KRS
118.015 may make its nominations as provided in KRS 118.325. (3) If a
vacancy occurs in the nomination of an unopposed candidate or in a
nomination made by the primary before the certification of candidates
for the regular election made under KRS 118.215, because of death,
disqualification to hold the office sought, or severe disabling
condition which arose after the nomination, the governing authority
of the party may provide for filling the vacancy, but only following
certification to the governing authority, by the Secretary of State,
that a vacancy exists for a reason specified in this subsection. When
such a nomination has been made, the certificate of nomination shall
be signed by the chair and secretary of the governing authority of
the party making it, and shall be filed in the same manner as
certificates of nomination at a primary. (4) If a vacancy occurs in
the nomination of an unopposed candidate or in a nomination made by
the primary before the certification of candidates for the regular
election, and if that party's nominee was the only political party
candidate for the office sought, the governing authority of each
party may nominate a candidate for the regular election, provided
that no person has sought that party's nomination by filing a
notification and declaration. (5) If a vacancy occurs in the
nomination of a candidate under the conditions of subsection (3) or
(4) of this section prior to September 15 preceding the day of the
regular election, certificates of nomination for replacement
candidates shall be filed in the same manner as provided in
subsections (3) and (4) not later than 4 p.m. ten (10) days after the
vacancy occurs, excluding weekends and legal holidays. If a vacancy
occurs in the nomination of a candidate under the conditions of
subsection (3) or (4) of this section on or after September 15
preceding the date of the regular election, certificates of
nomination for replacement candidates shall be filed in the same
manner as provided in subsections (3) and (4) not later than 4 p.m.
five (5) days after the vacancy occurs, excluding weekends and legal
holidays. (6) If a vacancy in candidacy described in subsection (5)
of this section occurs later than the second Thursday preceding the
date of the regular election, no certificates of nomination shall be
filed and any candidate whose name does not appear on the ballot may
seek election by write-in voting pursuant to KRS 117.265. (7) This
section does not apply to candidates for members of boards of
education, or presidential electors, nor to candidates participating
in nonpartisan elections. However, regardless of the number of days
served by a judge acting as a Senior Status Special Judge, a judge
who elected to retire as a Senior Status Special Judge in accordance
with KRS 21.580 shall not become a candidate for any elected office
during the five (5) year term prescribed in KRS 21.580(1)(a)1.
Effective:June 25, 2013 History:
Amended 2013 Ky. Acts ch. 66, sec. 1, effective June 25, 2013. --
Amended 2007 Ky. Acts ch. 46, sec. 1, effective June 26, 2007. --
Amended 2005 Ky. Acts ch. 71, sec. 7, effective June 20, 2005. --
Amended 1998 Ky. Acts ch. 2, sec. 2, effective July 15, 1998. --
Amended 1994 Ky. Acts ch. 482, sec. 1, effective April 13, 1994. --
Amended 1990 Ky. Acts ch. 49, sec. 1, effective March 12, 1990. --
Amended 1988 Ky. Acts ch. 17, sec. 8, effective July 15, 1988. --
Amended 1982 Ky. Acts ch. 394, sec. 18, effective July 15, 1982. --
Amended 1978 Ky. Acts ch. 384, sec. 25, effective June 17, 1978. --
Amended 1976 Ky. Acts ch. 54, sec. 23, effective January 1, 1978. --
Created 1974 Ky. Acts ch. 130, sec. 100, effective June 21, 1974.
http://www.lrc.ky.gov/Statutes/statute.aspx?id=42249
xxx
All five Defendants based their
Memoranda crucially upon Rosenberg v. Republican Party of Louisville
and Jefferson County, 270 S.W.2d 171 (Ky. 1954), which held that
Section 6 of the Kentucky Constitution – "All elections shall
be free and equal" – applies only to general elections, not
primaries [citing Montgomery v. Chelf, 118 Ky. 766, 82 S.W. 388,
(1904), which concluded, in a statement that Plaintiff considers
dicta, that primary elections aren't really elections at all]. The
Rosenberg decision also stated, "Whether the Constitution and
Bylaws of the Jefferson County Republican Executive Committee
prohibit such action does not concern us."
xxXxx
Look to the GOP:
Here's what the Democratic Party can do
better going forward:
(a) Seeing that the primary races for
Governor and certain other offices were contested, they would've
taken the idea of a "Unity Press Conference" off the table
or never considered it as a reasonable possibility in the first
place.
(b) The KDP would plan an extensive
series of campaign appearances where Plaintiff and Jack Conway
would have equal opportunities to present their ideas to the same
audience and debate with each other. The goal would be to help as
many of Kentucky's Democrats as possible form opinions about which
candidate would be more likely to be able to defeat the
Republican nominee and which would do a better job as the next
Governor.
(c) The KDP would assist both campaigns
in dealing with corporate media, both Kentucky-based and beyond.
No artificial limits would be imposed on the two candidates' freedom
of expression. If they wanted to spend 40% of their time attacking
each other and 40% of their time criticizing one or more of the
Republican candidates for Governor, that would be encouraged.
(d) The KDP would assist both
campaigns in complying with the myriad regulatory requirements that
must be met, so the decision between them would come down to the
choice of the voters on 5/19/15 rather than the violation of some
arcane regulation.
(e) Re fundraising, the KDP could
establish three separate Primary Funds within its treasury: one
that would be turned over to the Young-Masters Campaign as soon as
contributions came in, one that would be given to the Conway-Overly
Campaign, and one that would be given to the winner of the primary on
5/19/15. People could still contribute directly to the two campaigns
if they preferred to bypass the KDP, of course. In addition, the
State Executive Committee could decide to give equal amounts of
KDP funds and other resources to both primary campaigns, pursuant to
Article I.D. (..."No assets of the Democratic Party shall be
used in a Democratic Primary Election unless they are made available
equally to all Democrat Candidates in that specific primary
election...")
(f) Although neither the KDP nor any
county Democratic parties currently hold annual conventions (to
Plaintiff's knowledge), they could. Each convention could provide
equal opportunities for both candidates to interact with grass-roots
Democrats.
(g) Throughout the primary, the
overwhelming message conveyed by the KDP and all the county parties
would be, "May the best candidate win on May 19th and then win
again on November 3rd."
Or, the KDP could choose to continue to
decline.
xxXxx
Mason v. Byrley, SW 767 26 Ky Law Rep
487 (1904?):
“By the enactment of Ky St. 1903, c.
41, art. 12, providing for primary elections, it was the purpose of
the Legislature to have primary elections conducted according to law,
and the duties and powers of those conducting them fixed by law: and
while such persons are not officers in the technical meaning of that
term, their duties are official, and must be preformed as prescribed
in the statute, subject to the penalties therein provided in case of
failure to so perform them.”
https://books.google.com/books?id=Wqw2u0lksr4C&pg=RA6-PR3&lpg=RA6-PR3&dq=first+democratic+primary+kentucky+1903+convention&source=bl&ots=JvS3xSLniX&sig=RvH9f2FniRGqTC39UhEZtBTG1QE&hl=en&sa=X&ei=TIliVeHqOIHvoATy7YCQCw&ved=0CB0Q6AEwADgK#v=onepage&q=first%20democratic%20primary%20kentucky%201903%20convention&f=false
Comments
Post a Comment