UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CURLY THORNTON, Democratic Candidate for President, Plaintiff,
-against-
NATIONAL DEMOCRATIC PARTY, DEMOCRATIC NATIONAL COMMITTEE, ASSOCIATION OF STATE DEMOCRATIC CHAIRS, CARL WAGNER, CAPITAL CITIES-ABC, INC., CBS, INC., FOX BROADCASTING CO., INC., NBC, INC., PUBLIC BROADCASTING SERVICE, CNN AMERICA, INC., C-SPAN, NEW HAMPSHIRE DEMOCRATIC PARTY, FLORIDA DEMOCRATIC PARTY, TEXAS DEMO CRATIC PARTY and STATE OF NEW HAMPSHIRE, Defendants.
Plaintiff, for his complaint, respectfully alleges:
1. The jurisdiction of this court to hear this complaint against defendants is based upon the original jurisdiction of this court (i) under 28 U.S.C. Section 1343, to hear an action to "redress the deprivation, under color of any State law, statute, ordin ance, regulation, custom or usage" of one or more states "of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of th e United States"; (ii) under 28 U.S.C. Section 1331, to hear a civil action arising under the Constitution, laws, or treaties of the United States; (iii) as a direct right of action under the U.S. Constitution to declare an Act of Congress unconstitutiona l; and (iv) under the principles of pendent jurisdiction.
2. Specifically, this complaint is brought to redress the deprivation of rights, privileges and immunities secured to plaintiff by: (a) First Amendment to the U.S. Constitution; (b) Fifth Amendment to the U.S. Constitution; (c) Twelfth Amendment to the U .S. Constitution; (d) Sections 1-2 of the Fourteenth Amendment to the U.S. Constitution; (e) Twenty-Fourth Amendment to the U.S. Constitution; (f) Article II, Section 1, Clauses 2-3 of the U.S. Constitution; (g) Article VI, Clause 2 of the U.S. Constituti on; (h) Section 1983 of the Civil Rights Act (42 U.S.C. Section 1983), providing equal rights under state and local law for citizens or other persons within the jurisdiction of the United States; (i) Sections 312(a)(7) and 315 of the Federal Communication s Act, 47 U.S.C. Sections 312(a)(7) and 315; and (j) various counterpart provisions in State constitutions.
3. Plaintiff, CURLY THORNTON is a resident of Montana, an active, legally-qualified Democratic candidate for President of the United States who is campaigning, and attempting to campaign, in the various Democratic presidential primaries throughout the Uni ted States, and has his place of business at 206 N. 29th Street, Billings, Montana 59101.
4. Plaintiff was born in the United States, is more than 35 years of age, and has lived in the United States throughout his whole life, thereby meeting the requirements for President of the United States as set forth in Article II, Section 1, Clause 4 of the U.S. Constitution.
5. Plaintiff has a program for getting the United States out of the current deepening recession, which program is unable to be heard and debated because of the various activities alleged in this complaint.
6. The plaintiff's economic program includes such novel proposals as:
A. Appointing a federal cabinet member and establishing an agency to deregulate the economies of the states by suing and otherwise encouraging the states to eliminate micro-economic restraints which collectively prevent the nation's economy from performin g at substantially higher levels of productivity (including an attack on the mindless state restrictions on raising capital, higher and vocational education, occupational licensing, obtaining jobs);
B. Requiring the U.S. Securities and Exchange Commission to seek and interest possible investors for small business and develop and maintain an information exchange in connection therewith; and to facilitate the securitization (i.e., bundling together for resale of securities issued by numerous small businesses) and offering them to the larger securities markets without stifling rules and regulations which now prevent small business from raising capital and creating jobs;
C. Developing a national program to encourage individual persons ("leader") to take a welfare-receiving person or family under his or her wing (if not shelter) at such leader's own time and expense; and show the person(s) how to get off welfare, without h aving to follow any federal or state regulations at all; and upon the leader demonstrating that he has achieved success (for a one-year period, for example), the federal, state and local governments would pay the leader a well-deserved fee of a percentage (say 25%) of the moneys saved the governments over a 3-year period, for example, which could amount to a payment to the leader of $10,000 to $20,000, for example;
D. Using the nation's military trucks, military camps, soldiers and facilities to arrest and pick up drug dealers, transport them to the military camps as far away in the same state from the scene of arrest as possible, process them for outstanding warran ts and hold them for the current arrest and sentence; and, for addicted persons, provide detoxification, training and motivation to get off drugs. This would eliminate the need for building more jails, and would temporarily (at least) imprison the drug de alers miles away from the scene of their ongoing drug dealings, depending on whether the governing state policy is to jail or release the drug dealers. In the latter case, the ride becomes the sentence.
E. Eliminating the regulation of higher and vocational education which causes education to cost as high as $30 for a 50-minute hour of instruction (such as at New York University) when the real cost of education without bureaucracy is only $2 or $3 per cl ock hour, which low amount is affordable to many persons in the United States without the need for student loans, grants or other borrowing. Bureaucracy detracts from the speed with which education can adjust to the changing market conditions, and produc es costs which create a permanent drag on the U.S. economy as well as the financial well-being of the persons who have to mortgage the best years of their life to pay for the high educational costs forced upon them, most uselessly, by trying to comply wit h a large library of federal, state and accrediting organization statutes, rules, regulations, forms, notices and other paperwork. Excessive costs of education deprives millions of people and the U.S. economy of the competitive benefits which an affordab le education would provide.
F. (i) Eliminating the growing "Violation and Fine" for-profit businesses of cities, states and municipalities pursuant to which they create and enforce quasi-criminal laws designed and used to raise unrestricted revenues (i.e., additional taxes) for the governmental body but destroy the economic base of the area; examples include costly, demoralizing and time-wasting speed traps, parking tickets, littering fines; sanitation, building, elevator, consumerist, automobile, truck, fire, health, safety, zoning and other inspection-based fines; and charges for booting or towing of vehicles; and (ii) Requiring that all moneys obtained by a state or local governmental body as fines or penalties be turned over to the courts of the state or municipality for unrestr icted use by the judiciary in modernizing and expanding the state's court facilities and making legal services more readily available to all, designed to discourage the destructive profit-making motive underlying the Violation and Fine businesses of gover nment.
7. These partial components of the plaintiff's economic plan all involve substantial micro-economic restraints which appear to be the real reason that the United States is in its financial mess, but none of the "major candidates" direct their attention to these problems, and devote themselves instead to providing more capital to the persons who got the country into this mess in the first place, through "macro-economic" policies which reinforce and protect the economic restraints which must in some way be dealt with and corrected.
8. The practices about which plaintiff complains are designed to prevent a candidate with a message different from those being offered by today's political leaders from being heard by the public which seeks an answer to the economic problems which threate n them with loss of job, loss of dwelling, decline in educational opportunities and substantial and increasing decline in standard of living.
9. The above-described micro-economic proposals and many others are vital for the electorate of this country to understand, particularly because they are more complicated than the prevailing economic proposals of the incumbent President and "major candida tes" to replace him, which are reduced virtually to slogans such as raise or lower taxes, or raise or lower interest rates. There is a dire financial and political need for this country to obtain more information and ideas on how to cure the economic ill s of the United States, but the practices alleged in this complaint collectively and individually prevent new ideas from being heard, similar to the way in which new business ideas from United States citizens are used to fuel economic growth and worldwide influence in countries other than the United States.
10. This country will never know whether there is a solution to the economic decline which has taken hold in the United States unless all legally-qualified political candidates for President, particularly, receive equal opportunities and equal access, and the issues they espouse are given fair discussion in the broadcast media (under the FCC "fairness doctrine"). The issues set forth in paragraphs 6(A-F) above have not received any significant airing by broadcast facilities owned or controlled by the Def endant Media.
11. Collectively, defendants (i) NDP, DNC, ASDemCh and Wagner are hereinafter referred to as the "National Democratic Defendants"; (ii) ABC, CBS, Fox, NBC, PBS, CNN and C-Span are hereinafter referred to as the "Media Defendants"; (iii) ASDemCh, NHDP, FLD P and TXDP are hereinafter referred to as the "State Democratic Defendants"; (iv) NH is hereinafter referred to as the "State Defendant"; (v) the National Democratic Defendants, State Democratic Defendants and State Defendant are hereinafter referred to a s the "Non-Media Defendants". See paragraphs 12-37 for complete descriptions of the National Democratic Defendants, Media Defendants, State Democratic Defendants and State Defendant.
12. Defendant, NATIONAL DEMOCRATIC PARTY ("NDP"), upon information and belief, is incorporated or organized in a State other than New York as a not-for-profit organization or association whose members are derived from the State Democratic Committees of ea ch of the 50 States and the District of Columbia and other districts or territories. Defendant ASSOCIATION OF STATE DEMOCRATIC CHAIRS (defined below as "ASDemCh") is an unincorporated division of the NDP, and is also described in Section 25 below as one of the State Democratic Defendants. 13. The principal place of business of the NDP is 430 S. Capitol Street, S.E., Washington, D.C. 20003 and it conducts its activities, engages in business, and enters into and performs agreements in all States in the United States, including the transa ction of business in New York. 14. Defendant, DEMOCRATIC NATIONAL COMMITTEE ("DNC"), upon information and belief, is an unincorporated organization acting on behalf of the NDP controlled by one or more Democratic State Committees. The NDP and DNC are alter egos of each other.
15. The principal place of business of the DNC is 430 S. Capitol Street, S.E., Washington, D.C. 20003 and DNC transacts business in the State of New York.
16. Defendant, CARL WAGNER ("Wagner"), upon information and belief, is an agent for the NDP, DNC and ASDemCh with respect to the activities of Wagner which are alleged in this complaint. Wagner is the titular head of an activity named "DEBATES '92", and has his principal place of business at 2300 M Street, N.W., Suite 800, Washington, D.C. 20037.
17. Upon information and belief, Wagner transacts business in the State of New York.
18. Defendant, CAPITAL CITIES - ABC, INC. ("ABC"), owns and operates a national television broadcasting network and, upon information and belief, is incorporated under the laws of New York, and has its principal place of business in New York, at 77 W. 66t h Street, New York, New York 10023.
19. Defendant, CBS BROADCASTING CO., INC. ("CBS"), owns and operates a national television broadcasting network and, upon information and belief, is incorporated under the laws of New York, and has its principal place of business in New York, at 51 W. 52n d Street, New York, New York 10019.
20. Defendant, FOX BROADCASTING CO., INC. ("Fox"), owns and operates a national television broadcasting network and, upon information and belief, is incorporated under the laws of New York, and has its principal place of business in New York, at 1211 Aven ue of the Americas, New York, New York 10019.
21. Defendant, NBC, INC. ("NBC"), owns and operates a national television broadcasting network and, upon information and belief, is incorporated under the laws of New York, and has its principal place of business in New York, at 30 Rockefeller Plaza, New York, New York 10012. 22. Defendant, PUBLIC BROADCASTING SERVICE ("PBS"), owns and operates a national television broadcasting (non-profit) network and, upon information and belief, is incorporated under the laws of a State other than New York, and has its principal place of business in New York at 1790 Broadway, New York, New York 10019, and its principal place of business at 1320 Braddock Place, Alexandria, VA 22314.
23. Defendant, CNN AMERICA, INC. ("CNN"), owns and operates a national television news cable television network and, upon information and belief, is incorporated under the laws of New York, and has its principal place of business in New York, at 5 Pennsyl vania Plaza, New York, New York 10001.
24. Defendant, C-SPAN ("C-Span"), owns and operates a national cable television broadcasting network and, upon information and belief, is incorporated under the laws of a State other than New York, and has its principal place of business in Washington, D. C., at 400 N. Capitol St., N.W., Suite 650, Washington, D.C. 20001.
25. Defendant, ASSOCIATION OF STATE DEMOCRATIC CHAIRS ("ASDemCh"), upon information and belief, is an unincorporated division of defendants NDP and DNC and is made up of the chief executive officer or chairperson of each of the state Democratic Party orga nizations in the United States, and ASDemCh and DNC act on behalf of the NDP and DNC. The NDP, DNC and ASDemCh are alter egos of each other.
26. The principal place of business of ASDemCh is 430 S. Capitol Street, S.E., Washington, D.C. 20003, and ASDemCh transacts business in every state in the United States, including the State of New York.
27. Defendant, NEW HAMPSHIRE DEMOCRATIC PARTY ("NHDP"), is a state component of the NDP operating in New Hampshire, and plays a substantial role in determining which Democratic candidates for President receive (i) free air time and other publicity from th e Media Defendants and other press affecting voters in New Hampshire and in the other States, (ii) money and other support from the NHDP, NDP, DNC, ASDemCh and other state Democratic parties and committees, and (iii) other favorable treatment and politica l advantages with respect to the New Hampshire presidential primary which is scheduled for February 18, 1992.
28. The NHDP has its principal place of business in New Hampshire, at 150 N. Main Street, Concord, New Hampshire 03301. The activities of NHDP in New Hampshire can be expected to substantially affect the presidential primary and election voting to take p lace subsequently in all of the other states in the United States. The activities of the NHDP constitute state action. The NHDP under law is not permitted to use its organization to promote the candidacy of one or more Democratic candidates over any oth er Democratic presidential candidates in the activities leading up to the New Hampshire presidential primary.
29. Defendant, FLORIDA DEMOCRATIC PARTY ("FLDP"), is a state component of the NDP operating in Florida, and plays a substantial role in determining which Democratic candidates for President receive (i) free air time and other publicity from the Media Defe ndants and other press affecting voters in Florida and in the other States, (ii) money and other support from the NHDP, NDP, DNC, ASDemCh and other state Democratic committees, and (iii) other favorable treatment and political advantages with respect to t he Florida presidential straw ballot scheduled for December 15, 1991 and presidential primary scheduled for March 10, 1992.
30. The FLDP has its principal place of business at 517 N. Calhoun St., Tallahassee, Florida 32301. The activities of FLDP in Florida can be expected to substantially affect the presidential primary and election voting to take place in all of the other s tates in the United States.
31. Non-Defendant FLORIDA DEMOCRATIC PARTY STRAW BALLOT COMMITTEE ("FLStraw") is a group of 13 persons consisting of 9 DNC members from Florida and 4 persons appointed by the Chair of the FLDP. This Committee determines which candidates are to be part of the Florida Straw Ballot. Plaintiff tried to get his name into the Florida Straw Ballot, but apparently was rejected by FLStraw, which locked plaintiff out of the Florida Straw Ballot.
32. The activities of the FLDP constitute state action. The FLDP under law is not permitted to use its organization to promote the candidacy of one or more Democratic candidates over any other Democratic presidential candidates in the activities leading up to the Florida presidential straw vote or primary.
33. FLDP is an active participant in the activities of non-defendant FLORIDA PRESIDENTIAL CANDIDATE SELECTION COMMITTEE ("FlaP"), consisting of the Florida Secretary of State, unspecified Florida "legislative leaders", and the chairmen of the FLDP and Rep ublican Party in Florida, with an address at c/o Florida Democratic Party, 517 N. Calhoun St., Tallahassee, Florida 32301.
34. The procedure for plaintiff or other lesser (i.e., non-"major") Democratic candidates to get on the primary ballot in Florida is for the plaintiff or other candidate to submit to FLDP a letter of intent to become a presidential candidate in the Florid a primary. FLDP then accepts or rejects the letter, and if the candidate's name is accepted and forwarded to FlaP, FlaP then decides who is on the ballot.
35. FlaP has no applicable candidate selection rules, regulations or governing law of any kind, and accepts candidate names submitted by the two (Democratic and Republican) party chairmen, on or before December 31, 1991. FlaP then decides by simple major ity vote which names are to go on the primary ballot in Florida. Plaintiff has submitted his letter of intent to FLDP and will not know whether he is on the Florida ballot until sometime in January, 1992, and well after the taking of the Florida straw ba llot.
36. Defendant, TEXAS DEMOCRATIC PARTY ("TXDP"), is a state component of the DNC operating in Texas, with its principal place of business at 815 Brazos Street, Suite 200, Austin, Texas 78701. TXDP requires that a presidential candidate pay a filing fee o f $4,000 to TXDP as a condition to being placed on the primary ballot in Texas. This fee appears to be the highest filing fee for Democratic presidential candidates among the 50 states, but is not required of candidates who submit petitions with 5,000 si gnatures.
37. Defendant, STATE OF NEW HAMPSHIRE ("NH"), with its principal executive offices at the Office of the Governor, State House, Concord, New Hampshire 03301. A NH statute or rule requires that a candidate for President pay a filing fee of $1,000 to the Se cretary of State of New Hampshire as a condition to being placed on the primary ballot in New Hampshire.
38. The actions of each of the National Democratic Defendants, State Democratic Defendants and State Defendant (hereinafter collectively referred to as the "Non-Media Defendants") constitute "state action" under 42 U.S.C. Section 1983.
39. The actions of each of the Media Defendants are being performed in conspiracy with the Non-Media Defendants with full knowledge and awareness by the Media Defendants that they are participating in as a necessary party the unlawful acts which are being performed by the Non-Media Defendants.
40. The object of the alleged conspiracy is to exclude many of the active Democratic candidates for President from meaningful participation in the nation's presidential primaries, for the purpose of limiting the real candidates to the 6 or so presently id entifiable alleged "major candidates" which are deemed acceptable to the NDP, DNC and ASDemCh defendants and the individuals who control such defendants, with the apparent understanding and cooperation of the Media Defendants.
41. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-40 above.
42. Plaintiff is preparing to pay defendant NH a $1,000 fee to be placed on the primary ballot in New Hampshire, but has been unable to obtain a spot on the primary ballot in Texas because of the plaintiff's unwillingness and comparative inability to pay the $4,000 filing fee demanded by defendant TXDP or solicit the requisite number of petitions, which would involve an expense in time and money substantially exceeding $4,000.
43. These fees being paid by and demanded of plaintiff are excessive, unreasonable and unlawful. Similar filing fees are charged to get on the presidential primary ballot in Alabama ($2,000), Arkansas ($5,000), Colorado ($500), Maryland ($290), Oklahoma ($2,500), South Carolina ($2,500) and West Virginia ($2,000).
44. A State or state agency or organization whose activities amount to state action has no right to require any presidential candidates to pay the State's presidential primary costs. This is a cost which must be borne directly by taxpayers, not voters (a s any kind of poll tax) or candidates (as another type of unlawful poll tax). State primaries are not to be run by states, state agencies or political organizations on a for-profit basis, which acts as an economic barrier to prevent competition for offic e except among the wealthy.
45. A $4,000 fee in each state would require a presidential candidate to raise $200,000 just for these fees alone, which amount in the aggregate is substantial and oppressive to a person's candidacy for president.
46. The policy of the United States government is to fund part of the political campaign for legally-qualified presidential candidates, and such fees reduce the effect of such federal funding in derogation of federal law. A portion of the federal funds h ave to be paid over by the candidate to the various states which payments are not contemplated nor desired under the federal authorizing law.
47. These state-imposed fees for presidential primary candidates are repugnant to various provisions of the U.S. Constitution, including the Twenty-Fourth Amendment to the U.S. Constitution as a tax which destroys the constitutionally-protected and essent ial activity, and as a manipulation by the States of the presidential primary and election process in favor of wealthy, or "major candidates" able to raise money from the wealthy.
48. Many of the State Democratic Parties have adopted rules which permit them or their chairmen to place favored Democratic presidential candidates on the primary ballot without compliance with the costly, time-consuming, prohibitive rules which plaintiff and other Democratic presidential candidates are required to follow. For example, lesser candidates are required to submit petitions signed by a certain number of registered voters: 500 in Mississippi; 2,500 in Massachusetts; 1,000 in Rhode Island; 500 in Colorado; 5,000 in Texas; 10,000 in New York, mainly from 50% of New York's Congressional districts; 2,500 in Tennessee; 400 in Maryland; 5,000 in Louisiana; 1/2 of 1% of the numbers of votes cast in Michigan for Dukakis in 1988; 3,000 in Illinois; 1% of the state party members in Connecticut; 1,000 from each Congressional district in Wisconsin; and 5,000 in Kentucky.
49. This discriminatory treatment as to some of the Democratic presidential candidates, including plaintiff, makes it virtually impossible for a non-favored candidate to compete with the so-called "major" or favored candidates, in such important areas as (i) getting on the ballot; (ii) obtaining matching campaign funds under federal law; (iii) being invited to participate in debates and other functions held by or with the media, state Democratic parties, and others; and (iv) raising campaign funds from vo ters who do not recognize the candidate's name because of the activities about which plaintiff complains.
50. Plaintiff has been and continues to be injured by the imposition of these fees and exclusionary, discriminatory practices by the State Defendants and State Democratic Defendants, and such injury is irreparable, by denying plaintiff meaningful opportun ities in the primaries in such States, which denies plaintiff meaningful opportunities to become Democratic candidate and be elected as such in the presidential election during November, 1992.
51. Plaintiff is entitled to a permanent injunction prohibiting enforcement of such laws and prohibiting any of the State defendants or Democratic State Defendants or their members from requesting or obtaining a fee from any presidential or vice president ial candidate in any state primary in excess of a nominal amount of $10, and from participating in any primary in any of the states referred to in paragraphs 42-43 and 48 above unless the rules for getting on the primary ballot are the same for all Democr atic presidential candidates at least 60 days before the date of the primary.
52. Plaintiff is entitled to a declaratory judgment and a judgment that such statutes, rules and practices requiring a presidential primary candidate to pay a fee in excess of a nominal amount of $10 and the discriminatory, exclusionary rules for getting on the Democratic presidential primary ballot are repugnant to Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution; the Fifth, Twelfth, Fourteenth (Sections 1-2) and Twenty-Fourth Amendments to the U.S. Constitution and ar e therefore unconstitutional and unenforceable; and that the enforcement of such statutes, rules and practices are a violation of 42 U.S.C. Section 1983 and various state Constitutional provisions.
53. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-52 above.
54. The National Democratic Defendants have entered into an agreement with the Media Defendants providing for a series of 6 nationally televised debates among Democratic presidential candidates (one debate by each of the Media Defendants) to take place an d be televised at different dates starting on December 15, 1991.
55. The Media Defendants and National Democratic Defendants have agreed to exclude all legally-qualified Democratic presidential candidates from each of the 6 debates except the 6 or so "major candidates" selected by the National Democratic Defendants (an d, possibly the Media Defendants).
56. Plaintiff has communicated his request to each of the Media Defendants and the National Democratic Defendants to be included in the debates, but has been rejected by all. In effect, the Media Defendants claim that 47 U.S.C. Sections 315(a)(1)-(4) exe mpts the debates from the requirements in 47 U.S.C. Sections 312(a)(7) and 315(a). Section 315(a) provides in part:
"... Appearance by a legally qualified candidate on any --
(1) bona fide newscast,
(2) bona fide news interview,
(3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary), or
(4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto).
57. The 6 debates involving the 6 so-called "major" Democratic presidential candidates, being staged and orchestrated months in advance by the National Democratic Defendants with the Media Defendants, and involving state action by the National Democratic Defendants, do not fall within any of the exemptions set forth in subparagraphs (1) through (4) in the preceding quote from 47 U.S.C. Section 315(a).
58. The actions by the National Democratic Defendants in selecting the 6 "major candidates" constitute unlawful state action in violation of the U.S. Constitution and 42 U.S.C. Section 1983, and state constitutions and statutes.
59. The effect of the 6 nationally televised debates will be to destroy the candidacy of each Democratic presidential candidate not included, by reason of the saturation publicity and recognition given to each of the 6 "major candidates" and the exclusion of the rest, including plaintiff.
60. The 6 nationally televised debates will enable one of the 6 "major candidates" to win the primary in each of the states prior to the presidential election, which will pave the way for one of such 6 persons (selected by unlawful "state action") to be d esignated as the NDP candidate for President on the first ballot, or a subsequent ballot, with only a remote possibility for any of the excluded candidates, such as plaintiff, from receiving the NDP's nomination.
61. This selection of Democratic Party presidential candidate through this alleged state action is repugnant to various provisions of the U.S. Constitution, including (i) the First, Fifth, Twelfth, Fourteenth and Twenty-Fourth Amendments to the U.S. Const itution; (ii) Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution; and (iii) counterpart provisions in State constitutions.
62. Sections 312(a)(7) and 315 of the Federal Communications Act, 47 U.S.C. Sections 312(a)(7) and 315 requires the Media Defendants to provide equal opportunities and equal access to the plaintiff, but they have refused to provide such equal opportunitie s or equal access.
63. The Federal Communications Act provides an opportunity for an aggrieved candidate to seek relief from the Federal Communications Commission ("FCC").
64. Plaintiff has sought this relief by letter dated and faxed to the FCC on November 26, 1991.
65. Plaintiff alleges that the statute is unconstitutional to the extent that it deprives plaintiff of the right to seek relief in the courts from the alleged violations thereof, particularly when the violations relate to rights of the plaintiff protected by the First Amendment to the U.S. Constitution and other provisions thereof, and violations 42 U.S.C. Section 1983 in addition.
66. Plaintiff has been and continues to be injured by the refusal of the Media Defendants and the National Democratic Defendants to include plaintiff in the debates and for the Media Defendants to deny plaintiff equal opportunities and equal access, and s uch injury is irreparable, by denying plaintiff meaningful opportunities in the primaries in all States, which denies plaintiff meaningful opportunities to become Democratic candidate and be elected as such in the presidential election during November, 19 92.
67. Plaintiff is entitled to a permanent injunction prohibiting the Media Defendants and the National Democratic Defendants from arranging for or televising each of the 6 debates without providing plaintiff with equal opportunities and equal access on the air, in formats selected by plaintiff with other Democratic legally-qualified candidates not included in the 6 debates.
68. If the Court should hold that the 6 debates are exempt under the Communications Act, 47 U.S.C. Sections 312(a)(7) and/or 315, plaintiff is entitled to a declaratory judgment and a judgment that 47 U.S.C. Sections 312(a)(7) and 315 are repugnant to (i) the First, Fifth, Twelfth, Fourteenth and Twenty-Fourth Amendments to the U.S. Constitution, and (ii) Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution; and are therefore unconstitutional and unenforceable.
69. Plaintiff repeats and realleges each of the allegations set forth in paragraphs 1-68 above.
70. The New Hampshire Democratic Party ("NHDP") has been using its organization to promote the Democratic presidential candidacy of one, two or several Democratic candidates for president to the detriment of the other Democratic candidates for president, including plaintiff.
71. Such activity consists of issuing press releases, setting up debates, obtaining use of private and public buildings and facilities, calling in various local and national broadcast media, magazines and newspapers, including but not limited to the follo wing activities:
A. sponsoring a presidential roundtable discussion and/or a health care forum moderated by Senator Jay Rockefeller of West Virginia on December 19, 1991;
B. sponsoring a presidential debate on January 19, 1992 at a public high school in Manchester;
C. attempting to raise money for its favored candidates through the scheduling of debates;
D. attempting to buy influence and prestige with the "major candidate" if he wins the Democratic nomination for President by a scheme of favoring the so-called "major candidates" during the critical primary period at the expense of the other legally-quali fied presidential candidates, including the plaintiff.
72. These activities are performed by NHDP for the purpose of helping the favored Democratic presidential candidates obtain the votes within New Hampshire as well as in other states, and at the same time to hinder and destroy the viability of the candidac y of the other Democratic presidential candidates, including the plaintiff.
73. These activities by NHDP constitute state action and such activities are unlawful, by destroying the competitiveness and openness of the "winnowing process" by which candidates for president are selected for nomination by one of the two major parties.
74. Plaintiff alleges that the statutes, rules, regulation and practices in New Hampshire which permits such activities are unconstitutional to the extent that they permit the defendant NHDP during the primary to promote one Democratic presidential candid ate's candidacy over others.
75. Plaintiff has been and continues to be injured by the alleged activities of the NHDP, which has been denying plaintiff equal opportunities and equal access to the voting public in such state.
76. Such injury is irreparable, by denying plaintiff meaningful opportunities in the New Hampshire primary, which denies plaintiff meaningful opportunities to become Democratic candidate and be elected as such in the presidential election during November, 1992.
77. Plaintiff is entitled to a permanent injunction prohibiting NHDP from favoring one or more Democratic presidential candidates in the state primary at the expense of other legally-qualified Democratic candidates.
78. Plaintiff is entitled to a declaratory judgment and a judgment that such statutes, rules, regulations and practices are repugnant to (a) First Amendment to the U.S. Constitution; (b) Fifth Amendment to the U.S. Constitution; (c) Twelfth Amendment to t he U.S. Constitution; (D) Sections 1-2 of the Fourteenth Amendment to the U.S. Constitution; (e) Twenty-Fourth Amendment to the U.S. Constitution; (f) Article II, Section 1, Clauses 2-3 of the U.S. Constitution; (g) Article VI, Clause 2 of the U.S. Consti tution; and (h) enforcement thereof are in violation of Section 1983 of the Civil Rights Act (42 U.S.C. Section 1983), providing equal rights under state and local law for citizens or other persons within the jurisdiction of the United States; and (h) are repugnant to various counterpart and other provisions in the New Hampshire Constitution.
WHEREFORE, plaintiff prays:
1. That (i) the fees in excess of $10 charged presidential candidates and (ii) the statutes, rules and procedures enabling some Democratic presidential candidates to get on the ballot without compliance with the rules which plaintiff is required to follow -- be declared be adjudged and decreed to be in violation of (i) the First, Fifth, Twelfth, Fourteenth and Twenty-Fourth Amendments and Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution; (ii) comparable provisions of th e various state constitutions; (iii) Section 1983 of the Civil Rights Act (42 U.S.C. Section 1983); and Sections 312(a)(7); and 315 of the Federal Communications Act, 47 U.S.C. Sections 312(a)(7) and 315.
2. That the activities of the National Democratic Defendants relating to the holding of the 6 debates among the 6 "major candidates" selected by them be adjudged and decreed to be unlawful state action in violation of (i) the First, Fifth, Twelfth, Fourte enth and Twenty-Fourth Amendments to the U.S. Constitution, and Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution; (ii) comparable provisions of the various state constitutions; (iii) Section 1983 of the Civil Rights Ac t (42 U.S.C. Section 1983); and Sections 312(a)(7) and 315 of the Federal Communications Act, 47 U.S.C. Sections 312(a)(7) and 315.
3. That Sections 312(a)(7) and 315 of the Federal Communications Act, 47 U.S.C. Sections 312(a)(7) and 315, be declared in violation of (i) the First, Fifth, Twelfth, Fourteenth and Twenty-Fourth Amendments to the U.S. Constitution and Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution to the extent such sections (i) prohibit an aggrieved candidate from obtaining immediate judicial relief before exhaustion of his administrative remedies; and (ii) deny plaintiff equal oppo rtunities and equal access to broadcast facilities of the Media Defendants.
4. That the activities of the State Democratic Defendants relating to selection of candidates for debates and use of various public and private broadcast and other facilities within their respective states be adjudged and decreed to be unlawful state acti on in violation of (i) the First, Fifth, Twelfth, Fourteenth and Twenty-Fourth Amendments and Article II, Section 1, Clauses 2-3 and Article VI, Clause 2 of the U.S. Constitution; (ii) comparable provisions of the various state constitutions; (iii) Sectio n 1983 of the Civil Rights Act (42 U.S.C. Section 1983); and Sections 312(a)(7) and 315 of the Federal Communications Act, 47 U.S.C. Sections 312(a)(7) and 315.
5. That the State Defendant be permanently enjoined and restrained from enforcing any statutes, rules or practices requiring presidential primary candidates to pay a fee of more than the nominal amount of $10 to the state, state agency or state political party as a presidential candidate.
6. That the State Defendant and each of the State Democratic Defendants be permanently enjoined and restrained from conducting, enforcing or participating in any primary in any of the states referred to in paragraphs 42-43 and 48 above unless the rules fo r getting on the primary ballot are the same for all Democratic presidential candidates at least 60 days before the date of the primary.
7. That each of the National Democratic Defendants and Media Defendants be permanently enjoined and restrained from organizing debates to be televised or broadcast by any of the Media Defendants or other media unless there are equal opportunities and equa l access for all legally-qualified Democratic candidates for president, either in the same debate or in other debates among candidates not included in the other debates.
8. That attorneys' fees and costs be assessed against each of the defendants pursuant to 42 U.S.C. Section 1988 and such other provisions of law as may apply.
9. That plaintiff have such other and further relief as this Court may deem just and equitable.
PLEASE TAKE NOTICE that, pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, plaintiff DEMANDS A TRIAL BY JURY of all issues triable by right by a jury.
Dated: New York, New York, December 3, 1991
/S/ CARL E. PERSON
_________________________
Carl E. Person CP 7637
Attorney for Plaintiff
Office & P.O. Address:
325 W. 45th Street - Suite 201
New York, New York 10036-3803
Tel. (212) 307-4444