On Friday, the U.S. Court of Appeals for the Third District dismissed a civil rights lawsuit filed by an Elizabethtown Area Republican committeewoman against the Republican Committee of Lancaster County, its former chairman and its former executive director.
The defendants expressed hope Saturday that this "complete and total vindication" would be the end of it
The plaintiff, however, plans to press her case.
Meanwhile, legal bills mount, along with questions of who should pay them.
Millie Max, current committeewoman from Mount Joy Township, alleges former Chairman David M. Dumeyer and former Executive Director Andrew Heath violated her First Amendment free-speech rights by trying to suppress her campaigning against two committee-endorsed county judicial candidates in the 2007 primary election. Jeffery D. Wright and Howard F. Knisely were later elected as judges.
Max's initial case was dismissed a year ago by the U.S. District Court, Eastern District of Pennsylvania, then appealed. And it looks as if additional appeals are forthcoming.
Max's attorney said Saturday he will next file a motion for reconsideration by the same three-judge panel in Philadelphia.
The judges "failed to apply the facts properly," Paul A. Rossi said, calling the decision "frightening in regard to the election process."
If the panel does not agree to reconsider, Rossi said he will then ask the entire Third Circuit Court to consider the case.
If that fails, he'll petition the U.S. Supreme Court. "It's the kind of case the Supreme Court's been taking" lately, he said.
'State' actor question
The case hinges on whether the county GOP committee is a "state actor" during primary elections, and thus subject to federal civil rights law, as Rossi argued on behalf of Max.
He said the commonwealth delegates its responsibility for putting names on the ballot to the parties, so they act for the state during primary elections.
But Friday's ruling said, "Max cannot plausibly assert that the 'fingerprints of the state' are on the alleged infringement of her rights."
The ruling that the committee was not acting as the state in the primary election is critical, said Kevin M. French, attorney for the defendants.
It affirms that the Republican committee is a "private political organization" entitled to its own First and Fourteenth Amendments rights of free speech and free association, including the right to "develop a message and decide who the standard-bearers are going to be," French said.
The court added an extra dollop of authority to its decision by labeling it "precedential," meaning it will be used as precedent in future such cases, French explained.
Someone's got to pay
The defendants issued a statement saying their latest victory is "a strong statement supporting the fundamental conservative principles of limited government, and rejection of frivolous and costly lawsuits."
And the case has cost the county GOP in excess of $50,000 so far, French estimated.
The defendants earlier filed a motion against the plaintiff to recover legal fees and costs after the Eastern District Court dismissal of the case. That motion was also dismissed, however, pending the appeal. With this victory, French said, the motion will be renewed.
"That's always been their threat," Rossi said.
While a plaintiff is entitled to attorney fees on winning, defendants must show the lawsuit was frivolous in order to collect from a plaintiff.
Rossi contends the lawsuit is not frivolous because "state actor" and "private actor" are imprecise entities that need to be determined by the courts. Suits such as this one are necessary to development of constitutional law, he said.
One way to prove a lawsuit is not "frivolous" is to show that other attorneys recognize its merit. Democracy Rising PA's Mark D. Schwartz, of Bryn Mawr, filed an amicus brief for the plaintiff, Rossi noted.
"The parties have a specific responsibility in regard to primaries," Schwartz said. "This is an important constitutional issue. If it weren't, it wouldn't have been heard by the appeals court."
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