United States Court of Appeals Third Circuit No. 12-3977 Democratic-Republican Organization of New Jersey, et als., Appellants, vs.

Kimberly Guadagno, et als., Appellees.

Joint Petition for Rehearing En Banc of the Courts October 24, 2012 Order and the Courts November 5, 2012 Judgment Order Oler & Luzzi, L.L.C. 6 Apple Tree Lane Sparta, New Jersey 07871 Telephone: (973) 983-7020 Telefax: (973) 983-7030 By: Richard Luzzi, Esq. Attorney for Appellants DemocraticRepublican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Scott Neuman, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Eugene Martin LaVergne, Appellant Pro Se
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543 Cedar Avenue West Long Branch, New Jersey 07764 Telephone: (732) 272-1776

THE RELIEF REQUESTED: Appellants hereby jointly move before the full Court of the United States Court of Appeals for the Third Circuit for an Order granting rehearing en banc of the Courts October 24th, 2012, order and the Court's November 5, 2012 Judgment Order in this matter. See F.R.A.P. 35, Third Circuit Local Appellate Rule 35.1, and F.R.A.P. 40. Third Circuit Local Appellate Rule 35.1 STATEMENT: I express a belief, based on a reasoned and studied professional judgment, that the panel decisions of October 24th, 2012, and of November 5, 2012 are contrary to existing and governing decisions of the United States Court of Appeals for the Third Circuit and are contrary to existing and governing decisions of the United States Supreme Court, and that consideration by the full Court is necessary to secure and maintain uniformity of decisions in the United States Court of Appeals for the Third Circuit, as the panel decisions of October 24th, 2012 and of November 5, 2012 are contrary to the following specific precedents: Contrary Decisions of the Third Circuit: Allegheney County v. Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc, Becker, C.J., and Sloviter, Stapleton, Mansmann, Greenberg, Scirica, Nygaard, Alito, Roth, Lewis, McKee, Rendell and Rosen); - Wellford v. Battaglia, 485 F.2d 1151 (3d Cir. 1973 (Judges Van Dusen, Gibbons and Hunter); - Order entered September 13, 2011 in Lewis v. Guadagno, No. 11-3401 (3d Cir. 2011 (Judges Scirica, Ambro and Vanaskie.)
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Contrary Decisions of the United States Supreme Court: Cook v. Gralike, 531 U.S. 510 (2001); Citizens United v. Federal Election Commission, ____ U.S. ____ (2011) (slip opinion); PORCEDURAL HISTORY:
-

On

Monday

September

11,

2012

the

collective

Appellants filed a Verified Complaint with exhibits and an application for an Order to Show Cause in the United States District Court for the District of New Jersey, Newark Vicinage. Appellant Democratic-Republican Organization of New Jersey is a minor party political organization (ie. they have not yet qualified as a political party under New Jersey Election Laws, per N.J.S.A. 19:1-1, and therefore its candidates are not subject to the State run Primary Election Process), and the named individual candidate Appellants are all members of the Democratic-Republican Organization. They are

candidates for various Federal and New Jersey State Elected offices on the November 6, 2012 General Election Ballot. In this lawsuit plaintiffs sought to: (1) use the name of their organization Democratic-Republican as the General

Election Ballot slogan associated with each candidates

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name on all 2012 General Election Ballots; and, (2) be bracketed together in the same vertical column along under their slogan Democratic-Republican in all Counties where there were multiple Democratic-Republican

candidates on the General Election Ballot; and, (3) an Order giving them an equal opportunity to be placed in the first two columns on the top left of the Ballots. In the Order to Show Cause, Appellants sought certain accelerated

preliminary declaratory and injunctive relief (the same relief sought in these emergent motions) to ensure that they could be awarded these three specific forms of relief in time for the November 6, 2012 General Election. On September 12 and 14, 2012, the Honorable Freda L. Wolfson, U.S.D.J., of the District of New Jersey Trenton Vicinage held telephone conferences with certain parties and ultimately issued an Order to Show Cause, though in a form slightly different from that submitted by Appellants. The

Order to Sow Cause, as requested by Appellants, fixed an accelerated service and accelerated briefing schedule and set October 3, 2012 as the return date of the Order to

Show Cause.

Thereafter, service was affected and briefs

were filed by the various defendants objecting and raising certain legal arguments. All briefs are on the ECMF docket below. On Thursday October 3, 2012 the Court heard oral argument on Appellants' Order to Show Cause.1 At the end of oral argument the Court indicated that it would deny the declaratory and injunctive relief Appellants sought and file an Order and written Opinion to that effect in short order. A week later, on Thursday October 10, 2012, the Court filed the written Opinion (Document 33) and an Order (Document 34) denying Appellants accelerated request for declaratory and injunctive relief. The next day, October 11, 2012, a month after the initial September 11, 2012 filing, the District Court issued an Amended Opinion (Document 35) which was identical in all respects to the original Opinion except for the inclusion of footnote 8 that starts on the Just prior to oral argument United States Senate Candidate Eugene Martin LaVergne filed a substitution of attorney form so that he, previously represented by Richard Luzzi, Esq., could proceed pro se so and be heard separately. On Appeal Eugene Martin LaVergne remains pro se for that same purpose.
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bottom of page 20 and ends on page 21 of the Amended Opinion. On Thursday October 18, Appellants filed a Joint Notice of Appeal with the Clerk of the District Court, and thereafter filed a Joint Expedited Motion for Preliminary Declaratory and Injunctive Relief and For Other Forms of Expedited Relief. Non parties Robert Edward Forchion, Jr., an

independent candidate for the United States House of Representatives in the Third Congressional District running under the slogan Legalize Marijuana Party, and Robert Shapiro, an independent candidate for the United States House of Representatives in the Third Congressional District running under the slogan Bobs for Jobs, sought to intervene on appeal as Appellants were arguing for an equal opportunity for all candidates to have access to the first column on the General Election Ballot. By Order dated October 24, 2012 (Document No. 003111059281), the motions to intervene by candidates Forchion and Shapiro were denied, as were Appellants various requests for emergent Declaratory and injunctive

relief. The Court then noticed as follows: Pursuant to 3d Cir. I.O.P. 10.6, this appeal is hereby listed for possible summary action. The parties may submit argument in

support of or in opposition to summary action by 12:00 noon on Monday, October 29, 2012. Id. All parties submitted their positions regarding summary action in a timely manner. The Court was thereafter closed due to the Sandy Storm. On November 5, 2012, the day before the General Election, the Court issued the Judgment Order at issue. (Document 003111067021). THE NOVEMBER 5, 2012 JUDGMENT ORDER: In ruling upon the Appellants Constitutional Claims on November 5, 2012 in the Judgment Order in this motion, a panel of the Third Circuit (Judges Fuentes, Smith and Hardiman) held and ruled as follows: *** Having considered the record on appeal and the decision of the District Court, we affirm substantially for the reasons set forth by the District Court in its thorough and well-reasoned opinion. We pause to note that the District Court correctly applied the balancing test set forth by the Supreme Court in Anderson v. Celebrezzi, 460 U.S. 780, 789
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(1983). The District Court concluded that Plaintiffs failed to provide any support or evidence that the ballot placement provisions for political party candidates burdened their independent candidacies. Furthermore, the District Court recognized that New Jerseys interest in maintaining a manageable ballot sufficiently justified its statutory scheme. Additionally, it concluded that Plaintiffs failed to establish that prohibiting them from referencing the names of New Jerseys political parties in their ballot slogan impermissibly burdened their First Amendment rights, and that the States Interest of avoiding voter confusion justified the ballot limitations. We find no error in this analysis. [See November 003111067021]. 5, 2012 Judgment Order, Document

The panel decision of Judges Fuentes, Smith and Hardiman specifically held that the correct level of judicial scrutiny to apply to all of Appellants Federal Constitutional Claims was the so called Anderson balancing test. However, this holding is quite simply incorrect as being literally directly contrary to long and clearly established controlling precedential decisions of the United States District Court of Appeals for the Third Circuit on the exact

same identical issues, and also contrary to controlling and applicable decisions of the United States Supreme Court. THE CONTRARY DECISIONS OF THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT: The United States Court of Appeals for the Third Circuit has long and unequivocally held that the correct level of judicial scrutiny for a Court to apply when evaluating a candidate litigants Fourteenth Amendment Equal Protection Federal Constitutional Claims in a candidate ballot access case is the compelling state interest level of judicial scrutiny. Specifically, to wit:
1. In

Allegheney County v. Allegheney County Department of Elections, 174 F.3d 305 (3d Cir. 1999) (en banc, Becker, C.J., and Sloviter, Stapleton, Mansmann, Greenberg, Scricia, Nygaard, Alito, Roth, Lewis, McKee, Rendell and Rosen), the Third Circuit, sitting en banc, unanimously held that the correct level of judicial scrutiny for a Court to apply when evaluating a candidate litigants Federal Constitutional Fourteenth Amendment Equal Protection Claims in a candidate ballot access case is the compelling state interest level of judicial scrutiny. case decided more than 25 years before the unanimous en banc decision of the full Third Circuit in Allegheney, supra., an earlier panel of the Third Circuit (Judges Van Dusen, Gibbons and Hunter) also unanimously held that the correct level of judicial
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2. In Wellford v. Battaglia, 485 F.2d 1151 (3d Cir. 1973), a

scrutiny for a Court to apply when evaluating a candidate litigants Federal Constitutional Fourteenth Amendment Equal Protection Claims in a candidate ballot access case is the compelling state interest level of judicial scrutiny.
3. As recently as one year ago, in an Order entered

September 13, 2011 in Lewis v. Guadagno, No. 113401 (3d Cir. 2011), another panel of the Third Circuit (Judges Scirica, Ambro and Vanaskie.) specifically ruled that the correct level of judicial scrutiny for a Court to apply when evaluating a candidate litigants Federal Constitutional Claims in a candidate ballot access case is the compelling state interest level of judicial scrutiny, specifically citing with approval the existing Third Circuit Precedent of Wellford v. Battaglia, supra. The precedential en banc Allegheney County v.

Allegheney County Department of Elections decision, the precedential three Judge panel Wellford v. Battaglia decision, and 3 Judge panel Order in the Lewis v. Guadagno case, and therefore the clear and unambiguous precedent that they collectively establish regarding the correct standard of judicial scrutiny for a Court to apply in a Fourteenth Amendment Equal Protection candidate ballot access case, were all extensively briefed and discussed at length in the submissions to the Court in this case. Notwithstanding this, the panel in this case completely ignored governing and controlling Third Circuit precedent, did not so much as
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acknowledge the cases cited by Appellants, and rather ruled, contrary to clear Third Circuit precedent, that the

appropriate standard of scrutiny for a Court to apply to a candidate litigants Fourteenth Amendment Equal Protection Federal Constitutional Claims in a candidate ballot access case is the Anderson balancing test. As can be easily

seen from a cursory review of the cited cases, this ruling is clearly contrary to the existing controlling and precedential decisions of the United States Court of Appeals for the Third Circuit. As such, Appellants hereby request rehearing en

banc by the full United States Court of Appeals for the Third Circuit. THE CONTRARY DECISIONS OF THE UNITED STATES SUPREME COURT: A. The Elections Clause Claims:

Appellants in this case include candidates for the United States Senate and the United States House of

Representatives.

Appellants argued that therefore their

claims invoke the additional restrictions on State regulation of Federal Elections as imposed by the Constitutions

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Elections Clause, Article I, sec. 4, cl. 1, and the by the Seventeenth Amendment to the United States Constitution. In this regard, the United States Supreme Court has long and unanimously and unequivocally held in Cook v. Gralike, 531 U.S. 510 (2001) that when a Court is called upon to evaluate a claim by a candidate for Federal office where the Federal candidate has already obtained access to the General Election Ballot (such as is clearly the case here), and where the Federal Candidate claims that a State regulation or combination of regulations governing the configuration and content of the Ballot discriminates or otherwise infringes on the First, Fourteenth and Seventeenth Amendments and the Elections Clause (exactly the case here), the applicable

standard of judicial scrutiny for the Court to apply to the candidates claims is strict judicial scrutiny. Id.; see also specifically (Stevens, J) and (Rhenquist, C.J. and OConner, J, concurring). Notwithstanding this, the panel in this case completely ignored the governing and controlling United States

Supreme Court precedent of Cook v. Gralike, did not so

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much as even acknowledge the case (which was cited and extensively briefed by Appellants), and rather ruled, contrary to the United States Supreme Courts decision in Cook v. Gralike, that the correct standard of Judicial Scrutiny to the candidates constitutional claims was the Anderson

balancing test. This ruling is clearly contrary to the existing and controlling decision of the United States Supreme Court in Cook v. Gralike, and as such, Appellants hereby request rehearing en banc by the full United States Court of Appeals for the Third Circuit. B. The First Amendment Claims:

Appellants also asserted a variety of First Amendment political speech and political associational arguments in challenging the regulations at issue. As Justice Kennedy

recently and clearly stated in the majority opinion in Citizens United v. Federal Election Commission: political speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly
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tailored to achieve that interest. (Emphasis added). [Citizens United v. Federal Election Commission, Kennedy, J. ____ U.S. ____ (majority slip op at page 23) (quoting Federal Election Commission v. Womens Right to Life, Inc., 551 U.S. 449, 646 (2007) (opinion of Roberts, C.J.))]. Appellants maintain that this case whether ultimately described or characterized by a Court as a candidate ballot placement or candidate ballot location case, that in light of Citizens United v. Federal Election Commission, the law clearly required the District Court below, and thereafter this Circuit Court on appeal, to apply strict judicial scrutiny

when evaluating Appellants First Amendment constitutional claims. Notwithstanding this, the panel in this case completely ignored the governing and controlling United States

Supreme Court precedent of Citizens United, did not so much as even acknowledge the case (which was also cited and extensively briefed by Appellants), and rather ruled, contrary to the United States Supreme Courts decision in Citizens United, that the correct standard of Judicial Scrutiny to apply the candidates constitutional claims was, once again, the

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Anderson balancing test. This ruling is clearly contrary to the existing and controlling decision of the United States Supreme Court in Citizens United, and as such, Appellants hereby request rehearing en banc by the full United States Court of Appeals for the Third Circuit. CONCLUSION: For the foregoing reasons and authorities cited in support thereof, it is respectfully requested that Appellants Motion be GRANTED.

____/s/ Luzzi_________________

Richard

By: Richard Luzzi, Esq. Attorney for Appellants DemocraticRepublican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Dated: November 20, 2012 ____/s/ Eugene Martin LaVergne_______ Eugene Martin LaVergne Appellant Pro Se Dated: November 20, 2012

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COMBINED CERTIFICATIONS AND PROOF OF SERVICE: RICHARD LUZZI, ESQ. hereby certifies as follows: 1. I am a member of the Bar of the Third Circuit Court of Appeals in good standing and the remainder of the representations in this Combined Certifications and Proof of Service are true and accurate. EUGENE MARTIN LaVERGNE hereby certifies as follows: 1. I am a party and Appellant appearing Pro Se in this appeal and the remainder of the representations in this Combined Certifications and Proof of Service are true and accurate. WORD COUNT: The word count and page length are within the parameters of what is allowed by the Federal Rules of Appellate Procedure and the Third Circuit Local Appellate Rules for motions and responses. VIRUS CHECH: The Motion and papers filed herewith in PDF form have been checked with McAfee and are clear of any virus. SERVICE UPON COUNSEL: All defendants below were served well prior to the return date of the Order to Show cause, and most County Clerk defendants entered an appearance and relied upon the Attorney Generals submissions, while some did not appear or enter any appearance. The defendant Democratic Party entered and appearance and appeared, though the Republican Party, properly served, chose not to enter an appearance or otherwise respond in any way. A copy of Appellants Joint Petition for Rehearing and Full en banc Review is being served simultaneous to the electronic filing with the Third Circuit Clerk as follows:

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(1) Upon the following counsel for the Appellees who entered an appearance below electronically through ECMF only as follows: Brendan J. Kavanagh, Esq. at: bbutcher@millvillelaw.net and bkavanagh@millvillelaw.net Donna Kelly, D.A.G. at: donna.kelly@dol.lps.state.nj.u s and Ef-director@dol.lps.state.nj.us Edward Florio, Esq. at: main@floriokennylaw.com

James B. Arsenault, Jr., Esq. at: jarsenault@co.capemay.nj.us and counselpn@co.cape-may.nj.us James Ferguson, Esq. at: John Carbone, Esq. at cflaw@optonline.net Michael David Witt, Esq. at: ferguson_james@aclink.org ussrecount@aol.com and mwitt@chasenlaw.com

Moshood Muftau, Esq. at: mmuftau@ucnj.org and moshood.muftau@gmail.com Robert B. Campbell, Esq. at: mclaw@verizon.net rcampbell7@verizon.net and

(2) Upon the following counsel for the Appellee(s) who entered an appearance below as counsel entered an appearance but is not a registered ECMF filer, a hard copy of the moving papers via hand delivery at the following address:

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Joseph A. Bilal, Esq. Middlesex County Counsel Administrative Building 75 Bayard Street Room 230 New Brunswick, New Jersey 08901 (3) Notwithstanding the fact that the Republican Party was properly and timely served and failed to enter an appearance, failed to oppose the application below, and failed to otherwise respond in any way, a hard copy of the moving papers were also served via hand delivery at the following address: Republican State Committee 150 West State Street Suite 230 Trenton, New Jersey 08625 I DECLARE AND CERTIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on November 20, 2012. ____/s/ Luzzi_________________ By: Richard Luzzi, Esq. Attorney for Appellants DemocraticRepublican Organization of New Jersey, Frederick John LaVergne, Leonard P. Marshall, Scott Neuman, Tracy M. Caprioni, Kimberly Sue Johnson and Donald E. Letton Dated: November 20, 2012 I DECLARE AND CERTIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. Executed on November 20, 2012. ____/s/ Eugene Martin LaVergne_______ Eugene Martin LaVergne
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Richard

Appellant Pro Se Dated: November 20, 2012

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