Millie Max v. Republican Committee of Lancaster County

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4158
MILLIE MAX,
Appellant
v.
REPUBLICAN COMMITTEE OF LANCASTER COUNTY;
DAVID M. DUMEYER, In his Official Capacity as
Chairman of the Republican Committee of Lancaster County;
ANDREW HEATH; LANCASTER COUNTY
REPUBLICAN HEADQUARTERS, a nonprofit corporation
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-07-cv-04488)
District Judge: Honorable James T. Giles
Argued October 28, 2009
Before: SLOVITER, FUENTES, and HARDIMAN,
Circuit Judges
(Filed: November 13, 2009)
Paul A. Rossi (Argued)
Mountville, PA 17554
Attorney for Appellant

-- 1 of 9 --

The District Court had jurisdiction under 28 U.S.C. §§1
1331 and 1343(a)(3), and this court has jurisdiction under 28
U.S.C. § 1291.
2
Robert M. Frankhouser, Jr.
Kevin M. French (Argued)
Hartman, Underhill & Brubaker LLP
Lancaster, PA l7602
Attorneys for Appellees
Mark D. Schwartz
Bryn Mawr, PA 19010
Attorney for Amicus Democracy Rising PA
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Appellant Millie Max appeals the District Court’s order
granting the motion to dismiss filed by defendants, the
Republican Committee of Lancaster County (“RCLC”), the
Lancaster County Republican Headquarters (“LCRH”) (a non-
profit corporation controlled by the RCLC), David M. Dumeyer
(the chairman of the RCLC), and Andrew Heath (an employee
and executive director of the RCLC) (collectively,
“defendants”). Max alleges that defendants infringed upon her
First Amendment rights of free speech and expression during a
primary election campaign for judgeships on the Lancaster
County Court of Common Pleas. She filed this action under 42
U.S.C. § 1983.1
I.
Max was an elected committeewoman for the RCLC.

-- 2 of 9 --

She alleges that as a result of defendants’ actions she2
suffered a stigma and censored her own speech. She states that as
a result of defendants’ letter, she “must weigh and nicely balance
every word,” and “has a legitimate fear that such information may
be used to defeat her in a future primary election campaign for her
3
The RCLC is a political committee organized under the laws of
the Commonwealth of Pennsylvania. As such, the RCLC is
entitled to nominate candidates at primaries for inclusion on the
general election ballot, which it does by a vote of the party
electors. See 25 P.S. § 2862. The registered Republican voters
of Lancaster County comprise the electors in the primary for
Common Pleas judgeships. Id. § 2832.
II.
Max’s amended complaint contains five counts, all of
which allege that defendants retaliated against Max in violation
of the First Amendment because she criticized two of the party’s
endorsed candidates and instead supported an unendorsed
candidate. It appears that the RCLC regarded Max as a wayward
Republican committeewoman because she was unwilling to
support the endorsed candidates and openly lobbied against
them.
Max alleges that in or about May 2007, Heath heard that
someone was campaigning door-to-door against endorsed
candidates. Heath asked Max if she knew who it was and said
that he was tracing the suspect’s license plate number. When
Max admitted that she was the individual he sought, Heath
threatened to “convene a meeting after the election” at which
Max “understood that she would likely be asked to resign her
elected position.” App. at 107. Defendants then “instructed
certain poll workers to observe and report back to Defendants on
[Max’s] . . . political speech and campaign efforts.” App. at 99.
After the primary election, Dumeyer wrote a letter to Max in
which he warned that campaigning against endorsed candidates
was inappropriate for someone in her position, and that she
should either refrain from further doing so or should resign.2

-- 3 of 9 --

committee position.” Appellant’s Br. at 28.
We note that “[i]n cases under § 1983, ‘under color’ of law3
has consistently been treated as the same thing as the ‘state action’
required under the Fourteenth Amendment.” Benn v. Universal
Health Sys., Inc., 371 F.3d 165, 170 n.1 (3d Cir. 2004) (quoting
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
4
Max’s counsel conceded at oral argument that, under the
applicable bylaws, defendants could not have removed Max
from her committeewoman position because of her conduct.
Defendants filed a motion under Fed. R. Civ. P. 12(b)(6)
to dismiss the amended complaint, which the District Court
granted. Max’s appeal of that order is before us.
We review de novo a district court’s dismissal of an
action pursuant to Rule 12(b)(6). Rodriguez v. Our Lady of
Lourdes Med. Ctr., 552 F.3d 297, 302 (3d Cir. 2008). In
deciding a motion to dismiss, courts generally must “accept all
factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 231
(3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d
361, 374 n.7 (3d Cir. 2002)). To withstand a Rule 12(b)(6)
motion, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
III.
It is axiomatic that the First Amendment governs only
state action, not the actions of private entities. As a threshold
matter, therefore, we must determine whether defendants are
state actors. This determination requires a fact-based analysis3
of the particulars of each case. See Benn, 371 F.3d at 171
(observing that the Supreme Court has noted that the criteria for
determining whether state action is present “lack rigid

-- 4 of 9 --

5
simplicity”).
The thrust of Max’s argument is that defendants are state
actors under § 1983 because the Commonwealth of Pennsylvania
has delegated to the Republican party the authority to decide
“who will appear on the Commonwealth’s general election
ballot.” Appellant’s Br. at 9, 16. She contends that this power is
traditionally exclusive to state actors. Max is correct that state
action may be imputed to private groups who carry out functions
that are “governmental in nature.” Evans v. Newton, 382 U.S.
296, 299 (1966) (establishing the “public function” test for state
action). However, her contention is unavailing.
As defendants note, Max conflates the role of the RCLC
with that of the electorate. That is, she argues that the RCLC, a
designated political committee, performs the traditionally public
function of choosing candidates for the general election but in
fact Pennsylvania delegates such authority to the registered
voters of the Republican Party. Max’s premise fails to
distinguish between the RCLC, which endorses candidates in the
primary, and the corpus of registered Republican voters who, by
voting in the primary election, actually select the nominees for
the general election. See 25 P.S. §§ 2831, 2812.
An RCLC endorsement does not necessarily guarantee a
place on the general election ballot. If it did, Max would have
no reason to campaign for her unendorsed candidate and criticize
the two endorsed candidates. Rather, an RCLC endorsement is
no more than an advantage, albeit often a substantial one, to
those seeking to compete in a general election. Thus, it is the
registered Republican voters of Lancaster County, not
defendants, to whom Pennsylvania has delegated authority to
perform the public function of selecting the Republican
candidates to be placed on the ballot for the general election.
Moreover, the principal cases upon which Max relies are
distinguishable from the one at hand. For instance, Max’s
blanket assertion – that political parties are state actors during
primary elections – derives from two Supreme Court cases from
the Jim Crow era. These cases, Smith v. Allwright, 321 U.S. 649

-- 5 of 9 --

6
(1944), and Terry v. Adams, 345 U.S. 461 (1953), involved two
attempts by the Democratic Party of Texas to bar African-
Americans from participating in primary elections. In both
instances, the Supreme Court sustained the claims under § 1983
because Texas left it up to private groups, i.e. political parties, to
decide who could vote so as to intentionally circumvent the
Fifteenth Amendment. See Terry, 345 U.S. at 466 (“the . . . right
to be free from racial discrimination in voting ‘is not to be
nullified by a state through casting its electoral process in a form
which permits a private organization to practice racial
discrimination . . . .’” (quoting Smith, 321 U.S. at 664)).
There are at least two reasons why those decisions are
inapposite. First, whereas Texas and the Democratic Party were
working in concert to deny African-American participation in
primaries, nothing in the record here suggests that Pennsylvania
delegated authority to defendants with the intention of violating
the constitutional rights of Max or anyone else. Max cannot
plausibly assert that “the fingerprints of the state” are on the
alleged infringement of her rights. Leshko v. Servis, 423 F.3d
337, 340 (3d Cir. 2005).
Second, Smith and Terry involved attempts by a political
party to violate the rights of persons who were not associated
with the party. The instant case involves an alleged attempt by a
political party to violate the rights of a party member. This
distinction is key. In several decisions, the courts have expressly
declined to interfere in the internal affairs of political parties.
Indeed, in some cases the First Amendment has been cited as the
basis for prohibiting such judicial meddling. For example, in
New York State Board of Elections v. Lopez Torres, 128 S. Ct.
791, 797 (2008), the Supreme Court stated that “[a] political
party has a First Amendment right to limit its membership as it
wishes, and to choose a candidate-selection process that will in
its view produce the nominee who best represents its political
platform.”
Max relies on Lynch v. Torquato, 343 F.2d 370 (3d Cir.
1965), to buttress her contentions, but that decision is inapt. In
Lynch, although we noted that political parties could be state

-- 6 of 9 --

7
actors during primaries, we did not reach that question because
we held that there had been no violation of the plaintiff’s
constitutional rights. See id. at 373 (“this lawsuit appears to be
an effort . . . to wrest control of ordinary party affairs from
present leadership rather than an attempt to vindicate the
plaintiffs’ [constitutional] right[s] . . . .”).
Max cites the language in Valenti v. Pennsylvania
Democratic State Committee, 844 F. Supp. 1015, 1019 (M.D. Pa.
1994), where the court commented that in Smith the Supreme
Court reasoned that by limiting general election choices to those
candidates who prevail in the primary, the state “endors[es]
whatever unconstitutional conduct might have limited the party’s
field of candidates in the primary.” However, in Valenti the
court held that political parties may suppress political speech
from party members during their internal endorsement process.
Id. at 1017-19.
Other decisions have also declined to elevate internal
party issues to a constitutional level. In Blank v. Heineman, 771
F. Supp. 1013, 1014-15 (D. Neb. 1991), the court rejected the
claims of plaintiffs who sued the Executive Committee of the
Republican Party under § 1983 alleging they were removed from
their elected positions within the party because they were
evangelical Christians. The plaintiffs asserted that their removal
was state action because “ultimately primary and general
elections [would] be affected.” Id. at 1018. The court
characterized the plaintiffs’ theory as an “attempt[] to ‘bootstrap’
and transform actions relating solely to the internal activity of a
political party into activity which constitutes state action. . . .”
Id. The court dismissed the case, stating that “the plaintiffs’
argument, carried to its logical extension, would transform any
action of a political party involving internal affairs into state
action.” Id.
Such reasoning is persuasive here. Max asserts that
defendants “engaged in state action when they sought to exclude
and limit [Max’s] unwanted political speech during the 2007
primary election in order to manipulate and influence who was
placed on the Commonwealth’s 2007 general election ballot. . .

-- 7 of 9 --

8
.” Appellant’s Br. at 21. The District Court rejected this
argument, stating that:
Defendants [sic] actions toward Plaintiff were not state
actions that would subject Defendants to Section 1983
claims. Defendants’ actions were internal to the party and
are permissible by statute of the Commonwealth of
Pennsylvania, 25 P.S. § 2837, and by the First and
Fourteenth Amendments of the United States
Constitution. Plaintiff is correct that the RCLC has a role
as a state actor in primary elections, . . . but that does not
make all of RCLC’s actions state actions, as Plaintiff
contends.
App. at 14. We agree.
Max next argues that Heath’s threat to trace a license
plate constituted state action because the power to trace a license
plate is exclusive to the state. Even accepting that assertion,
there is no allegation that Heath or any other defendant actually
employed the machinery of the state to trace Max’s license plate
number. As Max concedes, Heath’s threat was a bluff meant to
induce her into admitting that she had campaigned against the
RCLC’s endorsed candidates. Tracing a license plate number
may be state action as a “public function,” but bluster about
doing so is not.
Finally, Max claims that encouraging poll-workers to
observe and report on her behavior on the day of the primary
election constituted state action under Tiryak v. Jordan, 472 F.
Supp. 822, 824 (E.D. Pa. 1979). There, the court stated that if
the unconstitutional conduct of an officially certified poll-
watcher was “made possible by state election law, and if one
sequela of their conduct is to further the purity of an exclusive
state concern, i.e. elections, then their actions are for § 1983
purposes properly attributable to the state.” Id.
Even if we accept the premise that poll-workers are state
actors while guarding the integrity of an election, the defendants
here, unlike those in Tiryak, are not the poll-watchers.

-- 8 of 9 --

9
Defendants here are private parties. Although a private party
can be liable under § 1983 if he or she willfully participates in a
joint conspiracy with state officials to deprive a person of a
constitutional right, see Abbott v. Latshaw, 164 F.3d 141, 147-48
(3d Cir. 1998), this is not such a case. Max alleges that
defendants “instructed certain poll workers to observe and report
back to Defendants on Plaintiff’s 2007 primary election day
political speech and campaign efforts” and “certain poll workers
did, in fact, observe and report back to Defendants . . . .” App.
at 99. At most, defendants used the poll-workers to obtain
information. This is not the same as conspiring to violate Max’s
First Amendment rights.
IV.
Although there may well be situations where the actions
of a political party in a primary election are deemed to be state
action, defendants’ alleged actions do not present such a
situation. For the reasons set forth, we will affirm the District
Court’s order dismissing Max’s First Amendment claim.

-- 9 of 9 --