Bonas v. Town of North Smithfield

United States Court of Appeals
For the First Circuit

No. 01-2139

CHRISTINE BONAS ET AL.,

Plaintiffs, Appellees,

v.

TOWN OF NORTH SMITHFIELD ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Selya and Lipez, Circuit Judges,

and Doumar,* Senior District Judge.

Marc DeSisto, with whom Kathleen M. Powers, and DeSisto Law
Offices were on brief, for appellants.
Howard A. Merten, with whom Eric M. Sommers and Vetter &
White were on brief, for appellees.

September 19, 2001
_______________
*Of the Eastern District of Virginia, sitting by designation.
 SELYA, Circuit Judge. In this action for declaratory

and injunctive relief, four registered voters residing in North

Smithfield, Rhode Island (the Town) seek to compel the holding

of an election in November of 2001. The plaintiffs claim that

the Town's charter requires such an election and that the

refusal of the defendants — the Town and various Town

plenipotentiaries — to comply with the charter abridges the

plaintiffs' First Amendment rights to vote and to associate.1

In an effort to parry this thrust, the defendants make four main

arguments. First, they question the justification for federal

court intervention. Second, they point to a 1998 referendum,

approved by the voters of North Smithfield, which switched

municipal elections to even-numbered years starting in the year

2002, and assert that this vote erases any need for an election

in 2001. Third, the defendants claim that the voters ratified

the plan to forgo the 2001 election during the 1999 election (in

which the ballot mentioned lengthened terms for certain elected

officials). Finally, the defendants interpose a series of

equitable defenses — waiver, estoppel, and the like.

1
The proscriptions of the First Amendment are made
applicable to the states, and thus to local governments, by the
provisions of the Fourteenth Amendment. See City of Ladue v.
Gilleo, 512 U.S. 43, 45 n.1 (1994).

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 The district court found no merit in the defendants'

contentions, see Bonas v. Town of North Smithfield, No. 01-241,

slip op. at 11-12 (D.R.I. Aug. 20, 2001), and ordered the Town

to hold a regular election for town council and school committee

in 2001. On this expedited appeal, the defendants renew the

same arguments that the district court rejected. We heard oral

argument on September 14, 2001, and ruled ore tenus that the

Town must hold the election in question. This opinion explains

the basis for our ruling. All applicable time periods (e.g.,

the time for filing petitions for rehearing or rehearing en

banc) shall run from the date of this opinion rather than from

the date of our oral advisory.

I. BACKGROUND

In 1998, the voters of North Smithfield affirmatively

answered four related referendum questions designed to

transition the Town from an odd-year election cycle to an even-

year cycle. The text of these referendum questions (three of

which refer to the amendment of specified sections of the Town's

charter) follows:

Article II, Section 2 - Shall the regular
town election be held the first Tuesday
after the first Monday in November in even
numbered years beginning in the year 2002?
* * *
Article V, Section 1 - Shall the term of the
town administrator begin on the first day of
December next following his/her election and

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 extend to November 30th of the year 2002 and
every two years thereafter?
* * *
Article XIV, Section 1 - Shall school
committee members be elected at large at the
regular biennial elections in even numbered
years, keeping their staggered terms
beginning in the year 2002 and serve for a
term of four (4) years and until his/her
successor is elected and qualified?

* * *
Shall all other provisions of the charter
relating to the election, such as
declarations, endorsements, nomination
papers and primary date, be amended to be
consistent with the state election calendar?

At the time of the referendum, Article II, section 2,

of the Town's charter stated that "a regular town election shall

be held on the first Tuesday after the first Monday in November

in odd-numbered years." The charter further provided that town

council members would be chosen at these "regular town

election[s]," and Article IV, section 1, mandated that town

councillors, once elected, would "serve for a term of two (2)

years, such term to begin on the first day of December next

following their election, or until their successors are elected

and qualified." Article XIV, section 1, decreed that each

school committee member "shall be elected at large at the

regular biennial elections in odd-numbered years to serve for a

term of four (4) years and until his successor is elected and

qualified," and staggered the terms so that three of the five

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school committee slots were filled in one regular biennial

election and the remaining two were filled in the next.

The charter amendments resulting from the 1998

referendum make clear that the first even-year town election is

to take place in 2002. Those amendments do not explicitly

mention any changes in the election schedule leading up to that

year, other than a one-time lengthening of the Town

Administrator's term (which would run from 1999 to 2002). Had

the amendments contained similar language with respect to the

town council and school committee terms, this case would not

have seen the light of day.

Three school committee members had been elected in

1997, each to serve a four-year term in accordance with the

charter provisions in effect at that time. Two school committee

seats, and all the town council seats, were up for election in

1999. Despite the absence of any explicit voter mandate

approving lengthened terms for town council and school committee

members, the official ballot for the 1999 municipal election

listed the terms for these offices as three and five years,

respectively.2 These inscriptions appeared out of thin air:

2The candidates for town council were listed beneath the
heading "TOWN COUNCIL Three Year Term Vote for any 5."
Similarly, the candidates for school committee were listed
beneath the heading "SCHOOL COMMITTEE Five Year Term Vote for
any 2."

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neither the town council nor the board of canvassers had taken

any official action aimed at lengthening the terms for these

offices, and the meeting minutes for the relevant periods do not

reflect that the matter was even considered. Notwithstanding

this lack of documentation, however, the defendants assert — for

what it may be worth — that this one-time extension was openly

discussed in various official venues both before and after the

referendum; that one candidate for office in the November 1999

election distributed a flyer stating that "[t]he next election

will be held in November 2002"; and that much of the electorate

plainly understood that the extension was part of the transition

package.

Relying on this "understanding" and on the language

that appeared on the 1999 ballot, the defendants decided not to

hold a municipal election in 2001. The plaintiffs — four

registered voters in the Town of North Smithfield who desire to

exercise their right to vote for town council and school

committee in the 2001 election — maintain that they learned of

the Town's intention to forgo the election in February of 2001,

at which point they unsuccessfully petitioned the town council

and board of canvassers for redress.3

3The plaintiffs also sought relief before the state Board of
Elections. The Board declined to hear the case, concluding that
it lacked jurisdiction to order the Town to hold an election.

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 Invoking 42 U.S.C. § 1983, the plaintiffs then filed

suit in the federal district court, claiming a denial of their

right to vote and their right to political association under the

First and Fourteenth Amendments to the United States

Constitution. The district court heard the matter on cross-

motions for summary judgment, filed after the parties had

stipulated to the pertinent facts. Ruling from the bench on

August 3, 2001, the district court granted the plaintiffs'

motion, denied the cross-motion, and ordered the defendants to

hold a regular town election in the year 2001 for town council

and three school committee seats. The court further explained

its rationale in a written decision issued two weeks later.

This appeal followed.

II. JURISDICTION

The first — and most formidable — obstacle in the

plaintiffs' path is the question of federal jurisdiction.4

4
The defendants also purport to challenge the plaintiffs'
standing, claiming that the plaintiffs cannot satisfy the
"redressability" prong of the standing inquiry. See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (requiring
injury in fact, causation, and redressability for purposes of
Article III standing). Their argument boils down to an
assertion that a federal court cannot, or should not, order the
remedy that the plaintiffs request. But the defendants
misconstrue the applicable legal principles. Redressability
requires only the "'substantial likelihood' that the requested
relief will remedy the alleged injury in fact." Vermont Agency
of Natural Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 771
(2000). Understood in this light, the requirement is easily met

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Federal courts are courts of limited jurisdiction, and therefore

must be certain that they have explicit authority to decide a

case. See Irving v. United States, 162 F.3d 154, 160 (1st Cir.

1998) (en banc). Thus, we subject the plaintiffs' choice of a

federal forum to careful scrutiny.

An earlier election case, Griffin v. Burns, 570 F.2d

1065 (1st Cir. 1978), sets forth the analytic framework. First,

because the jurisdictional statute, 28 U.S.C. § 1343(3), parrots

the text of 42 U.S.C. § 1983, federal jurisdiction hinges upon

the existence vel non of a substantial claim under section 1983.

Griffin, 570 F.2d at 1070. In other words, federal courts have

jurisdiction over claims arising out of a state or local

electoral dispute if, and to the extent that, the complaint

limns a set of facts that bespeaks the violation of a

constitutionally guaranteed right.

It is certain that the right to vote — the wellspring

of all rights in a democracy — is constitutionally protected.

The Supreme Court long ago described that right as a

"fundamental political right." Yick Wo v. Hopkins, 118 U.S.

356, 370 (1886). Thus, the Constitution "protects the right of

by the plaintiffs: the feared injury is the denial of the right
to vote should the defendants fail to hold the regularly
scheduled election. There is little doubt that ordering the
Town to hold the election would palliate that alleged
transgression.

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all qualified citizens to vote, in state as well as in federal

elections." Reynolds v. Sims, 377 U.S. 533, 554 (1964). Since

municipalities are political subdivisions of state government,

this means that the right to vote in local elections (including

referenda elections) is constitutionally protected. See

Griffin, 570 F.2d at 1075.

Despite this bedrock federal interest, a federal court

may not inject itself into the midst of every local electoral

dispute. Election law, as it pertains to state and local

elections, is for the most part a preserve that lies within the

exclusive competence of the state courts. Powell v. Power, 436

F.2d 84, 86 (2d Cir. 1970). Thus, with only a few narrow and

well-defined exceptions, federal courts are not authorized to

meddle in local elections. Consequently, they normally may not

superintend the step-by-step conduct of local electoral contests

or undertake the resolution of "garden variety election

irregularities." Griffin, 570 F.2d at 1076.

It is our task, then, to separate wheat from chaff, and

to determine whether this case fits into one of the isthmian

exceptions to this general rule of non-intervention. The first,

and most developed, justification for federal court intervention

exists when a discrete group of voters suffers a denial of equal

protection. See, e.g., Reynolds, 377 U.S. at 558. Because

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there is no evidence that a particular category of North

Smithfield voters will suffer disproportionately from the

defendants' decision to forgo the 2001 election, this case does

not fit that mold.

Federal court involvement also may be proper when a

denial of substantive due process occurs, that is, "[i]f the

election process itself reaches the point of patent and

fundamental unfairness." Griffin, 570 F.2d at 1077. We found

such a parlous state of affairs in Griffin, when Rhode Island

election officials, relying on a ruling of the state supreme

court, made an after-the-fact decision not to count absentee and

shut-in ballots that had been cast in a primary election.

Because that decision changed the rules at the end of the game,

resulting in the annulment of an entire class of ballots that

likely would have been outcome-determinative, we upheld the

district court's order for a new election in the affected ward.

Id. at 1080.

Although some subsequent cases have distinguished

Griffin, see, e.g., Henry v. Connolly, 910 F.2d 1000, 1003 (1st

Cir. 1990) (distinguishing Griffin in respect to the scuttling

of a ballot initiative for failure to comply with state-law

signature prerequisites); Partido Nuevo Progresista v. Perez,

639 F.2d 825, 828 (1st Cir. 1980) (distinguishing Griffin, in a

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ballot mismarking case, on the ground that the claimed injury

was indirect vote dilution as opposed to direct

disenfranchisement), none have weakened its core holding: that,

in those few cases in which organic failures in a state or local

election process threaten to work patent and fundamental

unfairness, a colorable claim lies for a violation of

substantive due process (and, hence, federal jurisdiction

attaches). Other courts also have struggled with plotting the

boundaries of federal jurisdiction in this area, but, in the

main, have adhered (at least approximately) to Griffin's core

holding. See, e.g., Marks v. Stinson, 19 F.3d 873, 888-89 (3d

Cir. 1994) (citing Griffin and decertifying the winner of a

local election in the face of massive absentee ballot fraud);

see also Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975)

(suggesting that "wilful conduct which undermines the organic

processes by which candidates are elected" may violate the

constitutional right to vote).

We do not pretend that it is a simple matter to

segregate run-of-the-mill electoral disputes from those that

appropriately can be characterized as harbingers of patent and

fundamental unfairness. See Navedo v. Acevedo, 932 F.2d 94, 95

(1st Cir. 1991) (declining to find that asserted election

irregularities reached the level of federal constitutional

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violations, but noting that "it is not always easy to draw the

line reflected in the differing outcomes of [the decided

cases]"). Like beauty, fundamental fairness frequently lies in

the eye of the beholder. But the Constitution does not ensure

a bright-line rule for every situation. In respect to federal

jurisdiction over claims arising out of a state or local

election dispute, each case must be evaluated on its own facts.

In this chiaroscuro corner of the law, one thing is

clear: total and complete disenfranchisement of the electorate

as a whole is patently and fundamentally unfair (and, hence,

amenable to rectification in a federal court). Here, our

evaluation of whether such widespread disenfranchisement has

occurred starts — and ends — with a question of state law: Do

state and local rules mandate an election in North Smithfield

for the offices of town council and school committee in the fall

of 2001? Assuming that such an election is required — a topic

to which we shortly shall return — the Town's refusal to hold it

would work a total and complete disenfranchisement of the

electorate, and therefore would constitute a violation of due

process (in addition to being a violation of state law).

In deciding that cases of total and complete

disenfranchisement of the electorate as a whole are federally

justiciable, we find Duncan v. Poythress, 657 F.2d 691 (5th Cir.

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Unit B Sept. 1981), particularly helpful. In that case, the

court held that the refusal of Georgia state officials to call

a special election to fill a position on the Georgia Supreme

Court violated the electors' constitutional right to vote. Id.

at 693. The court reasoned that, since Georgia law required a

special election following the resignation of any elected

official, the governor's appointment of a successor to a

retiring justice constituted a violation of substantive due

process. Id. at 699-700 (citing Griffin, 570 F.2d at 1078-79).

Along with the Duncan court, we "can imagine no claim

more deserving of constitutional protection than the allegation

that . . . officials have purposely abrogated the right to vote

. . . ." Id. at 704. Here, as in Duncan, the decision to

dispense with an election was deliberate. If the decision is

allowed to stand, every resident of North Smithfield will be

deprived of his or her right to vote for the affected offices.

In our judgment, such across-the-board disenfranchisement

betokens an utter breakdown of the electoral process. That

extraordinary circumstance is far removed from the "garden

variety election irregularities" that courts have held

insufficient to support federal intervention. Griffin, 570 F.2d

at 1076.

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 In concluding that we have jurisdiction to hear and

determine this case, we do not open the door to routine federal

intervention in state and local elections. This case is the

long-odds exception to the general rule of non-intervention. We

emphasize that deciding it does not embroil the federal courts

in the detailed administration of a local election. The case

does not involve "tinkering with the state's election machinery,

reviewing petitions, registration cards, vote tallies, and

certificates of election for all manner of error and

insufficiency." Id. at 1077 (citing Powell, 436 F.2d at 86).

The violation is striking — leading, as we have said, to

disenfranchisement of the electorate as a whole — and the

district court has prudently selected a remedy that allows the

electoral machinery to move forward without continuing federal

involvement. That remedy simply orders the Town to hold an

election in 2001. It is essentially the same as the remedy

approved in Griffin, Duncan, and Marks.

To say more on this point would be supererogatory.

Based on the foregoing, we hold that the district court

appropriately exercised jurisdiction over the plaintiffs'

complaint.5

5
The possibility of abstention gives us pause, and, time
permitting, the district court might have done well to insist,
as a matter of comity, that the plaintiffs first exhaust their

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III. THE MERITS

It remains for us to examine the provisions of the

North Smithfield Town Charter to determine whether, in fact,

they require an election in 2001. The defendants advance two

related theories in support of their putative authority to

extend the terms of town council and school committee members.

First, they suggest that the 1998 referendum, taken together

with existing charter provisions, should be construed to

dispense with the 2001 election. Second, they suggest that the

electorate ratified the extension of terms when votes were cast

in the 1999 election using an official ballot which indicated

that town council and school committee members would serve

state-court remedies. But the defendants do not offer any
developed argumentation in support of abstention nor do they
appear to have pursued that course with much vigor below.
Because issues raised by an appellant but not developed are
deemed waived, United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990), we need not probe the point.
In all events, the most plausible abstention doctrine — that
contained in R.R. Comm'n v. Pullman Co., 312 U.S. 496 (1941) —
is ill-suited to this case. The relevant charter provisions are
clear and they lie on the periphery, rather than at the
epicenter, of the state's electoral scheme. Moreover, the
consequences of abstention here would be too grave to accept,
because the plaintiffs now do not have time, as a practical
matter, to obtain the requested relief from a state court before
the presumptive date of the 2001 elections arrives. See Duncan,
657 F.2d at 697 (explaining that the decision whether to abstain
"should include consideration of the rights at stake and the
costs of delay pending state court adjudication").

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three- and five-year terms, respectively. See supra note 2.

Both theories fail.

By its unvarnished terms, the 1998 referendum mandated

that the first even-year election take place in 2002, but,

except with respect to the office of Town Administrator — an

office that the plaintiffs concede should not be up for election

in 2001 — did not provide for any changes in the election

calendar or terms of office prior to that date. Sailing

headlong into the teeth of this plain language — plain language

which is given more bite by the utter absence of any record of

official approval of a term extension — the defendants maintain

that the intended consequence, all along, was to postpone the

2001 election until 2002. To buttress this claim, they submit

various affidavits to show that this consequence was mentioned

both at town council meetings and at an informational meeting,

open to the public, held prior to the vote on the referendum.

The interpretation urged by the defendants has a

certain superficial appeal. To transition from an odd-year to

an even-year election cycle there must, by necessity, exist at

least one irregular term. Theoretically, either lengthening or

shortening the wonted terms of elected officials could serve

this purpose. This does not mean, however, that municipal

officials are free to choose the alternative they prefer, which,

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unsurprisingly, happens to be the alternative that perpetuates

them in office. Because charter amendments must be sanctioned

by the voters, R.I. Const. art. XIII, §§ 7-8, we must decide

what course the electors of North Smithfield charted in the 1998

referendum vote.

Such an inquiry must start with the language of the

1998 referendum. Where, as here, that language is plain and

leads to a sensible result, we may not inquire further. Lopez-

Soto v. Hawayek, 175 F.3d 170, 172 (1st Cir. 1999). Insofar as

North Smithfield's town council and school committee seats are

concerned, the language of the referendum requires that the odd-

year election cycle continue undisturbed until the year 2002.

Even though the relevant amendments formally took effect on

December 1, 1998, those amendments did not provide for any

transition period in which the regular odd-year elections were

to be canceled or postponed. In the absence of such a bridge,

we must assume that the charter continues to require that

elections be held in odd-numbered years until 2002, and that the

appropriate terms for town council and school committee have not

been extended.

Contrary to the defendants' claim, this scheme does not

create an administrative nightmare. The five town council

members elected in 2001 each will serve for one year. In 2002,

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all the town council seats will be up for election, along with

the two school committee seats that were on the ballot in 1999.

The three school committee members elected in 2001 will serve

until 2004. That seems simple enough.

The defendants posit that the charter forbids such a

shortening of the terms of office because it states that a

school committee member "shall be elected to serve . . . for a

term of four (4) years" and that the town council "shall . . .

consist of five (5) members . . . each to serve for a term of

two (2) years." This argument proves too much. If we accept

the defendants' invitation to treat "shall" as mandatory in this

context, then we would have to conclude that the terms of office

could be neither reduced nor increased, and so the defendants

would be slain by their own sword. To escape from this

Procrustean bed, we must conclude that the 1998 referendum's

mandate for elections to be held in even-numbered years,

beginning in 2002, overrides any contrary provisions of the Town

charter and, thus, trumps the original charter provisions

stipulating the duration of elected terms. That is perfectly

compatible with the fourth referendum question, see supra at 4,

in response to which the voters specified that "all other

[election-related] provisions of the charter . . . [were to] be

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amended to be consistent" with the neoteric even-year election

cycle.

The defendants also propose that, in any event, the

voters authorized an extension of the elected terms for school

committee and town council during the 1999 election because the

headings on the official ballot explicitly indicated lengthened

terms for those offices. See supra note 2 and accompanying

text. This proposition lacks force. The voters of North

Smithfield could not have authorized this term extension because

the question was never properly placed before them. They did

not, for instance, have the option of selecting a two-year term

instead of a three-year term for town council members.

That ends this aspect of the matter. We hold that

placing the legend on the 1999 ballot indicating lengthened

terms of office was an ultra vires act by local officials. See

Griffin, 570 F.2d at 1076. Because state law requires that

voters approve any changes to the Town's charter, R.I. Const.

art. XIII, §§ 7-8, these officials were powerless to manufacture

their own authority.

The inevitability of this reasoning is made manifest

by a recognition that three school committee members, who were

undisputedly elected only for four-year terms in 1997, were not

on the ballot at all in 1999. Under the defendants' view, those

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officials would serve five-year terms. The defendants do not

explain how changes on the official ballot in 1999 could

elongate the terms of those school committee members, nor can

they.

Our conclusion that the defendants had no authorization

from the voters to dispense with the 2001 election also resolves

the defendants' collateral claim that the plaintiffs somehow

waived their right to challenge the Town's decision because the

proper time to mount a challenge was either immediately after

the 1998 referendum or immediately after the 1999 election.

Because neither of these events conferred authority on the

defendants to forgo the 2001 election, the plaintiffs were

entitled to presume that the election would go forward until

they received an unambiguous statement from Town officials to

the contrary. That notification did not occur until February of

2001. The plaintiffs thereafter acted with reasonable celerity

and did not knowingly relinquish their rights.6

As a last-ditch measure, the defendants suggest that

an extension in officials' terms is permitted by Article IV,

section 1, and Article XIV, section 1, of the Town's charter,

which provide that officials such as town councillors and school

6To the extent that the defendants have raised other
equitable claims (e.g., estoppel), they are meritless and we
reject them out of hand.

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committee members may serve "until their successors are elected

and qualified."7 At most, however, this boilerplate language

assures that acts of God or inadvertent bureaucratic delays do

not leave Town residents without representation pending the

election and certification of new representatives. It cannot,

and does not, provide authority to dispense with the election

itself. To hold otherwise would be to give incumbent elected

officials carte blanche to eliminate elections and thus to

retain their offices indefinitely.

IV. CONCLUSION

We need go no further. For the reasons stated, we

affirm the decision of the district court ordering that an

election be held in 2001. That election shall encompass all

town council seats (for one-year terms) and three school

committee seats. To preserve the historical staggering

(specifically reaffirmed by the 1998 referendum) and to honor

the referendum's directive for even-year elections from and

after 2002, each of these school committee members shall be

elected for a three-year term. Consistent with the 1998

referendum, all five town council seats, and the remaining two

7
The 1998 referendum contains somewhat the same language,
but only with respect to school committee seats.

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school committee seats shall be up for election in the 2002

election.

Affirmed.

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