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March 5, 1975

Alene S. AMMOND, in her capacity as a member of the Senate of New Jersey and Individually, et al., Plaintiffs,
Joseph L. McGAHN et al., Defendants

Cohen, Senior District Judge.

The opinion of the court was delivered by: COHEN

Perhaps, for the first time in the history of the New Jersey State Legislature, a federal court is asked to decide whether a political caucus may exclude one of its members for her critical public statements without violating the First and Fourteenth Amendments to the Federal Constitution.

 Thus, on this application for a preliminary injunction enjoining the defendants from denying her access to the Caucus, issues are presented of constitutional dimension.

 Plaintiff, Alene S. Ammond, in November, 1973, was elected to the New Jersey State Senate by the voters of the Sixth Senatorial District, encompassing parts of Camden and Burlington Counties. Prior to the general election, she was victorious in a three-way Democratic primary contest. Consequently, when she assumed her senatorial duties in January, 1974, she did so as a Democrat. Plaintiffs Zelda Karp, Lee A. Paull and Francis J. Powers are residents of the Sixth Senatorial District and are represented by Senator Ammond in the State Senate.

 The defendants are 28 Democratic Senators who comprise the New Jersey State Democratic Caucus; the Sergeant-at-Arms of the State Senate; the Executive Director of the Senate Majority; and both counsel for the Senate Majority Caucus.

 The complaint *fn1" alleges a cause of action arising under 42 U.S.C. §§ 1983, 1985. This court, therefore, has jurisdiction pursuant to 28 U.S.C. §§ 1343(3) and (4).

 It is contended by the plaintiff, Senator Ammond, that the decision by her fellow-Democratic Senators to exclude her from the Caucus was in retaliation for public statements she made regarding the Caucus and its members; that the Senate Democratic Caucus is a vital and integral part of the New Jersey State Legislative process; and that her right of free speech guaranteed under the First Amendment has been violated.

 Plaintiffs, Karp, Paull and Powers contend that the exclusion of their duly elected representative from the Caucus denies them the Equal Protection of the Law guaranteed by the Fourteenth Amendment.

 Mindful of the somewhat analogous situation presented in Bond v. Floyd, 385 U.S. 116, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966) and the constitutional mandate of equal representation for all, see Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962); Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); and Chapman v. Meier, 420 U.S. 1, 95 S. Ct. 751, 42 L. Ed. 2d 766 (1975), this court on January 31, 1975 issued a temporary restraining order enjoining the defendants from denying Senator Ammond access to the Caucus. February 10, 1975 was set as the return day for the hearing on the application for a Preliminary Injunction. At the request of counsel for defendants, a continuance was granted, and the T.R.O. was extended until February 18, 1975, the date set for the Preliminary Injunction proceeding.

 In opposition to the application for preliminary injunctive relief, the defendants move for dismissal of the complaint and the amended complaint, or, in the alternative, for the reallocation of this case to the Trenton vicinage, urging several grounds which will be considered seriatim.


 First, defendants argue that they are immune from civil liability under the Civil Rights Act. In support of immunity, defendants cite Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951). Tenney, however, does not represent a principle of absolute legislative immunity, for in finding that the members of the legislative committee were not subject to suit, the Supreme Court pointed out:

"We conclude only that here the individual defendants and the legislative committee were acting in a field where legislators traditionally have power to act, and that the statute of 1871 does not create civil liability for such conduct." 341 U.S. at 379, 71 S. Ct. at 789.

 Thus, Tenney acknowledges that immunity is limited to those areas in which legislators may traditionally act.

 The complaint in Bond v. Floyd, supra, was filed in the District Court alleging a cause of action, inter alia, under § 1983. See 251 F. Supp. 333, 335. Upon appeal, the Supreme Court held "that the disqualification of Bond from membership in the Georgia House because of his statements violated Bond's right of free expression under the First Amendment," 385 U.S. at 137, 87 S. Ct. at 350. It is inconceivable, given the history and purpose of § 1983, that the defendants in the instant case are cloaked with an unqualified immunity. Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), relied upon by defendants, is not to the contrary. In Scheuer, the representatives of three students who died during the incident at Kent State University brought a § 1983 action naming as defendants the Governor, the Adjutant General, various members of the Ohio National Guard, and the President of Kent State. The court decided that, at best, the defendants had a qualified immunity, and left no doubt that the claim of immunity might not withstand the broad reach of federal power. In doing so, the court noted:

Under the criteria developed by precedents of this Court, § 1983 would be drained of meaning were we to hold that the acts of a governor or other high executive officer have "the quality of a supreme and unchangeable edict, overriding all conflicting rights of property and unreviewable through the judicial power of the Federal Government." Sterling v. Constantin, 287 U.S. [378], at 397 [287 U.S. 378, 53 S. Ct. 190, 195, 77 L. Ed. 375]. In Sterling, Mr. Chief Justice Hughes put it in these terms:
"If this extreme position could be deemed to be well taken, it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases, the futility of which the State may at any time disclose by the simple process of transferring powers of legislation to the Governor to be exercised by him, beyond control, upon his assertion of necessity. Under our system of government, such a conclusion is obviously untenable. There is no such avenue of escape from the paramount authority of the Federal Constitution. When there is a substantial showing that the exertion of state power has overridden private rights secured by ...

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