author: PER CURIAM.

text:
    CHARM PROMOTIONS, LTD., Plaintiff-Appellant, v. The TRAVELERS INDEMNITY COMPANY, Defendant-Appellee, v. Mel GOLDMAN et al., Third-Party-Defendants.
    No. 72-1889.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 13, 1973.
    Decided Nov. 9, 1973.

      Lee A. Freeman, David J. Lester, Chicago, 111., for plaintiff-appellant.
    Max E. Wildman, Chicago, 111., for defendant-appellee.
    Before KILEY, CUMMINGS and SPRECHER, Circuit Judges.
   PER CURIAM.

Plaintiff Charm Promotions, Ltd. appeals from a jury verdict- — in this diversity action — in favor of defendant Travelers Indemnity Company to recover under a fidelity bond written by Travelers covering Charm’s “employees.” We affirm.

In January, 1966, Charm was incorporated in Illinois pursuant to an agreement between Automatic Accounting Corporation (Automatic) an Illinois corporation owned equally by Goldman, Brown, and Albert Heisler (the “Chicago Group”), and Weingeroff & Glick Enterprises, Inc. (Enterprises), a Rhode Island corporation owned by Frederick and Louis Weingeroff, George Glick, Harry and Joslyn Oken (the “Providence Group”). Automatic and Enterprises each loaned $75,000 to Charm, owned one-half of its stock, and named three Charm directors. The directors designated, as Charm’s officers, Goldman President, Frederick Weingeroff and Glick vice-presidents, Brown secretary, Harry Oken treasurer, and Heisler assistant vice-president.

Charm sold novelty charms and bracelets to supermarkets, the supermarkets paid Charm on delivery, and returned items not sold for full refunds. The Providence Group manufactured, packaged, and shipped the merchandise in Rhode Island, and the Chicago Group marketed the novelties in Chicago. Charm hired a promotional organization, J & H International Corporation (J & H) to act as its sales agent. Charm’s books and records were kept in Chicago, but all checks issued by it had to be signed by an officer in Chicago and countersigned by one in Providence.

Shortly after incorporation, Charm purchased from Travelers a $400,000 fidelity bond to protect it against “any fraudulent or dishonest act or acts committed by any of the Employees.” The bond defined “Employee” as:

Any natural person (except a director or trustee of the Insured, if a corporation, who is not also an officer or employee thereof in some other capacity) while in the regular service of the Insured in the ordinary course of the Insured’s business during the Policy Period and whom the Insured compensates by salary, wages or commissions and has the right to govern and direct in the performance of such service, but does not mean any broker, factor, commission merchant, consignee, contractor or other agent or representative of the same general character.

Losses “due to any fraudulent, dishonest or criminal act by an Insured or a partner therein whether acting alone or in collusion with others,” were excluded from coverage.

In February, 1967 Heisler informed the Providence Group that he suspected Goldman and Brown of improperly diverting approximately $235,000 of Charm’s funds to their own use. The Providence Group determined the moneys had been diverted and secured the resignations of Goldman and Brown as Charm officers. Subsequently, Charm was unable to make refunds to supermarkets for returned merchandise and J & H assumed the Charm obligation of refunding approximately $400,000.

Travelers refused to pay Charm’s claimed losses under the terms of the fidelity bond. Charm filed this suit and Travelers then named Brown, Goldman, and Bernie Schulman third party defendants.3 Following discovery, the trial court granted Travelers’ motion for summary judgment. We reversed and remanded for a trial, following which the jury found in favor of Travelers. This appeal followed.

No contention is made that the evidence does not support the verdict.

I

During the course of its deliberations, the jury sent a written question to the judge which he answered without giving notice to counsel or the parties, and in their absence. Charm’s counsel first became aware of the communication one week later. Neither the note nor the judge’s answer thereto were preserved for the record but affidavits in the record of two jurors set forth the general character of the inquiry and answers: the jury asked whether Brown and Goldman “could have a criminal judgment brought against them;” the judge wrote back “No.”

Charm contends that this ex parte communication constituted reversible error per se. We disagree.

We think that the recent decisional trend away from the older per se rule in the federal courts represents sound doctrine. Judge Learned Hand said in United States v. Compagna, 146 F.2d 524, 528 (2d Cir. 1944), cert. denied, 324 U.S. 867, 65 S.Ct. 912, 89 S.Ct. 1422 (1945):

[I]t is true that courts are extremely jealous of [communication between judge and jury] once the jury has been locked up; and we do not wish to abate that jealousy in the least; it is most undesirable that anything should reach a jury which does not do so in the courtroom. This is, indeed, too well settled for debate. [Citing cases.] But, like other rules for the conduct of trials, it is not an end in itself ; and, while lapses should be closely scrutinized, when it appears with certainty that no harm has been done, it would be the merest pendantry to insist upon procedural regularity.

Later in Walker v. United States, 116 U.S.App.D.C. 221, 322 F.2d 434, 435 (1963), cert. denied, 375 U.S. 976, 84 S.Ct. 494, 11 L.Ed.2d 421 (1964), the defendant appealed his robbery conviction contending, inter alia, that the trial judge’s ex parte answer to the jury’s question was reversible error. Although the court agreed that the judge erred, it held: “Such an error does not require reversal, however, when the record shows with reasonable certainty that it did not prejudice the defendant’s substantial rights.”

Walker and Compdgna were criminal cases but that does not render them inapposite; on the contrary, the refusal to apply a per se rule when an individual’s liberty is at stake is persuasive authority that a more rigorous standard is not mandated in civil eases. We hold that a trial judge’s ex parte communication with the jury after it has begun its deliberations is not per se reversible error, but is controlled by F.R.Civ.P. 61:

No error in . anything done by the court ... is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

In our opinion the substance of the communication did not “affect the substantial rights of the parties.” Furthermore, at Charm’s request, the trial court instructed the jury as follows:

To warrant recovery under the bond, the “dishonest act” of an employee need not be such as would involve criminal liability of the employee for its commission. The meaning of fraud and dishonesty extends beyond acts which would be criminal.

The instruction informed the jury that dishonesty was not coextensive with criminality, but was broader, and the jury’s subsequent communication with the judge was irrelevant to the ultimate issue: Travelers’ liability to Charm for the dishonest acts of Charm’s employees. Although we disapprove the communication of the judge to the jury in absence of counsel, and the failure to preserve the notes, we hold that any error in the judge’s conduct was harmless.

II

Just prior to the commencement of trial, and over the opposition of Charm, the court permitted third-party defendant Schulman to file a $210,000 claim against Charm and Enterprises. Schul-man alleged that pursuant to an agreement, he developed two packaging machines for Charm and Enterprises for which he was to be paid $20,000 plus 20% of the savings realized from use of the machines. The jury found in favor of Charm and against Schulman.

Notwithstanding its favorable verdict against Schulman, Charm contends that the trial court committed reversible error in permitting Schulman’s claim to be filed because it confused the jury and prejudiced Charm’s suit against Travelers. Charm argues that Sehulman’s claim does not arise out of Charm’s suit on the fidelity bond and thus clearly violates Rule 14(a):

The third-party defendant may also assert any claim against the plaintiff arising out of the transaction or occurrence that is the subject matter of the plaintiff’s claim against the third-party plaintiff.

Furthermore, Charm argues that the claim was a sham since Schulman admitted the machines were never put into operation, and at the close of trial abandoned all but $15,000 of his claim.

Assuming, arguendo, that the Schulman claim violated Rule 14(a) and was a sham, we are not convinced that its inclusion in the case “misled and distracted” the jury. Charm has failed to show it suffered prejudice; and in view of the weight of the evidence supporting the verdict, we decline to speculate that it was prejudiced.

Ill

We find Charm’s contentions that certain evidentiary rulings and jury instructions of the trial court were erroneous and prejudicial to be without merit.

During the trial, evidence was admitted relating to alleged earnings of Enterprises, Charm, and J & H, and Charm’s obligation to J & H for the refunds paid to supermarkets. Charm argues the evidence was irrelevant and misleading. The court also excluded as hearsay testimony of Glick and Glass concerning Heisler’s statements to the Providence Group of Brown and Goldman’s activities.

We see no error in these rulings. The main issue in the case was whether Goldman and Brown were employees and officers of Charm who committed dishonest acts in the course of their employment and whom Charm compensated by “salary, wages or commissions” and whom Charm had the right to govern and direct in their work. Travelers (and Goldman and Brown as third-party defendants) maintained that they were not employees; that Charm was part of a joint venture between the Chicago and Providence Groups; and that Goldman and Brown were either partners with the members of those Groups, or that they so controlled Charm that it was merely their alter ego, so that their acts in appropriating the moneys were acts of the “Insured” not covered by the policy. The evidence admitted was, therefore, relevant. Glick and Glass’ testimony was offered to prove the truth of the matter asserted (that Heisler informed the Providence Group) in order to rebut the argument that a Chicago-Providenee partnership existed, and was clearly excludable hearsay.

The district court, over Charm’s objection, tendered instructions to the jury on certain corporate formalities which Charm contends misstated the 'law applicable to “small corporations” and were prejudicial. While we agree with Charm that a closely held corporation need not comport with all the technical requirements of the Illinois Business Corporation Act, the instructions given herein were not prejudicial.

Charm also argues that the court’s instruction with respect to the method of salary payment was erroneous and contrary to this court’s prior decision in this case. In material part, that instruction read:

(3) That such fraudulent or dishonest acts, if any, were committed by employees whom Charm compensates by salary, wages or commissions, during that period, the same period. . (Emphasis added.)

In our earlier decision reversing the grant of summary judgment in favor of Travelers, we said:

If the trier of fact should find that Charm compensated or intended in the future to compensate, Goldman and Brown for services performed in the ordinary course of business for Charm . the trier of fact could reasonably find that Goldman and Brown were employees of Charm within the policy definition, even if their compensation was not periodic and regular and even if any compensation paid was combined with a distribution of the profits of the company. {Charm, supra, at 611 of 447 F.2d; emphasis added.)

Thus- Charm contends that the instruction required it to prove more than this court said was necessary.

We hold that the instruction was not improper. We do not think that the instruction contradicts this court’s earlier statement. “Periodic” is not synonymous with “during that period,” and therefore compensation, even though not periodically and regularly paid, could have been paid during the period in question. Furthermore, the language of our prior opinion should not be extended beyond that purpose for which it was intended. We there reversed a summary judgment against Charm; we did not promulgate jury instructions,

Charm also contends that it was error to give a missing witness in-struction with respect to Heisler. We .hold that even if it was erroneous it was not prejudicial,

judgmeilt affirmed,

      . Goldman was president, and Brown was executive vice-president.

      . Enterprises selected Glick, Harry Oken, and Frederick Weingeroff. Automatic named Heisler, Goldman and Brown.

      . J&H has secured a judgment in the Circuit Court of Cook County against Charm for $328,524, the unpaid amount Charm presently owes J&H for its assumption of the obligation.

      . Schulman was an alleged accomplice of Goldman and Brown.

      . Our opinion is at 447 F.2d 607 (1971).

      . Arrington v. Robertson, 114 F.2d 821 (3d Cir. 1940); Parfet v. Kansas City Life Insurance Company, 128 F.2d 361 (10th Cir. 1942), cert. denied, 317 U.S. 654, 63 S.Ct. 50, 87 L.Ed. 526 (1942); Breslin v. National Surety Company, 114 F.2d 65 (3d Cir. 1930); Shields v. United States, 273 U.S. 583, 47 S.Ct. 478, 71 L.Ed. 787 (1927). Note that Shields was a criminal case where the demands of due process/ are especially strong.

      . The issue is procedural rather than substantive, and therefore federal law controls.

      . See also Ware v. United States, 376 F.2d 717 (7th Cir. 1967); United States v. Hoffa, 367 F.2d 698 (7th Cir. 1966), vacated on other grounds, 387 U.S. 231, 87 S.Ct. 1583, 18 L.Ed.2d 738 (1966); United States v. Glick, 463 F.2d 491 (2d Cir. 1972); United States v. Arriagada, 451 F.2d 487 (4th Cir. 1971). Professor Wright maintains: “When all of the circumstances about the communication are known, and when it can be said ‘with certainty that no harm has been done,’ it would be insisting on form to reverse.” 3 Federal Practice and Procedure, 203 (1969).

      . Admittedly the communication is susceptible to differing interpretations, but none of them relate to whether Brown and Goldman were employees who performed a dishonest act in the scope of their employment.

      . Charm contended that the claim was untimely, was sham and false under F.R.C.P. 11, and violated F.R.C.P. 14(a). The district court eventually determined, that Enterprises was not a proper party and eliminated reference to it in its jury instructions.

      . There is no basis in the record to attribute to Travelers any purposeful tactical wrongdoing with regard to the Schulman claim. Travelers’ counsel referred to it only once, in a statement that is too fragile to support any inference of wrongdoing:
      Your Honor, on behalf of defendant Travelers, we have no objection to the amended answer nor to the counterclaim, since it involves the same issues, and we think it would be better to dispose of everything at one time. [Tr. 4, June 19, 1972]

      . Charm also contends that this allegedly irrelevant evidence might have been excluded had the court conducted a pretrial conference as requested by Charm. The holding of a pretrial conference is within the court’s discretion; and at the June 5, 1972 hearing on the holding of a conference, the court said: “If you want to limit it to some specific thing, or set me out something we can dispose of on the pretrial, I would be glad to.” The court appeared willing to hold the conference had the subject been specified.

      . See Galler v. Galler, 32 Ill.2d 16, 203 N.E.2d 577 (1965).

      . The instructions were:
      It is the law in Illinois that the business and affairs of a corporation shall be managed by a Board of Directors. At the first annual meeting of the shareholders, and at each annual meeting thereafter, the shareholders shall elect directors to hold office. Meetings of the Board of Directors shall be held upon such notice as the by-laws may prescribe.
      It is also the law in Illinois that officers of a corporation shall be elected by the Board of Directors at such time and in such manner as may be prescribed by the by-laws.
      All officers and agents of a corporation, as between themselves and the corporation, shall have such authority and perform such duties in the management of the property as may be provided in the bylaws, or as may be determined by resolution of the Board of Directors.
      Officers of a corporation, as such, are entitled to compensation, only as is fixed by a by-law of the corporation or a resolution of the Board of Directors fixing such compensation.


source: Caselaw Access Project

license: Public Domain

text:
    Ronald C. SMITH and John Chester, Plaintiffs-Appellants, v. Robert CHERRY et al., Defendants-Appellees.
    No. 73-1330.
    United States Court of Appeals, Seventh Circuit.
    Heard Sept. 26, 1973.
    Decided Nov. 27, 1973.
    Rehearing Denied Jan. 4, 1974.

      Bernard Weisberg, James P. Chapman, Chicago, 111., for plaintiffs-appellants.
    Daniel Nagle, Aldus S. Mitchell, Claude B. Kahn, William J. Scott, Chicago, 111., for defendants-appellees.
    Before O’SULLIVAN, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.

       Senior Circuit Judge Clifford O’Sullivan of the Sixth Circuit is sitting by designation.

   PER CURIAM.

This appeal is from the district court’s judgment granting defendants’ motions to dismiss the first amended complaint, as amended, for failure to state a claim upon which relief can be granted. That pleading, the allegations of which must presently be taken as true, discloses the following:

Plaintiff Ronald C. Smith was a candidate in the March 21, 1972, Democratic primary for the office of state senator from the 12th Illinois Senatorial District. The other plaintiff, John Chester, was a duly qualified voter in that District and voted in that primary.

The present 12th Senatorial District was created through redistricting in 1971. Defendant Robert Cherry was the incumbent state senator in that District and was on the ballot as Smith’s opponent in the Democratic primary. Cherry won the primary by a margin of 1,953 votes, receiving 53% of the total vote cast.

Since November 1970, defendant Ben Palmer had been the Democratic state senator from the 13th Senatorial District. Because of the 1971 redistricting, his residence was located in the new 12th District. He did not seek renomination in the 1972 primary election but supported Cherry.

Upon plaintiffs’ information and belief, Cherry did not intend to run for state senator in the November 7, 1972, election. Palmer and the five defendant Democratic Ward Committeemen (including Cherry) comprising the statutory 12th Senatorial Committee (Ill.Rev. Stats.1971, Ch. 46, § 8-5) allegedly conspired to defeat Smith by having Cherry run against him in the Democratic primary as a sham or stand-in candidate. On September 21, 1972, Cherry withdrew his candidacy, so that the defendant Senatorial Committeemen could designate Palmer as the Democratic candidate for state senator from the 12th Ditrict in the November 7, 1972 election, as permitted by Ill.Rev.Stats. 1971, Ch. 46, § 8-17. At the November 7 election, Palmer defeated his Republican opponent.

According to the plaintiffs, Chester and all other voters participating in the Democratic primary for the 12th Senatorial District were denied their right to vote as protected by the First and Fourteenth Amendments. Defendants’ actions were depicted as “a step in the scheme of the said defendants to nullify the right of the voters to decide who would be nominated, to render the primary election a sham, and arrogate to the defendant Committeemen the selection of the nominee.” Smith was said to have been deprived of his freedom to participate in the primary “without unlawful interference by the defendant Committeemen acting under color of law,” thus violating the First and Fourteenth Amendments.

Federal jurisdiction was invoked under Section 1983 of the Civil Rights Act (42 U.S.C. § 1983) and the First and Fourteenth Amendments. Plaintiffs requested declaratory relief, including a declaration that the office of state senator of the 12th District was vacant. In the alternative, the district court was requested to order an early special primary and general election for that office.

Originally the district court denied the defendants’ motions to dismiss, stating:

“But what they [plaintiffs] are alleging, in effect, is that there was a fraud made on the voters and that, in effect, Mr. Cherry was not really the candidate. I have to take the allegations of the complaint as true. I think it is the same as putting * * * a fictitious person on the ballot, if you are to assume that what is alleged there is factual. I do not know whether that can be proved or not, but it does seem to me that that is, at least, prima facie violation of the Federal statutes that have been [orally] cited.”

Subsequently the defendants filed answers and the various parties took depositions. Defendants were granted leave to renew their motions to dismiss, and those motions were granted in an unreported decision and order of the district court holding that no impermissible discrimination had been shown. The court also expressed its reluctance to require a special election to attempt to unwind the “tangled skein presented by this case” but did not rely on the abstention doctrine.

While we share the district court’s hesitancy to inject the federal courts into local elections, in our view plaintiffs have sufficiently alleged deprivation of their rights under the Constitution and Civil Rights Act. Consequently, the judgment must be reversed and the cause remanded for further proceedings.

Abstention

In this Court, the defendants’ briefs have not addressed the question of abstention in any detail. Nevertheless, in the district court, the defendant Committeemen alternatively requested the district court to abstain from exercising jurisdiction on the ground that the action involved “solely a matter of Illinois election laws applied to a local Illinois election.” Therefore, it is appropriate to discuss abstention. Plaintiffs are not seeking a construction of Ill.Rev.Stats.1971, Ch. 46, § 8-17, nor is its constitutionality challenged. The gravamen of their claim is that the statute is being administered in an unconstitutional way.

The statute is clear on its face and has been construed literally by the highest state court. Bergeson v. Mullinix, 399 Ill. 470, 479-480, 78 N.E.2d 297 (1948). Thus there is no basis for abstention in hopes that the statute can be construed so as to render it unnessary to decide the federal issues. See Wisconsin v. Constantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515; Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50. Nor would abstention avoid interference with a complex state program. If the plaintiffs ultimately prevail, the remedy they seek would permit the State to go ahead under the usual state procedures for special elections. Abstention seems particularly inappropriate here where the case will become moot upon the expiration of Senator Palmer’s term. The delays inherent in abstention could therefore abrogate the remedy sought. See Pike v. Bruce Church, Inc., 397 U.S. 137, 140 n. 3, 90 S.Ct. 844, 25 L.Ed.2d 174; Baggett v. Bullitt, 377 U.S. 360, 378-379, 84 S.Ct. 1316, 12 L.Ed.2d 377; Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 328-329, 84 S.Ct. 1293, 12 L.Ed.2d 350.

The fact that this controversy involves political matters is an insufficient reason for abstaining. Brown v. Chote, 411 U.S. 452, 93 S.Ct. 1732, 36 L.Ed.2d 420; Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1; Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24; Shakman v. Democratic Organization, 435 F.2d 267 (7th Cir. 1970); Pontikes v. Kusper, 345 F.Supp. 1104, 1107 (N.D.Ill.1972, three-judge court), affirmed, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260; Pell, “Abstention —A Primrose Path By Any Other Name,” 21 DePaul L.Rev. 926, 967 (1972). Nor does it matter that only state offices are affected. Weisberg v. Powell, 417 F.2d 388 (7th Cir. 1969); Moore v. Kusper, 465 F.2d 256 (7th Cir. 1972); Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970); Weiss v. Duberstein, 445 F.2d 1297 (2d Cir. 1971), certiorari denied sub nom. Lefkowitz v. Weiss, 409 U.S. 876, 93 S.Ct. 127, 34 L.Ed.2d 130. Only state elections were involved in the state legislative reapportionment cases, and of course abstention has not been considered appropriate in them. Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320; 67th Minnesota State Senate v. Beens, 406 U.S. 187, 92 S.Ct. 1477, 32 L.Ed.2d 1; Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 29 L.Ed.2d 352; Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771; Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501; Burns v. Richardson, 384 U.S. 73, 86 S. Ct. 1286, 16 L.Ed.2d 376; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401; Lucas v. 44th General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632; Roman v. Sincock, 377 U. S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620; Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609; WMCA Inc. v. Lomenzo, 377 U.S. 633, 84 S.Ct. 1418, 12 L.Ed.2d 568; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663.

In O’Brien v. Brown, 409 U.S. 1, 4, n. 1, 92 S.Ct. 2718, 2720, 34 L.Ed.2d 1, the Supreme Court most recently pointed out that federal intervention is appropriate where “claims are made that injury arises from an invidious discrimination * * * in a primary contest within a single State.” That is the nub of the present case. The Court specifically mentioned only racial discrimination, but there is no reason to believe that other forms of forbidden discrimination should be treated differently for abstention purposes. Under these authorities it is apparent that the district court is obligated to resolve whether this Illinois statute has been administered in violation of the First and Fourteenth Amendments and § 1983 of the Civil Rights Act.

Sufficiency of Complaint

In this part of the opinion, we again take the well-pleaded allegations of the amended complaint as true. Plaintiffs claim that all voters in the 12th District, regardless of which candidate they preferred, were denied the right to vote because the Democratic condidate was not actually chosen in the primary but was instead chosen by the conspiring Committeemen. Put another way, Cherry’s name on the ballot was said to be a sham intended to deceive the voters. Those who thought they were voting for Cherry were as a practical matter voting for whomever the Committeemen might thereafter select; in effect, votes intended for Cherry were really votes for Palmer. This deception on the face of the ballot clearly debased the rights of all voters in the election. Such an abridgment of the right to vote is impermissible and evinces the sufficiency of this complaint. Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1; Reynolds v. Sims, 377 U.S. 533, 555556, 84 S.Ct. 1362, 12 L.Ed.2d 506; Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 21 L.Ed.2d 24; Shakman v. Democratic Organization, 435 F.2d 267, 270 (7th Cir. 1970).

Plaintiffs also claim that some voters were denied equal protection of the laws. As we understand plaintiffs’ equal protection theory, the deliberate discrimination involved three groups of voters. Other groups of voters were also affected, but the conspiracy was aimed primarily at the following three groups:

Organization Voters and Swing Voters were both “tricked” into voting for Palmer when they thought they were voting for Cherry. But the impact of this deception fell unequally on the two groups of voters, because the Organization Voters would have voted for Palmer anyway, whereas the Swing Voters would have voted against him.

By deceiving the Swing Voters, the conspiracy allegedly enabled Palmer to win an election he could not have won had he openly been on the ballot. The conspiracy defeated Smith, who allegedly would have won an honest election against Palmer. Thus the conspiracy worked “in favor of the ins and against the outs.” Shakman v. Democratic Organization, 435 F.2d 267, 270 (7th Cir. 1970). Swing Voters and Smith Voters were “denied an equal opportunity to win votes” (Williams v. Rhodes, 393 U. S. 23, 31, 89 S.Ct. 5,) and suffered an unequal burden on their right “to cast their votes effectively.” Id. at 30, 89 S. Ct. 11. The Smith Voters were denied an equal opportunity “to associate for the advancement of political beliefs” with the Swing Voters. Id. at 30, 89 S. Ct. 10. These claims of deliberate discrimination against Swing Voters and Smith Voters stated a cause of action for violation of rights protected by the equal protection clause. White v. Snear, 313 F.Supp. 1100, 1104 (E.D.Pa.1970).

Other groups of voters were affected by the conspiracy. Presumably there were some voters who would have voted for Palmer but not for Cherry. Taking as true the allegation of the complaint that only Cherry had a reasonable chance to defeat Smith, this group of voters must have been small. Similarly, there must have been voters who had no preference and did not vote in what they thought was a Cherry-Smith race, but would have voted in an open Palmer-Smith race. Doubtless there are other groups of voters with different combinations of preferences. We find it unnecessary at this stage to resolve the possible claims of all possible groups of voters incidentally affected by the discrimination aimed at the Swing Voters and the Smith Voters.

In reversing itself and denying relief to plaintiffs, the district court relied primarily on Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497. There, however, official action discriminated between the candidates with the highest and second highest number of votes, and there was no allegation of improper motive. As the district judge noted, Snowden has been “eroded in subsequent voters’ rights and election decisions.” But even Snowden acknowledged that relief under the equal protection clause is appropriate where, as here, plaintiffs have shown a discriminatory design favoring a particular group against others. As Chief Justice Stone stated in language that we followed in Weisberg v. Powell, 417 F.2d 388, 392 (7th Cir. 1969):

“The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This * * * may be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another * *
“Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights.” 321 U.S. at 8,11, 64 S.Ct. at 402.

Similarly too, it is clear that plaintiff Smith had a valid cause of action. As we stated in Shakman, supra, “The interests of candidates in official treatment free from intentional or purposeful discrimination are entitled to constitutional protection.” 435 F.2d at 270. In the present state of the record, at least until discovery has been completed, it is impossible to determine the merits of this controversy. It may be that after the remaining discovery has taken place or affidavits filed, the district court might be able to resolve the case by summary judgment. Otherwise, of course, a trial will be necessary. If the plaintiffs prove an agreement that Cherry would be a stand-in candidate, and show a reasonable possibility that Cherry’s sham candidacy affected the outcome of the election, then the district court should order new primary and general elections. Because the senatorial term in question has already commenced, expedited treatment must be accorded below. Until the district court determines the relief, if any, to be awarded plaintiffs, none of the present defendants should be dismissed, but Michael J. Howlett, John H. Hanly, and Charles A. Coleman should be substituted for their predecessors in office. Rule 25(d) of Federal Rules of Civil Procedure.

Reversed and remanded for further proceedings.

      . They were 42 U.S.C. §§ 1983 and 1985, 28 U.S.C. § 1343 and 42 U.S.C. § 1971.

      . Defendant Committeemen merely rely on a concurring opinion of Justice Douglas in Jackson v. Ogilvie, 401 U.S. 904, 91 S.Ct. 642, 27 L.Ed.2d 803. The briefs of the other defendants cite no abstention authorities.

      . A special election was ordered by this very district judge in Cousins v. City Council, 361 F.Supp. 530 (N.D.Ill.1973), after our remand for new trial in 466 F.2d 830, certiorari denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 151. New elections were ordered in Hadnott v. Amos, 394 U.S. 358, 367, 89 S. Ct. 1101, 22 L.Ed.2d 336, and in Mann v. Davis, 238 F.Supp. 458 (E.D.Va.1964), affirmed, 379 U.S. 694, 85 S.Ct. 713, 13 L.Ed. 2d 698. New elections were envisioned as a possibility in Skolnick v. Illinois State Electoral Board, 307 F.Supp. 691 (N.D.Ill.1969, three-judge court).


author: MOYNAHAN, District Judge.

text:
    Alma Francis HARP, Plaintiff-Appellant, v. The KROGER COMPANY, Defendant-Appellee.
    No. 72-2134.
    United States Court of Appeals, Sixth Circuit.
    Argued June 5, 1973.
    Decided Jan. 15, 1974.
    Paul H. Tobias, Cincinnati, Ohio, for plaintiff-appellant; Goldman, Cole & Putnick, Cincinnati, Ohio, of counsel.
    J. Mack Swigert, Cincinnati, Ohio, for defendant-appellee; Thorley C. Mills, Jr., Cincinnati, Ohio, on brief; Taft, Stettinius & Hollister, Cincinnati, Ohio, of counsel.
    Before PHILLIPS and PECK, Circuit Judges, and MOYNAHAN, District Judge.

       The Honorable Bernard T. Moynahan, Jr., Chief Judge, United States District Court for the Eastern District of Kentucky, sitting by designation.

   MOYNAHAN, District Judge.

This is an appeal from a final judgment denying recovery to the appellant following a trial to a six member jury on her claim that she was wrongfully discharged from employment by the ap-pellee and from an order denying the appellant’s motion for a new trial.

The appellant brought this action against the appellee and against her union; Local No. 390, Retail, Wholesale and Department Store Union, AFL-CIO; contending not only that the ap-pellee had wrongfully discharged her, but also that the union had breached its duty to provide her with fair representation in connection with her discharge.

The appellant was discharged from her employment for violating the appel-lee’s established rule against excessive garnishments when two garnishments were received against her within a period of one year. The union declined to process a grievance on her behalf contesting the discharge. At trial, the appellant contended that one of the garnishments was wrongfully obtained and that the appellee discharged her without allowing her to demonstrate this fact, and without giving sufficient consideration thereto. Because of these circumstances, the appellant contended that the union was under a duty to process a grievance on her behalf and that its refusal to do so-amounted to unfair representation. By special verdict, the jury found adversely to the appellant with respect to each of said contentions. Although the appellant initiated this appeal as to both defendants, the appeal against the union has been subsequently dismissed by agreement.

On appeal, the appellant contends that the trial court’s findings of fact and instructions usurped the function of the jury; that objections to the introduction of evidence concerning the appellant’s personal and financial situation at the time' of the subject garnishments were improperly sustained; and that the trial court erred in requiring that subjective bad faith on the part of the union be established to sustain a charge of unfair representation.

The appellant’s complaints concerning the trial court’s instructions to the jury were not preserved by appropriate exception, as required by Rule 51, Federal Rules of Civil Procedure, and nothing in said instructions or in the trial court’s findings of fact could be said to amount to plain error. Similarly, we find no substantial error in the admission or exclusion of evidence, and we certainly find no error of such magnitude as would require reversal.

Inasmuch as the appeal against the union has been dismissed, the appellant’s complaint concerning her claim of unfair representation is moot and is not properly before this Court.

Finally, we observe that the record indicates that the appellant, at the time of her discharge, failed to pursue those grievance procedures available to her individually, which pursuit is a prerequisite to an action of this nature.

For the foregoing reasons, the judgment of the District Court is affirmed.