author: BAKER, District Judge.

text:
    Franklin R. BAZ, Plaintiff, v. Harry N. WALTERS, Administrator of Veteran Affairs, S.H. Birdzell, and Taylor D. Neely, Defendants.
    No. 80-2189.
    United States District Court, C.D. Illinois, Danville Division.
    Nov. 19, 1984.

      Michael Clary, Richard J. Doyle, Dan-ville, 111., for plaintiff.
    Charlene Quigley, Asst. U.S. Atty., Dan-ville, 111., Charles DeLobe, Veteran’s Admin., Washington, D.C., for defendants.
   FINDINGS OF FACT, CONCLUSIONS OF LAW, MEMORANDUM OPINION, AND FINAL ORDER

I.

BAKER, District Judge.

This case involves a claim of disparate treatment in employment based on religion. The plaintiff, Franklin R. Baz, a former chaplain of the United States Veterans Administration, who was discharged on September 6, 1978, seeks reinstatement and back pay under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, damages under both 42 U.S.C. § 1981, and the First Amendment to the United States Constitution in a Bivens-type claim. The jurisdiction of the court on the federal questions is contained in 28 U.S.C. § 1331 and under the civil rights questions raised in 28 U.S.C. § 1343(4).

II.

The First Amendment of the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

There are also three applicable statutory provisions:

Section 703(a)(1) of the Civil Rights Act, 42 U.S.C. § 2000e-2(a)(l), provides in part:

(a) It shall be an unlawful employment practice for an employer — (1) ... to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s ... religion

Section 701(j) of the same statute, 42 U.S.C. § 2000e(j), provides:

(3) The term “religion” includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s ... religious observance or practice without undue hardship on the conduct of the employer’s business.

The Code of Federal Regulations, 29 C.F.R. § 1605.2(b)(1) (1984), which is promulgated in furtherance of the statutory provisions, provides that it is unlawful employment practice

... for an employer to fail to reasonably accommodate the religious practices of an employee, unless the employer demonstrates that accommodation would result in undue hardship on the conduct of its business.

III.

A. The plaintiff is a fifty-year-old white male. He is an ordained minister of the Assembly of God and at this time resides in Ridge Farm, Illinois, which is a small rural agricultural community. He is currently engaged as the leader of a Meeting of the Society of Friends, the Quakers.

After graduation from high school the plaintiff attended The Citadel for one year but left for economic reasons and found employment. Later on he entered military service where he was a missile technician and completed his military experience as a chaplain’s assistant. He was separated in 1961 and entered Southeastern Bible College in Lakeland, Florida. He worked part time and attended school and received an A.B. degree in 1967 in English Bible and Theology. He became a licensed minister and was ordained in the Assembly of God at Englehard, North Carolina, in 1970.

In August 1972, he entered Erskine Theology Seminary at Erskine, South Carolina, and attended that institution until June of 1974. He held positions as Associate Pastor and Hospital Chaplain in the next two years and during the same period attended the Lutheran Theological Seminary in Columbia, South Carolina, from which he received a Master of Divinity Degree in 1976. During the time in Columbia, South Carolina, the plaintiff also worked in the Rich-land Memorial Hospital and received training as an emergency medical technician and obtained one unit of clinical pastoral education.

In 1977 he applied to become a full-time Veterans Administration chaplain, although as he himself recognized he lacked the “three-year post-graduate parish ministry experience.” He asked to be appointed on the basis of his work history in hospitals and in parishes.

B. The plaintiff was appointed a chaplain in the Veterans Administration on September 6, 1977, and was assigned to the Veterans Administration Medical Center in Danville, Illinois, on a probationary basis. The Danville Medical Center is a large facility which specializes in the treatment of the emotionally ill and disturbed, although it provides some general surgical and medical services. There are somewhere between 1,000 and 1,200 patients in the facility-

The plaintiff arrived in Danville in the fall of 1977 and was provided with an apartment on the federal reservation until he could draw his first pay and find a place in the community to live. There were four other chaplains at Danville during the plaintiff’s tenure who provided the bulk of the pastoral services to the patients. Reverend John W. Devine, a Protestant, Reverend John H. Paninski, a Roman Catholic Priest, Reverend Taylor D. Neely, a Protestant, and the Reverend Gary H. Johnson, a Protestant. Neely arrived about February, 1978, at the medical facility and assumed the position of Chief of Chaplains. He replaced Devine who was assigned elsewhere in the service.

From the beginning the plaintiff had difficulty in the discharge of his duties. Notwithstanding the plaintiff’s perceptions of himself as working well with patients and with others, Reverend Devine, his superior, reported to S.H. Birdzell, the hospital administrator, that the plaintiff failed to follow regulations and received gifts and money from patients and was having trouble relating to psychiatric patients.

Birdzell personally observed the plaintiff talking with a patient and the patient appeared to experience stress from the exchange. Birdzell had also received complaints from the medical chief of staff that the plaintiff was conducting “prayer meetings” in locked wards. The plaintiff did accept honoraria for conducting two funerals and on one occasion borrowed five dollars from a patient to purchase gasoline, although the plaintiff puts a different characterization on that transaction. The plaintiff also failed to follow Veterans Administration regulations in requisitioning a movie, “The Cross and the Switchblade,” for use at the hospital. In addition, he apparently was not punctual in attending to his assignments. There was also testimony that he failed to maintain records of contacts with significantly ill patients.

Those matters, however, while they appear to have entered into the plaintiff’s termination, are not the primary or even the significant reason he was discharged. The crux of the plaintiff’s problems lay in his relationship with the patients and with the medical staff and in the plaintiff’s view of his ministry and his calling to preach the Gospel. Most of these problems came to a head after Reverend Neely arrived on station as Chief of Chaplains.

The plaintiff had been placed in charge of the Sunday evening “sung service.” It was intended, Reverend Neely says, as a recreational period for the patients with music as a main attraction. The plaintiff had changed the format of the event to a Christian evangelical service. He preached and encouraged musical participation in a manner that Reverend Neely interpreted as proselytizing. On one occasion, Reverend Neely recalled, a sermon the plaintiff gave containing an illustration of threatening harm to a child’s eye with a pair of scissors. The Reverend Neely found this totally inappropriate for a patient group which was largely psychiatric in nature and tended to concretize illustrations. Reverend Neely also found the methods employed by the plaintiff to be contrary to Veterans Administration regulations against proselytizing. Consequently, the Sunday evening services were transferred to the recreational department and the plaintiff was excluded from them.

Reverend Neely recounted other problems the plaintiff had in dealing with patients at the Medical Center. There were incidents in which the plaintiff interfered with the decisions of the medical staff. An example was given of a patient of advanced age who was dying and the plaintiff decided that the physicians were not caring properly for the patient. So the plaintiff telephoned the patient’s daughter and asked her to intervene and have her father’s course of treatment changed. On other occasions the plaintiff entered the operating amphitheater to pray while the physicians were engaged in surgical procedures. That occurred on four occasions, according to the plaintiff’s statement, and as near as I am able to tell from the testimony, he did not have the approval of the physicians to enter the operating room on three of those occasions. Another incident was recounted by Reverend Neely involving a patient who had received the sacrament of communion and was experiencing feelings of guilt because he had done so. The plaintiff, Reverend Neely says, contradicted the assurances of forgiveness and comfort which Neely was emphasizing to the patient and instead reinforced the plaintiff’s feelings of guilt and dependency.

In short, the plaintiff’s view of his function as a Veterans Administration chaplain in a Veterans Administration hospital with psychiatric patients was decidedly different from the demands of his superiors. The plaintiff saw himself as an active, evangelistic, charismatic preacher while the chaplain service and the medical staff saw his purpose as a quiescent, passive listener and cautious counselor. This divergence in approach is illustrated by the plaintiff’s list-' ing “twenty-nine decisions for Christ” in his quarterly report of activities to the Veterans Administration. It was one of the matters pointed out to the plaintiff by Reverend Neely as unacceptable conduct on the part of a Veterans Administration chaplain.

The plaintiff resisted Reverend Neely’s attempts to counsel him and went directly to the National Director of Chaplains, Reverend Rogers, and to the leader of his denomination, Reverend Gannon. There were also times at which the plaintiff appealed directly to members of the Danville community and to the leaders of various denominational churches in the Danville community. Both the Reverend Rogers and the Reverend Gannon visited Danville in an attempt to assist the plaintiff in adjusting to his position as chaplain. It is evident from the testimony of Reverend Rogers that he viewed the placement of the plaintiff at a' hospital with a heavy psychiatric caseload as a mistake. It is also obvious from the testimony that Reverend Rogers wanted to salvage the plaintiff’s career and thought that transfer to a general medical and surgical facility might accomplish that. I find from the evidence that the Reverend Neely, in his initial evaluation, tried to accommodate that wish by Reverend Rogers. But with the advent of Reverend Cherry as new National Director the decision was made to terminate the plaintiff. As Reverend Cherry testified, the plaintiff should not have been appointed initially because he lacked the requisite pastoral experience following receipt of his master’s degree in 1976.

C. On September 1, 1978, the plaintiff was terminated as a Veterans Administration chaplain and five reasons were advanced for the termination: (1) he failed to demonstrate appropriate professional skills for a psychiatric facility; (2) he had difficulties in assuming responsibilities for punctuality in meeting appointments and completing assignments; (3) he failed to demonstrate ability to understand a multidisciplinary approach to patient health care; (4) he failed to understand the need to work within established procedures to accomplish objectives; and (5) he had difficulty in relating to other chaplains which complicated the effective coordination of their spiritual ministry. The EEOC adopted those reasons in its findings following its investigation of the plaintiff’s discharge. The findings of the EEOC are admissible in evidence under Federal Rule of Evidence 803(8)(C) and the court concludes that those findings merit deference and are persuasive.

IV.

A. Turning to what are conclusions in the case and addressing first the claim under Title VII, to establish a case of religious discrimination under Title VII, 42 U.S.C. § 2000e-2(a)(l), the plaintiff must prove first, that he was a bona fide member of a particular religious community; and second, that a particular tenet of that religious community required the plaintiff to act, or to refrain from acting, in a manner which conflicted with the particular requirements of the plaintiff’s employment; and, third, that the plaintiff suffered an employment-related loss because of his adherence to his religious conviction in contravention of the employer’s rules.

The burden of establishing a prima facie case of religious discrimination is not an onerous one. The plaintiff need only show that he was discharged under circumstances which give rise to an inference of unlawful discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-254, 101 S.Ct. 1089, 1093-1094, 67 L.Ed.2d 207 (1980). The plaintiff has carried that burden by showing that he is an ordained member of the Assembly of God; that the tenets of that calling required him in his work as a Veterans Administration chaplain to conduct a ministry of active evangelism; and that as a result of the plaintiff’s adherence to the precepts of his religious calling, he experienced an employment-related loss by being discharged. Those circumstances, which I have outlined, standing alone might give rise to an inference that the plaintiff was discharged as a result of unlawful discrimination based on religion. The inference of unlawful discrimination places upon the defendants the burden of articulating some legitimate, non-discriminatory reason for the employee’s discharge. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). The reasons for the plaintiff’s discharge advanced by the defendants are those that are set forth in the preceding section of this final order.

The defendants, having satisfied their burden of producing evidence tending to rebut the inference of discrimination, the burden of production shifts back to the plaintiff. That burden requires him to show that the reasons articulated by the defendants were pretext and that the true motivation of the defendants in discharging him was an intention to discriminate against him on the basis of his religion. The plaintiff also bears the ultimate burden of persuading the court that the defendants intentionally discriminated against the plaintiff as he claims. Texas Department of Community Affairs v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.

The requirements of proving a case under 42 U.S.C. § 1981 are the same as in a disparate treatment case under Title VII: each requires proof of intentional discrimination.

The court concludes that the plaintiff has failed to carry the burden of persuasion, and that the reasons for the plaintiff’s discharge announced are not a pretext but rather reflect the legitimate aims and needs of the defendants in conducting the affairs of the Veterans Administration. There is nothing to indicate intentional discrimination by the defendants Neely or Birdzell against the plaintiff. Neely was not antipathetic to Baz’s evangelical calling. Earlier in his career Neely had been an active evangelist himself. The root of the difficulty lay in the plaintiff pursuing a course of proselytizing in a government-operated medical facility specializing in psychiatric patients. Birdzell’s motivation in his dealings with the plaintiff was the furtherance of the primary aim of the hospital, specifically, the care and treatment of the patients. It was only when the plaintiff’s work as a chaplain collided with the work of the medical staff that Birdzell took a position on the plaintiff’s tenure. Both men, Neely and Birdzell, made an effort to salvage the plaintiff and opted for termination only when they concluded that the plaintiff was unable to conform to the demands of a multi-disciplinary approach to patient health care.

The requirements of the statute and of the Code of Federal Regulations that the employer attempt to accommodate the religious precepts and demands of an employee unless undue hardship would be incurred by the employer are also satisfied in this case. The choice of transfer was not a realistic one. As Reverend Cherry testified at Page 24 of his deposition:

That the transfer of Chaplain Baz from Danville to Beckley, West Virginia, was an unwise decision. First of all, the man was in his probationary term. Also he had been having difficulties on his station. And we had a couple of policies in central office which we followed. One was not to transfer a man while he was in his probationary time and not to transfer a man if he had difficulties because usually it was transferring the difficulties from one station to another. Another reason for not transferring Chaplain Baz was if he was to be assigned to Beckley, West Virginia, he would be the only full-time chaplain on that station. One of the things we felt the chaplains needed in their probationary year is the guidance of an older, more experienced, not necessarily older, but more experienced chaplain.

Cherry also mentions in another part of his deposition that in order to transfer Mr. Baz to Beckley, the central office would have had to shuffle a number of other chaplains to make room for the transfer.

B. The court is required to make judgments about credibility. I found the plaintiff’s answers on cross-examination to be evasive and disingenuous. His responses in court and to the defendant Neely at the time of certain occurrences that were described, specifically about the dying patient’s family, and the borrowing money from a patient, and entering Mr. Neely’s desk to look at papers that were there were dissembling. On the other hand, I found the testimony of the defendants Neely and Birdzell to be forthright and credible.

C. Turning finally to the First Amendment claim, another aspect of the case, aside from the claims of intentional discrimination, deserves discussion. Is the prohibition against the plaintiff proselytizing and evangelizing the patients at the government hospital a policy in contravention of the establishment clause or of the free exercise clause of the First Amendment? Put another way, the question presented is whether the plaintiff should have been able to preach the Gospel of Jesus Christ according to the spiritual dictates of the plaintiff’s conscience without regard to the policy considerations of the medical and psychiatric program of the lay staff at the hospital.

Regulation as to the time, place, and manner of the exercise of freedom of religion is proper when that regulation is reasonably related to a valid public interest. Bridges v. Davis, 443 F.2d 970, 973 (9th Cir.1971). In addition, “First Amendment rights must be applied in light of the special characteristics of the environment in a particular place.” Smith v. United States, 502 F.2d 512, 517 (5th Cir.1974), quoting Clark v. Holmes, 474 F.2d 928, 931 (7th Cir.1972), cert. denied 411 U.S. 972, 93 S.Ct. 2148, 36 L.Ed.2d 695. And often activities and practices of individuals, though religiously motivated, are subject to state regulation under the State’s power to promote health, safety, and public welfare. Windsor Park Baptist Church v. Arkansas Activities Association, 658 F.2d 618, 621 (8th Cir.1981). Public employment, however, may not be conditioned upon the denial of constitutional rights. Keyishian v. Board of Regents, 385 U.S. 589, 605-606, 87 S.Ct. 675, 684-685, 17 L.Ed.2d 629 (1967); Donahue v. Staunton, 471 F.2d 475, 480 (7th Cir.1972). The government may, therefore, not prohibit or control the conduct of a person in its employ for reasons that infringe upon constitutionally guaranteed freedoms. It is permissible, nevertheless, for the government to regulate activities of its employees which “directly interfere” with the proper performance of its employee’s duties. See Smith v. United States, 502 F.2d at 516. As it is certain that the plaintiff has no First Amendment right in and of itself to conduct religious services and offer religious counsel in a government institution, see O’Malley v. Briefly, 477 F.2d 785 (3rd Cir.1973), the issue becomes whether plaintiff’s religious practices directly interfered with the proper performance of his duties at the medical facility and whether the facility’s policies as they affect the plaintiff’s religious activities were “reasonably related” to a valid public interest.

A case, while it is not directly parallel, but is analogous to this, is Smith v. United States, 502 F.2d 512 (5th Cir.1974). There, in a federal employee discharge case, the Court of Appeals for the Fifth Circuit held that wearing a peace pin while on duty at a VA hospital was a material and substantial interference with the performance of the plaintiff’s duties as a staff psychologist charged with the task of administering psychotherapeutic treatment to emotionally disturbed veteran patients. The Veterans Administration was justified, therefore, in discharging the plaintiff from employment when he refused to conform to hospital policy, notwithstanding his claim that wearing the pin constituted symbolic speech protected by the First Amendment. Certainly if wearing a pin under the circumstances described in the Smith case was a definite interference with the policies and functions of the Veterans Administration Hospital as it related to psychiatric patients, the evangelizing and proselytizing and other conduct of the plaintiff described in this case would also be an unwarranted interference with those public policies and functions.

IT IS THEREFORE ORDERED by the court that the Clerk enter judgment in behalf of the defendants and against the plaintiff and for costs; the plaintiff to take nothing and the defendants to go hence without day.

       This is an edited transcript of the court's findings and orders given extemporaneously at the conclusion of the case.

      . Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d (1971).

      . He stayed on in that government apartment paying rent until the end of 1977 and had to be asked to vacate the premises by the hospital administration.

      . See T & S Service Associates v. Crenson, 666 F.2d 722, 724 (1st Cir.1981) (“[w]e therefore agree with the district court that the McDonnell Douglas principles are applicable to a claim of intentional discrimination under 42 U.S.C. § 1981"); Cannon v. Teamster & Chauffeurs Union, 657 F.2d 173, 177 (7th Cir.1981) (proof of discrimination required in an action under § 1981.)
      A § 1981 action may not lie here because race is not an issue. Several circuits have restricted § 1981 to cases of racial discrimination. See e.g., Patterson v. American Tobacco Company, 535 F.2d 257 (4th Cir.1976), cert. denied 429 U.S. 920, 97 S.Ct. 314, 50 L.Ed.2d 286 (1978); Windsor v. Bethesda General Hospital, 523 F.2d 891 (8th Cir.1975). See also Vuksta v. Bethlehem Steel Corp., 540 F.Supp. 1276 (E.D.Pa.1982), aff'd 707 F.2d 1405 (3rd Cir.1983); Boddorff v. Publicker Industries, Inc., 488 F.Supp. 1107 (E.D.Pa.1980); Barbre v. Garland Independent School District, 474 F.Supp. 687 (N.D.Tx.1979); Mouriz v. Avondale Shipyards, Inc., 428 F.Supp. 1025 (E.D.La.1977). The Seventh Circuit has applied 42 U.S.C. § 1981 in a denial of equal protection case involving race where federal employees were the plaintiff, City of Milwaukee v. Saxbe, 546 F.2d 693, 703 (7th Cir.1976); recently, the Seventh Circuit has stated that § 1981 applies only to alleged discrimination on the basis of race or alienage. Alfred St. Louis v. Alverno College, 744 F.2d 1314, 1317 (7th Cir.1984); Bell v. City of Milwaukee, 746 F.2d 1205, 1259 (7th Cir.1984). Cf. Reese v. Abbott Laboratories, 493 F.Supp. 185 (N.D.Ill.1978) (holding that 42 U.S.C. § 1981 does not create a cause of action for religious discrimination and that the weight of authority limits the application of § 1981 to racial -discrimination cases only). But, be that as it may, no problem is raised in this case because the elements of the cause of action, irrespective of the basis of the claim, are the same.

      . For the meaning of intentional discrimination, see U.S. Postal Service Board v. Aikens, 460 U.S. 711, 715, 103 S.Ct. 1478, 1482, 75 L.Ed.2d 403 (1983).


source: Caselaw Access Project

author: JENKINS, District Judge.

license: Public Domain

text:
    Lyndon H. LaROUCHE, Jr. and Billy M. Davis, Plaintiffs, v. David S. MONSON, Lieutenant Governor of the State of Utah, Defendant.
    No. C 84-0859-J.
    United States District Court, D. Utah, C.D.
    Nov. 21, 1984.

      Brian N. Bernard, Utah Legal Clinic, Salt Lake City, Utah, for plaintiffs.
    Frank V. Nelson, H. Wright Volker, Joseph P. McCarthy, Asst. Attys. Gen., Salt Lake City, Utah, for defendant.
   MEMORANDUM OPINION

JENKINS, District Judge.

I. INTRODUCTION

The present controversy involves Plaintiffs’ unsuccessful efforts to obtain access to the 1984 General Election ballot in Utah as independent candidates for the Presidency and the Vice-Presidency. Plaintiffs filed their complaint on September 26, 1984, alleging that their constitutional rights as guaranteed by the First, Fifth, Twelfth and Fourteenth Amendments have been violated by the manner of interpretation and enforcement of Utah’s election laws, particularly the enforcement of an “early” filing deadline for independent candidates.

The matter came on an expedited calendar on September 27 and September 28, 1984 for a hearing of Plaintiffs’ motions for a Temporary Restraining Order and for Preliminary Injunction. Plaintiffs requested the court to enjoin the printing and distribution of the ballot until it could be determined whether Plaintiffs’ names should be on that ballot. The court, after considering the affidavits filed by the parties and hearing testimony and argument, denied the motions because Plaintiffs failed to show a reasonable likelihood of success on the merits.

The case is presently before the court on Plaintiffs’ Motion for Summary Judgment and Defendant’s Motion to Dismiss. Plaintiffs request the court to declare Utah’s election laws found at Utah Code Ann. (U.C.A.) §§ 20-3-38 and 20-4-9 unconstitutional. Defendant moves to dismiss the action. Each of the parties submitted their motions on the record established thus far.

After careful review of the entire record, the court finds that Defendant’s Motion to Dismiss should be granted and Plaintiffs’ Motion for Summary Judgment should be denied for the following reasons:

II. FACTUAL SUMMARY

The material facts of this controversy are not in dispute. Plaintiff Lyndon H. LaRouche, Jr. seeks to be elected to the office of President of the United States. Plaintiff Billy M. Davis is Mr. LaRouche’s choice as running mate for the Vice-Presidency. Defendant David S. Monson is Lieutenant Governor of Utah, and as such, is the officer charged with certifying to the County Clerks certain Candidate’s names to be placed on the General Election ballot.

On August 28, 1984, Plaintiffs’ National Ballot Access Coordinator sent a letter to Defendant requesting that Plaintiffs names be placed on the General Election ballot as independent Presidential and Vice-Presidential candidates. The letter was not accompanied with a verified petition signed by 300 registered voters in support of the nomination as required by Utah law. See U.C.A. § 20-3-38 (1984 Interim Supp.) Plaintiffs neither received a response from that letter nor from a similar, subsequent letter that was also unaccompanied by the requisite nomination petition.

On September 21, 1984, Plaintiffs’ Ballot Access Coordinator spoke with “someone” in the Utah Election Division of the Lieutenant Governor’s office who indicated to her that in order for Plaintiffs to have been placed on the ballot for that year, a certificate of nomination, signed by 300 registered voters, had to have been submitted to the Lieutenant. Governor’s office by September 12, 1984. See Affidavit of Mary Jane Freeman. September 12th was the date on which the Lieutenant Governor certified the content of the General Election ballot to Utah’s 29 County Clerks in accordance with state law. U.C.A. § 20-3-30 (1984 Interim Supp.).

Plaintiffs tendered to the office of the Lieutenant Governor nomination petitions containing the required number of signatures on September 26, 1984, the date they filed their complaint and motions for injunctive relief. The signatures on the petitions had not been verified.

Plaintiffs’ motions for a Temporary Restraining Order and for a Preliminary Injunction requested that this court restrain certification of the names for President and Vice-President without simultaneously certifying the names of Plaintiffs, and restrain the printing and distribution of Utah’s General Election ballot pending trial of this matter. Plaintiffs argued that “they have complied with all reasonable statutory ballot access demands” and that the Lieutenant Governor continued to deny them access to the ballot “based on statutory provisions that are known to be suspect.” See Affidavit In Support Of Motion For Temporary Restraining Order And Preliminary Injunction. Plaintiffs specifically targeted U.C.A. §§ 20-3-38 and 20-4-9 as the suspect statutes. Those statutes require independent candidates to file proper certificates of nomination no later than April 15th of the election year.

In support of their allegations and argument, Plaintiffs relied primarily on Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 1565, 75 L.Ed.2d 547 (1983), a case in which the Supreme Court struck down Ohio’s March 20th early filing deadline as unduly burdensome of the associational rights of independent candidates and their supporters. Plaintiffs asserted that despite Utah’s recognition that the Anderson case is controlling law in matters involving early filing deadlines preventing access to the ballot, Utah officials continued to refuse to certify Plaintiffs names.

There was substantial argument and testimony at the hearing, including testimony revealing that as of September 27th, the ballots for all but one of Utah’s 29 counties were in some stage of the printing process. See also Affidavit of David Sasser. The court denied the requested relief because it found that Plaintiffs did not meet the initial showing of a reasonable likelihood of success on the merits. Atchison, Topeka and Santa Fe Ry. Co. v. Lennen, 640 F.2d 255, 261 (10th Cir.1981); By-Rite Distributing, Inc. v. Coca-Cola Co., 577 F.Supp. 530, 539 (D.Utah 1983.).

III. PRESENT MOTIONS

Plaintiffs’ pending Motion for Summary Judgment requests the court to declare unconstitutional Utah’s statutory filing deadline of April 15th. U.C.A. § 20-3-38 (1984 Interim Supp.). In addition, Plaintiffs ask the court to declare unconstitutional Utah’s requirement that independent candidates must not have declared a candidacy with a political party for the year they seek to run as an independent. Id. Defendant moves to dismiss the action, asserting that in accordance with the court’s ruling at the hearing for injunctive relief, the court has ruled in substance that Plaintiffs cannot establish a factual situation upon which relief can be granted.

At the outset, it should be noted that Plaintiffs’ inability to show a reasonable probability of success on the merits at their hearings for injunctive relief manifested itself as an interesting dilemma. On the one hand, Plaintiffs’ motions were premature in that they failed to comply with a requirement that nomination petitions be signed by 300 verified registered voters. Thus, Plaintiffs lacked standing to challenge a state acknowledged burdensome filing deadline. On the other hand, even if Plaintiffs were deemed to have standing to challenge a burdensome filing deadline, their challenge came far too late in the election process and was certain to fail on the merits. Plaintiffs face that same dilemma with regard to their present motion. The basis for the court’s earlier denial of injunctive relief is more fully articulated below, and serves, in part, as the basis for the rulings on the present motions.

A. Standing to Challenge the Filing Deadline

Plaintiffs requested at the hearing and request now that this court rule on the burdensome nature of Utah’s “early” filing deadline. In order for Plaintiffs to have standing to assert that claim, they must show that they “personally ha[ve] suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant.” Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607, 441 U.S. 91 (1979) [emphasis added]. In other words, plaintiffs must show that they were denied access to the ballot as a result of Defendant’s imposition of an allegedly illegal filing deadline. The evidence presented by way of affidavit and testimony at the hearing, however, indicates that the reason for the absence of Plaintiffs names from the ballot was and is their failure to comply with a nomination petition requirement — not their failure to comply with a filing deadline, even one the state acknowledges is burdensome.

The state statute governing the nomination of independent candidates for national office requires certificates of nomination to be accompanied with verified petitions containing the signatures of at least 300 registered voters who reside in Utah. U.C.A. § 20-3-38 (1984 Interim Supp.). Plaintiffs have yet to show that they have complied with that petition requirement. Plaintiffs admit that they did not submit petitions signed by any Utah voters until September 26th, the date on which they filed this action. See Complaint at 5, ¶ 11. Plaintiffs’ counsel further represented at the hearing that the petitions submitted on the 26th had not been verified as required by the statute. The present record is devoid of any evidence to show that Plaintiffs have complied with the statute.

In response to that horn of their dilemma, Plaintiffs asserted at the hearing that Utah’s requirement that nomination petitions be signed by 300 verified registered voters may also be unconstitutionally burdensome, or that Utah should be compelled to waive the petition requirement given Plaintiffs’ particular circumstances. Those assertions, however, are entirely without merit.

1. Constitutionality of the Petition Requirement

It has long been established that a state has the undoubted right to require candidates to make a showing of support in order to gain access to the ballot, American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971).

In Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, Plaintiff challenged a Georgia statute that requires independent candidates to file a nomination petition signed by at least 5% of the number of registered electors who were eligible to vote in the previous election for the office in question. The Supreme Court refused to strike down the statute, noting that the 5% figure is somewhat high but balanced by the fact that there are no restrictions on the eligibility of signers other than that they be registered voters. Id. at 442, 99 S.Ct. at 1976. In so holding, the Court recognized that there was an important state interest in avoiding confusion, deception and frustration of the democratic process. Requiring a candidate to show a “significant modicum of support” before the candidate’s name is placed on the ballot serves the state’s interests without unduly burdening the constitutional rights of candidates or their supporters. Id.

In American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, the Supreme Court relied on its holding in Jenness and refused to invalidate a Texas statute that requires independent candidates to secure nomination petitions prior to the candidate’s access to the ballot. Although the Texas statute requires a much smaller number of voter signatures on the petition than does Georgia’s statute, upheld in Jenness, Texas’ statute was challenged as unduly burdensome because voters are barred from signing a petition if they have voted in the primaries and barred from signing more than one petition for the same office. Id. at 788, 94 S.Ct. at 1309. Plaintiff argued that the consequence of the restrictions, particularly that of eliminating voters who have participated in the primaries, so severely limits the pool of eligible signers as to make securing even 500 of them an impractical undertaking. The Supreme Court emphatically disagreed with Plaintiff’s argument and noted that a claim that Texas’ statute is unduly burdensome “approaches the frivolous.” Id. at 789, 94 S.Ct. at 1310.

The statute challenged here, U.C.A. § 20-3-38, requires independent candidates to file verified petitions containing the signatures of 300 registered voters. The portion of the statute requiring petitions to be verified is an obvious and necessary requirement to insure that a candidate demonstrates the support of persons who are in fact eligible to vote. The portion of the statute that requires candidates to obtain 300 voter’s signatures is a very minimal burden. 300 signatures represents a figure less than .04% of the number of voters who registered in Utah’s last general election. Compared to Georgia’s 5.0% requirement upheld in Jenness, Utah imposes a burden that is more than 100 fold reduced from that of Georgia. Additionally, Utah voters who have voted in the primaries are not ineligible to sign petitions of independent candidates: See Utah Code Ann. § 20-3-38. Thus, Utah’s statute can be distinguished from the highly restrictive statute that was challenged, but upheld, in the American Party of Texas case. See also Storer v. Brown, 415 U.S. 724, 732-46, 94 S.Ct. 1274, 1280-86, 39 L.Ed.2d 714 (1974).

It appears that the only restriction on the eligibility of a registered voter is one that limits voters to signing one petition for the office in question. Although that limitation could reduce the number of eligible signers, depending on the number of candidates running for the office in question, it would do so to an almost imperceptible degree.

This court can find no authority to suggest that the rationale and holdings in Jenness and American Party of Texas are not controlling in this instance. Indeed, the Supreme Court recently indicated a willingness to continue to recognize a state’s legitimate right to require candidates to make a showing of support in order to gain access to the ballot. Anderson v. Celebrezze, 460 U.S. 780, 781, 788 & n. 9, 103 S.Ct. 1564, 1565, 1570 & n. 9, 75 L.Ed.2d 547 & n. 9 (1983). In light of the controlling precedent and the fact that Utah imposes what can be termed a miniscule burden of obtaining 300 voter signatures — signatures that are unrestricted by the prior voting status of the signers — Plaintiffs have failed to show that the signature requirement unduly burdens their constitutional rights.

2. Waiver of the Nominating Petition Requirement

Plaintiffs have asserted that because they were able to demonstrate adequate support for their candidacy outside the borders of Utah, Utah’s interests were served and the petition requirement should be waived.

Plaintiffs’ assertion may have some merit with regard to ensuring against absolutely frivolous national candidacies, but it does nothing to speak to a state’s other legitimate interests. Each state surely has a genuine interest in regulating its ballot to provide one that is uncluttered, clear and meaningful to its own citizens. Demonstrating support elsewhere does not necessarily mean that the candidate has support in Utah. Regardless whom citizens of other states may support, citizens of other states simply cannot vote in Utah elections. Utah’s genuine and important interest of providing for its own citizens is served by requiring a candidate to show at least some support within its borders before the state goes to the time and expense of certifying that candidate’s name to the ballot. As emphasized previously, the minimal burden of obtaining 300 voter signatures amounts to little more that a “good faith” requirement that does not unduly burden a candidate’s constitutional rights, despite a showing of voter support outside the state of Utah. Plaintiffs have put forth no valid reasons to justify a waiver of the signature requirement under the present circumstances.

It appears, therefore, that Plaintiffs have failed to comply with at least one of Utah’s reasonable statutory ballot access demands because they have not filed proper and complete certificates of nomination that include signed and verified petitions. Plaintiffs own affidavits suggest that if Plaintiffs had submitted certificates of nomination by September 12th containing the required number of verified signatures, they might well have been on the very ballot that was in the process of being printed at the time of the hearing. See Affidavit of Mary Jane Freeman, 117. Plaintiffs lacked Article III standing to request injunctive relief and continue to lack standing here to challenge a filing deadline because Plaintiffs’ injury, if any, appears to be a result of their failure to comply with a reasonable nomination petition requirement, not the result of the imposition of an illegal filing deadline.

B. Constitutionality of the Imposed Filing Deadline

Even if this court assumes that Plaintiffs’ certificates of nomination were proper and complete as of September 26, 1984, in that each petition contains 300 verified voter signatures, Plaintiffs find themselves on the other horn of their dilemma: They were too late.

This court is aware that the Supreme Court holding in Anderson v. Celebrezze, 460 U.S. 780, 781, 103 S.Ct. 1564, 1565, 75 L.Ed.2d 547 (1983), may have an effect on Utah’s express statutory filing deadline of April 15th, had Utah attempted to enforce such an “early” deadline. The fact is, Utah did not. The April 15th deadline is freely acknowledged by the state to be defective. It is for that reason the statutory deadline is, in practice, simply ignored. Plaintiffs knew that Utah officials had accepted one nomination petition and were amenable to accepting others from candidates if the petitions were complete, in proper form and tendered at a reasonable time prior to the general election. See Complaint at 6, ¶ 13. Plaintiffs were unaffected by the statutory deadline and as to them, it is simply a non-issue. Plaintiffs admit that they were told that their nomination petitions would have been accepted if proper and submitted by September 12th, the date on which the candidates names were certified to the County Clerks. See Affidavit of Mary Jane Freeman. The issue then, is whether a filing deadline of September 12th — the date imposed in this case — for an election to be held on November 6th, unduly burdens Plaintiffs’ constitutional rights. In their motion for injunctive relief, Plaintiffs requested that this court literally “stop the presses” and mandate that Plaintiffs names be placed on the ballot. Plaintiffs could not make a reasonable showing at that time that the state’s refusal to accept their nomination petitions filed after September 12th of the election year impermissibly impinged on their constitutional rights. The court now finds that Utah’s pragmatic filing deadline as applied to Plaintiffs, namely September 12th, the date of candidate certification by the Lieutenant Governor, is not unconstitutionally burdensome.

Plaintiffs are correct in asserting that Anderson v. Celebrezze, 103 S.Ct. 1565, governs constitutional challenges to state election laws that prescribe filing deadlines for access to the ballot. In that case, John Anderson had tendered a nomination petition on May 16, 1980, containing about 14,500 signatures. Defendant refused to accept the petition solely because it had not been filed by the March 20th statutory deadline. Id. at 1566. In striking down the early filing deadline, The Supreme Court articulated and applied the following analysis:

[A court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.

Id. at 1570.

A majority of the Court in Anderson noted that the primary concern in denying an independent candidate access to the ballot is not so much injury to the rights of the candidate as injury to the associational rights of the candidate’s supporters. Id. at 1568-73. The magnitude of the injury to the voters rights in Anderson was great because the filing deadline occurred so very early in the election year. That deadline totally excluded candidates who made the decision to run after March, and heavily burdened signature-gathering and organizational efforts. Moreover, the deadline worked to discriminate against candidates and their supporters whose preferences are outside the existing political parties. Id. at 1570-73. The Anderson Court found that the state’s articulated interests of voter education, equality of treatment and political stability were unquestionably outweighed by the imposed burdens. Id. at 1573-79.'

In the present case, the character of the asserted injury is as it was in Anderson —impairment of the associational rights of Plaintiffs’ and their partisans. In considering the magnitude of the asserted injury here, it is important to note several factors. First, Plaintiffs have shown that they have few, if any, voters in Utah who support them. Second, Utah officials are not attempting to impose a filing deadline that falls very early in the election year, but rather one that falls less than two months prior to the general election. Third, Utah officials are not attempting to impose a filing deadline that burdens Plaintiffs, as independent candidates, more than it does other political party candidates. Utah officials asserted at the hearing that absent exigent or unusual circumstances, all candidates whose names were to appear on the 1984 general election ballot must have complied with all reasonable election laws prior to certification of names on September 12th of this year. The magnitude of the asserted injury, therefore, is substantially less than that asserted in Anderson and does not differ from that of any candidate desiring to obtain access to the ballot after the names have been certified to the County Clerks.

The next inquiry, then, is whether there are sufficient state interests to justify Utah’s refusal to place Plaintiffs names on the ballot after September 12th of this year. Utah undoubtedly has a legitimate and very practical interest in securing a reasonable amount of time to process documents submitted by the candidates and to prepare and distribute an error-free and timely ballot to its voters. The Supreme Court has acknowledged that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974).

The Utah state legislature has determined that the Lieutenant Governor should certify the names to be placed on the ballots on the fourth Wednesday following the August primaries. U.C.A. § 30-3-30. This year the Lieutenant Governor certified the names on September 12th. That left a period of less than two months for processing, printing and distribution of the ballots before the general election on November 6th. The Supreme Court in Anderson noted that “[s]eventy-five days appears to be a reasonable time for processing the documents submitted by candidates and preparing the ballot.” Anderson, 103 S.Ct. at 1576. If seventy-five days is reasonable, then fewer than sixty days also is reasonable and clearly serves the state’s legitimate interests.

At the time Plaintiffs submitted their voter-signed petitions on September 26th, the ballots for all but one of Utah’s 29 counties were in some stage of the printing process. Some ballots had already been completed. Absent exigent and unusual circumstances , it is untenable to believe that the Constitution requires states to “stop the presses” or to reprint ballots up to the day of the election to accommodate particular candidates who wish instantaneous access to the ballot. See Storer v. Brown, 415 U.S. at 736, 94 S.Ct. at 1282. The line simply has to be drawn at some point. Plaintiffs have not shown that there were exigent or unusual circumstances that would justify “stopping the presses” in this instance.

IV. CONCLUSION

It would seem that if a national candidate is at all serious about obtaining votes from a particular state, he or she should be able to discover and comply with reasonable state election requirements that do not impermissibly impinge on constitutional rights. Utah’s important regulatory interests and interests in serving its own citizens are sufficient to justify upholding the minimally burdensome petition requirement found at U.C.A. § 20-3-38. Further, Utah's interests in appropriately administrating the ballot are sufficient to support a finding that the filing deadline as applied in this case is also justified. The procedure and practice at issue here are even-handed and necessary to protect the integrity and reliability of the election process. They do not unconstitutionally burden the rights of Plaintiffs or their partisans.

Plaintiffs’ Motion for Summary Judgment should be denied as a matter of law. Defendant’s Motion to Dismiss should be granted.

      . In their motion for Summary Judgment, Plaintiffs also request the court to declare U.C.A. § 20-4-2 unconstitutional, asserting that that section provides:
      No candidate may file as an independent candidate who has previously filed in- the same year a declaration of candidacy with any political party.

        See Motion for Summary Judgment at 1-2.
      This court can find no such language in Section 20-4-2. The cited language is in Section 20-3-38 and will be treated accordingly.

      . U.C.A. § 20-3-38 (1984 Interim Supp.) states “[t]he certificates of nomination [for independent candidates] shall be filed in accordance with Section 20-4-9." Section 20-4-9 requires certificates of nomination to be filed between March 15 and April 15 of the election year. Id. at 20-4-9.

      . In addition to showing a reasonable probability of success on the merits, other requirements that must be established prior to receiving injunctive relief are: (1) a showing that the movant will suffer irreparable injury unless the injunction issues; (2) a showing that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (3) a showing that the injunction would not be adverse to the public interest. Kenai Oil & Gas, Inc. v. Dept. of the Int. of the U.S., 671 F.2d 383, 385 (10th Cir. 1982); Otero Savings & Loan Ass’n. v. Federal Reserve Bank, 665 F.2d 275, 278 (10th Cir.1981); Lundgrin v. Claytor, 619 F.2d 61, 63 (10th Cir. 1980). Because Plaintiffs here failed in the initial showing, the court did not address the remaining requirements.

      . At the expedited hearing, the court reserved the right to expand in writing on the reasons then given for the denial of injunctive relief.

      . The number of signatures required by the Texas statute varies with the office sought. In no event are candidates required to file petitions containing more than 500 signatures of registered voters. American Party of Texas, 415 U.S. at 788, 94 S.Ct. at 1309.

      . Utah had 781,711 registered voters in 1980. Of that number, 610,772 actually voted in the 1980 general election, see 1980 General Election Abstract, Lieut. Gov., State of Utah.

      . The relevant language of U.C.A. § 20-3-38 that contains the apparent restriction states:
      The signatures to the certificate of nomination need not all be appended to one paper, but no certificate shall be legal that does not contain the requisite number of names of registered voters whose names do not appear on any petition previously filed under the provisions of this section.
      That language certainly is not clear and unambiguous on its face or in context, despite the recent-amendments.. cf. U.C.A. § 20-3-38 (1953 as amended). Although susceptible of several interpretations, the only two having any basis in logic are that:
      (1) voters cannot sign a petition for any given candidate more than once, or
      (2) voters cannot signify support for two or more independent candidates running for the same office.
      Because the second interpretation is the more restrictive, it is used for purposes of the analysis in this case, although the legislature would be well advised if it clarified its intentions.

      . Assuming that ten independent candidates wished to run for a particular office, the pool of eligible signers would be reduced by 3000, requiring a candidate to secure approximately .4% of the number of registered voters.

      . Plaintiffs suggest that the very recent case of Bloomquist v. Thomson, 739 F.2d 525 (10th Cir. 1984), supports their arguments. That case, however, is inapposite. In Bloomquist, Wyoming had amended its election statutes to require new political parties to obtain the signatures of 8000 registered electors, the majority of whom may not reside in the same county. The amendment was effective in April, 1984 and the deadline for obtaining signatures for that year was June 1, 1984. Plaintiffs challenged the constitutionality of the "two-county" rule and the constitutionality of the signature requirement as applied to them.
      The United States Court of Appeals for the Tenth Circuit agreed that the two-county rule was an unconstitutional denial of equal protection. Id. at 526-528. In addition, the court found that due to the shortened time for obtaining signatures for the 1984 elections, plaintiffs need only have obtained 1,333 valid signatures prior to the June 1 deadline. Id. at 529.
      The facts in the present case present neither the issue of a two-county rule nor the issue of an abbreviated period of time in which to secure a significant number of voter signatures.

      . Plaintiffs’ counsel asserted at the hearing for injunctive relief that Mr. LaRouche actively sought the 1984 nomination of the Democratic party, participating in some thirteen state primaries. The effort was unsuccessful. Mr. LaRouche then sought to run as an independent candidate and apparently appeared on the ballot as such in approximately nineteen states, evidencing voter support outside the state of Utah.

      . Plaintiffs also challenge U.C.A. § 20-3-38 on the basis that it purports to disqualify an independent candidate who has filed a candidacy with a political party in the same year he seeks to run as an independent. There is not a scintilla of evidence in the record to suggest that Plaintiffs' absence from the ballot is due to their previous political affiliation. Plaintiffs, thus, lack standing to assert that challenge.

      . Plaintiffs counsel admitted at the hearing that the petitions submitted on September 26, 1984, do not contain signatures that have been verified. Nothing has been added to the record to suggest that the situation has changed.

      . Plaintiffs also requested that the court enjoin the Lieutenant Governor from certifying the names on the ballot to the County Clerks. That certification, however, apparently took place on September 12, 1984, some two weeks prior to the filing of Plaintiffs motions for injunctive relief. The court simply could not enjoin an action that had already been completed.

      . At the hearing, Utah officials disclosed that they had recently amended the certification of names to add an additional independent candidate for President. Defendant reasoned that this was an example of exigent and unusual circumstances in that the particular candidate had tendered a complete and proper certificate of nomination on April 16th. Defendant asserted that in light of Anderson, it would have been unconstitutional not to take extreme measures to accommodate the candidate given the early compliance. See Sonia Johnson v. Monson, Civ. No. C-84-0838W (D.Utah, filed September 21, 1984). Plaintiffs here assert that they should be able to ride on the coat-tails of a remedy created to right the wrongs inflicted on another. This court does not agree.