Robert Bennett et al., Plaintiffs-appellants, v. City of Cleveland et al., Defendants-appellees, 433 F.2d 989 (6th Cir. 1970)

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U.S. Court of Appeals for the Sixth Circuit - 433 F.2d 989 (6th Cir. 1970) Feb. 20, 1970

Eli Naffah, Cleveland, Ohio, for plaintiffs-appellants; Franklin A. Polk, Cleveland, Ohio, on brief.

Daniel J. O'Laughlin, Cleveland, Ohio, for defendants-appellees; Squire, Sanders & Dempsey, John L. Dowling, Asst. Pros. Atty. of Cuyahoga County, Cleveland, Ohio, on brief.

Before WEICK, EDWARDS, and McCREE, Circuit Judges.


This is an appeal from an order dismissing for failure to state a federal cause of action, a complaint seeking a declaration that Section 10 of the Charter of the City of Cleveland is unconstitutional under the Fourteenth Amendment of the United States Constitution. Section 10 provides:

10 Selection of Candidates.

The number of candidates for member of Council in each ward shall be the two candidates on the primary election ballot receiving the highest number of votes at the primary election. Provided that if any candidate at a primary election shall have received a majority of all of the votes cast for such office at the primary election he shall be the candidate for such office at the regular municipal election. In case there shall not be for any office more than two persons who shall have filed petitions as provided in this Charter, the said persons shall be the candidates at the regular municipal election and the primary for that particular office shall not be held.

The name of each person who is nominated in compliance herewith shall be printed on the official ballot at the general election, and the names of no other candidates shall be printed thereon.

Upon consideration, it is ordered that the judgment be and it hereby is affirmed because the complaint does not present a substantial federal question.