POWELL, J., Concurring Opinion

SUPREME COURT OF THE UNITED STATES

414 U.S. 441

Communist Party of Indiana v. Whitcomb

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF INDIANA

MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE, MR. JUSTICE BLACKMUN, and MR. JUSTICE REHNQUIST join, concurring in the result.

I concur in the result. In my view, it was quite unnecessary to reach the issue addressed by the Court.

It was established at trial that appellees had certified the Democratic and Republican Parties despite the failure of party officials to submit the prescribed affidavits under Ind.Ann.Stat. § 29-3812 (1969). ^[n1] In Williams v. Rhodes, 393 U.S. 23, 31 (1968), this Court held that a discriminatory preference for established parties under a State's electoral system can be justified only by a "compelling state interest." In the present case, no colorable justification has been offered for placing on appellants burdens not imposed on the two established [p452] parties. ^[n2] It follows that the appellees' discriminatory application of the Indiana statute denied appellants equal protection under the Fourteenth Amendment. ^[n3]

1. The complaint in this case expressly alleged that § 29-3812 subjected appellants to burdens not imposed on the Republican and Democratic Parties, and proof at trial was directed to that issue. The Court now maintains that this issue cannot be considered because it was not expressly raised in the jurisdictional statement. Ante at 446-447, n. 6. Supreme Court Rule 15(1)(c) provides, however, that the jurisdictional statement "will be deemed to include every subsidiary question fairly comprised therein," and that "questions set forth in the jurisdictional statement or fairly comprised therein will be considered by the court." The issue of discriminatory application of the statute certainly falls within the gravamen of appellants' jurisdictional statement, and should therefore be considered. See, e.g., United States v. Arnold, Schwinn & Co., 388 U.S. 365, 371-372 n. 4 (1967). Moreover, the appropriate exercise of judicial power requires that important constitutional issues not be decided unnecessarily where narrower grounds exist for according relief. This consideration applies even though such grounds are not raised in the jurisdictional submissions. Boynton v. Virginia, 364 U.S. 454, 457 (1960). Cf. Barr v. Matteo, 355 U.S. 171, 172 (1957).

2. The Court's intimation that a prima facie case of constitutional deprivation was not established because Board officials were "silent as to the reasons behind the omission" of the established parties from the affidavit requirement (ante at 447 n. 6) misses the point. Nothing more need be shown than that the statute was, in fact, discriminatorily applied. It is the Board officials, not the appellants, who must then come forth with reasons justifying the discriminatory application of the statute.

3. In view of this patently unconstitutional application of the statute, there is no occasion to reach the broader issue addressed by the Court today. Although I express no conclusion on that issue, it should be noted that this is the first case touching upon the type of oath which may be required of a candidate for the office of President of the United States. The Indiana oath, of course, is required of the party, rather than its presidential candidate. But it could be argued that Yates v. United States, 354 U.S. 298 (1957), and its progeny are not controlling here. Under Art. VI, cl. 3, all state and federal officers are bound by oath "to support this Constitution," and, under Art. II, § 1, cl. 8, the President must swear that he will "faithfully execute the Office . . . and will to the best of [his] Ability, preserve, protect and defend the Constitution of the United States." Art. II, § 3, also imposes on the President the affirmative duty to "take Care that the Laws be faithfully executed." Neither the effect of these explicit constitutional obligations nor the responsibility of a chief executive official of government to enforce the rule of law was a relevant issue in any of the Yates line of cases. Cf. Cole v. Richardson, 405 U.S. 676 (1972).