Brown v. O'BRIEN

• Decision Date: 10 October 1972
• Docket Number: No. 72-1628 to 72-1631.,72-1628 to 72-1631.
• Citation: 469 F.2d 563
• Parties: William BROWN et al., Appellants, v. Lawrence O'BRIEN et al. Thomas E. KEANE et al., Appellants, v. NATIONAL DEMOCRATIC PARTY et al. Thomas E. KEANE v. NATIONAL DEMOCRATIC PARTY et al., Appellants. Thomas E. KEANE et al. v. NATIONAL DEMOCRATIC PARTY et al. William Cousins et al., Appellants.
• Court: U.S. Court of Appeals — District of Columbia Circuit

469 F.2d 563 (1972)

William BROWN et al., Appellants, v. Lawrence O'BRIEN et al.

Thomas E. KEANE et al., Appellants, v. NATIONAL DEMOCRATIC PARTY et al. Thomas E. KEANE v. NATIONAL DEMOCRATIC PARTY et al., Appellants.

Thomas E. KEANE et al. v. NATIONAL DEMOCRATIC PARTY et al.

William Cousins et al., Appellants.

Nos. 72-1628 to 72-1631.

United States Court of Appeals, District of Columbia Circuit.

July 5, 1972.

As Amended August 10, 1972.

Judgment Vacated October 10, 1972.

COPYRIGHT MATERIAL OMITTED

Mr. Joseph L. Rauh, Jr., Washington, D. C., with whom Messrs. William A. Dobrovir, Geoffrey Cowan, and Lewis J. Paper, Washington, D. C., were on the pleading, for appellants in No. 72-1628.

Mr. Joseph A. Califano, Jr., Washington, D. C., for appellees in No. 72-1628.

Mr. Jerome H. Torshen, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, with whom Mr. Jerry S. Cohen, Washington, D. C., was on the pleading, for appellants in No. 72-1629 and appellees in No. 72-1630 and No. 72-1631.

Mr. Joseph A. Califano, Jr., Washington, D. C., with whom Messrs. John G. Kester and Richard M. Cooper, Washington, D. C., were on the pleadings, for appellants in No. 72-1630 and appellees in No. 72-1629.

Mr. Wayne W. Whalen, Chicago, Ill., of the bar of the Supreme Court of Illinois, pro hac vice, by special leave of court, for appellants in No. 72-1631.

Before BAZELON, Chief Judge, FAHY, Senior Circuit Judge, and MacKINNON, Circuit Judge.

Judgment Vacated October 10, 1972. See 93 S.Ct. 67.

PER CURIAM:

These two cases, which have come before us on motions for summary reversal and expedited consideration, call into question the power of the Democratic Party to exclude from its 1972 national convention certain challenged delegates from California and Illinois. In both cases delegates unseated by action of the Credentials Committee of the national convention assert that they were expelled in violation of rights guaranteed by the Constitution. The District Court dismissed the complaints in both cases, upholding the action of the Credentials Committee. In No. 72-1630 we affirm the District Court's judgment dismissing the complaint of Illinois plaintiffs, and, for the reasons set forth below, we remand the case to the District Court for entry of an order barring these plaintiffs from taking action in any other court that would impair the effectiveness and the integrity of the judgment of this Court. In No. 72-1628 we reverse the judgment of the District Court and remand the case to that court for entry of an order declaring defendants' action null and void, and enjoining defendants from excluding these elected California delegates because of their selection in a winner-take-all primary.

I. The California Challenge

California plaintiffs are 151 persons who ran in a statewide primary election on June 6, 1972, as part of a 271 person slate committed to the presidential candidacy of Sen. George McGovern of South Dakota. Sen. McGovern won the California primary with a plurality of the vote, roughly 43 per cent, and under the winner-take-all provision of the California primary election law,¹ the entire 271 person slate was designated as the California delegation to the national convention. A challenge was then brought against the California delegation on the grounds that the winner-take-all feature of the California primary law was invalid under rules adopted by the Democratic Party in 1971— the so-called McGovern Commission guidelines. The hearing examiner appointed by the Credentials Committee rejected the challenge and it was renewed before the full Committee on June 29, 1972. At that time the challengers apparently dropped the allegation that winner-take-all was inconsistent with the McGovern guidelines, and maintained that it violated the mandate of the 1968 convention. With California's representatives on the Credentials Committee not voting, because their delegation was under challenge, the credentials committee passed by a six vote majority the following resolution:

WHEREAS the 1968 Convention guaranteed to all Democrats, a "full, meaningful and timely opportunity" to participate in the delegate selection procedures of our party, and

WHEREAS the California winner-take-all primary election held on June 6, 1972 denied that opportunity to participate to almost two million Democratic voters, and

WHEREAS the California winner-take-all primary functionally disenfranchised 56% of the California Democratic electorate who did not vote for George McGovern, and

WHEREAS the California winner-take-all primary awarded 100% of the delegate votes of the State of California to the McGovern slate, while awarding no delegates to other candidates who received votes of California Democrats— Humphrey, Muskie, Wallace, Chisholm, Jackson, McCarthy, Lindsay and Yorty—in spite of the fact that proportional representation is an integral party of the 1968 reform mandate of the Democratic National Convention, and

WHEREAS a majority of the California Democratic electorate will have no representation or voice in the 1972 Democratic National Convention under the proposed California delegation of Senator McGovern, in contradiction to the entire trust and spirit of Party reform in the Democratic Party over the last four years, now therefore,

BE IT RESOLVED by the Credentials Committee of the 1972 Democratic National Convention, that the California delegation not be seated as presently constituted, that a delegation apportioned on the basis of proportional representation be substituted in its place, that the formula for this representation be directly proportional to the votes cast by the Democratic voters of the State of California in the June 6, 1972 primary, that this voting results in the election of 106 Humphrey delegates, 16 Wallace delegates, 12 Chisholm delegates, 6 Muskie delegates, 4 Yorty delegates, 3 McCarthy delegates, 2 Jackson delegates, 2 Lindsay delegates, and 120 McGovern delegates, and the appropriate number of alternate delegates in all cases, and

BE IT FURTHER RESOLVED that those delegate positions be filled by an open and representative procedure—in the case of 120 McGovern delegates, a caucus of the 271 individuals on the McGovern slates, for all other candidates with the exception of Governor Wallace, a caucus of the respective California slates, and for the Wallace positions, an open caucus to be held in the State of California, with adequate public notice, not later than July 5, 1972, that all delegates included on the California delegation as reconstituted be selected consistent to the A1 and A2 provisions of the Call for the 1972 Democratic National Convention which calls for reasonable representation of women, youth and minorities, so that the % of these groups, blacks and chicanos does not decrease, and that the names of all members of this newly constituted and equitable California delegation be presented to the Secretary of the Democratic National Committee before July 7, 1972 who will certify such names as the California delegation to the 1972 National Convention.

In their complaint, the excluded California delegates assert that their expulsion was in violation of, inter alia, their constitutional right to due process of law. We have no difficulty concluding that defendants' action against these delegates was state action. See Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); Georgia v. National Democratic Party, 145 U.S.App.D.C. 102, 447 F.2d 1271, cert. denied, 404 U.S. 858, 92 S.Ct. 109, 30 L.Ed.2d 101 (1971). We also conclude, for the reasons described below, that expulsion of these 151 California delegates was inconsistent with fundamental principles of due process.

At the heart of the controversy in these two cases are the guidelines on delegate selection promulgated by the McGovern Commission in April, 1970, and adopted by the Democratic National Committee in February, 1971. One of these guidelines, B-6, deals with the representation of minority views on presidential candidates at each stage of the delegate selection process. That guideline urges State Parties to adopt procedures which will provide fair representation of minority views. But the guideline explicitly stops short of abolishing the winner-take-all provision. Thus, the examiner who initially heard the challenge to the California delegation made findings as follows:

4. The parties stipulated during the hearing that the McGovern Commission gave full and careful consideration to requiring the abolition of the winner-take-all concept at least at the state level, and decided not make its abolition mandatory. The other evidence presented at the hearing confirmed this stipulation.

5. The language of Guideline B-6 itself supports the stipulation. In contrast to other Guidelines, it uses the word "urges" instead of the word "requires" with respect to the proceedings specified.

Plaintiffs also submitted an affidavit indicating that at a meeting of the McGovern Commission on November 19, 1969, a Commission member proposed that the guidelines "require" the abolition of winner-take-all provisions for 1972. The proposal was apparently defeated by a vote of 13 to 3. The understanding that winner-take-all was still a viable concept for the 1972 convention was also reflected in The Call for the 1972 Democratic Convention. The Call incorporates the resolution of the Democratic National Committee adopting the McGovern guidelines, and it reiterates the distinction between guidelines which the State Parties are "required" to adopt, and those which they are "urged" to adopt.

The hearing examiner also found that the State Democratic Party of California relied on representations made by authoritative spokesmen for the national party. The examiner indicated that:

6. Congressman Donald A. Fraser and Robert Nelson of the Commission on Party Structure and Delegate Selection testified to negotiations with the

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