Correll v. Herring

• Decision Date: 11 July 2016
• Docket Number: Civil Action No. 3:16CV467
• Citation: 212 F.Supp.3d 584
• Parties: Carroll BOSTON CORRELL, Jr., On behalf of himself and others similarly situated, Plaintiffs, v. Mark R. HERRING, In his official capacity as Attorney General of the Commonwealth of Virginia, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

212 F.Supp.3d 584

Carroll BOSTON CORRELL, Jr., On behalf of himself and others similarly situated, Plaintiffs,

v.Mark R. HERRING, In his official capacity as Attorney General of the Commonwealth of Virginia, et al., Defendants.

Civil Action No. 3:16CV467

United States District Court, E.D. Virginia, Richmond Division .

Signed July 11, 2016

Andrew Michael Grossman, David Boris Rivkin, Jr., Mark Wendell Delaquil, Richard Bryan Raile, Baker & Hostetler, LLP, Washington, DC, for Plaintiffs.

Anna Tillie Birkenheier, Heather Hays Lockerman, Joshua David Heslinga, Office of the Attorney General, Richmond, VA, for Defendants.

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

This matter is before the Court following a bench trial on the merits of the FIRST AMENDED VERIFIED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (the "Amended Complaint") (ECF No. 20) filed by Carroll Boston Correll, Jr. ("Correll"). For the reasons, and to the extent, set forth below, judgment including declaratory and injunctive relief will be entered for Correll.

PROCEDURAL BACKGROUND

Correll, a Virginia delegate to the Republican National Convention, filed a VERIFIED CLASS ACTION COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF ("Complaint") (ECF No. 1) on June 24, 2016. The original Complaint posited a class consisting of Republican and Democrat delegates to the parties' respective national conventions. (Compl. ¶¶ 36–41). Subsequently, Correll filed the Amended Complaint, which does not include Democrat delegates in the putative class. The Amended Complaint now includes allegations purporting to represent a class of all Virginian delegates to the 2016 Republican National Convention. (Am. Compl. ¶¶ 36–41).

Several other Virginian delegates to the 2016 Republican National Convention subsequently moved to intervene as defendants. (ECF No. 22). Over Correll's objection, though upon agreement of the original defendants¹ ("Defendants"), the motion was granted and the additional delegates ("the Intervenors")² were permitted to intervene. (ECF No. 29).

There has been no motion for class certification and, given the position of the Intervenors, it is doubtful that even the modified class identified in the Amended Complaint could be so certified. Accordingly, the claims that were tried, and upon which judgment will be entered, are solely those claims made by Correll, individually.

The Amended Complaint presents five counts. Count I alleges that Va. Code § 24.2–545(D) ("Section 545(D)") violates Correll's First Amendment right to free political speech, more specifically his individual right to "vote for a presidential nominee at a party's nominating convention," "by stripping delegates" to the 2016 Republican National Convention "of their freedom to vote their conscience, or to vote consistent with party rules." (Am. Compl. ¶¶ 43–45). Count II alleges that Section 545(D) violates Correll's First Amendment rights of free association, again "by stripping delegates" to the 2016 Republican National Convention "of their freedom to vote their conscience, or to vote consistent with party rules." (Am. Compl. ¶¶ 51–52). Count III alleges that Section 545(D) "exceeds the powers retained by the Commonwealth of Virginia under the Constitution of the United States" and cannot be enforced. (Am. Compl. ¶¶ 59–60). Count IV and Count V present prayers for forms of relief, rather than claims upon which relief may be granted.

Immediately after filing his Complaint, Correll filed a Motion for Temporary Restraining Order and Preliminary Injunction. (ECF No. 4). During a telephone conference, the parties shortly thereafter agreed to consolidate for hearing and decision the request for a restraining order and the request for a preliminary injunction. (Tr. Jun. 27, 2016, ECF No. —). The Court set the motion for an evidentiary hearing and oral argument on July 7, 2016. (Order, ECF Nos. 11, 18). At the beginning of that hearing, the parties agreed that, pursuant to Fed. R. Civ. P. 65(a) (2), the Court should further consolidate the hearing on the preliminary injunction with a bench trial on the merits. (Tr. Jul. 7, 2016, ECF No. 42, 164:12–165:5).

At trial, the parties presented a Joint Stipulation (ECF No. 40) and ten Joint Exhibits. Correll presented an additional set of exhibits consisting of minutes from earlier Republican National Conventions. Correll and the Intervenors each presented an expert witness to testify about the Rules of the Republican Party that govern the proceedings of the national party ("RNC Rules"), particularly about RNC Rules 16, 17, 37, and 38. The experts also testified about certain filings that the Republican Party of Virginia ("RPV") made pursuant to RNC Rule 16. At the end of the hearing, counsel presented argument and the case was submitted for decision on the merits.

FINDINGS OF FACT

At trial, Correll and the Intervenors each presented expert testimony to support their contentions on the meaning, present force, and effect of RNC Rule 16 and of RNC Rules 37 and 38. Correll offered the expert testimony of Erling "Curly" Haughland ("Haughland"), who presently serves as a member of the Republican National Committee, will serve as a delegate to the 2016 Republican National Convention, and has served as a delegate to past Republican National Conventions. (Tr. Jul. 7, 2016 13:4–30:5). Haughland has studied the history of the RNC Rules as far back as 1880, and has co-authored an online book positing the thesis that the RNC Rules allow delegates to vote their consciences at any Republican National Convention.³ (Tr. Jul. 7, 2016 13:4–30:5). The Intervenors offered the testimony of Jesse Binnall ("Binnall"), a certified professional parliamentarian who has worked with the Republican rules since 2012, has advised Republican convention delegates at the national and local levels about those rules, and has advised Republican presidential candidates about those rules. (Tr. Jul. 7, 2016 103:1–110:11).

Haughland was of the opinion that, even though RNC Rules 37 and 38 do not explicitly provide for "conscience voting," their predecessor rules have been interpreted to allow delegates to vote as they please. (Tr. Jul. 7, 2016 32:13–33:16, 44:10–53:7). Haughland also opined that RNC Rule 16 does not control voting. (E.g. , Tr. Jul. 7, 2016 59:24–63:21). Binnall took the view that RNC Rules 37 and 38 do not permit "conscience voting" and that RNC Rules 16(a) (1) and (2) together with RNC Rule 16(c) (2) govern the allocation and binding of delegates when voting. (Tr. Jul. 7, 2016 127:3–130:17, 134:12–22; 136:21–137:19). The experts largely concurred that RNC Rules 13–25 are presently in effect, and that RNC Rules 25–41 are not presently in effect. (Tr. Jul. 7, 2016 36:2–39:7, 135:8–136:2).

There is no need to further discuss the debate over the meaning and effect of RNC Rules 37 and 38 because, as explained below, the "conscience voting" theory is not ripe for decision.⁴

As to Rule 16, the Court credits Binnall's testimony because it is logical and supported by the text of the rules. Thus, the Court finds that RNC Rule 16 is in effect presently and that it controls the allocation and binding of delegates as to their voting at the convention. Additionally, Haughland's views were significantly undermined by the Defendants' impeachment using passages from Haughland & Parnell's publication (e.g. , Tr. Jul. 7, 2016 82:10–93:3), and by the fact that Haughland's views on RNC Rule 16 lack any textual support.

In closing arguments, Correll's counsel agreed that, if Correll could vote proportionally to Virginia's primary votes as required by RNC Rule 16, rather than voting for the candidate who garnered the most votes as required by Section 545(D), this would be tantamount to Correll voting his conscience. (Tr. Jul. 7, 2016 225:5–6). Counsel for the Intervenors also agreed that the case could be resolved by enjoining the enforcement of Section 545(D) to allow Virginia's delegates to vote in proportion to the results of Virginia's primary vote as required by RNC Rule 16. However, counsel for the Intervenors stressed that the Intervenors still strongly opposed any finding that RNC Rules 37 and 38, singly or jointly, permit unrestricted conscience voting. (Tr. Jul. 7, 2016 215:15–19, 216:22–220:5).

At the end of the 2012 Republican National Convention, the party issued a set of rules, some of which were to be effective immediately and some of which were proposed for possible adoption at the next convention in 2016. Specifically, on August 27, 2012, the 2012 Republican National Convention adopted the "Rules of the Republican Party" ("RNC Rules"). Those rules were amended four times; the current form of the rules is in the record at Joint Exhibit 1. On this much, the parties agree. However, the parties have radically different views about the meaning and present force of the RNC Rules.

Based on the text of the RNC rules and on Binnall's testimony, the Court finds that RNC Rules 13 to 25 are presently in force regarding convening of the 2016 Republican National Convention, including delegate allocation and the binding of delegate votes. (Tr. Jul. 7, 2016 135:8–136:2).⁵ Further, the record shows that RNC Rules 26 to 42, according to Rule 42 itself, are temporary rules for use in the 2016 Republican National Convention⁶ and have no force unless they are adopted by the assembled delegates at that convention, which will take place from July 18–21, 2016. (RNC Rules 22; Tr. Jul. 7, 2016 36:2–39:7, 135:8–136:2).⁷

RNC Rule 16(c)(2) requires that any state presidential primary that occurs before March 15, 2016 must "provide for the allocation of delegates on a proportional basis." (Joint Ex. 1, p. 12). According to RNC Rule 17(a), a "state or state Republican Party" that violates Rule 16(c)(2) will have its delegation reduced by 50%. (Joint Ex. 1, p. 15).

RNC Rule 16(f) (1) provides that Republican state committees must adopt rules to govern their primaries by October 1, 2015....