Duke v. Cleland, 92-8724

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Citation: 5 F.3d 1399
• Docket Number: No. 92-8724,92-8724
• Parties: David DUKE; Martha Andrews; William Gorton and Victor Manget, Plaintiffs-Appellants, v. Max CLELAND, Secretary of State of Georgia and Chair of the Presidential Candidate Selection Committee; Presidential Candidate Selection Committee and Alec Poitevint, Defendants-Appellees.
• Decision Date: 29 October 1993

Page 1399

5 F.3d 1399

David DUKE; Martha Andrews; William Gorton and Victor

Manget, Plaintiffs-Appellants, v. Max CLELAND, Secretary of State of Georgia and Chair of the

Presidential Candidate Selection Committee;

Presidential Candidate Selection

Committee and Alec Poitevint,

Defendants-Appellees.

No. 92-8724.

United States Court of Appeals,

Eleventh Circuit.

Oct. 29, 1993.

Moffatt Laughlin McDonald, Mary Wyckoff and Neil Bradley, American Civ. Liberties Union, Southern Regional Office, Gerald Weber, ACLU of Georgia, Inc., Atlanta, GA, for plaintiffs-appellants.

David J. Stewart, Oscar N. Persons, Alston & Bird, Dennis R. Dunn, Georgia Law Dept., Michael Hobbs, Asst. Atty. Gen., State Law Dept. of GA, Atlanta, GA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before FAY and DUBINA, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

DUBINA, Circuit Judge:

The plaintiffs in this case are David Duke ("Duke"), a controversial political figure, and three Georgia voters (the "Voters"). Georgia's Secretary of State, Max Cleland ("Cleland"), its Republican party chairman, Alex Poitevint ("Poitevint"), and the Georgia presidential candidate selection committee (the "Committee"), are the defendants. Duke and the Voters filed suit after the Committee's Republican members, acting pursuant to power granted by state law, excluded Duke from a list of Republican candidates to be placed on Georgia's presidential primary election ballot. The plaintiffs claimed that the Committee's actions constituted an improper use of state power. The district court granted the defendants' motion to dismiss the amended complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6) and the plaintiffs appeal. We vacate and remand.

I. FACTS

In December 1991 Cleland, acting as Secretary of State of Georgia, prepared and published a list of candidates for the upcoming 1992 presidential preference primaries per section 21-2-193(a) of the Georgia Code. Section 21-2-193 establishes the "presidential candidate selection committee" comprised of the Speaker of the House, the Senate majority leader, the minority leaders of both the House and the Senate, and the chairmen of the political parties. The Secretary of State is the nonvoting chairman. ¹ Pursuant to section 21-2-193 Cleland placed Duke on the list as a nationally recognized candidate for the 1992 Republican Party nomination for President of the United States.

When the Committee met, the three Republican members voted unanimously to remove Duke's name from the presidential preference primary ballot as authorized by section 21-2-193(a). Duke appealed his removal from the ballot pursuant to section 21-2-193(b) of the Georgia Code. The Committee met to hear the appeal, but no Republican member of the Committee voted to restore Duke's name to the ballot.

Duke and the Voters, who previously voted in Republican primaries and wished to have an opportunity to vote for Duke in the 1992 presidential preference primary, filed an action in federal district court against Cleland as Secretary of State and as chair of the Committee and against the Committee itself, seeking a temporary restraining order, preliminary injunction and permanent injunction under 42 U.S.C. Sec. 1983 to prohibit the printing of ballots for the 1992 Georgia Republican presidential preference primary unless Duke was listed as a candidate. Plaintiffs claimed that the actions by the Committee and Cleland to exclude Duke from the Republican Party primary ballot deprived them of their right to free speech, right to association, right of equal protection, right to due process, right to run for office and right to vote in violation of the First and Fourteenth Amendments of the United States Constitution. Cleland opposed the requested relief. Poitevint, Georgia's Republican Party Chair, moved to intervene as a defendant.

The district court held a hearing and granted Poitevint's motion to intervene. In a written order, the district court denied the temporary restraining order and the preliminary injunction. Duke v. Cleland, 783 F.Supp. 600 (N.D.Ga.1992). We affirmed. Duke v. Cleland, 954 F.2d 1526 (11th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 1152, 117 L.Ed.2d 279 (1992) [hereinafter Duke I ].

Plaintiffs then filed an amended complaint, reasserting the allegations in the first complaint and asserting an additional claim under 42 U.S.C. Sec. 1983 that the Georgia presidential preference primary candidate selection statute violates their right of free speech, right of association, right to equal protection, right to run for office, right to vote and right of due process guaranteed by the First and Fourteenth Amendments of the Constitution of the United States. Cleland and Poitevint moved to dismiss the plaintiffs' amended complaint for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). The district court granted the defendants' motions to dismiss on the grounds that there was no state action, plaintiffs' constitutional rights were not violated and the statute is constitutional. This appeal followed.

We review de novo the district court's dismissal of plaintiffs' complaint for failure to state a claim. See Thomas v. Evans, 880 F.2d 1235, 1239 (11th Cir.1989). We must take the complaint's allegations as true and read them in the light most favorable to the plaintiffs. Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir.1992). A complaint may not be dismissed unless the plaintiff can prove no set of facts entitling him to relief. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Pataula Electric Membership Corp. v. Whitworth, 951 F.2d 1238, 1240 (11th Cir.1992).

II. ANALYSIS

Duke and the Voters contend that the district court misapplied Rule 12(b)(6) in dismissing their complaint. Specifically, they allege that the district court erred by finding (1) no state action and (2) that the statute did not violate Duke's and the Voters' constitutional rights. ²

A. State Action

It is well established that in any action brought under 42 U.S.C. Sec. 1983 the initial inquiry must focus on whether the two essential elements to a Sec. 1983 action are present: (1) whether the conduct complained of was committed by a person acting under color of state law, and (2) whether this conduct deprived a person of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). The panel in Duke I assumed arguendo that the actions of the Committee constituted state action for purposes of that lawsuit. The district court in this case held instead that the plaintiffs failed to allege a sufficient basis that the Committee's decision to exclude Duke was fairly attributable to the state. The district court examined the statute and concluded that it did not (1) involve the state in party member decisions, (2) delegate authority that the parties did not have already, or (3) mandate guidelines for the decision-making process. In essence, the district court--citing our decision in Delgado v. Smith, 861 F.2d 1489, 1496 (11th Cir.1988), cert. denied, 492 U.S. 918, 109 S.Ct. 3242, 106 L.Ed.2d 589 (1989)--found that the statute preserves party autonomy, and thus does not constitute state action. We disagree.

The Committee is a creature of state law and its actions are attributable to the state. First, the state vests the initial power to include or exclude candidates in the Secretary of State. This seminal power of selection, conferred upon a high state official, is tempered only by the state's requirement that the candidates selected be generally recognized by the national media as aspirants for the presidency. ³ Second, the statute then confers upon the Committee the absolute power to decide who may run and who may not. The statute represents a scheme whereby the state confers largely upon itself the raw power to choose who may or may not be party primary candidates. Two-thirds of the Committee's voting members are elected officials representing their respective parties. No guidelines limit their power. The Committee may exclude nationally recognized candidates for any reason or no reason at all.

Party membership is no concern of the state. Smith v. Allwright, 321 U.S. 649, 664, 64 S.Ct. 757, 765, 88 L.Ed. 987 (1944); see also Democratic Party of U.S. v. Wisconsin ex rel. Lafollette, 450 U.S. 107, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981). An entity may, however, become "so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1966). When as here the state empowers its officials to exclude presidential aspirants from the presidential primary ballot, the power exercised is directly attributable to the state. Allwright, 321 U.S. at 664-65, 64 S.Ct. at 765-66. Indeed, the Committee performs a critical public function by limiting the electorate's voting choices to its preferred candidates only. See id.

That the Committee exercises judgment independent of the state does not necessarily negate state action. See Terry v. Adams, 345 U.S. 461, 469, 73 S.Ct. 809, 813, 97 L.Ed. 1152 (1953). The Committee acts in "matters of high public interest, matters intimately connected with the capacity of government to exercise its functions unbrokenly and smoothly." Nixon v. Condon, 286 U.S. 73, 88, 52 S.Ct. 484, 487, 76 L.Ed. 984 (1932). Its power to restrict ballot access flows directly from the state ab intitio. See Allwright, 321 U.S. at 664, 64 S.Ct. at 765. The parties themselves do not select their primary...