Brown v. O'Brien

469 F.2d 563, 152 U.S. App. D.C. 157
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 5, 1972
DocketNos. 72-1628 to 72-1631
StatusPublished
Cited by8 cases

This text of 469 F.2d 563 (Brown v. O'Brien) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. O'Brien, 469 F.2d 563, 152 U.S. App. D.C. 157 (D.C. Cir. 1972).

Opinions

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.

[566]*566I.

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, [567]*567and 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 Al 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 chí-canos 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.

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469 F.2d 563, 152 U.S. App. D.C. 157, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-obrien-cadc-1972.