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HEITMANIS v. AUSTIN

January 28, 1988

George Heitmanis, et al., Plaintiffs, and Michigan Republican State Central Committee, Intervening Plaintiff,
v.
Richard Austin, et al., Defendants, and Senator Vernon J. Ehlers, et al., Intervening Defendants



The opinion of the court was delivered by: WOODS

 AT A SESSION of said Court, held in the United States Courthouse, in the City of Detroit, State of Michigan, on the 28th day of January, 1988.

 PRESENT: THE HONORABLE GEORGE E. WOODS United States District Judge

 Plaintiffs bring this constitutional challenge to several sections of the Michigan Election Law, M.C.L. § 168.1 et seq. The state statute grants automatic delegate status at state and county conventions, as well as automatic membership on county executive committees, to party nominees and party legislators. As such, claim plaintiffs, the statute violates their First Amendment rights of free association and free expression, as well as their right to vote. Defendants, in addition to arguing the constitutionality of the state statute, raise several procedural barriers to the relief requested by plaintiffs. These barriers include the doctrine of abstention, absence of state action, [TEXT DELETED BY COURT EMENDATION] and justiciability. Defendants base their abstention argument on a parallel proceeding brought by intervening defendants in state court. Ehlers v. Michigan Republican State Central Committee, No. 87-56036-CZ (Kent Cty. Circuit Ct.), aff'd, Nos. 105399 & 105690 (Mich. Ct. App.), leave to appeal denied, 429 Mich. 894 (1988).

 Plaintiffs are five individuals who have been elected delegates to the January 14, 1988 county and district conventions of the Republican Party of Michigan. Defendants serve as Secretary of State and Director of Elections for the State of Michigan. The Michigan Republican State Central Committee (State Central Committee) has intervened as plaintiff. Three of the five original plaintiffs, George Heitmanis, John Pafford, and Richard Bobosky, are also members of the State Central Committee. Intervening defendants consist of numerous county and state officeholders and nominees. As officeholders and nominees, they had the right under the election statute to participate as at-large delegates or precinct delegates to county and district conventions held on January 14, 1988.

 Prior to the January 14, 1988 conventions, however, the State Central Committee adopted rules prohibiting intervening defendants from participating as at-large delegates to the conventions. As a result of the conflict between the State Central Committee (attempting to enforce newly adopted delegate selection rules) and intervening defendants (officeholders and nominees asserting statutory right to participate in county conventions), competing delegations have been elected in the county conventions. Party rules require that issues of competing delegations be resolved at the State Convention to be held on January 30, 1988. *fn1" Plaintiffs, however, believe that the dispute can be resolved as a matter of constitutional law.

 Before addressing the procedural barriers to plaintiffs' claims, an outline must be given of the delegate selection process provisions of the Michigan Election Law and the various rules adopted by the National Republican Party and the Michigan Republican Party.

 MICHIGAN ELECTION LAW

 Plaintiffs in their first amended complaint seek declaratory relief that M.C.L. §§ 168.595a & 168.599(5) are unconstitutional as applied to the Michigan Republican Party. In their Memorandum of Law in support of their motion for summary judgment, plaintiffs additionally request that M.C.L. §§ 168.611, 168.593, 168.595, 168.598 & 168.599(1) be declared unconstitutional. These sections may be summarized as follows:

 
- § 168.611 provides that delegates elected to the prior fall county convention shall reconvene in the presidential year. Two district delegates from each congressional district shall be selected in caucus to act as National Convention Delegates for each party.
 
- § 168.593 sets the number and apportionment of delegates to the state party convention based upon the vote in each county for the party's candidate for Secretary of State in the last preceding November election.
 
- § 168.595 provides for the apportionment of county delegates based upon the vote for the party's candidate for Secretary of State in the last preceding November election.
 
- § 168.595a provides that "in addition to the delegates to the state convention as provided by [§ 168.595], all incumbent members of the state legislature shall be entitled to attend the convention of their political party as delegates at large of the county in which they maintain their legal residence."
 
- § 168.598 requires the state central committee of each political party to forward to the chairman of each county committee "a copy of the call for the fall state convention" indicating the number of delegates to which each county shall be entitled, based upon the votes cast for the party's nominee for Secretary of State in each of the counties at the last preceding November election. In addition to the proportionate number of delegates, the state central committees shall allocate an additional number of delegates corresponding to the number of incumbent legislators nominated by their party and residing in such county.
 
- § 168.599(1) provides that, in counties with a population less than 1,500,000, persons nominated to county offices and state legislative offices, along with an equal number of persons selected from the delegates to the county convention, shall make up the executive committee of the county party with the authority to select its officers.
 
- § 168.599(5) makes all party nominees to county offices delegates at-large to county conventions.

 NATIONAL REPUBLICAN PARTY RULES

 National Republican Party rules governing the selection of national convention delegates and alternates are adopted at the preceding national convention. For example, the 1988 Republican National Convention rules were adopted at the 1984 convention. Republican National Party Rule 31(r), adopted at the 1980 Republican National Convention, did not permit "automatic delegates at any level of the delegate selection procedures who serve by virtue of party position or elective office." Rule 5 of the 1984 Michigan Republican Convention Rules expressly incorporated national rule 31(r).

 Intervening defendants offer an affidavit of Roger Allan Moore, general counsel to the Republican National Committee and to the Standing Committee on Rules of the Republican National Committee. He states that following the 1980 Republican National Convention, the Technical Amendments Subcommittee became aware that 18 states permitted or required participation of party or elected officials as automatic delegates in county (or precinct) caucuses or conventions. To make the National Party rules consistent with the procedures adopted by those states, the Standing Committee on Rules of the Republican National Committee recommended a revision of the prohibition against automatic delegates. Accordingly, on August 20, 1984, the 1984 Republican National Convention adopted a recommendation of the Committee on Rules and Order of Business and amended rule 31(r). The amended rule, renumbered as rule 32(b)(7), provides that "there shall be no automatic delegates to the national convention who serve by virtue of party position or elective office." As indicated above, 32(b)(7) applies to all 1988 delegate selection procedures. Moore states that the 1988 Republican National Party rules do not prohibit automatic delegates to any county, district, or state conventions conducted for the purpose of electing national convention delegates. Moore Affidavit paras. 6-8.

 Moore also discusses the effect of rule 32(a), which reads as follows:

 
RULE No. 32
 
Election of Delegates and Alternate Delegates
 
(a) Order of Precedence.
 
Delegates at large and their alternate delegates and delegates from Congressional districts and their alternate delegates to the national convention shall be elected in the following manner:
 
(1) In accordance with any applicable laws of a state, insofar as the same are not inconsistent with these rules; or
 
(2) To the extent not provided for in the applicable laws of a state, in accordance with any applicable Republican Party rules of a state, insofar as the same are not inconsistent with these rules; or
 
(3) By a combination of the methods set forth in paragraphs (a)(1) or (a)(2) of this rule; or
 
(4) To the extent not provided by state law or party rules, as set forth in paragraph (c) of this rule.

 According to Moore, the 1988 National Republican Party Rules incorporate state law by reference. The National Party Rules also take precedence over state party rules. In his view, because the 1988 Rules incorporate state law, any state party that adopts rules that conflict with state law runs the risk that the Committee on Credentials, as well as the 1988 Republican National Convention, will find that the rules of the National Party bar the seating of any delegates and alternate delegates elected in violation of such state law. Moore Affidavit paras. 10, 14; see also National Rules Nos. 38-40 (intra-party procedures for settling delegate credentials disputes).

 STATE REPUBLICAN PARTY RULES

 On December 7, 1985, the State Central Committee adopted rules for the selection of delegates to the 1988 Republican Party county, district, state, and national conventions. The rules deleted the previous reference to National Party Rule 31(r) that appeared in the 1984 State Party rules. The rules also removed provisions barring nominees for county and state legislative offices from serving as automatic or at-large delegates to county, district, and state conventions. The rules, however, retained a provision in the last paragraph of rule 5 that restricted incumbent members of the State Legislature from being automatic delegates to county and state conventions under National Party Rule 32(c)(5):

 
In accordance with Rule No. 32(c)(5) of the official rules adopted by the 1984 Republican National Convention, "No delegates shall be deemed eligible to participate in any Congressional district or state convention the purpose of which is to elect delegates to the national convention who are elected prior to the date of the issuance of the call of such national convention." This means that although according to Michigan law (MCLA 168.595a) ". . . all incumbent members of the state legislature shall be entitled to attend the convention of their political party as delegates at large of the county in which they maintain their legal residence . . .", for purposes of the 1988 State Convention, incumbent members of the state legislature are not automatic delegates at large and cannot participate in the selection of state or national delegates and alternates unless they are elected as delegates to the county and state conventions.

 Intervening defendants offer an affidavit from E. Spencer Abraham, Chairman of the State Central Committee, to clarify the applicability of National Rule 32(c)(5) to county and state conventions. He states that National Rule 32(c)(5) presented a serious problem if it applied to Michigan county conventions:

 
It would not only bar state legislatures -- whose nominations took place in August 1986 and election in November 1986 prior to the issuance of the call to the national convention -- from serving as delegates to those conventions, but it also could have been interpreted to bar precinct delegates -- elected in August, 1986, prior to the issuance of the national call -- from such conventions.

 Abraham Affidavit para. 10. Abraham states that he discussed this problem with Roger Allan Moore. Both agreed that National Rule 32(c)(5) was not applicable since Michigan's 1988 county conventions selected state, not national delegates. Id. para. 11. Abraham then conveyed this view to party leaders, none of whom "expressed disagreement with this opinion." Id. para. 12. Moore states that National Rule 32(c)(5) applies only in the absence of contrary state law; if there is governing state law, as there is in Michigan, it supersedes National Rule 32(c)(5). Moore Affidavit paras. 9, 11.

 On December 13, 1986, the State Central Committee amended the 1988 State Party Rules, which it had adopted one year earlier. Rule 5 was renumbered as rule 4, but continued to provide that incumbent members of the state legislature were not automatic delegates at-large and, unless elected as delegates to county and state conventions, could not participate in the selection of state or national delegates. The State Central Committee, however, added a new paragraph to the rule. The additional paragraph clarified that all nominees for county and legislative office, pursuant to M.C.L. § 168.599(5), were at-large delegates to the 1988 county convention. *fn2"

 On September 15, 1987, the State Central Committee amended rule 4 to provide that nominees for county and state legislative officers were not entitled to serve as at-large delegates to the 1988 county and district conventions:

 C. Candidates as Delegates

 
In accordance with Michigan Election Law (MCLA 169.619)(4): "A person who is a delegate to a state or county convention of his political party only by virtue to being a member of the state legislature in such capacity shall not participate directly in the process of selecting delegates to his party's national convention . . ." This means that although according to Michigan Election Law (MCLA 168.595a), "All incumbent members of the state legislature shall be entitled to attend the convention of their political party as delegates at large of the county in which they maintain their legal residence . . ." For purposes of the 1988 county (district) and state conventions incumbent members of the state legislature are not automatic delegates at large and cannot participate in the selection of state delegates and alternates unless they were elected as precinct delegates in the August 5, 1986 primary.
 
In addition prior nominees for county office or for the state legislature are not automatic delegates at large and cannot participate in the selection of state and national delegates or alternates unless they are elected as delegates to the county (district) and state conventions. (emphasis in original).

 The amendment to rule 4 would have excluded as many as 1,200 nominees from an automatic role in the January 14, 1988 county conventions. The county conventions select 1,805 delegates to the January 30, 1988 state convention, which in turn selects 77 delegates to the August 15-18, 1988 national convention. The state convention is particularly important to the presidential campaigns, since the state convention is the first state convention nationwide to select delegates to the national convention.

 In the parallel state court proceeding, however, a Michigan circuit court and court of appeals' panel concluded that state law, as incorporated in National Rule 32(a), took precedence over the amendment to rule 4. Notwithstanding the state courts' rulings, competing ...


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