The opinion of the court was delivered by: Will, District Judge.
Plaintiff originally brought this action in the Circuit Court
of Cook County, Illinois, County Department, Chancery Division,
seeking 1) to have himself and others similarly situated declared
duly elected delegates and alternates to the 1972 Democratic
National Convention (the "Convention") in accordance with
Illinois law and therefore entitled to take their seats at the
Convention; and 2) to enjoin the defendants from taking any
action that would interfere with plaintiff's functioning as
delegates and alternates to the Convention. Defendants removed
the case to this Court pursuant to 28 U.S.C. § 1446, alleging
that the case was properly removable to a Federal Court under
28 U.S.C. § 1441 and 1443. Plaintiff then moved to have the case
remanded back to the State Court pursuant to 28 U.S.C. § 1447(c)
on the ground that this Court lacks jurisdiction over the subject
matter of the dispute. Inasmuch as we find that there is no basis
for federal jurisdiction over the subject matter of this dispute,
we grant plaintiff's motion and remand the case to the Circuit
Court of Cook County.
Before proceeding with an examination of the possible
jurisdictional bases for this cause of action, a more detailed
statement of the relevant facts is necessary. In a primary
election held in Illinois on March 21, 1972, plaintiff and the
class he purports to represent (the "uncommitted delegation")
were elected as "uncommitted" delegates and alternates to the
Convention. That they were elected in accordance with the
provisions of the Illinois Election Code relating to the
selection of delegates to a national convention of a political
party, Ill.Rev.Stat. ch. 46 §§ 7-14 and 7-14.1, is not disputed.
On March 31, the defendants filed with the Acting Chairman of the
Credentials Committee of the 1972 Democratic National Convention
(the "Credentials Committee") a "Notice of Intent to Challenge"
the seating of the members of the plaintiff class as delegates
and alternates to the Convention.
Thereafter, the defendants additionally filed a "Statement of
Grounds of Challenge Against the Proposed `Uncommitted' Delegates
to the 1972 Democratic National Convention from the Districts
Encompassing the City of Chicago" in which they alleged that the
members of the plaintiff class were selected in violation of the
Rules adopted by the Democratic National Committee and
incorporated into the Call of the 1972 Democratic National
Convention which set forth standards and qualifications to be met
in the selection of delegates from each of the states to the
Convention (the so-called "McGovern Rules"). Specifically, the
defendants contend that "[b]lacks, Latin Americans, women and
young people are grossly underrepresented on the Proposed
Delegation and in all Chicago party affairs" and that "the
Proposed Delegation was slated, endorsed, and supported by the
party organization without open slate-making procedures, without
published rules and by party officials chosen prior to 1972."
On April 24, plaintiff moved to have the case remanded to the
state court pursuant to 28 U.S.C. § 1447 on the ground that this
Court lacks jurisdiction over the case. In addition, plaintiff
moved for an order temporarily restraining defendants from
proceeding with their challenge to the Credentials Committee.
Both motions were taken under advisement pending a determination
whether we have jurisdiction. On May 2, plaintiff submitted a
motion for a preliminary injunction enjoining defendants from
proceeding before the Credentials Committee.
After discussion with plaintiff's counsel in open court, the
Court ruled on the question of enjoining defendants pending a
determination of the jurisdictional question. The motion for a
preliminary injunction and the motion for a temporary
restraining order were denied on May 2, inasmuch as there had
been no showing of immediate and irreparable harm as required by
Rule 65(b), Fed.R.Civ.P., and because the underlying claim for
relief in the case — an order enjoining the defendants from
exercising their First Amendment rights within procedures set up
by a national political party — raises substantial constitutional
questions which ought not be resolved on a motion for a temporary
restraining order or preliminary injunction but only after a full
hearing on the merits.
Given that background of the case, it must now be determined
whether this Court has jurisdiction over the subject matter of
the dispute. In their petition for remand, defendants have
asserted two statutory bases for removal jurisdiction — 28 U.S.C. § 1441
and 1443 — each of which will be discussed separately.
In essence, section 1441 provides that removal is permissible
if the federal court to which the action is being removed would
have had jurisdiction over the subject mater and parties if the
action had originally been brought in that federal court.
Inasmuch as the parties to the instant action are all citizens of
Illinois, in order for removal to be proper under § 1441, the
action must have been maintainable, if brought here originally,
under federal question jurisdiction, 28 U.S.C. § 1331, i.e., the
matter in controversy must exceed $10,000 in value and arise
under the Constitution, laws, or treaties of the United States.
The defendants have proffered several bases for federal
question jurisdiction, asserting that the controversy arises
under the Constitution of the United States — Article II § 1, 1st
Amendment, 14th Amendment, and 15th Amendment. It is important to
note initially that any basis for federal jurisdiction must stem
solely from the allegations of the complaint. Great Northern Ry.
Co. v. Galbreath Cattle Co., 271 U.S. 99, 46 S.Ct. 439, 70 L.Ed.
854 (1926); Gully v. First National Bank, 299 U.S. 109, 57 S.Ct.
96, 81 L.Ed. 70 (1936); Crow v. Wyoming Timber Products Co.,
424 F.2d 93 (10th Cir. 1970). See also, Louisville & Nashville R. Co.
v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908). The
defendants' primary argument is that, since the case involves a
controversy connected with the election of the President of the
United States, albeit several steps removed from the
formal selection of the President by the Electoral College
pursuant to Article II § 1, as amended, it arises under the
Constitution. They argue that the request in the complaint that
the court declare that the uncommitted delegation is entitled to
sit as such at the Convention raises the question whether the
selection of this uncommitted delegation in accordance with
Illinois election laws constitutes a bar to a challenge under the
rules of the National Democratic Party and that this question can
only be decided under the Federal Constitution.
No case has been cited in support of this argument apparently
because it is a question of first impression. We hold that the
eligibility of delegates to a national party convention is not
within the scope of Article II § 1, as amended by the 12th
Amendment. To conclude otherwise would be to open the federal
courts to a wide variety of controversies, for, under the same
logic, almost any controversy can somehow be related to a general
provision in the Constitution. The mere fact that this
controversy centers around a preliminary process pertaining to
the selection of the President without more does not confer
jurisdiction over that controversy upon the federal courts.
This is not to suggest that the qualifications and eligibility
of delegates to national political party conventions is properly
determinable by state law or by state courts. If it were, each of
the fifty states could establish the qualifications of its
delegates to the various party conventions without regard to
party policy, an obviously intolerable result. The proper forum
for determination of the eligibility of delegates to serve at
such a convention is the Credentials Committee of the party or
the convention. This is clearly a question of political party
policy which is not justiciable, if at all, unless and until the
Credentials Committee acts and then only if its actions violate
fundamental constitutional rights.
The state election laws are applicable only to the extent that
they regulate the manner of selection of delegates and are not
applicable to their ...