LEWIS v. GUADAGNO et al
Filing
88
OPINION. Signed by Judge Noel L. Hillman on 09/06/2011. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FREDERICK CARLTON “CARL”
LEWIS,
Plaintiff,
v.
SECRETARY OF STATE KIM
GUADAGNO, et al.,
Defendants.
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Civil Action No.
11-cv-2381 (NLH)(AMD)
OPINION
APPEARANCES:
William M. Tambussi, Esquire
John E. Wallace, Jr., Esquire
William F. Cook, Esquire
Christopher A. Orlando, Esquire
and
Michael Joseph Miles, Esquire
Brown & Connery L.L.P.
360 Haddon Avenue
Westmont, N.J. 08108
Attorneys for Plaintiff Frederick Carlton Lewis
Donna Kelly, Esquire
and
Robert T. Lougy, Esquire
Division of Law & Public Safety
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
25 Main Street
P.O. Box 112
Trenton, N.J. 08625
Attorneys for Defendants Kim Guadagno and Paula Dow
Howard Lane Goldberg, Esquire
and
Sherri L. Schweitzer, Esquire
Office of Camden County Counsel
520 Market Street
Courthouse, 14th Floor
Camden, N.J. 08102
Attorneys for Defendant Joseph Ripa
James T. Dugan, Esquire
Atlantic County Department of Law
1333 Atlantic Avenue
8th Floor
Atlantic City, N.J. 08401
Attorney for Defendant Edward P. McGettigan
Mark D. Sheridan, Esquire
and
Mark C. Errico, Esquire
Drinker Biddle & Reath, L.L.P.
500 Campus Drive
Florham Park, N.J. 07932
Attorneys for Intervenors-Defendants William Layton and Ted Costa
HILLMAN, District Judge
Plaintiff, Frederick Carlton “Carl” Lewis, has brought suit
against Defendants, New Jersey Secretary of State Kim Guadagno,
New Jersey Attorney General Paula Dow, Camden County Clerk Joseph
Ripa, Burlington County Clerk Timothy Tyler, and Atlantic County
Clerk Edward P. McGettigan, alleging, inter alia, that his
constitutional right to equal protection will be violated if he
is prohibited from running as a candidate for New Jersey State
Senate.
On appeal, the Third Circuit Court of Appeals
preliminarily enjoined Defendants from removing Plaintiff’s name
from the ballot, thereby permitting Plaintiff’s name to appear on
the primary election ballot as a Democratic candidate for New
Jersey State Senate in the 8th Legislative District.
Moreover,
the Third Circuit remanded the matter to this Court, instructing
the Court to consider Plaintiff’s as-applied equal protection
2
claim.
Secretary of State Guadagno and Attorney General Dow (or,
“Defendants”) and Intervenors-Defendants, William Layton and Ted
Costa (or, “Intervenors”) have moved for summary judgment against
Plaintiff’s claims, asserting that Plaintiff’s name should not
appear on the ballot for New Jersey’s upcoming general election.
Plaintiff cross-moves for summary judgment in favor of his
claims.
For the following reasons, the Motions for Summary Judgment
filed by Defendants and Intervenors will be granted.
Further,
Plaintiff’s Cross-motion for Summary Judgment will be denied.
I.
JURISDICTION
Plaintiff has brought federal constitutional claims pursuant
to 42 U.S.C. § 1983, as well as a claim under New Jersey law.
This Court has jurisdiction over Plaintiff’s federal claims under
28 U.S.C. § 1331, and may exercise supplemental jurisdiction over
Plaintiff’s related state law claim under 28 U.S.C. § 1367.
II.
BACKGROUND
On April 11, 2011, Plaintiff, Frederick Carlton “Carl”
Lewis,1 in accordance with New Jersey election law, filed his
nomination petition seeking to have his name placed on the ballot
1
Carl Lewis represented the United States in the 1984,
1988, 1992 and 1996 Olympic games. He won nine gold medals in
track and field and is considered by some as the greatest
Olympian of all time.
3
for the June 7, 2011 Democratic Party Primary Election for the
office of New Jersey State Senate, 8th Legislative District.
Several days later, William Layton and Ted Costa, intervenors in
this action, contested the validity of Plaintiff’s candidacy.
They specifically argued that Plaintiff did not meet the New
Jersey Constitution’s four-year durational residency requirement
for the office of state senator.
After a hearing on April 20,
2011, an administrative law judge determined the challengers of
Plaintiff’s candidacy failed to prove that Lewis did not meet the
residency requirement.
Several days later, on April 26, 2011,
Defendant, Secretary of State Kim Guadagno,2 reversed the
2
In New Jersey, the Secretary of State is appointed. As in
most states, the Secretary is the state’s highest election
official. Defendant Guadagno also serves as the State’s first
elected Lieutenant Governor, elected to that position on a
Republican slate that included Governor Chris Christie. Whatever
the wisdom of appointing an elected official to serve as
Secretary of State may be, and there is much to counsel against
it, the appointment does not violate state or federal law. It
also appears that of the forty-seven (47) states that have the
position, thirty-five (35) are elected by statewide ballot and
twelve (12) are appointed.
http://ballotpedia.org/wiki/index.php/Secretary_of_State (last
visited September 6, 2011).
Plaintiff argues that Secretary of State Guadagno’s dual
role as the chief election officer and partisan elected official,
coupled with certain comments and conduct by the Republican
Governor, evidence that Plaintiff is the victim of a political
vendetta and a skewed and biased application of the law. This
argument might have some merit, and might justify an inquiry into
the decisional process, if the buck stopped at the desk of the
Secretary of State, or if the Governor himself determined or had
influence over the final determination of candidate
qualifications. Indeed, exercise of the power to regulate
elections to gain a partisan advantage would be a gross and
corrupt use of power. Here, however, the issue of Plaintiff’s
4
decision of the administrative law judge and concluded that
Plaintiff was not a resident of the State of New Jersey for the
constitutionally prescribed time period.
Thus, Plaintiff’s name
was ordered removed from the ballot.
Plaintiff appealed Secretary of State Guadagno’s decision to
the Appellate Division of New Jersey.
On May 2, 2011, the
Appellate Division affirmed the Secretary’s decision to bar
Plaintiff’s name from appearing on the primary ballot.
The next
day, Plaintiff moved before the Supreme Court of New Jersey for a
stay and sought certification to appeal the appellate panel’s
decision.
The Supreme Court denied the stay and the petition for
certification.
During the course of those proceedings, Plaintiff filed a
Verified Complaint before this Court alleging that Secretary of
State Guadagno’s decision violated the Equal Protection Clause of
the Fourteenth Amendment and the New Jersey Civil Rights Act.
Plaintiff additionally filed a Motion for a Temporary Restraining
Order and Order to Show Cause Why a Preliminary Injunction Should
Not be Entered.
After a hearing and oral argument on April 28,
2011, the Court denied Plaintiff’s motion.
The Court
qualifications under state law was reviewed -- and the
disqualification upheld -- by the State’s judiciary up to and
including its highest court. This review by an independent
branch of government insulated from political influence or
partisan bias renders the argument of improper influence a
superficially attractive but ultimately irrelevant red herring.
5
supplemented its decision in its Opinion dated May 3, 2011.
Plaintiff appealed the Court’s decision to the Third Circuit
Court of Appeals.
In its Order dated May 5, 2011, the Third
Circuit entered a preliminary injunction mandating that
Plaintiff’s name be included on the ballots, and remanded the
case to this Court for purposes of analyzing Plaintiff’s asapplied equal protection claim.3
On May 10, 2011, Plaintiff
filed an Amended Verified Complaint.
On remand, Intervenors moved for summary judgment against
Plaintiff’s claims on June 3, 2011.
moved for summary judgment.
Days later, Defendants also
Along with his opposition to
Defendants and Intervenors’ motions, on August 29, 2011,
Plaintiff cross-moved for summary judgment.4
With this
procedural history in mind, the Court turns to the following
facts set forth by the parties as part of their motions for
3
This Court’s April 28, 2011 Opinion only addressed
Plaintiff’s facial challenge to the state constitutional
provision at issue and expressly declined to address an asapplied challenge, believing that such a claim either had been
heard -- or going forward would be best heard -- by the state
courts hearing Plaintiff’s claims. As discussed more fully
infra, the interim relief granted by the Court of Appeals was
based on a claim that had not yet been fully presented or decided
in any other court.
4
On August 19, 2011, the Court held a hearing in this matter
to address several issues, including Plaintiff’s request for
certain discovery. For the reasons expressed on the record at
that hearing, and in a separate order to be entered this date,
the Court denied Plaintiff’s request, specifically his request to
depose Secretary of State Guadagno.
6
summary judgment and that are relevant to the analysis here.5
Plaintiff first moved to the State of New Jersey while an
infant in 1963.
in Willingboro.6
Until 1979, Plaintiff resided with his parents
He attended school in Willingboro, competed as
a track and field athlete in school and as a member of the
Willingboro Track Club, and ultimately, in 1979, graduated from
Willingboro High School.
Thereafter, beginning in 1979,
Plaintiff accepted a scholarship and competed as a collegiate
track and field athlete at the University of Houston, in Houston,
Texas.
He continued to reside in the State of Texas until
approximately 1999, when he moved to the State of California.
1999, he purchased a home in California.
In
As of November 8, 2007,
Lewis owned three homes in California, for which he paid taxes
and utilities.
Also, at that time, Lewis was registered to vote
in California, a right he exercised thrice in 2008 and once in
2009.
Between 2002 and 2008, and possibly including 2009,
Plaintiff paid income taxes in California.
Plaintiff maintained
a business, the Carl Lewis Foundation, in California where it had
5
In light of its disposition of the pending motions, the
Court resolves any factual disputes in favor of Plaintiff and
accepts Plaintiff’s proffered facts as true for purposes of these
motions.
6
Willingboro is located in the southernmost part of
Burlington County. Although not in the 8th Legislative District
as presently reconstituted, it is very close geographically.
7
been incorporated in 2001.7
In September 2010, he filed an
annual report indicating that his foundation continued to pay
taxes in California.
In May 2008, Plaintiff executed an amended
deed on his New Jersey property in which he identified his
address in California.
In addition to his contacts with the State of California,
Plaintiff has also maintained significant connections with the
State of New Jersey.
Throughout his collegiate career at the
University of Houston and during his professional athletic
career, Plaintiff returned repeatedly to New Jersey to visit and
stay with his parents in Willingboro, as well as to attend track
meets in the area.
In 1997, after he retired from professional
competition, Plaintiff continued to frequent his former home
state.
In 1999, he participated in an event to celebrate the
millennium in Willingboro.
In 2000 and 2001, Plaintiff assisted
in community fund-raising efforts to save Willingboro High
School’s track, known as Carl Lewis Stadium.
Pursuant to
Plaintiff’s request, the athletic apparel company, Nike,
contributed a significant amount of money to renovate and
resurface the track.
Plaintiff appeared in Willingboro in
support of the campaign.
Thereafter, in 2003 and 2004, Plaintiff
7
According to Plaintiff, the Carl Lewis Foundation “promotes
fitness, lifestyle, health and education for youth and families,”
“donates money for uniforms and equipment,” and “mentors children
and provides scholarships.” (Pl. Cross-mot., at 11-12).
8
visited every public school in Willingboro to speak with
students, an endeavor he continues to pursue to this day.
In 2005, Plaintiff purchased two condominiums in Mount
Laurel, New Jersey, one for his mother and the other for himself.
Ever since then, he has paid property taxes and utilities for his
condominium and property taxes for his mother’s condominium.
With the intent to permanently reside in New Jersey, Plaintiff
began to move his vehicles, personal belongings, and other things
from California to New Jersey in October 2005.
Also in or around
that time, Plaintiff purchased a vehicle in New Jersey to use in
the State; he sold his home in Texas; and in 2006, he obtained a
New Jersey driver’s license.
In August 2007, Plaintiff bought a
home in Medford, New Jersey, and transferred his belongings from
his condominium in Mount Laurel to his new residence in Medford.
Plaintiff continues to reside in the Medford home, for which he
pays property taxes and utilities, while renting the Mount Laurel
condominium.
In the autumn of 2007, Plaintiff started to
relocate his Carl Lewis Foundation to New Jersey, with its office
and principal functions now situated in Willingboro.
Also during 2007, Plaintiff became a volunteer assistant
track coach at Willingboro High School.
attended practices and track meets.
He has regularly
During the subsequent years,
he has been actively involved with Willingboro High School,
speaking with and mentoring students, establishing and presenting
9
scholarships, and appearing at and arranging student events.
Beginning in May 2009, for example, he hosted the annual Carl
Lewis Relay Championships, which are held at Carl Lewis Stadium
in Willingboro.
Since 2009, Plaintiff has attended church in Camden, New
Jersey.
In 2009, he also established in New Jersey a chapter of
an organization called Best Buddies, which encourages
volunteerism and opportunities for mentally and physically
disabled people.
That same year, Plaintiff was elected into the
New Jersey Hall of Fame.
More recently, in April 2011, Plaintiff
registered to vote in New Jersey.
III.
DISCUSSION
A.
Standard for Summary Judgment
Summary judgment is appropriate where the Court is satisfied
that “the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.
P. 56.
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
10
substantive law, a dispute about the fact might affect the
outcome of the suit.
Id.
In considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the nonmoving party’s evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.”
Marino
v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
U.S. at 323.
Celotex, 477
Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise,
specific facts showing that there is a genuine issue for trial.
Id.
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party.
Anderson, 477 U.S. at 256-57.
A party opposing summary
judgment must do more than just rest upon mere allegations,
general denials, or vague statements.
Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001).
B.
Equal Protection Claim
The Equal Protection Clause to the Fourteenth Amendment to
the United States Constitution provides that “[n]o State shall
make or enforce any law which shall . . . deny to any person
11
within its jurisdiction the equal protection of the laws.”
Const. Amend. XIV, § 1.
U.S.
When determining whether a law violates
the Equal Protection Clause, three elements are paramount: “the
character of the classification in question; the individual
interests affected by the classification; and the governmental
interests asserted in support of the classification.”
Blumstein, 405 U.S. 330, 335 (1972).
Dunn v.
Moreover, the standard of
review for an equal protection claim varies depending upon the
scope of, and burden imposed by, the law in question.
“If state
action does not burden a fundamental Constitutional right or
target a suspect class, the challenged classification must be
upheld if there is any reasonably conceivable state of facts that
could provide a rational basis for the classification.”
Doe v.
Pa. Bd. of Prob. & Parole, 513 F.3d 95, 107 (3d Cir. 2008)
(citation and internal quotation marks omitted).
“If the
challenged state action involves a ‘suspect’ classification based
on race, alienage or national origin, or infringes on a
fundamental constitutional right, [the court] must apply the
strict scrutiny standard.”
Id.
Accordingly, as a threshold matter, and vital to the Court’s
analysis, the parties dispute the appropriate standard of review
applicable to Plaintiff’s equal protection claim.
The Court
therefore will address the standard of review before turning to
the merits of Plaintiff’s as-applied challenge to New Jersey’s
12
durational residency requirement.
1.
Standard of Review
Plaintiff argues that given the severe restriction it
imposes upon citizens’ rights to vote and Plaintiff’s right to
travel, the durational residency requirement at issue must be
subjected to strict scrutiny.
Conversely, Defendants and
Intervenors submit that the residency requirement does not
implicate the fundamental rights to vote or travel, but merely
impacts an individual’s ability to run for political office,
which in and of itself does not amount to a constitutional right.
Because the residency requirement does not restrict on the basis
of some impermissible classification, Defendants and Intervenors
surmise that only a rational basis review is appropriate under
these circumstances.
In Bullock v. Carter, 405 U.S. 134 (1972), the Supreme Court
of the United States held that the imposition of a filing fee as
a condition to having a political candidate’s name placed on a
ballot in a primary election violated the Equal Protection
Clause.
At the outset of its analysis, the Supreme Court had to
choose what level of scrutiny to apply to the Texas filing-fee
requirement.
Id. at 142.
The Court explained:
The initial and direct impact of filing
fees is felt by aspirants for office, rather
than voters, and the Court has not heretofore
attached such fundamental status to candidacy
as to invoke a rigorous standard of review.
However, the rights of voters and the rights
13
of candidates do not lend themselves to neat
separation; laws that affect candidates always
have at least some theoretical, correlative
effect on voters.
Of course, not every
limitation or incidental burden on the
exercise of voting rights is subject to a
stringent standard of review.
McDonald v.
Board of Election, 394 U.S. 802 (1969). Texas
does not place a condition on the exercise of
the right to vote, nor does it quantitatively
dilute votes that have been cast. Rather, the
Texas system creates barriers to candidate
access to the primary ballot, thereby tending
to limit the field of candidates from which
voters might choose.
The existence of such
barriers does not of itself compel close
scrutiny.
Compare Jenness v. Fortson, 403
U.S. 431 (1971), with Williams v. Rhodes, 393
U.S. 23 (1968).
In approaching candidate
restrictions, it is essential to examine in a
realistic light the extent and nature of their
impact on voters.
Id. at 142-43 (footnotes omitted).
The Supreme Court determined
that the filing-fee requirement must withstand close scrutiny
because the requirement, in essence, served as an “exclusionary
mechanism” that precluded potential candidates from running for
office simply due to their inability to afford a considerable,
initial fee.
Id. at 143-44.
That imposition upon potential
candidates, in turn, “substantially limited” voters’ choice of
candidates by burdening, and perhaps proving cost prohibitive to,
office seekers of modest means who do not attract sizeable
contributions from their supporters.
Id. at 144.
The filing-fee
requirement essentially eliminated what otherwise might have been
highly qualified candidates, for whom voters may have cast their
14
ballots, merely because of the candidates’ financial constraints.8
The significance of Bullock in this matter is its conclusion
that a restriction placed upon political candidates does not
warrant heightened scrutiny unless the restriction substantially
interferes with or disrupts the right to vote, severely distorts
the political playing field, or otherwise offends another
constitutional right.
In other words, standing alone, there is
no fundamental, unfettered right to pursue public office.
See
id. at 142-43; Hankins v. State of Hawaii, 639 F. Supp. 1552,
1555-56 (D. Haw. 1986) (finding that the right to run for or hold
public office is not a fundamental constitutional right).
Only
when a restriction on candidacy threatens serious harm to a
cognizable constitutional right or freedom must that restriction
endure strict scrutiny; otherwise, the restriction simply must
have a rational basis to justify it.9
8
In essence, the state law at issue in Bullock created two
tiers, or wide classes, of potential candidates -- those rich
enough to run and those who could not afford the exorbitant
filing fees. In some cases the filing fee was a substantial
percentage of the salary of the office sought by the candidate.
Although the impact on voters was derivative of the rights of the
candidates who could not afford to run, it is not surprising that
the Court would apply a strict scrutiny analysis to a state
scheme which had the effect of barring the poor from
participating in our democracy by limiting the opportunity to
seek public office to the wealthy. There is no rational basis,
much less a compelling one, to limit participation in political
life based on economic status.
9
In further support of the conclusion that rational basis
review is appropriate to evaluate a law restricting an
individual’s right to candidacy, absent any invidious
15
Numerous cases, including several cited by the parties here,
illustrate, either expressly or tacitly, the need for strict
scrutiny of restrictions on candidacy only when those
restrictions substantially and appreciably impact constitutional
rights or basic political freedoms independent of the candidate’s
ability to run for public office.
For instance, the Texas
filing-fee requirement in Bullock garnered close scrutiny
because, by its nature, it arbitrarily eliminated candidates of
modest means and therefore profoundly disturbed citizens’
fundamental rights to vote for candidates of their choice.
In Dunn v. Blumstein, 405 U.S. 330 (1972), a durational
residency requirement failed under a strict scrutiny analysis and
thus violated the Equal Protection Clause.
But that residency
requirement, in complete contrast to the one at issue here,
applied directly to residents’ fundamental right to vote; the
discrimination or infringement of a constitutional right, the
Court notes the plurality opinion of the Supreme Court in
Clements v. Fashing, 457 U.S. 957 (1982). In that case, a
plurality of the Court explained: “Far from recognizing candidacy
as a ‘fundamental right,’ we have held that the existence of
barriers to a candidate’s access to the ballot ‘does not itself
compel close scrutiny.’” Id. at 963 (Rehnquist, J., plurality)
(quoting Bullock, 405 U.S. at 143). In Clements, the Supreme
Court upheld a Texas state statute that barred certain state
officers with more than a year remaining on their elected or
appointed terms from running for the state legislature. The
plurality went on to hold: “We conclude that this sort of
insignificant interference with access to the ballot need only
rest on a rational predicate in order to survive a challenge
under the Equal Protection Clause.” Id. at 968 (emphasis added).
16
requirement in Dunn had nothing to do with candidates running for
public office.
In Williams v. Rhodes, 393 U.S. 23 (1968), the
Supreme Court closely scrutinized and, under equal protection
principles, struck down an Ohio statutory scheme that effectively
prohibited the creation of new political parties independent of
the Democratic and Republican parties.
Those restrictions, the
Court reasoned, impede the fundamental rights to associate and
vote, and wilt under strict scrutiny given the disparate, heavy
burdens they impose on minority political groups to the benefit
of the established two-party paradigm.
Id. at 31-32.
Like the
burdensome financial hurdles at issue in Bullock, the state
scheme in Rhodes represented a deep and systemic defect designed
to maintain the political status quo and exclude whole classes of
groups and individuals who might seek to challenge the
established order.
In Turner v. Fouche, 396 U.S. 346 (1970), the
Supreme Court deemed unconstitutional the compilation of a grand
jury list and, under a more lenient standard of review, the
membership requirements for a school board.
However, in that
case, the Court noted that the violations of equal protection
were not linked to some right to public service, but rather to
the unassailable right to be free of racial discrimination and
other invidiously discriminatory qualifications.
Id. at 359-63.
All of those cases employing heightened scrutiny are
materially different and distinguishable from the present matter.
17
Here, the durational residency provision requires that any and
all persons aspiring for the office of state senator in the State
of New Jersey must have been a citizen and resident in the State
for at least four years before the election.
Art. 4, § 1, ¶ 2.
See N.J. Const.
Therefore, on its face, the residency
requirement governs all individuals fairly and equally, without
regard to or reliance on any suspect classification.
It demands
that any person, irrespective of his or her natural attributes,
beliefs, opinions, or proclivities, be immersed in the civic,
social, and political fabric of New Jersey for a specific period
of time in order to qualify as a candidate for one of the State’s
highest offices.
Further, the constitutional mandate has an
appreciable impact on only certain, aspiring political candidates
–- i.e., those who have not resided, as defined by state law,
within New Jersey’s borders for four years before election -- and
not voters, political parties, or persons with particularized
views or minimal wealth.
Unlike the restrictions overturned in
Bullock, Rhodes, and Turner, the durational residency requirement
does not shrink the pool of political candidates so profoundly,
and on such arbitrary or impermissible grounds such as financial
status, political opinion, or membership in a protected class, as
to undermine fundamental rights and privileges, including the
18
rights of voters.10
On the contrary, a durational residency requirement for
aspirants of state political office has nothing more than a
minor, incidental impact on the rights of citizens to vote.
fact alone does not warrant strict scrutiny.
That
After all, citizens
do not have an unfettered right to select any person of their
choosing for public office.
The institution of qualifications
and restrictions for political elective office are nearly
universal, see, e.g., U.S. Const. Art. II, § 1, cl. 5 (fourteenyear residency requirement for President); Art. I, § 2, cl. 2
(seven-year residency requirement for congressional
representative); Art. I, § 3, cl. 3 (nine-year residency
requirement for senator), and present an acceptable means to
ensure the legitimacy, suitability, and integrity of our
political leaders and public servants.
10
In the universe of
The durational residency requirement also cannot be said
to violate Plaintiff’s right to travel because the provision,
limited in its scope and duration, in no way penalizes Plaintiff
from exercising that right. Because candidacy for political
office is not a fundamental right, Plaintiff is not being forced
to choose between his right to travel and another constitutional
entitlement or freedom. See Hankins, 639 F. Supp. at 1555
(finding that a durational residency requirement for candidacy
does not “penalize,” and thus violate, the potential candidate’s
right to travel because the candidate need not choose between
exercising different fundamental rights). Rather, the residency
requirement here merely delays Plaintiff from running for New
Jersey state senator until he has chosen to reside in the State
for four years leading up to the election. That choice falls
entirely within Plaintiff’s purview, and does not impede his
ability to indulge in any rights afforded to him by the
Constitution or any other law.
19
political qualifications and restrictions, a durational residency
requirement is among the fairest and most circumscribed ways in
which to regulate a pool of candidates without encumbering
individual rights and freedoms.
In sum, because New Jersey’s durational residency
requirement for the office of state senator does not
substantially or severely impede the fundamental, constitutional
rights of potential candidates, voters, or anyone else, the
requirement, to withstand an equal protection challenge, must
“bear[] a rational relationship to some legitimate end” -- that
is, the requirement is constitutional if “‘any reasonably
conceivable set of facts [] could provide a rational basis for’
it.”
Doe, 513 F.3d at 107 (quoting FCC v. Beach Commc’ns, 508
U.S. 307, 313 (1993)).
Mindful of this standard, the Court will
turn to the merits of Plaintiff’s as-applied cause of action.
2.
As-Applied Analysis
At the conclusion of the April 28, 2011 hearing and in its
Supplemental Opinion dated May 3, 2011, this Court denied
Plaintiff’s request for a preliminary injunction, finding that he
failed to show a likelihood of success on the merits of his equal
protection claim.11
The Court, however, made clear that it
11
To the extent necessary to resolve the motions for summary
judgment and for purposes of this Opinion, the Court adopts and
reiterates its reasoning set forth at the April 28, 2011 hearing
and in its Supplemental Opinion. In so doing, the Court again
finds in favor of Defendants and Intervenors concerning any
20
understood and considered Plaintiff’s claim as only a facial
challenge to New Jersey’s durational residency requirement.
On
appeal, the Third Circuit entered a preliminary injunction in
Plaintiff’s favor and directed this Court, on remand, to consider
Plaintiff’s as-applied equal protection claim.
“An as-applied
attack . . . does not contend that a law is unconstitutional as
written but that its application to a particular person under
particular circumstances deprived that person of a constitutional
right.”
United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.
2010).
According to Plaintiff, his history and ongoing connections
with the State of New Jersey, his current residency, and his
substantial involvement in public affairs demonstrate that, as
applied to him, the durational residency requirement is
unconstitutional.
Plaintiff attests to his close ties to the
State and its people and institutions.
In support of his claim,
Plaintiff has thoroughly and painstakingly articulated details of
his childhood and adolescence, his family, his amateur and
professional athletic careers, his home ownership and residency,
his tax obligations, his volunteerism and community service, and
his other endeavors and general reputation in the State.
Through
those connections and contributions, Plaintiff believes that he
facial challenge asserted by Plaintiff against New Jersey’s
durational residency requirement.
21
is intimately familiar with the residents of New Jersey and their
concerns, and, in turn, they are familiar with him.12
Defendants and Intervenors counter that notwithstanding his
connections with the State, Plaintiff simply cannot satisfy the
durational residency requirement and the purposes and policies
animating it.
By their assessment, Plaintiff, on account of his
prolonged absence away from New Jersey, is not sufficiently
familiar with the State and its citizens, nor are its citizens
sufficiently familiar with him as a potential candidate, to find
that the residency requirement as applied to him violates the
Equal Protection Clause.
Article 4, Section 1, Paragraph 2 of the New Jersey
Constitution reads, in pertinent part, that “[n]o person shall be
a member of the Senate who shall not . . . have been a citizen
and resident of the State for four years . . . before his
election.”
N.J. Const. Art. 4, § 1, ¶ 2.
The justifications for
New Jersey’s durational residency requirement, according to
Defendants and Intervenors, is two-fold: the State has a
paramount interest in ensuring that (1) its candidates for State
Senate are familiar with their constituents and the concerns and
issues relevant to New Jersey, and (2) its citizens are familiar
with their candidates and the platforms, ideas, and opinions
12
In the uncontested Democratic primary held June 7, 2011,
Plaintiff received 2,418 votes.
22
espoused by those candidates.
Unquestionably, those interests
formulate a rational basis for the policy encompassed by Article
4, Section 1, Paragraph 2 of the New Jersey Constitution.
See
Hankins, 639 F. Supp. at 1556 (“Indisputably, candidates who
possess a familiarity with, and an awareness of, local conditions
are a commodity desirable to state residents.
That the voters
are more likely to come into personal contact with the
candidates, prior to election, if a residency requirement is
imposed is also self-evident.”); Sununu v. Stark, 383 F. Supp.
1287, 1290 (D.N.H. 1974) (finding compelling state interests in
durational residency requirements, including the interests
“first, to ensure that the candidate is familiar with his
constituency; second, to ensure that the voters have been
thoroughly exposed to the candidate; and third, to prevent
political carpetbagging”), aff’d mem., 420 U.S. 958 (1975).13
The
importance of the durational residency requirement is reflected
by its inclusion in the New Jersey Constitution for approximately
167 years, and the decision of the people of New Jersey not to
amend or delete it over that time.
Notwithstanding its history and purpose, the question
remains, does New Jersey’s otherwise valid, constitutional
13
The Court also refers to and incorporates its May 3, 2011
Supplemental Opinion for further examination and explanation of
the justifications and purposes underlying the durational
residency requirement.
23
residency requirement violate the Fourteenth Amendment when
applied to Plaintiff and his particular set of circumstances?
The Court finds that it does not.
Central to the resolution of
that question is not whether Defendants and Intervenors have
articulated a sufficient empirical justification for the
provision’s existence and application.
They have no such burden.
See Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986)
(noting that a state need not “make a particularized showing” to
support the enforcement of reasonable restrictions on ballot
access); see also Timmons v. Twin Cities Area New Party, 520 U.S.
351, 364 (1997) (stating that the court does not “require
elaborate, empirical verification of the weightiness of the
State’s asserted justifications”).
Nor is the pertinent
consideration whether Plaintiff has averred sufficient facts to
somehow undermine those legitimate, rational justifications.14
14
This Court will not address whether Secretary of State
Guadagno properly interpreted New Jersey’s durational residency
requirement and reasonably determined that Plaintiff did not
satisfy that requirement. Secretary of State Guadagno’s
determination of Plaintiff’s residency and citizenship was
affirmed by the Appellate Division, and the New Jersey Supreme
Court denied certification regarding that matter. That issue,
one solely of state law, was fully and fairly litigated by the
parties and reviewed by the State’s highest court. This Court is
precluded from reexamining those decisions. See M & M Stone Co.
v. Commonwealth of Pennsylvania, 388 F. App’x 156, 161 (3d Cir.
2010) (“With regard to issues first presented to a state
tribunal, the federal courts have consistently accorded
preclusive effect to issues decided by state courts, and, thus
‘res judicata and collateral estoppel not only reduce unnecessary
litigation and foster reliance on adjudication, but also promote
the comity between state and federal courts that has been
24
Stated differently, Plaintiff does not undermine a state
constitutional provision designed to insure voter familiarity
generally by merely offering evidence, or even proving, that
voters are sufficiently familiar with him.15
Rather, the relevant
recognized as a bulwark of the federal system’” (quoting Allen v.
McCurry, 449 U.S. 90, 95-96 (1980))). Under more ordinary
circumstances, principles of comity and, more specifically, New
Jersey’s entire controversy doctrine might also preclude this
Court’s consideration of an as-applied challenge. See Paramount
Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999)
(“Under the entire controversy doctrine, a party cannot withhold
part of a controversy for separate later litigation even when the
withheld component is a separate and independently cognizable
cause of action.”). As all litigants do in state court,
Plaintiff had an obligation to assert all valid bases for relief
in one proceeding and be barred from raising them in later
proceedings. The state courts are fully competent to apply
federal law principles of equal protection. However, under the
unique procedural history of this case, application of that rule
would work an inequity. See id. (“As an equitable doctrine, [the
entire controversy doctrine’s] application is flexible, with a
case-by-case appreciation for fairness to the parties.”); Circle
Chevrolet Co. v. Giordano, Halleran & Ciesla, 662 A.2d 509, 513
(N.J. 1995) (noting that use of the entire controversy doctrine
“is discretionary and clarification of the limits of the doctrine
is best left to case-by-case determination”). Therefore, the
Court considers only the merits of Plaintiff’s as-applied
constitutional challenge to the durational residency requirement
–- not the adequacy of the Secretary’s findings and judgment
related to Plaintiff’s residency and citizenship.
15
If this Court were to frame the issue as Plaintiff has,
trial courts faced with as-applied challenges to this and similar
provisions would have to substitute their own judgment on a caseby-case basis as to whether the particular candidate’s knowledge
of the community and the community’s familiarity with the
candidate met some undefined and undefinable standard. Where
would that line be drawn? Would every judge draw it in the same
place? Would it be enough to be merely famous? Would some
qualities or organizational affiliations be favored more highly
than others? Would having some public facility bear your name be
a necessary requisite or merely sufficient? The effect would not
be the laudable and necessary goal of equal protection but rather
25
constitutional inquiry is whether Plaintiff has carried his
considerable burden to demonstrate that a facially neutral, nondiscriminatory state constitutional mandate nonetheless has
deprived him of a constitutional right, or unduly burdened such a
right, because of his unique personal circumstances or
characteristics.
This Court holds that the durational residency requirement
does not in any way discriminate against Plaintiff or deprive him
of fundamental rights to which he is entitled.
By failing to
satisfy the New Jersey residency requirement at issue, Plaintiff
is not precluded from participating in the political process,
from voting for or supporting particular candidates, from
advocating for or contributing to certain causes, from
associating with certain groups or lobbies, or from running for
another political office, including the New Jersey General
Assembly.
Likewise, he may exercise his rights to speak freely,
to assemble peaceably, and to travel widely.
The only impediment
Plaintiff suffers as a result of the residency requirement is
the opposite -- the ad hoc application of an arbitrary and
capricious standard by the branch of government least responsive
to the public at large. As between an unelected federal judge -even one sworn to uphold the Constitution -- and a state
constitution, it is for the latter and not the former to set the
qualifications for state office. See Munro, 479 U.S. at 195
(expressing concern about “endless court battles” over the
sufficiency of factual predicates to reasonable state
provisions); Sununu, 383 F. Supp. at 1290-91 (lamenting the lack
of discernable judicial standards in judging durational residency
terms).
26
enjoinment from pursuing the New Jersey office of state senator,
and only then until he has been a citizen and resident in New
Jersey for four years.
Thus, the restriction is not permanent,
but limited to a relatively short temporal period.
Indeed, it is
difficult to imagine many electoral restrictions narrower in
their restraint than the one at issue.
Given the durational residency requirement’s importance, as
well as its state constitutional dimension,16 and the incidental,
minimal burden it imposes on Plaintiff, the Court cannot find
that Plaintiff has sufficiently demonstrated why, under equal
protection jurisprudence, he should be excepted from the
application of a New Jersey state constitutional provision
reasonably related to legitimate, even compelling, state
interests concerning a matter entrusted entirely to a state
16
It is, of course, a truism that a state has no more a
right to violate the Federal Constitution in its own constitution
than it does in any other exercise of state power. That having
been said, state constitutions are different in kind from other
state action. Unlike unilateral action by a state executive or
the enactment of a state statute by elected representatives,
which may or may not reflect the will of the people, the
provisions of a state constitution reflect the direct vote of the
citizens. On one level, the dispute in this case can be fairly
characterized as whether the desire of some voters in the 8th
Legislative District to vote for Plaintiff should trump the
decision of the majority of statewide voters who approved the
durational residency requirement. While this Court, or any
federal court, should not hesitate to vindicate the checks and
balances inherent in the Fourteenth Amendment, it should be
equally reluctant to intrude into sensitive matters reserved by
the Tenth Amendment to the sovereignty of the state. See Sununu,
383 F. Supp. at 1290-91.
27
sovereignty –- the qualifications of its own political office
holders and elected officials.
Plaintiff supposes that his
individual attributes and experiences should exempt him from the
residency requirement, but that simply is not the case here.
The
Court respects and commends Plaintiff for his athletic,
professional, and altruistic achievements.
Indeed, those kinds
of achievements and the personal qualities and attributes
necessary to accomplish them may make Plaintiff an attractive
candidate for political office and, perhaps one day, an effective
public official.
Nothing in the State Constitution or this
ruling preclude him from running for a whole host of important
local and county offices as well as for the State Assembly.
But
his accomplishments and connections to New Jersey do not excuse
Plaintiff from having to reside in the State and commit himself
as a citizen of New Jersey within its territorial borders for the
unique and special office of state senator.
As explained in this Court’s Supplemental Opinion dated May
3, 2011, the position of state senator in the State of New Jersey
is entrusted with immense authority and responsibility.
To
properly employ those powers and perform those functions, a
senator must be intimately familiar with the State -- its people,
government, institutions, businesses, history, culture,
strengths, and weaknesses.
Likewise, for the State’s citizens to
effectively choose their senators, those citizens must have the
28
opportunity to learn about their senatorial candidates, including
their political platforms and plans for the State.
The
durational residency requirement -- and, by extension, the
citizens of New Jersey, as illustrated by their approval of the
requirement’s inclusion in the New Jersey Constitution -- assumes
that the requisite manner and degree of familiarity between
citizen and candidate cannot occur unless, or at least is more
likely to occur when, the senatorial office seeker lives in the
State and among its people, where the candidate can experience
with his or her constituents hardship and prosperity, challenge
and accomplishment, disappointment and pride.
For all that he
has done, Plaintiff has not proven that his particular
involvement with the State of New Jersey sets him apart from all
others who must reside in the State for four years to acquire the
knowledge and familiarity of the State that the New Jersey
Constitution and the New Jersey citizenry asks of its senators.
This irony in Plaintiff’s position -- that his fame and
civic involvement are such that he may leap ahead of other local
leaders known in their communities who must wait the requisite
waiting period -- is highlighted by the decisions in Hankins v.
State of Hawaii, 639 F. Supp. 1552 (D. Haw. 1986) and Sununu v.
Stark, 383 F. Supp. 1287 (D.N.H. 1974).
Though neither of those
cases expressly addressed an as-applied challenge, in both of
them the courts determined that the durational residency
29
requirements for state public office did not violate the equal
protection rights of the plaintiffs, both of whom had significant
connections to their respective states.
For instance, in
Hankins, the plaintiff, who sought to run as a candidate for
governor, had resided in Hawaii for seventeen years, including
the three years preceding his candidacy.
at 1553.
Hankins, 639 F. Supp.
Nevertheless, the district court rejected his equal
protection claim against the five-year residency requirement
enunciated in the state constitution.
Id. at 1556-58.
Similarly, in Sununu, the plaintiff, seeking to become a
state senator, had been a resident in New Hampshire for more than
four-and-a-half years, during which time he served as the
chairman of the municipal water and sewer planning committee and
of the municipal planning board, and had been elected to
represent the municipality in the New Hampshire General Court.
Sununu, 383 F. Supp. at 1289.
Despite the length of his
residency and his multiple roles in government and public
service, including an elected position, a three-judge panel of
the district court rejected his equal protection claim against
the seven-year residency requirement set forth in the state
constitution.
Id. at 1290-92.
On this record, to conclude that Plaintiff is exempt from a
durational residency requirement that is materially similar to
and indeed shorter in duration and thus less onerous than those
30
constitutionally valid residency requirements described in
Hankins and Sununu, the Court would have to reach a result
inconsistent with the aforementioned authority –- including a
case, Sununu, that had been summarily affirmed by the United
States Supreme Court.
See Sununu v. Stark, 420 U.S. 958 (1975).17
The fact is, given their residencies within their respective
states and their political involvement, the plaintiff-candidates
in Hankins and Sununu were as qualified as Plaintiff, if not more
so.
While the Sununu decision did not address an as-applied
challenge expressly, the decision recited Sununu’s individual
attributes for the office in question and his extensive
connection with the political life of his state.
underlying rationale of that decision is clear.
The scope and
A rational,
evenly applied, state constitutional provision that does not
preclude, but merely delays, candidacy for a particular state
office -- even to one who already holds a significant elected
office -- does not offend the Federal Constitution.
17
Simply put,
A summary affirmance is a decision of the Supreme Court
affirming the merits of a lower court’s judgment. See
Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499 (1981)
(“This Court has repeatedly stated that although summary
dispositions are decisions on the merits, the decisions extend
only to the precise issues presented and necessarily decided by
those actions.” (citation and internal quotation marks omitted));
see also Hicks v. Miranda, 453 U.S. 332, 344-345 (1975) (noting
“that the lower courts are bound by summary decisions by this
Court until such time as the Court informs them that they are
not” (citation and internal quotation marks omitted)).
31
barring Plaintiff from running from state senate would not be
unfair, would not preclude him from other public office, and
would be wholly consistent with the existing legal precedents.
On the other hand, while it is not direct precedent given the
legal analysis applied, it is difficult to see how allowing
Plaintiff to run for state senator would be fair to John Sununu
or logically consistent with the restrictions placed on him and
approved by the United States Supreme Court.
Until it is
overturned -- or, at a bare minimum, undermined by intervening
authority of sufficient clarity, which the Court has looked for
and cannot find -- it is not for this Court to ignore the spirit
and import of the Sununu decision.
This Court holds that
Plaintiff’s connections to New Jersey, including his good deeds
and notoriety, do not place him beyond a constitutional
restriction that applies to anyone and everyone who seeks to
become a New Jersey state senator.18
It is tempting in this case to wish for, or to seek a path
to, a different result than the one determined in this Opinion.
18
Intervenors assert that should the rational basis standard
not apply, the Court should employ the balancing test articulated
in Rogers v. Corbett, 468 F.3d 188 (3d Cir. 2006). The weighing
process requires a court to “consider what burden is placed on
the rights which plaintiffs seek to assert and then [] balance
that burden against the precise interests identified by the state
and the extent to which these interests require that plaintiffs’
rights be burdened.” Id. at 194. Were the Court to apply that
balancing analysis, the reasoning and outcome would be the same
as here.
32
The plaintiff is a man of great and inspiring achievement,
justifiably held in high regard, and possessed of promise for the
future.
More importantly, he is the candidate of choice of his
political party.
And it is more than just a populist notion --
indeed it is ingrained in our collective political DNA -- to
level the playing field, to welcome all comers, and to root for
the underdog.
If constitutional law in the area of elections can
be neatly summarized, it is certainly the case that for at least
the last fifty years our courts have been, and ought to be, more
than a little skeptical of state machinations to preserve and
perpetuate the status quo of entrenched powers and ever vigilant
against discrimination in all its sinister forms.
If any
presumption would apply here, it would work to remove barriers to
speech and active participation in political life, not fortify
them, and to jealously guard the franchise on behalf of the
voting public.
But against the clamor, and the hue and cry of the editorial
board, must be balanced an equally powerful and fundamental
premise -- that our democracy is one of laws, not men.
The
citizens of the State of New Jersey, exercising their
constitutional right in our federalist system to formulate their
own government, have chosen and left undisturbed a universally
applied and neutral prerequisite to hold the office of state
senator.
The durational residency requirement applies to all,
33
regardless of economic status, race, creed, color, age, gender,
and political affiliation.
And it applies, has been applied, and
ought to be applied, equally to the famous and the obscure, to
the overachiever and the pedestrian, to the athletically gifted
and the passive observer.
Its populist appeal, and its
democratic strength, lies in its universalism and objective
application.
In that way it vindicates an equally strong
principle of constitutional law -- the corollary to equal
protection is equal application to all.
Therefore, for the reasons stated above, the Court rejects
Plaintiff’s equal protection claim.
Accordingly, the Court
grants summary judgment in favor of Defendants and Intervenors.
Further, Plaintiff’s cross-motion for summary judgment is
denied.19
IV.
CONCLUSION
For the foregoing reasons, Defendants and Intervenors’
Motions for Summary Judgment are granted.
Further, Plaintiff’s
Cross-motion for Summary Judgment is denied.
Date September 6, 2011
At Camden, New Jersey
/s/ NOEL L. HILLMAN
NOEL L. HILLMAN, U.S.D.J.
19
Plaintiff also sets forth a cause of action under New
Jersey’s Civil Rights Act. That claim, too, cannot survive
summary judgment because Plaintiff has failed to prove a
violation of a constitutional or statutory right.
34
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