Stack v. Adams

• Citation: 315 F. Supp. 1295
• Decision Date: 17 July 1970
• Docket Number: Civ. A. No. 1613.
• Parties: Edward J. STACK, Plaintiff, v. Tom ADAMS, as Secretary of the State of Florida, Defendant.
• Court: U.S. District Court — Northern District of Florida

315 F. Supp. 1295

Edward J. STACK, Plaintiff, v. Tom ADAMS, as Secretary of the State of Florida, Defendant.

Civ. A. No. 1613.

United States District Court, N. D. Florida, Tallahassee Division.

July 17, 1970.

Joseph C. Jacobs and N. Sanders Sauls, Ervin, Pennington, Varn & Jacobs, Tallahassee, Fla., for plaintiff.

Ronald W. Sabo, Asst. Atty. Gen., Dept. of Legal Affairs, Tallahassee, Fla., for defendant.

Before SIMPSON, Circuit Judge and SCOTT and ARNOW, District Judges.

OPINION AND JUDGMENT

PER CURIAM:

This case is before this Court for final decision on the merits.

Involved is a recent law pertaining to elections adopted by the Legislature of Florida, Chapter 70-80, Laws of Florida, the part of which pertinent to this decision reads as follows:

(2) No individual may qualify as a candidate for public office who holds another elective or appointive office, whether state, county or municipal, the term of which or any part thereof runs concurrent to the term of office for which he seeks to qualify without resigning from such office not less than ten (10) days prior to the first day of qualifying for the office he intends to seek. Said resignation shall be effective not later than the date upon which he would assume office, if elected to the office to which he seeks to qualify, or the expiration date of the term of the office which he presently holds, or the general election day at which his successor is elected, whichever occurs earlier. With regard to elective offices said resignation shall create a vacancy in said office thereby permitting persons to qualify as candidates for nomination and election to that office, in the same manner as if the term of such public officer were otherwise scheduled to expire; or, in regard to elective municipal or home rule charter county offices, said resignation shall create a vacancy which may be filled for the unexpired term of the resigned officer in such manner as provided in the municipal or county charter. This does not apply to political party offices.

(3) Any incumbent public officer whose term of office or any part thereof runs concurrent to the term of office for which he seeks to qualify and who desires to resign his office pursuant to the provisions of this act shall execute an instrument in writing directed to the governor irrevocably resigning from the office he currently occupies. The resignation shall be presented to the governor with a copy to the department of state. The resignation shall become effective and shall have the effect of creating a vacancy in office as provided herein, and the public officer shall continue to serve until his successor is elected or the vacancy otherwise filled as provided above in subsection (2).

(4) Nothing contained in this act shall relate to persons holding any federal office.

Article 1, Section 2, Clause 2 of the Constitution of the United States of America describes the qualifications for the office of United States Representative as follows:

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Under the admitted facts before this Court, the Plaintiff possesses these qualifications. He also holds the office of Sheriff of Broward County, Florida, and is presently serving in such office, with his current term of office ending December 31, 1972. On July 7, 1970, he presented all of the necessary qualifying papers and fees to the Defendant, as required by law, to qualify as a candidate for Representative to the Congress. The Defendant refused to accept the papers and fees for the reason that Plaintiff failed to resign from his present state public office, a condition precedent to qualifying for this office under and as required by the foregoing Chapter 70-80, Laws of Florida, 1970.

Plaintiff, in his complaint, says that he will resign as sheriff prior to the beginning of his term as Representative in the Congress in January, 1971, in the event he is elected, but that he does not desire to resign prior to that time, and contends that the statute of Florida requiring him so to do violates basic rights guaranteed to him by the United States Constitution.

His constitutional attack on the statute is fourfold:

1. The Florida statute attempts to add to the qualifications of a candidate for the office of United States Representative beyond those set forth in Article 1, Section 2, Clause 2, of the Constitution of the United States of America.

2. The statute arbitrarily and capriciously deprives Plaintiff of rights guaranteed to him under the First and Fourteenth Amendments to the United States Constitution.

3. The statute deprives Plaintiff of rights under the due process clause of the Fourteenth Amendment to the United States Constitution.

4. The statute deprives him of the equal protection of the law guaranteed by the Fourteenth Amendment of the United States Constitution.

The Court concludes the statute is valid as against Plaintiff's challenge to it on First Amendment grounds. Pertinent here is a decision of the Supreme Court of the United States in United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), in which the Supreme Court of the United States held the Hatch Act valid and constitutional against similar attack. The holding and principles enunciated in that case, rendered by that Court two years after its decision in Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430 (1945), and cited at length by Plaintiff, is not in conflict with the earlier case. While First Amendment rights have come much more to the forefront in years since 1947 in various decisions, the force and effect of United Public Workers of America, supra, has not been altered or eroded. To the contrary, various courts faced with First Amendment challenges to the Hatch Act have had no difficulty in approving and adhering to the ruling in the case. Gray v. Macy, 239 F.Supp. 658 (D.Or.1965), reversed on other grounds, 358 F.2d 742 (9 Cir. 1966); Palmer v. United States Civil Service Commission, 297 F.2d 450 (7 Cir. 1962); Engelhardt v. United States Civil Service Commission, 197 F.Supp. 806 (M.D. Ala.1961), affd. 304 F.2d 882 (5 Cir. 1962); Democratic State Central Committee for Montgomery County v. Andolsek, 249 F.Supp. 1009 (D.Md.1966); Johnson v. State Civil Service Department, 280 Minn. 61, 157 N.W.2d 747 (1968); Wisconsin State Emp. Assn., etc. v. Wisconsin National Res. Bd., 298 F.Supp. 339 (W.D.Wis.1969).

The statute is also valid against the due process attack made upon it under Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944) and cases referred to therein, holding that an unlawful denial by state action of a right to state political office is not a denial of right of property or of liberty secured by the due process clause. Moreover, this Florida act placing restriction on the right of a state office holder to seek election to office is not and cannot be considered to any extent an enactment that might infringe or impinge on any contractual or vested right Plaintiff might have by virtue of any decisions of Florida holding that he does have some kind of vested or contractual right in the state office to which he has been elected.

The statute is also valid against the equal protection challenge made by Plaintiff to it.

The statute prevents a state official from using the prestige or power of that office in seeking election to a higher or different office, with resignation made prospective to avoid cost of special elections in those cases where the laws of Florida would otherwise require such.

The...