317 F.Supp. 179 (S.D.Ala. 1970), Civ. A. 5702-69, Thomas v. Mims

Docket NºCiv. A. 5702-69
Citation317 F.Supp. 179
Party NameThomas v. Mims
Case DateSeptember 03, 1970
CourtUnited States District Courts, 11th Circuit, Southern District of Alabama

Page 179

317 F.Supp. 179 (S.D.Ala. 1970)

Lillian W. THOMAS, Plaintiff,

v.

Lambert C. MIMS, as Mayor and Commissioner of the City of Mobile, Alabama; Richard L. Smith, as Clerk, City of Mobile, etc.; Albert Brewer, as governor of the State of Alabama; MacDonald Gallion, as Attorney General of the State of Alabama, etc., Defendants.

Civ. A. No. 5702-69.

United States District Court, S.D. Alabama, Southern Division.

Sept. 3, 1970

Page 180

E. Graham Gibbons, Mobile, Ala., for plaintiff.

Walter S. Turner, Asst. Atty. Gen., Montgomery, Ala., William H. Brigham, City Atty. City of Mobile, James W. Goodloe, Asst. City Atty., Mobile, Ala., for defendants.

OPINION AND DECREE

PITTMAN, District Judge.

Plaintiff seeks to have Act No. 287, approved May 5, 1965, Acts of Alabama, Special Session, 1965, Vol. 1, p. 395, 1 declared void for being in violation of the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Act is a general act of local application, that is, by its terms it has general application, but because of population restrictions it applies only to Mobile. 2 The Act requires that candidates for municipal office in Mobile pay a filing fee equal to 2% Of the annual salary of the office they seek.

Plaintiff submitted, on July 17, 1969, the qualification papers indicating her intention to run for Mobile City Board of Commissioners, Place Number Three. She also tendered a check drawn in the amount of $300.00 which was the required filing fee, being 2% Of the $15,000 annual salary paid members of the Board. The City refused to accept the check because of a restriction on it, that it would be honored by the bank only, 'When the U.S. Attorney General rules that the City's Qualification Fee is constitutional,' and plaintiff's name was omitted from the ballot for the city election held August 19, 1969. The present action was commenced on October 3, 1969.

Plaintiff contends that the statute violates the Fourteenth Amendment in that the amount required is arbitrary and excessive; and, because filing fees are, per se, unconstitutional restrictions on the right to vote and to seek public office.

Dealing first with the question of excessiveness, this court is unwilling to say that, if filing fees are permissible, $300.00 is an excessive amount. See Wetherington v. Adams, 309 F.Supp. 318 (N.D.Fla.1970); Bodner v. Gray, 129 So.2d 419 (Fla.1961) .

Page 181

Nor will this court hold that a fee of 2% Of the salary is arbitrary, unreasonable, or exorbitant. The court notes there are cases holding it is arbitrary to set the fee as a percentage of the annual salary, e.g., Kelso v. Cook, 184 Ind. 173, 110 N.E. 987 (1916). This court is not so persuaded.

Turning now to plaintiff's Fourteenth Amendment claims, the court notes that they fall into two basic categories-- due process and equal protection.

After considering the plaintiff's due process argument, the court has concluded that it is without merit. The right to hold state office is not a 'privilege or immunity' of a citizen of the United States, Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); nor is it 'property' within the meaning of the Fourteenth Amendment, Cave v. Missouri, 246 U.S. 650, 38 S.Ct. 334, 62 L.Ed. 921 (1918); Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900).

The plaintiff's equal protection claim is another matter. This court concludes that a statute requiring prospective candidates to pay a fee for having their names put on the ballot MAY be a denial of equal protection of the law.

The practice of extracting qualifying fees is an old one; until recently, however, there was little litigation in federal courts concerning this issue. This is explainable, at least in part, by the comparatively recent growth in importance of the equal protection clause by court decisions. See Developments in the Law-- Equal Protection, 82 Harv.L.Rev. 1065 (1969). There has been some litigation in state courts, usually involving state constitutions. E.g. Bodner v. Gray, 129 So.2d 419 (Fla.1961); State ex rel. Thompson v. Scott, 99 Minn. 145, 108 N.W. 828 (1906). Most state courts considering the problem have concluded that filing fees are valid legislative enactments. See Annot., 89 A.L.R.2d 864 (1963) and cases cited therein. These cases do not thoroughly discuss the question in light of the equal protection clause as it has developed in recent years.

The court notes at the outset that the right to vote is a fundamental right, Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and this court holds its corollary, the right to seek public office, is a 'fundamental' right, Jenness v. Little,306 F.Supp. 925 (N.D.Ga.1969). Any state action which discriminates against segments of its population is subject to 'strict scrutiny.' Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The state must demonstrate not merely a reasonable justification for the distinction it draws between its citizens, it...

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15 practice notes
  • 334 F.Supp. 179 (S.D.Tex. 1971), Civ. A. 71-H-462, Socialist Workers Party v. Welch
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • October 27, 1971
    ...qualifying fee, with no other means of getting on the ballot, is a violation of equal protection. Id. at 1041. See also Thomas v. Mims, 317 F.Supp. 179 (S.D.Ala.1970), where the Court spoke approvingly of alternative methods of ballot regulation to circumvent mechanical and financial proble......
  • 354 A.2d 617 (N.J. 1976), Wurtzel v. Falcey
    • United States
    • New Jersey Supreme Court of New Jersey
    • March 1, 1976
    ...24 (1968); Chimento v. Stark, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 Aff'g mem., 353 F.Supp. 1211, 1215 (D.N.H.1973); Thomas v. Mims, 317 F.Supp. 179 (S.D.Ala.1970), which is a fundamental right. 4 See ante at Page 621 403, 354 A.2d 618. In Bullock v. Carter, the United States Supreme Co......
  • 529 P.2d 745 (N.M. 1974), 9895, Dillon v. King
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 6, 1974
    ...the size of the ballot so as to minimize voter confusion and to prevent the overwhelming of voting machines. See Thomas v. Mims, 317 F.Supp. 179, 182 (S.D.Ala.1970); Wetherington v. Adams, 309 F.Supp. 318, 321 (N.D.Fla.1970). The United States Supreme Court has acknowledged the state's inte......
  • 321 F.Supp. 1358 (N.D.Tex. 1970), Civ. A. 3-3635, Carter v. Dies
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • December 21, 1970
    ...may dictate that low budgets do not win elections, it cannot be doubted that those with low budgets are entitled to try. Thomas v. Mims, 317 F.Supp. 179 (S.D.AlA. 1970). Clearly, this first alleged justification is without sufficient merit to warrant the imposition of these Secondly, Texas ......
  • Request a trial to view additional results
15 cases
  • 334 F.Supp. 179 (S.D.Tex. 1971), Civ. A. 71-H-462, Socialist Workers Party v. Welch
    • United States
    • Federal Cases United States District Courts 5th Circuit Southern District of Texas
    • October 27, 1971
    ...qualifying fee, with no other means of getting on the ballot, is a violation of equal protection. Id. at 1041. See also Thomas v. Mims, 317 F.Supp. 179 (S.D.Ala.1970), where the Court spoke approvingly of alternative methods of ballot regulation to circumvent mechanical and financial proble......
  • 354 A.2d 617 (N.J. 1976), Wurtzel v. Falcey
    • United States
    • New Jersey Supreme Court of New Jersey
    • March 1, 1976
    ...24 (1968); Chimento v. Stark, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 Aff'g mem., 353 F.Supp. 1211, 1215 (D.N.H.1973); Thomas v. Mims, 317 F.Supp. 179 (S.D.Ala.1970), which is a fundamental right. 4 See ante at Page 621 403, 354 A.2d 618. In Bullock v. Carter, the United States Supreme Co......
  • 529 P.2d 745 (N.M. 1974), 9895, Dillon v. King
    • United States
    • New Mexico Supreme Court of New Mexico
    • December 6, 1974
    ...the size of the ballot so as to minimize voter confusion and to prevent the overwhelming of voting machines. See Thomas v. Mims, 317 F.Supp. 179, 182 (S.D.Ala.1970); Wetherington v. Adams, 309 F.Supp. 318, 321 (N.D.Fla.1970). The United States Supreme Court has acknowledged the state's inte......
  • 321 F.Supp. 1358 (N.D.Tex. 1970), Civ. A. 3-3635, Carter v. Dies
    • United States
    • Federal Cases United States District Courts 5th Circuit Northern District of Texas
    • December 21, 1970
    ...may dictate that low budgets do not win elections, it cannot be doubted that those with low budgets are entitled to try. Thomas v. Mims, 317 F.Supp. 179 (S.D.AlA. 1970). Clearly, this first alleged justification is without sufficient merit to warrant the imposition of these Secondly, Texas ......
  • Request a trial to view additional results