Chimento v. Stark

• Decision Date: 22 January 1973
• Docket Number: Civ. A. No. 72-182.
• Citation: 353 F. Supp. 1211
• Parties: Carmen C. CHIMENTO v. Robert L. STARK, Secretary of State of New Hampshire.
• Court: U.S. District Court — District of New Hampshire

353 F. Supp. 1211

Carmen C. CHIMENTO v. Robert L. STARK, Secretary of State of New Hampshire.

Civ. A. No. 72-182.

United States District Court, D. New Hampshire.

January 22, 1973.

Philip R. Currier, Smith, Welts & Currier, Nashua, N. H., for plaintiff.

Howard B. Myers, Asst. Atty. Gen., for the State of New Hampshire.

Before CAMPBELL, Circuit Judge, and GIGNOUX and BOWNES, District Judges.

OPINION

BOWNES, District Judge.

This is an action brought pursuant to 28 U.S.C. §§ 2281 and 2284 wherein plaintiff requested a Three-Judge Court to declare unconstitutional and permanently enjoin the enforcement of Part Second, Article 42, of the New Hampshire Constitution.

A Three-Judge Court was duly convened, and a hearing held on November 10, 1972.

The question presented is whether that section of Part Second, Article 42,¹ of the New Hampshire Constitution which sets forth a seven year durational residency requirement as a condition of eligibility for the office of Governor violates the Equal Protection Clause of the Fourteenth Amendment, the First Amendment, or the constitutional right of unrestricted interstate travel.

STIPULATED FACTS

Carmen C. Chimento is a citizen of the United States who has resided in New Hampshire since June 30, 1969. On June 30, 1972, the Secretary of State received Mr. Chimento's Declaration of Candidacy for the democratic nomination for the office of Governor. His eligibility for Governor was questioned because of his failure to have been a resident of the State for seven years, and this suit was instituted on August 25, 1972.

Plaintiff's petition for a preliminary injunction to enjoin the holding of the primary election on September 12, 1972, pending a resolution of this question was denied on September 7, 1972. Chimento's name did appear on the ballot for the primary election at which he failed to obtain the Democratic Party nomination.² Plaintiff then decided to run for Governor as an independent candidate. The State of New Hampshire, through its Attorney General, took the position that, under the New Hampshire Constitution, Chimento could not assume the office of Governor even if elected, and instructed the Secretary of State not to accept his filing papers as an independent candidate for the November 7, 1972, general election. Plaintiff sought a temporary restraining order to enjoin the Secretary of State from not accepting his filing papers which was denied on September 28, 1972. Plaintiff has stated that he intends to seek election to the office of Governor of New Hampshire during the 1974 primary and general elections, and the State has indicated that it will not allow him to file as a candidate for Governor in 1974 since, at that time, he will still not have met the residency requirement of the New Hampshire Constitution.

FINDINGS AND RULINGS

This case is one of first impression. No court has considered the validity of a durational residency requirement for the office of Governor of a state, although several have recently considered equal protection challenges to durational residency requirements as a condition of eligibility for candidacies to lesser offices.³

Plaintiff's principal constitutional challenge to the New Hampshire Constitution rests upon the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It is well settled that there exists "a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications," and a state "may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees." Turner v. Fouche, 396 U.S. 346, 362-363, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970). What constitutes "invidious discrimination" depends upon the facts within the context of the case being decided. The United States Supreme Court has developed two basic tests, one of which is to be applied in passing on challenges of this character. This preliminary issue is usually posed in terms of the traditional "reasonable basis" test versus the stricter "compelling state interest" test. We must, therefore, initially decide upon the appropriate standard of review. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

The choice of standard depends upon "the interests affected and the classification involved." Dunn v. Blumstein, supra, 405 U.S. 335, 92 S.Ct. 999. In general, if the challenged law directly affects a "fundamental" or "basic" right or draws lines which result in a "suspect classification,"⁴ the proponents of the law must make a "clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest." Dunn v. Blumstein, supra, 405 U.S. 341, 92 S.Ct. 1002; Wellford v. Battaglia, 343 F.Supp. 143, 145 (D.Del.1972). Semantics aside, the question is resolved judicially by determining what is more important to our form of government; the rights protected by the state law in question or the rights infringed by it.

We, therefore, turn to a determination of that issue. While the right to run for public office may not be as important and fundamental as the right to vote,⁵ any limitations imposed by a state on the ability of candidates to obtain a position on the ballot necessarily places:

. . . burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968).

This interrelation between restrictions on the right to candidacy and restrictions on the right to vote was further noted by the Supreme Court in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed. 2d 92 (1972):

. . . 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 of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. At pages 142-143, 92 S.Ct. at 855-856.

Where, as here, the law in question poses a barrier to a candidacy of a not insubstantial segment of the community⁶ and, to that degree, limits the voters in their choice of candidates, we hold that the stricter standard of review should be applied.⁷ Moreover, application of the "compelling interest" test is required in this case because plaintiff also contends that the durational residency requirement impinges on the exercise of his basic constitutional right to travel interstate. See United States v. Guest, 383 U.S. 745, 759, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966); and Dunn v. Blumstein, supra, 405 U.S. 341-342, 92 S.Ct. 1002.

In applying the "compelling interest" test, this court must closely scrutinize Part Second, Article 42, to see if it can withstand constitutional attack. The "compelling state interest" standard of review, however, does not require absolute perfection or necessity. The propriety of legal lines which are drawn and classifications which are made cannot depend on precise mathematical equations. As Mr. Justice Marshall in Dunn v. Blumstein, supra, stated:

. . . Thus phrased, the constitutional question may sound like a mathematical formula. But legal "tests" do not have the precision of mathematical formulas. The key words necessary to promote a compelling governmental interest emphasize a matter of degree: that a heavy burden of justification is on the State, and that the statute will be closely scrutinized in light of its asserted purposes Emphasis added. At pages 342-343, 92 S.Ct. at page 1003.

In deciding whether a law violates the Equal Protection Clause, this court must look to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of that classification. Dunn v. Blumstein, supra, 405 U.S. 335, 92 S.Ct. 995. Cf. Williams v. Rhodes, supra, 393 U.S. 30, 89 S.Ct. 5.

A state's right to impose restrictions on one seeking public office is a power reserved to the states under the Tenth Amendment of the United States Constitution. However, if the state's exercise of this right invades an individual's constitutional rights, the restrictions become unconstitutional unless there is a showing of a compelling state interest justifying them. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

The plaintiff contends that the seven year residency requirement for the office of Governor severely limits his ability to participate in the election process, deprives him of equal protection of the laws, limits his right to seek and hold public office, and restricts his right to travel freely interstate.

The compelling state interest asserted by the State is that of maintaining a responsive and responsible government through the democratic process. Defendant advances two specific justifications in support of the seven year residency requirement: first, to ensure that the chief executive officer of New Hampshire is exposed to the State and its people, thereby giving him familiarity with and awareness of the conditions, needs, and problems of both the State of New Hampshire and the various segments of the population within the State, while at the same time giving the voters of the State an opportunity to gain by observation and personal contact some firsthand knowledge of the candidates for Governor; and second, to prevent frivolous candidacy by persons who have had little...