Biener v. Calio

• Decision Date: 19 March 2004
• Docket Number: No. 03-1607.,03-1607.
• Citation: 361 F.3d 206
• Parties: Steven BIENER; Carol Greenway, Appellants v. Frank CALIO, The Honorable, State Election Commissioner; Democratic Party of the State of Delaware.
• Court: U.S. Court of Appeals — Third Circuit

361 F.3d 206

Steven BIENER; Carol Greenway, Appellants v. Frank CALIO, The Honorable, State Election Commissioner; Democratic Party of the State of Delaware.

No. 03-1607.

United States Court of Appeals, Third Circuit.

Argued October 28, 2003.

March 19, 2004.

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Leslie G. Bohner, Drinker Biddle & Reath, Philadelphia, Charles H. Wampold, III, (Argued), Drinker, Biddle & Shanley, Princeton, for Appellants.

C. Drue Chichi, (Argued), Aleph Ann Woolfold, Department of Justice, Wilmington, for Appellee, The Honorable Frank Calio.

Charles J. Durante, (Argued), Connolly, Bove, Lodge & Hutz, Wilmington, for Appellee, Democratic Party DE.

Bonita P. Tenneriello, National Voting Rights Institute, Boston, for Amicus-Appellant.

Before SCIRICA, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Appellant Steven Biener, a Delaware citizen who sought nomination as the Democratic Party's candidate for the United States House of Representatives ("the House"), appeals the District Court's grant of summary judgment against him. Biener and Carol Greenway, a registered voter who is a Biener supporter, sued the Democratic Party of the State of Delaware ("the Party") and Frank Calio, Delaware's state commissioner for elections, alleging that the $3000 filing fee for the 2002 Democratic primary was unconstitutional. The District Court rejected Biener's arguments under the Qualifications, Equal Protection, and Due Process Clauses and granted summary judgment on behalf of the Party and Calio.

The Delaware statute provides a filing fee exception for indigent candidates who are unable to pay a fee. Biener challenges the lack of a ballot access alternative for non-indigent candidates. He asserts that he should have a choice not to pay the fee. We conclude that the availability of a choice is outcome determinative for Biener's Qualifications and Equal Protection Clause claims. Those claims fail. Additionally, we conclude that there is no due process violation. We will therefore affirm the District Court's grant of summary judgment.

I. FACTS AND PROCEDURAL HISTORY

Unlike general elections, which are held by the state to select government officeholders, primary elections are conducted by the state on behalf of and as a convenience to political parties to assist them in selecting their candidates for office. Under Delaware law, individual political parties share responsibility with the state for election primaries. Political parties are authorized to set the filing fee amount, so long as it does not exceed 1% of the total salary for the term of office the candidate seeks. 15 Del.Code § 3103(a)-(c). In 2002, the Party set the filing fee for candidacy to the House at $3000.

When a party opts to impose a filing fee on candidates, Delaware law provides only one exception. 15 Del.Code § 3103(d)-(e). Candidates who demonstrate they are indigent by virtue of qualification for federal benefits may, in lieu of a filing fee, access the primary ballot by obtaining signatures on a petition. Id.

Biener sought to be included on the ballot for the 2002 Democratic primary as a candidate for the House. He ran on an anti-election spending and anti-special interest platform, and did not solicit money for his campaign. Biener submitted the necessary paperwork to the state and the Party, but was informed that because he is non-indigent he needed to remit the $3000 filing fee or would be left off the Democratic primary ballot.

Biener filed suit against Calio seeking declaratory and injunctive relief. Calio filed an unopposed motion to join the Party as a defendant, and that motion was granted. The District Court denied Biener relief, stating that Biener had not shown a likelihood of success on any of his claims.

Once his complaint for declaratory and injunctive relief was rejected, Biener paid the $3000 filing fee. He then amended his complaint to seek a refund of the fee, which constituted two-thirds of the entire amount expended on his campaign. After paying the fee, Biener was included on the Democratic primary ballot and received 48% of the votes but did not win the Democratic nomination.

Biener's suit alleged that the filing fee requirement is unconstitutional on three grounds: (1) it adds an impermissible wealth requirement to the qualifications for House membership, (2) it denies equal protection to non-indigent candidates who would like to seek office without paying a filing fee, and (3) it violates the Due Process Clause because it inappropriately delegates state power to political parties. Calio and the Party made a motion for summary judgment, which the District Court granted on all three grounds.

II. DISCUSSION

We have jurisdiction pursuant to 28 U.S.C. § 1291, since this is an appeal of a final decision of a federal district court. We exercise plenary review over all jurisdictional questions, including whether a plaintiff has standing to assert a particular claim. See Gen. Instrument Corp. of Del. v. Nu-Tek Elec. & Mfg., Inc., 197 F.3d 83, 86 (3d Cir.1999). We also review the District Court's decision to grant summary judgment on a plenary basis. See Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir.2002). A grant of summary judgment is appropriate "if 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." Fed. R.Civ.P. 56(c). "In reviewing the grant of summary judgment, we must affirm if the record evidence submitted by the non-movant `is merely colorable or is not significantly probative.'" See Port Auth. of N.Y. & N.J. v. Affiliated FM Ins. Co., 311 F.3d 226, 232 (3d Cir.2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

A. STANDING

As a threshold matter, we must consider whether Biener has standing to make his claims. Our decision here is informed by our recent opinion in Belitskus v. Pizzingrilli, 343 F.3d 632 (3d Cir. 2003). In that case, which involved a challenge to Pennsylvania's election filing fees, we rejected the argument "that a candidate challenging a mandatory filing fee must establish that payment of the fee would result in the complete depletion of personal or campaign funds in order to demonstrate injury to a protected interest." Id. at 640.

Biener, by paying the $3000 filing fee in protest, depleted two-thirds of his campaign funds. This is an injury in fact, which is clearly traceable to the filing fee set by the Party and Calio. The injury also can be redressed by a favorable decision in this court. Biener thus has standing to challenge the filing fee on his own behalf. See AT&T Communications of N.J., Inc. v. Verizon N.J., Inc., 270 F.3d 162, 170 (3d Cir.2001) (reciting the three elements of a case or controversy for purposes of standing: injury, causation, and redressability); see also Belitskus, 343 F.3d at 640 (citing Green v. Mortham, 155 F.3d 1332 (1998), an Eleventh Circuit Court of Appeals case in which the candidate used campaign contributions to pay the filing fee under protest and the court did not question his standing).

Biener also purports to make claims on behalf of indigent or near-indigent individuals. For example, Biener alleges that Delaware's alternative to filing fees for indigent candidates is illusory because so few people qualify as indigent under the statutory definition. Biener does not contend, however, that he is in the group of near-indigent individuals who are allegedly prevented from availing themselves of this ballot-access alternative. Because he is not a member of that group nor does he possess a "close relationship" worthy of allowing him to act as a third-party, Biener lacks standing to make this claim. See Pa. Psychiatric Soc'y v. Green Spring Health Servs., 280 F.3d 278, 288 (3d Cir.2002) ("It is a well-established tenet of standing that a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.") (internal quotations omitted).

B. QUALIFICATIONS CLAUSE

The District Court held that Delaware's filing fee for the Democratic primary does not violate the Qualifications Clause by improperly adding a wealth requirement to the qualifications for House membership. The Qualifications Clause of the United States Constitution states that "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." U.S. CONST. art. I, § 2, cl. 2. Supreme Court precedent establishes that states have no power to add to these age, citizenship, and residency requirements. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 798-99, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995) (citing a long list of cases in numerous courts that conclude states lack the authority to supplement the qualifications in the Qualifications Clause). Furthermore, states should not attempt to disguise qualifications for office as qualifications for election as a way to circumvent this rule, or they risk the qualifications for election being found unconstitutional. Id. at 831, 115 S.Ct. 1842 ("[D]ressing eligibility to stand for Congress in ballot access clothing trivializes the basic principles of our democracy that underlie [the Qualifications] clause[].") (internal quotations omitted). The issue here is whether the filing fee for the Democratic primary constitutes an additional qualification for House membership.

Biener's Qualifications Clause claim is based in large part on Thornton, in which the Supreme Court found a term-limitation statute unconstitutional as an impermissible attempt to add to the...