O'Connor v. State of Nev.

• Decision Date: 12 July 1994
• Docket Number: No. 92-16803,92-16803
• Citation: 27 F.3d 357
• Parties: Marilyn O'CONNOR; Eleanor "Ellie" Waugh, Plaintiffs-Appellants, v. STATE OF NEVADA, Frankie Sue Del Papa, Attorney General for the State of Nevada; and Cheryl A. Lau, Secretary of State for the State of Nevada, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 357

27 F.3d 357

Marilyn O'CONNOR; Eleanor "Ellie" Waugh, Plaintiffs-Appellants, v. STATE OF NEVADA, Frankie Sue Del Papa, Attorney General for

the State of Nevada; and Cheryl A. Lau, Secretary

of State for the State of Nevada,

Defendants-Appellees.

No. 92-16803.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 1994.

Decided June 8, 1994.

As Amended July 1, and July 12, 1994.

Mark A. Hutchison, Morris Brignone & Pickering, Las Vegas, NV, Kevin J. Worthen, Provo, UT, for plaintiff-appellants.

Kateri Cavin, Deputy Atty. Gen., Carson City, NV, for defendants-appellees.

Appeal from the United States District Court for the District of Nevada.

Before: NOONAN, and T.G. NELSON, Circuit Judges, and DAVID A. EZRA, ^* District Judge.

Opinion by Judge T.G. NELSON.

T.G. NELSON, Circuit Judge:

I

OVERVIEW

Marilyn O'Connor and Eleanor Waugh appeal the district court's judgment in favor of the State of Nevada in their action challenging the constitutionality of Nev.Rev.Stat. Sec. 2.020(2), which requires candidates for the Nevada Supreme Court to be attorneys. Because O'Connor and Waugh are not attorneys, they were not permitted to run as candidates for the office of Nevada Supreme Court Justice. They raise several arguments on appeal. We affirm.

II

BACKGROUND

On May 7, 1992, O'Connor filed with the Nevada Secretary of State her declaration of candidacy for Justice of the Nevada Supreme Court. She attached to the declaration a statement indicating her non-lawyer status and that she qualified for the office under the provisions of the Nevada Constitution. The Secretary of State refused to accept her declaration.

On May 11, 1992, Waugh also filed a declaration of candidacy for Justice of the Nevada Supreme Court. Apparently, her declaration was inadvertently accepted because on June 8, 1992, the Nevada Attorney General filed an application for writ of mandamus in the Nevada Supreme Court to compel the Secretary of State to strike Waugh's name from the list of declared candidates because Waugh was not a licensed attorney and was therefore not qualified under Nev.Rev.Stat. Sec. 2.020(2). The Nevada Supreme Court granted the writ on June 24, 1992, and Waugh's name was removed from the list of candidates for Supreme Court Justice. On July 14, 1992, O'Connor and Waugh (collectively referred to as "appellants") filed a complaint in the United States District Court for the District of Nevada against the State of Nevada, Frankie Sue Del Papa, the Attorney General, and Cheryl Lau, the Secretary of State (collectively referred to as "the State"), in which they challenged the constitutionality of Nev.Rev.Stat. Sec. 2.020(2). In their complaint, which also contained a request to convene a three-judge panel under 28 U.S.C. Sec. 2284, they alleged that Sec. 2.020(2) violated the First and Fourteenth Amendments of the United States Constitution because it required that candidates for the Justice of the Nevada Supreme Court be licensed attorneys admitted to practice law in In addition to the complaint, appellants filed an application for a three-judge court pursuant to 42 U.S.C. Sec. 1973c, a motion to expedite civil proceedings and a motion for disqualification of judges who were members of the Nevada Bar Association under 28 U.S.C. Sec. 455 because, they argued, such judges would not be impartial. The district court denied all three motions on July 30, 1992.

the State of Nevada. They alleged that Del Papa, acting as Attorney General, and Lau, acting as Secretary of State, interfered with their constitutional rights to pursue the public office of Nevada Supreme Court Justice. In their complaint, appellants sought both a declaration that Sec. 2.020(2) was unconstitutional and an injunction directing the State not to enforce the statute.

The State's answer was filed on September 30, 1992, but because it was untimely, default was entered on October 2, 1992. The district court denied appellants' motion to strike the answer and granted the State's motion to set aside default on October 15, 1992. ¹ On October 23, 1992, the district court ruled that: Sec. 2.020(2) does not violate the United States Constitution; and, res judicata and the absence of a federal question barred it from ruling on whether Sec. 2.020(2) violated the Nevada State Constitution. Appellants filed an emergency motion for writ of mandamus in this court on October 26, 1992, requesting that their names be placed on the ballot as candidates for Supreme Court Justice. That motion was denied. Appellants timely appealed the district court's judgment.

III

DISCUSSION

A. United States Constitution

1. Equal Protection Clause

We must first decide what level of scrutiny to apply in determining whether the ballot access restriction contained in Sec. 2.020(2) violates the Equal Protection Clause. Although states generally have broad power to determine voter qualifications and the manner of elections, such requirements cannot violate the Equal Protection Clause. Bullock v. Carter, 405 U.S. 134, 141, 92 S.Ct. 849, 854, 31 L.Ed.2d 92 (1972). Under traditional equal protection principles, classifications survive constitutional scrutiny so long as they bear a rational relationship to a legitimate state interest. Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). It is only when the challenged statute burdens either a "suspect" class or a "fundamental" constitutional right that we depart from this rational basis level of scrutiny. Id. "Far from recognizing candidacy as a 'fundamental right,' [the Supreme Court has] held that the existence of barriers to a candidate's access to the ballot does not of itself compel close scrutiny." Id. (internal quotations omitted).

Ballot access restrictions which are based upon wealth or economic status must be "closely scrutinized" to determine whether they are reasonably necessary to accomplish a legitimate state objective. Carter, 405 U.S. at 144, 92 S.Ct. at 856 (excessive filing fees are unreasonable). Closer scrutiny is required in such cases because "[e]conomic status is not a measure of a prospective candidate's qualifications to hold elective office." Clements, 457 U.S. at 964, 102 S.Ct. at 2844. Similarly, the Court has applied heightened scrutiny where ballot access requirements are based upon a candidate's association with a particular political party. See Williams v. Rhodes, 393 U.S. 23, 30-34, 89 S.Ct. 5, 10-12, 21 L.Ed.2d 24 (1968) (Access requirements which make it virtually impossible for any but the two major parties to attain ballot access violate not only the Equal Protection Clause, but they implicate First Amendment concerns because they burden the right to associate for the advancement of political beliefs.).

However, "[n]ot all ballot access restrictions require 'heightened' equal protection scrutiny." Clements, 457 U.S. at 965-66, 102 S.Ct. at 2845. Instead, it is necessary to examine "the nature of the interests that are affected and the extent of the burden those provisions place on candidacy." Id. at 965, 967-68, 102 S.Ct. at 2844, 2846 (applied rational basis standard to statute that imposed waiting period for candidacy and concluded that statute did not violate the Equal Protection Clause).

Because the outcome of this case does not turn on the level of review required, we will assume, without deciding, that Sec. 2.020(2) must be "closely scrutinized" to determine whether it is reasonably necessary to accomplish a legitimate state objective. See Carter, 405 U.S. at 144, 92 S.Ct. at 856. We hold that Sec. 2.020(2) survives such scrutiny. "The equal protection clause does not prohibit the legislature from adopting a more rigorous policy for assuring excellence in the judiciary than for other elective offices." Trafelet v. Thompson, 594 F.2d 623, 627 (7th Cir.) (statute requiring mandatory retirement for judges at age seventy does not violate Equal Protection Clause), cert. denied, 444 U.S. 906, 100 S.Ct. 219, 62 L.Ed.2d 142 (1979); see also Bullock v. Minnesota, 611 F.2d 258, 260 (8th Cir.1979). Confronted with a statutory challenge similar to the one we face in the present case, the Eighth Circuit held that "[t]he requirement that candidates be eligible to practice law in Minnesota clearly advances the state's compelling need to obtain candidates [for the office of Minnesota Supreme Court Justice] who are qualified to understand and deal with the complexities of the law." ² Bullock, 611 F.2d at 260.

The requirement in Sec. 2.020(2) that Supreme Court Justice candidates be attorneys is reasonably necessary to achieve several legitimate State interests. It maintains high standards of conduct in the administration of justice and guarantees that the State's justices will have the legal knowledge necessary to understand and apply the law. Furthermore, once an attorney is admitted to practice law, he or she is subject to continuing legal education requirements, to the rules of ethical conduct and to disciplinary proceedings, if justified. The State's legitimate interest in ensuring excellence in its judiciary outweighs any burden the attorney requirement has either on appellants' rights or on the voters' rights to choose their candidates. Finally, Sec. 2.020(2) "discriminates neither on the basis of political affiliation nor on any factor not related to a candidate's qualifications to hold political office." Clements, 457 U.S. at 967, 102 S.Ct. at 2845 (emphasis added). Rather, the requirement that a candidate for Nevada Supreme Court Justice be an attorney, licensed and admitted to practice law in Nevada, is indeed based upon a candidate's qualifications for the office.

Appellants also contend that the attorney requirement is essentially a filing fee because it requires that candidates not only be members of the bar association but that they pay bar dues. We disagree. The Supreme Court has held that a state may constitutionally condition the right of...