Dillon v. Fiorina

• Decision Date: 24 March 1972
• Docket Number: Civ. No. 9340.
• Citation: 340 F. Supp. 729
• Parties: Malcolm DILLON et al., Plaintiffs, v. Betty FIORINA, Defendant.
• Court: U.S. District Court — District of New Mexico

340 F. Supp. 729

Malcolm DILLON et al., Plaintiffs, v. Betty FIORINA, Defendant.

Civ. No. 9340.

United States District Court, D. New Mexico.

March 24, 1972.

Keleher & McLeod (Dennis M. McCary), Albuquerque, N. M., for Malcolm Dillon.

Rodey, Dickason, Sloan, Akin & Robb (William S. Dixon), Albuquerque, N. M., for Clarence Gailard and Howard B. Durham.

David L. Norvell, Atty. Gen., Oliver E. Payne, Deputy Atty. Gen., Prentis Reid Griffith, Jr., Asst. Atty. Gen., Santa Fe, N. M., for defendant.

Before SETH, Circuit Judge, and MECHEM and BRATTON, District Judges.

MEMORANDUM OPINION

PER CURIAM.

The federal constitutionality of certain portions of the New Mexico election code are in issue in this action. Except for plaintiff Durham, a qualified voter desiring to vote for another plaintiff herein, all the plaintiffs are persons interested in filing in the next primary election for the nomination for United States Senator.

Plaintiffs Dillon and Cole challenge the constitutionality of N.M.Stat.Ann. § 3-8-17, subd. B (1953), which prevents any person from becoming a candidate for nomination by a political party unless he has been affiliated with that party for at least one year prior to the filing date for the primary election. All plaintiffs dispute the constitutionality of N.M.Stat.Ann. § 3-8-26, subd. A, which sets the amount of the filing fee to be paid by certain candidates for the primary election.

The parties have agreed that all plaintiff-candidates are otherwise qualified to file for the primary election for the Democratic nomination for U. S. Senator but for their failure to meet the requirements of the challenged statutes. The defendant Secretary of State acknowledges that for such failures the plaintiff-candidates will not be permitted to file. The constitutionality of the applicable statutes is thus squarely presented to the three-judge panel convened under 28 U.S.C. § 2281.

The questioned portion of the filing fee statute reads:

N.M.S.A. § 3-8-26 (1953 Comp.). Primary Election Law — Filing Fees. — The filing fee for each of the following offices is:

A. All officers receiving salary ___ ___ 6% of the first year's salary

As applied to the office of United States Senator, the filing fee is $2,550.00. This requirement prevents persons otherwise qualified but unable to pay such a fee from becoming candidates for that office and denies voters the opportunity to vote for such persons. In practical effect the fee here involved is indistinguishable from the filing fees struck down by the United States Supreme Court in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) for violation of the constitutional guarantee of equal protection of the laws. See also Chote v. Brown, U.S.D.C.N.D.Cal., filed March 9, 1972. Because the filing fee attacked here restricts the exercise of the franchise through a classification based on wealth, the state is required by Bullock to show that the filing fee is "reasonably necessary to the accomplishment of legitimate state objectives." At the hearing in this cause, the state offered no evidence of any kind, and there is none in the record from which a legitimate state objective can be found. Accordingly, § 3-8-26, subd. A is unconstitutional as it applies to the office of United States Senator. Plaintiffs are entitled to an injunction restraining the enforcement of this provision.

The challenged portion of the party membership statute reads:

N.M.S.A. § 3-8-17 (1953 Comp.). Primary Election Law — Who may become candidate. — * * * *

B. No person shall become a candidate for nomination by a political party unless his record of registration shows his affiliation with that political party for a period of at least one (1) year next preceding the filing date for the primary election.

Because the statute requires that party affiliation be shown on the record of registration, another statute and a section of the New Mexico Constitution become germane:

N.M.S.A. § 3-4-2 (1953 Comp.). Qualification for Registration. — Any person who will be a qualified elector at the date of the next ensuing election shall be permitted within the provisions of the Election Code to register and become a voter.

Article VII, Section 1 of the New Mexico...