Duncantell v. City of Houston, Texas, Civ. A. No. 71-H-1035.

• Decision Date: 27 October 1971
• Docket Number: Civ. A. No. 71-H-1035.
• Citation: 333 F. Supp. 973
• Parties: Ovide DUNCANTELL and Jeffrey Skarda v. The CITY OF HOUSTON, TEXAS, et al.
• Court: U.S. District Court — Southern District of Texas

333 F. Supp. 973

Ovide DUNCANTELL and Jeffrey Skarda v. The CITY OF HOUSTON, TEXAS, et al.

Civ. A. No. 71-H-1035.

United States District Court, S. D. Texas, Houston Division.

October 27, 1971.

Peter D. Williamson, Houston, Tex., for plaintiffs.

Joseph G. Rollins, Asst. City Atty., Houston, Tex., for defendants.

Opinion and Order:

SINGLETON, District Judge.

This case is presently before this one-judge court after a three-judge court disallowed itself in regard to plaintiffs' attack on the Texas Election Code art. 13.53, V.A.T.S. As the three-judge hearing clearly established, article 13.53 is merely permissive enabling legislation. This part of the Election Code could not have been violated by the defendants and does not create any case or controversy here for it is only an enabling statute. McCrimmon v. Daley, 418 F.2d 366 (7th Cir. 1969). The only acts under enforcement which could form the basis of a case or controversy are the two articles discussed below that the City of Houston enacted pursuant to the enabling statute article 13.53 of the Texas Election Code which vests local control and enforcement of any filing fees in the home-rule city. Accordingly, plaintiffs' attack on the state Election Code is dismissed.

Plaintiffs have sought to file this cause as a class action. However, they have not presented substantial evidence to clearly establish the limits of the class nor Duncantell's fair representation of that class pursuant to Fed.R.Civ.P. 23. Accordingly, relief will be granted only to the two-named plaintiffs.

Plaintiffs further seek to invalidate Article V, Sec. 6 of the Houston City Charter that requires filing fees of candidates for city councilman positions and Article V, Sec. 2 requiring a city candidate to have been the owner of real estate for two years prior to the election.

Plaintiff Ovide Duncantell is a resident of Houston, Texas, who timely filed an application as a candidate for the office of City Councilman, District "D" for the City of Houston elections on November 20, 1971. Duncantell testified that he is presently unemployed and does not have sufficient money to pay the filing fee and does not own any real estate within Houston. Duncantell has complied with all the filing requirements except the filing fee and real estate ownership criteria.

Jeffrey Skarda is also a plaintiff herein. He is a duly qualified voter for Houston and contends that he wishes to vote for plaintiff Duncantell for the position of City Councilman, District "D."

Jurisdiction is conferred upon the court under the provisions of the Civil Rights Act, 42 U.S.C. §§ 1983 and 1988 and, also, under 28 U.S.C. § 1343(2). This is an action for declaratory judgment initiated pursuant to 28 U.S.C. §§ 2201 and 2202 for preliminary, interlocutory, permanent, and mandatory injunctions to prevent irreparable damage to plaintiff and for further and different relief as may be appropriate in equity and in law and seeks to redress the deprivation of federal Constitutional rights.

This case presents several important constitutional issues: (1) whether or not the Equal Protection and Due Process Clauses of the Fourteenth Amendment have been violated; (2) whether or not the First Amendment has been violated; (3) whether or not the filing fees are so out of line as to be presumed to intentionally prevent the poor from running for office; and (4) whether or not the filing fees prevent qualified voters from voting for those who are prevented from running. This court holds that the ordinances in question must be struck as violative of the First and Fourteenth Amendments.

This court does not question the validity of applying the "compelling interest" criteria to the City's enactment of the two articles at issue. This is especially true since the activity to be protected from the consequences of the classification based on wealth embodies a fundamental interest, deserving of special protection by the federal courts.

Voting and its concomitant, running for office, are certainly basic First Amendment rights to be protected. Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed. 2d 506 (1964). Secondly, the "compelling interest" test should be applied because the type of persons harmed by the classification are also deserving of protection by the courts. Comment, "Developments in the Law—Equal Protection," 82 Harv.L.Rev. 1065, 1120-1122 (1969).

The right to vote is a right which is at the heart of our system of government. Likewise, the right to run or be a candidate is inextricably woven into the fabric of the First Amendment. Consequently, any abridgment of that right must receive careful judicial scrutiny and the state or city has the burden of justifying through proof of a compelling interest any restraints on these precious rights. Lacking such proof, any restrictions on or impediments to these rights cannot meet constitutional standards. Cf. Jenness v. Little, D.C., 306 F.Supp. 925, appeal dismissed, Matthews v. Little, 397 U.S. 94, 90 S.Ct. 820, 25 L.Ed. 2d 81 (1970); Matthews v. Little, 396 U.S. 1223, 90 S.Ct. 17, 24 L.Ed.2d 45 (1969).

The opportunity to vote for a certain candidate in an election is sufficiently important to be as "fundamental" as the basic right to vote upheld in Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1968). Plaintiff Skarda here alleges the infringement of his right to cast a vote effectively. Specifically, Skarda submits that the City, by denying Duncantell a place on the ballot for failure to pay the filing fee, has basically abridged his rights as a voter. This court agrees that the right to cast a ballot effectively is as basically encompassed by the First and Fourteenth Amendments as the right established in Harper, supra, and Kramer, supra, that one may not be denied a vote entirely. In Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1968), the Supreme Court struck an Illinois statute which created obstacles to having new political parties' candidates placed on the ballot. The Court said such obstacles were constitutionally impermissible because the effectiveness of the voter's right had been diminished thereby. The High Court had previously stressed the same philosophy in the case of Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

Carter v. Dies, 321 F.Supp. 1358 (D.C. Tex.1970), prob. juris. noted, 403 U.S. 904, 91 S.Ct. 2208, 29 L.Ed.2d 679 (1971), is the leading Texas case on the issue of filing fees for primary elections. There a three-judge court invalidated the Texas statutory scheme for filing fees. The court granted injunctive and declaratory relief for the candidates stating that the fees were not necessary for revenue purposes and that the write-in alternative would not bring about needed balance on the individual interest scale. See also, Matthews v. Little, supra. In the case at bar, as the court stated in Carter, the City has stated that the filing fee serves no revenue raising purpose. Contra, ...