Hassan v. State, Civil Action No. 11–cv–03116–MJW.

• Decision Date: 03 May 2012
• Docket Number: Civil Action No. 11–cv–03116–MJW.
• Citation: 870 F.Supp.2d 1192
• Parties: Abdul Karim HASSAN, Plaintiff, v. The State of COLORADO and Scott Gessler, in his official capacity as Secretary of State of the State of Colorado, Defendants.
• Court: U.S. District Court — District of Colorado

870 F.Supp.2d 1192

Abdul Karim HASSAN, Plaintiff,

v.The State of COLORADO and Scott Gessler, in his official capacity as Secretary of State of the State of Colorado, Defendants.

Civil Action No. 11–cv–03116–MJW.

United States District Court, D. Colorado.

May 3, 2012.

Abdul Karim Hassan, Queens Village, NY, pro se.

Matthew David Grove, Colorado Attorney General's Office, Denver, CO, for Defendants.

ORDER ON MOTION TO DISMISS (DOCKET NO. 8) FILED BY DEFENDANTS STATE OF COLORADO AND SCOTT GESSLER CONVERTED TO A MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 26)

MICHAEL J. WATANABE, United States Magistrate Judge.

Initially, this case was before this court pursuant to an Order Referring Case (Docket No. 2) issued by Judge William J. Martinez on December 2, 2011. On May 1, 2012, the parties filed a joint motion consenting to the disposition of this matter by this court (Docket No. 31). Pursuant to 28 U.S.C. § 636(c), Judge Martinez entered an order granting the parties' motion and assigning the case for all purposes to this court (Docket No. 32). The case was reassigned on May 1, 2012 (Docket No. 33).

PLAINTIFF'S ALLEGATIONS

Plaintiff Abdul Hassan alleges the following in his Complaint for Declaratory and Injunctive Relief (Docket No. 1). Plaintiff is a naturalized American citizen seeking candidacy for the Presidency of the United States. Plaintiff's candidacy was announced in March 2008 through his website www. abdulhassan forpresident. com. Subsequent to his announcement, plaintiff posted one or more Youtube videos regarding his candidacy and purchased nationwide advertising through Google linking to his presidential website.

In July 2011, plaintiff asked defendants the State of Colorado and Scott Gessler to rule on his eligibility for inclusion on the Colorado presidential ballot, in view of plaintiff's status as a naturalized American citizen. In a letter dated August 12, 2011, defendants responded to plaintiff's inquiry. Defendants stated that pursuant to Section 1–4–303 of the Colorado Revised Statutes, any individual seeking access to the presidentialballot is required to submit a notarized statement of intent and therein affirm that they meet “the constitutional qualifications for the office of the President as outlined in Article II, Sec. 1, Clause 5 of the U.S. Constitution: 1) 35 years or older, 2) at least a 14–year resident of the United States, and 3) a natural-born citizen of the United States.” Defendants further stated that any individual who fails to check the three boxes affirming their eligibility, or who affirmatively discloses that they do not meet the requirements, will not be placed on the Colorado presidential ballot. Due to plaintiff's status as a naturalized American citizen, plaintiff cannot sign the statement of intent under oath, and therefore cannot access the Colorado presidential ballot.

Plaintiff's single claim asserts violations of plaintiff's rights under the Equal Protection Clause, the Citizenship Clause, and the Privileges and Immunities Clause of the Fourteenth Amendment. Plaintiff claims that the natural born provision of the U.S. Constitution is “irreconcilable with and is trumped, abrogated and implicitly repealed” by the aforementioned clauses of the Fourteenth Amendment as well as the Equal Protection guarantee of the Fifth Amendment. Plaintiff also argues that the natural born provision is invalid under the Absurdity Doctrine in light of current public policy concerns. Plaintiff asks the court to: (1) declare § 1–4–303, C.R.S. unconstitutional under the Fourteenth amendment due to the natural born requirement; (2) declare that the natural born provision of the U.S. Constitution has been trumped, abrogated, and implicitly repealed by the Fifth and Fourteenth Amendments; (3) declare that defendants' refusal to accept plaintiff's filing of his declaration of candidacy because of plaintiff's national origin violates the Fourteenth Amendment; and (4) enjoin defendants from discriminating against plaintiff due to his national origin and/or status as a naturalized American citizen with respect to the presidential election ballot in Colorado.

PENDING MOTION

Now before the court is defendants' Motion to Dismiss (Docket No. 8). At the April 23, 2012 status conference, the parties agreed to convert defendants' Motion to Dismiss to a Motion for Summary Judgment, and the court so ordered. On April 27, 2012, the parties filed a Stipulated Motion for Leave to Incorporate List of Stipulated Facts into Motion for Summary Judgment (Docket No. 28). The court entered an order granting the parties' motion and deeming the facts admitted for the purposes of the Motion for Summary Judgment (Docket No. 30) on April 30, 2012.

The stipulated facts are as follows: 1) Plaintiff is a 2012 candidate for the Presidency of the United States; 2) Plaintiff is over the age of 35 years; 3) Plaintiff is a naturalized American citizen; 4) Plaintiff has been a resident of the United States for more than fourteen years; 5) Plaintiff is not a natural-born citizen of the United States; 6) With the exception of the “natural-born citizen” requirement, Plaintiff satisfies all of the constitutional requirements for holding the Office of the President of the United States; 7) Colorado Secretary of State Scott Gessler (“the Secretary”) is the chief elections officer for the State of Colorado; 8) The Secretary is responsible for ensuring the qualifications of candidates for statewide and federal elections; 9) Plaintiff contacted the Secretary to inquire about Plaintiff's eligibility for the presidential ballot in Colorado; 10) The Secretary responded in the letter attached to the Complaint (Doc. 1) as Exhibit 1; 11) In pertinent part, the letter stated that access to the Presidential ballot in Colorado requires a prospective candidate to file a candidate statement of intent; 12) The letter also stated that any individual “who affirmatively discloses that he or she does not meet the constitutional qualifications for the office, will not be placed on the ballot in Colorado.”; 13) Among other things, the Candidate Statement of Intent requires the prospective candidate to affirm his eligibility for office under penalty of perjury; 14) The Secretary will not place a prospective candidate on the presidential ballot unless that prospective candidate submits the Candidate Statement of Intent; 15) Plaintiff has not submitted a Candidate Statement of Intent to the Secretary because he is unable to affirm that he meets the natural-born citizen requirement of Article II, Section 5; and 16) Plaintiff has not identified presidential electors for the 2012 general election.

Defendants argue plaintiff's claim is not yet ripe for review. In addition, defendants argue that the natural born provision has not been implicitly repealed by the Fifth or Fourteenth Amendments because the U.S. Constitution cannot be repealed by implication, and even if it could, plaintiff has failed to demonstrate that implicit repeal has occurred.

The court has carefully considered the Complaint (Docket No. 1), the subject motion (Docket No. 8), the response (Docket No. 16), and the reply (Docket No. 21). In addition, the court has taken judicial notice of the court's file, and has considered the applicable Federal Rules of Civil Procedure and case law. The court now being fully informed finds and orders as follows.

Rule 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A party seeking summary judgment bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, interrogatories, and admissions on file together with affidavits, if any, which it believes demonstrate the absence of genuine issues for trial.” Robertson v. Board of County Comm'rs of the County of Morgan, 78 F.Supp.2d 1142, 1146 (D.Colo.1999) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir.1992)). “Once a properly supported summary judgment motion is made, the opposing party may not rest on the allegations contained in the complaint, but must respond with specific facts showing the existence of a genuine factual issue to be tried.... These facts may be shown ‘by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere pleadings by themselves.’ ” Southway v. Central Bank of Nigeria, 149 F.Supp.2d 1268, 1273 (D.Colo.2001), aff'd,328 F.3d 1267 (10th Cir.2003). However, “[i]n order to survive summary judgment, the content of the evidence that the nonmoving party points to must be admissible.” Adams v. American Guarantee & Liability Ins. Co., 233 F.3d 1242, 1246 (10th Cir.2000). “The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but ‘the content or substance of the evidence must be admissible.’ ” Id. “Hearsay testimony that would be inadmissible at trial cannot be used to defeat a motion for summary judgment because ‘a third party's description of a witness' supposed testimony is ‘not suitable grist for the summary judgment mill.’ ” Id.

“Summary judgment is also appropriate when the court concludes that no reasonable juror could find for the non-moving party based on the evidence presented in the motion and response.” Southway, 149 F.Supp.2d at 1273. “The operative inquiry is whether, based on all documents submitted, reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict.... Unsupportedallegations without ‘any significant probative evidence tending to support the complaint’ are insufficient ... as are conclusory assertions that factual disputes exist.” Id.;Robertson, 78 F.Supp.2d at 1146 (citing Anderson v....