McKinney v. Kaminsky

• Decision Date: 28 March 1972
• Docket Number: Civ. A. No. 3606-N.
• Citation: 340 F. Supp. 289
• Parties: H. B. McKINNEY, Plaintiff, v. Harry KAMINSKY, as Chairman of the Montgomery County Democratic Executive Committee, and the Montgomery County Democratic Executive Committee, Defendants.
• Court: U.S. District Court — Middle District of Alabama

340 F. Supp. 289

H. B. McKINNEY, Plaintiff, v. Harry KAMINSKY, as Chairman of the Montgomery County Democratic Executive Committee, and the Montgomery County Democratic Executive Committee, Defendants.

Civ. A. No. 3606-N.

United States District Court, M. D. Alabama, N. D.

March 28, 1972.

Duke, Booth, Kaufman & Rothfeder, Montgomery, Ala., for plaintiff.

Smith, Bowman, Thagard, Crook & Culpepper, Montgomery, Ala., for defendants.

DECLARATORY JUDGMENT AND PERMANENT INJUNCTION

VARNER, District Judge.

FINDINGS OF FACT

This case is now submitted upon Plaintiff's complaint filed herein on March 2, 1972, seeking a declaration of the constitutionality of and a temporary and permanent injunction against enforcement of certain of the provisions of Section 400, Vol. 14, Appendix, Code of Alabama, 1940, Recompiled 1958, as last amended, against Defendants, Harry Kaminsky, as Chairman of the Montgomery County Democratic Executive Committee, and the Montgomery County Democratic Executive Committee. The Honorable George C. Wallace, Governor, and the Honorable William J. Baxley, Attorney General, State of Alabama, were served with copies of the pleadings in this case on March 14, 1972, but neither has made appearance herein on behalf of Defendants or the State of Alabama.

The aforementioned Section 400 is a general statute stipulated to be of local application regulating the election of members of the governing body of Montgomery County, Alabama. Insofar as is here pertinent, the statute provides:

"* * * candidates for nomination or election as members of the governing body of the county must reside in such districts, as now provided by law; and no person shall be eligible to nomination or election * * * unless the person is a resident and qualified elector of the district for which he is elected both at the time of his election and during his continuance in office, and has resided in such district for at least five years preceding the date on which he qualifies for nomination or election."

Montgomery County is divided into three districts, designated as northern, southeastern and southwestern.

On February 18, 1972, Plaintiff filed with the Defendant Democratic Executive Committee the necessary declaration of candidacy and filing fee to enter the May 2, 1972, Democratic Primary for the office of County Commissioner from the Southwestern District. Subsequent thereto, the Defendant Kaminsky notified Plaintiff that he was not eligible to seek election from the Southwestern District due to the length of his residence in said district. Thereupon, Plaintiff brought this action against Defendants, seeking a temporary restraining order restraining Defendants from not accepting Plaintiff as a qualified candidate from the Southwestern District, and further restraining Defendants from not certifying Plaintiff to the Probate Judge of Montgomery County as such qualified candidate. Plaintiff further prayed that this Court, upon final hearing of this case, enter an order declaring the aforementioned Section 400 unconstitutional insofar as it requires a five-year residency in the district, permanently enjoining Defendants from enforcing such provision, and compelling Defendants to accept Plaintiff as a Democratic Party Candidate for County Commissioner. Due to the urgency for a determination of the issues herein, a preliminary injunction was issued by this Court on March 7, 1972, temporarily enjoining Defendants, their agents or successors, from failing to accept Plaintiff as a qualified candidate and from failing to certify him to the Probate Judge of Montgomery County.

Upon final hearing, there appeared the Plaintiff McKinney and the Defendant Kaminsky, and their respective counsel, wherein the following stipulations were made:

1. That Plaintiff has been a resident of Montgomery County continuously since 1947; that he moved into the Southwestern District of said county in September, 1970, having lived in the Northern District thereof for twelve years prior to such move;

2. That Plaintiff is presently the President and owner of Triangle Electric Construction Company, with its office in the Northern District of Montgomery County, and that said company has done business throughout the county for the past fifteen years;

3. That at all times prior to March 20, 1972, Plaintiff was registered to vote in Box 5-E, Northern District, Montgomery County, and that Plaintiff continued to vote in said Northern District after he moved to the Southwestern District, voting in said Box 5-E in the Mayoral and City Commission elections of 1971;

4. That the deadline for qualifying in the Democratic Primary was 12:00 noon March 1, 1972, at which time Plaintiff was registered to vote in the Northern District of Montgomery County;

5. That Plaintiff has been a property owner in the Southwestern District since January, 1970, is actively engaged in cattle farming thereon, and is a member of the Board of Directors of South Montgomery Academy, located in the Southwestern District;

(6) That Montgomery County is governed by a County Commission consisting of five members, and that said county is divided into three districts commonly referred to as the northern, southeastern and southwestern;

7. That the election of persons to the aforesaid Commission is governed by Section 400, Appendix Code of Alabama 1940 (passed as Act No. 685, House No. 1093, September 20, 1957) and that said section was amended in the last legislative session to exclude its application to all counties except Montgomery County;

8. That the Northern District has three places on said Commission, and the Southeastern and Southwestern Districts one each, and that said places are filled by a vote of the electors of the county at large;

9. That on February 18, 1972, Plaintiff filed with the Defendant Committee a qualification blank, by which he declared himself a candidate for the democratic nomination in the primary elections to be held Tuesday, May 2, 1972, and Tuesday, May 30, 1972, for the office of Montgomery County Commissioner, Southwestern District, and that Plaintiff paid to said Committee a qualifying fee of $100.00;

10. That on February 29, 1972, Defendant Kaminsky returned to Plaintiff his qualifying fee, with a letter stating that Plaintiff was not eligible to seek election to the aforementioned office; and

11. That pursuant to the preliminary injunction issued by this Court, the Defendant Kaminsky reaccepted the Plaintiff's qualification blank and filing fee and certified him as a Democratic Party Candidate to the Probate Judge of Montgomery County.

CONCLUSIONS OF LAW

The Defendants contend that the question of the constitutionality of the five-year residency requirement should not be reached, in that the Plaintiff did not register to vote in the Southwestern District until March 20, 1972, and was, therefore, not a "qualified elector" therein, and is otherwise not eligible to hold the office he seeks. Defendants rely on Constitution of Alabama, Section 178, and Title 17, Section 12, Code of Alabama 1940, Recompiled 1958, in support of this argument.

Code of Alabama, Title 17, Section 12, is, in pertinent part, as follows:

"§ 12. Qualification of elector to vote. — Every citizen * * * who shall have resided in this state at least one year, in the county six months, and in the precinct or ward three months, immediately preceding the election at which he offers to vote, and who shall have been duly registered as an elector, * * * shall be an elector, and shall be entitled to vote at any election by the people."

Section 178, Article 8 of the Constitution of 1901, is, in pertinent part, as follows:

"Section 178. To entitle a person to vote at any election * * *, he shall have resided in the state at least one year, in the county six months, and in the precinct or ward three months, immediately preceding the election at which he offers to vote, and he shall have been duly registered as an elector, and shall have paid on or before the first day of February next preceding the date of the election at which he offers to vote, all poll taxes due * * *."

They also deny that Section 400 is unconstitutional.

No contention is made in this case that the provision requiring the candidate to be an elector of the district in which he seeks office is not reasonable and constitutional. It is, however, suggested by the Defendants that, since the candidate (Plaintiff) was not a qualified elector of the district at the time he qualified to run for office, he could not meet the requirements of Code of Alabama, Vol. 14, Appendix, § 400, as to being a "qualified elector" of the district for which he seeks to be elected. The Plaintiff is and was at the time of the announcement of his candidacy a resident of the district for which he seeks to be elected. He is now, but was not at the time of the announcement of his candidacy, a qualified elector of said district. On March 20, 1972, having resided in the State over one year, in the County over six months, and in the precinct or ward over three months, and no effective poll tax being required, the Plaintiff removed his registration into the proper district and became immediately a qualified elector thereof. The residential restrictions apply prior to, not subsequent to, registration, and the periods of time had expired prior to registration.

Statutes requiring candidates to be a resident, a voter, or an elector within the political subdivision within which they seek office may fall within two general classes: first, those requiring candidates to possess specified qualifications at the time when elected and when the term of office begins, in which event it is not necessary that the qualifications exist at the time of announcement or filing as a candidate, State ex rel. Fair v. Adams, 139 So.2d 879 (Fla); Davis ex rel. Taylor v. Crawford, 95 Fla. 438, 116 So. 41; and, second, those which require the candidate to possess the required qualifications at...