Thomas v. Mims

• Decision Date: 03 September 1970
• Docket Number: Civ. A. No. 5702-69.
• Citation: 317 F. Supp. 179
• Parties: Lillian W. THOMAS, Plaintiff, v. Lambert C. MIMS, as Mayor and Commissioner of the City of Mobile, Alabama; Richard L. Smith, as Clerk, City of Mobile, etc.; Albert Brewer, as Governor of the State of Alabama; MacDonald Gallion, as Attorney General of the State of Alabama, etc., Defendants.
• Court: U.S. District Court — Southern District of Alabama

317 F. Supp. 179

Lillian W. THOMAS, Plaintiff, v. Lambert C. MIMS, as Mayor and Commissioner of the City of Mobile, Alabama; Richard L. Smith, as Clerk, City of Mobile, etc.; Albert Brewer, as Governor of the State of Alabama; MacDonald Gallion, as Attorney General of the State of Alabama, etc., Defendants.

Civ. A. No. 5702-69.

United States District Court, S. D. Alabama, S. D.

September 3, 1970.

E. Graham Gibbons, Mobile, Ala., for plaintiff.

Walter S. Turner, Asst. Atty. Gen., Montgomery, Ala., William H. Brigham, City Atty. City of Mobile, James W. Goodloe, Asst. City Atty., Mobile, Ala., for defendants.

OPINION AND DECREE

PITTMAN, District Judge.

Plaintiff seeks to have Act No. 287, approved May 5, 1965, Acts of Alabama, Special Session, 1965, Vol. 1, p. 395,¹ declared void for being in violation of the due process clause and the equal protection clause of the Fourteenth Amendment to the United States Constitution. The Act is a general act of local application, that is, by its terms it has general application, but because of population restrictions it applies only to Mobile.² The Act requires that candidates for municipal office in Mobile pay a filing fee equal to 2% of the annual salary of the office they seek.

Plaintiff submitted, on July 17, 1969, the qualification papers indicating her intention to run for Mobile City Board of Commissioners, Place Number Three. She also tendered a check drawn in the amount of $300.00 which was the required filing fee, being 2% of the $15,000 annual salary paid members of the Board. The City refused to accept the check because of a restriction on it, that it would be honored by the bank only, "When the U. S. Attorney General rules that the City's Qualification Fee is constitutional," and plaintiff's name was omitted from the ballot for the city election held August 19, 1969. The present action was commenced on October 3, 1969.

Plaintiff contends that the statute violates the Fourteenth Amendment in that the amount required is arbitrary and excessive; and, because filing fees are, per se, unconstitutional restrictions on the right to vote and to seek public office.

Dealing first with the question of excessiveness, this court is unwilling to say that, if filing fees are permissible, $300.00 is an excessive amount. See Wetherington v. Adams, 309 F.Supp. 318 (N.D.Fla.1970); Bodner v. Gray, 129 So.2d 419 (Fla.1961). Nor will this court hold that a fee of 2% of the salary is arbitrary, unreasonable, or exorbitant. The court notes there are cases holding it is arbitrary to set the fee as a percentage of the annual salary, e. g., Kelso v. Cook, 184 Ind. 173, 110 N.E. 987 (1916). This court is not so persuaded.

Turning now to plaintiff's Fourteenth Amendment claims, the court notes that they fall into two basic categories—due process and equal protection.

After considering the plaintiff's due process argument, the court has concluded that it is without merit. The right to hold state office is not a "privilege or immunity" of a citizen of the United States, Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944); nor is it "property" within the meaning of the Fourteenth Amendment, Cave v. Missouri, 246 U.S. 650, 38 S.Ct. 334, 62 L.Ed. 921 (1918); Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 44 L.Ed. 1187 (1900).

The plaintiff's equal protection claim is another matter. This court concludes that a statute requiring prospective candidates to pay a fee for having their names put on the ballot MAY be a denial of equal protection of the law.

The practice of extracting qualifying fees is an old one; until recently, however, there was little litigation in federal courts concerning this issue. This is explainable, at least in part, by the comparatively recent growth in importance of the equal protection clause by court decisions. See Developments in the Law—Equal Protection, 82 Harv.L. Rev. 1065 (1969). There has been some litigation in state courts, usually involving state constitutions. E. g. Bodner v. Gray, 129 So.2d 419 (Fla.1961); State ex rel. Thompson v. Scott, 99 Minn. 145, 108 N.W. 828 (1906). Most state courts considering the problem have concluded that filing fees are valid legislative enactments. See Annot., 89 A.L.R.2d 864 (1963) and cases cited therein. These cases do not thoroughly discuss the question in light of the equal protection clause as it has developed in recent years.

The court notes at the outset that the right to vote is a fundamental right, Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966), and this court holds its corollary, the right to seek public office, is a "fundamental" right, Jenness v. Little, 306 F.Supp. 925 (N.D. Ga.1969). Any state action which discriminates against segments of its population is subject to "strict scrutiny." Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 62 S.Ct. 1110, 86 L.Ed. 1655 (1942). The state must demonstrate not merely a reasonable justification for the distinction it draws between its citizens, it must show a compelling state interest.

The defendant urges, as the state's interest, two considerations. First, it helps defray the cost of the election; and, secondly, it helps insure that only serious candidates run. One additional aspect of the latter consideration is that the ballot be kept at a manageable size. These contentions will be taken up in order.

First, the defendant claims that the fee helps defray the cost of conducting the election. The court notes that much of the developed case law on this point is inapposite here. The contention argued here has been considered by several courts and has generally been approved. See Annot. 89 A.L.R.2d 864, 869-72 (1963). These cases deal with party primaries, whereas the instant case involves a general municipal election. There is more justification for allowing the state, or a party, to require a filing fee to help defray the expense of conducting a primary election, or provide for party expenses, either for the benefit of a political party, than for allowing a levy on the right to run for the office itself. It is not necessary nor appropriate in this case to express a view on the validity of state imposed qualifying fees in primary elections.

This court is unwilling to disregard and repudiate the judgments of many jurists over many years who have considered this question and found qualifying fees the exercise of a legitimate state interest. This view must, however, be considered in the light of present day standards of equal protection.

Defendant's second reason is that by requiring a filing fee, only "serious" candidates will attempt to qualify. Defendant points to several collateral advantages flowing from restricting the ballot to those who are "serious", namely, it will reduce the size of the ballot and will reduce the cost of holding the election because fewer election officials will be needed.

It is not denied that the state has a proper interest in having a ballot of manageable size and in spending tax monies in a reasonable manner—provided constitutional rights are not denied.

There is difficulty in how it is to be determined whether a candidate is serious. Is a "serious"...