Wellford v. Battaglia

• Decision Date: 23 May 1972
• Docket Number: Civ. A. No. 4327.
• Citation: 343 F. Supp. 143
• Parties: Beverley R. WELLFORD, Plaintiff, v. Basil R. BATTAGLIA, in his capacity as Chairman of the Republican City Committee, et al., Defendants.
• Court: U.S. District Court — District of Delaware

343 F. Supp. 143

Beverley R. WELLFORD, Plaintiff, v. Basil R. BATTAGLIA, in his capacity as Chairman of the Republican City Committee, et al., Defendants.

Civ. A. No. 4327.

United States District Court, D. Delaware.

May 23, 1972.

R. Franklin Balotti, of Richards, Layton & Finger, Wilmington, Del., for plaintiff.

Basil R. Battaglia, pro se.

Kent Walker, and Richard S. Gebelein, Dept. of Justice, Wilmington, Del., for defendants Members of the Board of Elections.

OPINION

STAPLETON, District Judge.

Plaintiff, a registered voter and a would-be candidate for the office of Mayor of the City of Wilmington, here attacks the constitutionality of Section 3-300 of the Charter of that city, which provides:

"The mayor shall have been a resident of the city for at least five years preceding his election and shall be at least thirty years of age at the time of his election."

The case is currently before me on cross-motions for summary judgment, both sides having taken the position that there is no dispute as to any material fact. This Court has jurisdiction by virtue of 42 U.S.C. § 1983 and 28 U.S.C. § 1343.

As of the next mayoralty election, plaintiff will have been a resident of Wilmington, Delaware, for four years. In all respects other than durational residency, he would be qualified to serve as Mayor if elected. Plaintiff is ready, willing and able to perform all acts necessary to be placed upon the ballot. His request for a position on the ballot has been denied by the Department of Elections, however, on the following grounds:

"The opinion rendered by the Attorney General rests on Section 3-300 of the Home Rule Charter of the City of Wilmington which requires that the Mayor shall have been a resident of the City of Wilmington for at least 5 years preceding his election. A candidate for the office of Mayor must also have the same residency requirements as the Mayor. The opinion also indicates that this requirement is constitutional. Therefore, this Department cannot place your name on the ballot as a candidate for Mayor of the City of Wilmington."¹

Under the Charter, the Mayor is the chief executive officer of the city. There is no durational residency requirement with respect to any other office in the executive branch of city government. One year's residence is required for City Councilmen. Elections for the office of Mayor are held every four years.

Wilmington has a population of approximately 80,000 and covers an area of approximately 15.77 square miles. It is located in New Castle County which has a population of approximately 385,000² and covers an area of approximately 435 square miles. The population of Wilmington and its suburbs comprises a substantial majority of the county's population and is the only metropolitan area in the county. The county is served by at least three countywide radio stations, a television station and two daily newspapers of general circulation. No data has been supplied to the court which would indicate how many current residents of the City of Wilmington have resided there for less than five years and it is unlikely that such data is available. Census figures do indicate, however, that during the period from 1947-1970 an average of approximately 3.3% of the total national population moved interstate each year and that an additional 3.4% of the population moved intrastate each year.³ In any event, it is clear that a not insubstantial number of Wilmington residents are ineligible to serve as Mayor by virtue of Section 3-300.

Plaintiff's challenge rests upon the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. We start with the settled proposition that while plaintiff has no constitutional right to hold public office, he does have "a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications." Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970). What constitutes "invidious discrimination" depends upon the context and the United States Supreme Court has, accordingly, evolved more than one test to be applied in passing on challenges of this character. This court must, therefore, first decide upon the appropriate standard of review. Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

The so-called "traditional" or "rational connection" test requires the court to ask only "whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective." Turner v. Fouche, 396 U.S. 346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970). The challenged state law is entitled to a presumption of validity and must be allowed to stand unless the one mounting the attack convinces the court either that the law has no permissible objective or, given a valid objective, that there is no "rational basis" for the means selected." Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972).

Some state legislation cannot be sustained, however, unless it "withstands a more rigid standard of review." Bullock v. Carter, supra, 405 U.S. at 142, 92 S.Ct. at 855. The choice of standard depends upon "the interest affected or the classification involved." Dunn v. Blumstein, supra, 405 U.S. at 335, 92 S. Ct. at 999. In general, if the challenged law directly affects a "fundamental" or "basic" right or draws lines which result in a "suspect classification,"⁴ the burden is upon the proponents of the law to make a "clear showing that the burden imposed is necessary to protect a compelling and substantial governmental interest." Dunn v. Blumstein, supra, 405 U.S. at 341, 92 S.Ct. at 1002. "Necessary," in this context, is interpreted to mean that there is no other alternative available to protect the governmental interest involved which will involve a lesser burden on the right restricted. This, in turn, means that under the more rigid "compelling interest" standard, a challenged law must be precisely tailored to the objective. Even if the classification drawn may have some tendency to promote a permissible interest, the law cannot stand if it "excludes too many people who should not, and need not, be excluded." Dunn v. Blumstein, supra, 405 U.S. at 360, 92 S.Ct. at 1012.

The choice of the appropriate standard is crucial in this case. The governmental interest asserted in support of Section 3-300 is an interest in assuring that the chief executive officer of the City will be knowledgeable about its problems and resources. I consider this a legitimate governmental interest. Moreover, I am unable to say that there is no rational connection between this interest and the five year residency requirement imposed by the City Charter. Considering the excluded and included groups as a whole, it may well be that there are more people qualified by knowledge of the city among those with five years residence than among those with less than five years residence. At the very least, I would be unwilling on the present record to "second guess" the legislative judgment on this point.⁵ I conclude, however, that Section 3-300 must meet the more rigid standard of review.

A state law which imposes a direct burden, however small, on the right to vote must clearly be subjected to the "close scrutiny" of the "compelling interest" test. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); Kramer v. Union School District, 395 U.S. 621, 89 S. Ct. 1886, 23 L.Ed.2d 583 (1969); Dunn v. Blumstein, supra. The right to hold or run for public office has not as yet been expressly declared by the Supreme Court to have the same status.⁶ After so noting, however, the court in Bullock proceeded to note the interrelation between restrictions on the right to candidacy and restrictions on the right to vote:

". . . the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. . . . In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters."

In the Bullock case, the Supreme Court applied the compelling interest test to a Texas system of substantial filing fees. It did so for two reasons. First, it found that the size of the fees imposed gave the system "a patently exclusionary character." No alternative means of qualification were provided and the not insubstantial number of potential candidates who, like the plaintiff, could not afford the fee, were therefore absolutely barred from running. "The effect of this exclusionary mechanism on voters . . . was neither incidental nor remote" since they were thereby "substantially limited in their choice of candidates." Second, the court found an "obvious likelihood of this limitation falling more heavily on the less affluent segment of the community, whose favorites . . . might be unable to pay the large costs required by the Texas system." The court concluded:

"Because the Texas filing fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper, that the laws must be `closely scrutinized' and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster."

Unlike the Texas filing fee system and the laws concerning candidacy considered by the Supreme Court in other cases,⁷ the burden of Section 3-300 does not fall more heavily on minority economic or political groups. This distinction, while significant, does not render the Bullock case inapplicable, however. As I read that case the grounds asserted for utilizing the "compelling interest"...