Document Info

DocketNumber: 11-3401

Judges: Scirica, Ambro, Vanaskie

Filed Date: 9/22/2011

Status: Non-Precedential

Modified Date: 11/5/2024

  •                                                              NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    _____________
    No. 11-3401
    _____________
    FREDERICK CARLTON LEWIS,
    Appellant
    v.
    KIM GUADAGNO, SECRETARY OF STATE;
    PAULA DOW, ATTORNEY GENERAL;
    JOSEPH RIPA, CAMDEN COUNTY CLERK;
    TIMOTHY TYLER, BURLINGTON COUNTY CLERK;
    EDWARD P. MCGETTIGAN, ATLANTIC COUNTY CLERK;
    JOHN DOES I-X, (fictitious names), jointly, severally and in the alternative
    WILLIAM LAYTON; TED COSTA (Intervenors in D.C.)
    _____________
    On Appeal from the United States District Court
    for the District of New Jersey
    (D.C. Civil No. 1-11-cv-02381
    District Judge: Hon. Noel L. Hillman
    _____________
    Argued September 13 and 20, 2011
    Before: SCIRICA, AMBRO and VANASKIE, Circuit Judges
    (Filed: September 22, 2011)
    William M. Tambussi, Esq. (Argued)
    Michael J. Miles, Esq.
    Brown & Connery, LLP
    360 Haddon Ave.
    Westmont, NJ 08108
    Counsel for Appellant
    Donna Kelly, Esq. (Argued)
    Robert Lougy, Esq.
    Office of Attorney General of New Jersey
    Richard J. Hughes Justice Complex
    Trenton, NJ 08625
    Counsel for Appellees Kim Guadagno, Secretary of State and
    Paula Dow, Attorney General
    James T. Dugan, Esq.
    Atlantic County Department of Law
    133 Atlantic Ave., 8th Floor
    Atlantic City, NJ 08401
    Counsel for Appellee Edward P. McGettigan, Atlantic County Clerk
    Peter H. Nelson, I, Esq.
    Office of Solicitor of Burlington County
    49 Rancocas Road, Room 225
    Mt. Holly, NJ 08060
    Counsel for Timothy Tyler, Burlington County Clerk
    Mark D. Sheridan, Esq. (Argued)
    Drinker, Biddle & Reath
    500 Campus Drive, 4th Floor
    Florham Park, NJ 07932
    Counsel for Intervenor-Appellees William Layton and Ted Costa
    _____________
    OPINION
    _____________
    PER CURIAM
    Frederick Carlton “Carl” Lewis appeals from the District Court‟s order granting
    summary judgment against him in his as-applied equal protection challenge to the New
    Jersey Constitution‟s four-year state residency requirement for the office of State Senator.
    For the reasons set forth below, we will affirm the District Court‟s judgment.
    2
    I.
    On April 11, 2011, Lewis filed his nomination petition with the New Jersey
    Division of Elections to have his name placed on the ballot for the June 7, 2011
    Democratic primary election as a candidate for State Senator in New Jersey‟s 8th
    Legislative District. William Layton and Ted Costa1 contested Lewis‟s eligibility,
    arguing that Lewis could not meet the New Jersey Constitution‟s requirement that a State
    Senator be a citizen and resident of the State for at least four years prior to the date of his
    or her election.2 The matter was referred to the Office of Administrative Law and,
    following a hearing on April 19, the Administrative Law Judge (ALJ) determined that
    Layton and Costa had failed to demonstrate that Lewis had not been a citizen and resident
    of New Jersey for the four-year period prior to November 8, 2011, the date of the general
    election.3
    On April 26, New Jersey‟s Secretary of State rejected the ALJ‟s decision,
    determining that Lewis could not meet the four-year residency requirement and that he
    1
    William Layton is the Chairman of the Burlington County Republican
    Committee and Ted Costa is the Chairman of Hainesport Township Republican
    Committee.
    2
    The provision, in relevant part, states: “No person shall be a member of the
    Senate who shall not . . . have been a citizen and resident of the State for four years . . .
    next before his election.” N.J.S.A. Const. Art. IV, § I, ¶ 2.
    3
    The ALJ noted that he was not finding that Lewis met the durational residency
    requirement, only that Layton and Costa had failed to show that Lewis did not meet the
    requirement where the “severely limited time constraints in hearing and deciding [the]
    matter [did] not permit[] a fully developed record.”
    3
    was therefore ineligible to run in this year‟s election.4 On appeal, the Superior Court of
    New Jersey, Appellate Division, affirmed the Secretary‟s decision, “conclud[ing] that the
    Secretary‟s decision was supported by adequate evidence in the record that [Lewis] was
    not domiciled in New Jersey for the past four years.” Layton v. Lewis, 
    2011 WL 1632039
    (N.J. Super. Ct. App. Div. May 2, 2011). The New Jersey Supreme Court
    denied certification. Layton v. Lewis, 
    23 A.3d 912
    (N.J. 2011).
    In addition to the state court appeal, Lewis filed this action in the United States
    District Court for the District of New Jersey against the Secretary and the Attorney
    General of New Jersey (hereinafter Defendants), among others, alleging that the
    Secretary‟s order to remove Lewis‟s name from the ballot violated the U.S.
    Constitution‟s Equal Protection Clause and the New Jersey Civil Rights Act. Lewis
    moved for a temporary restraining order to enjoin the printing of primary election ballots
    in the 8th Legislative District and for an order to show cause why a preliminary
    injunction should not be entered. On April 28, 2011, the District Court denied Lewis‟s
    motion, holding that Lewis had failed to demonstrate a likelihood of success on the
    4
    The Secretary determined that, notwithstanding Lewis‟s purchase of two
    condominiums in New Jersey in 2005 and the fact that he closed on his current New
    Jersey residence on November 16, 2007, as of November 8, 2007, the so-called
    “constitutional cut-off” date, Lewis was not a resident of New Jersey. In her
    determination, the Secretary relied heavily on evidence that Lewis was domiciled in
    California within the relevant four-year period, including that he voted in California in
    2008 and 2009 and filed a state income tax return in California for the 2008 tax year.
    4
    merits of his facial challenge to the four-year residency requirement.5 Lewis appealed,
    and on May 5 this Court granted Lewis‟s motion for preliminary injunctive relief,
    ordering that the primary ballots include Lewis‟s name, and remanded the case to the
    District Court for a determination on the merits of Lewis‟s as-applied challenge, which
    the District Court had not addressed.
    On remand, the Defendants and Layton and Costa, who both intervened in the
    action (hereinafter Intervenors), moved for summary judgment, and Lewis cross-moved
    for summary judgment. On September 6, the District Court entered an order and opinion
    granting the Defendants‟ and Intervenors‟ motions for summary judgment and denying
    Lewis‟s cross-motion for summary judgment. The District Court rejected Lewis‟s
    argument that the durational residency requirement must be subjected to strict scrutiny
    and, applying rational basis review, held that the durational residency requirement as
    applied to Lewis did not violate the Equal Protection Clause. Lewis has appealed.
    II.
    The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343, and 1367. We
    have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court‟s grant of
    summary judgment is plenary. Lamont v. New Jersey, 
    637 F.3d 177
    , 181 (3d Cir. 2011).
    5
    Significantly, a facial challenge to a seven-year residency requirement for State
    Senator in the New Hampshire Constitution was rejected in Sununu v. Stark, 
    383 F. Supp. 1287
    (D.N.H. 1974) (three-judge panel), aff’d, 
    420 U.S. 958
    (1975).
    5
    III.
    Durational residency laws implicate equal protection concerns.6 See Dunn v.
    Blumstein, 
    405 U.S. 330
    , 334-35 (1972). That is, a durational residence law divides
    “residents in two classes, old residents and new residents, and discriminate[s] against the
    latter to the extent of totally denying them” some benefit or right. 
    Id. In this
    case, Lewis
    is denied the opportunity to run for the office of State Senator.
    Where, as here, a litigant presents an “as-applied” equal protection challenge to
    state action, the constitutionality of the state constitutional provision on which New
    Jersey relied is not at issue. See United States v. Marcavage, 
    609 F.3d 264
    , 273 (3d Cir.
    2010). Instead, the dispositive question is whether application of the constitutional
    provision “to a particular person under particular circumstances deprived that person of a
    constitutional right.” 
    Id. In this
    case, therefore, the issue is whether application of New
    Jersey‟s four-year residency requirement to Lewis deprived him of a constitutional right
    under the particular circumstances of this case.
    Those particular circumstances include the following uncontested matters:
    6
    The Equal Protection Clause of the Fourteenth Amendment provides that no
    State shall “deny to any person within its jurisdiction the equal protection of the laws.”
    U.S. Const. amend. XIV, § 1. “This „does not forbid all classifications‟ but „simply
    keeps governmental decisionmakers from treating differently persons who are in all
    relevant respects alike.‟” Keystone Redevelopment Partners, LLC v. Decker, 
    631 F.3d 89
    , 109 (3d Cir. 2011) (quoting Nordlinger v. Hahn, 
    505 U.S. 1
    , 10 (1992)). “[U]nless a
    classification warrants some form of heightened review because it jeopardizes exercise of
    a fundamental right or categorizes on the basis of an inherently suspect characteristic, the
    Equal Protection Clause requires only that the classification rationally further a legitimate
    state interest.” 
    Nordlinger, 505 U.S. at 10
    . Here, there is no contention that Lewis is in a
    suspect class.
    6
    Under New Jersey law, the term “resident” is equated to
    “domicile.” N.J. Stat. Ann. § 40A:9.11(d). Thus, to be a
    “citizen and resident” of New Jersey for purposes of the four-
    year State Senator eligibility requirement, a person must be
    domiciled in New Jersey. See Twp. of Willingboro v.
    Redding, 
    2007 WL 250379
    , at *2 (N.J. Super. Ct. App. Div.
    Jan. 31, 2007).
    A person can be domiciled in one state only. See Messick v.
    S. Pennsylvania Bus. Co., 
    59 F. Supp. 799
    , 800 (E.D. Pa.
    1945).
    Lewis maintained multiple residences in California and New
    Jersey between 2005 and 2009.
    On November 16, 2007, less than four years before the
    upcoming November 8, 2011 election for State Senate, Lewis
    closed on a home in Medford, New Jersey, and began
    transferring his belongings to the Medford property.
    Lewis voted in California elections in 2008 and May of 2009.
    In order to vote in California, a person must be domiciled in
    that State. Cal. Const. Art. 2, § 2; Cal. Elec. Code § 349.
    Lewis did not register to vote in New Jersey until April of
    2011.
    Lewis cannot point to a similarly situated person who, having voted as a citizen of
    another state less than three years before a general election in New Jersey, was deemed
    eligible to run for statewide office. The case upon which Lewis relies – King v. Lopez,
    
    2010 WL 4940051
    (N.J. Super. Ct. App. Div. Dec. 7, 2010) – concerned the election of a
    councilperson, not a State Senator. Moreover, the candidate, Nidia R. Lopez, had
    registered to vote in New Jersey eight years before running in 2009 for councilperson in
    Jersey City‟s Ward C and had regularly voted in New Jersey elections from 2001 to 2009.
    Although Lopez had maintained her registration to vote in Florida during this same time
    7
    frame, and may have voted by absentee ballot in Florida after moving back to New Jersey
    in 2001, the court found that the evidence was insufficient to show that Lopez had not
    intended to make her residence on Corbin Avenue, Jersey City, New Jersey, more than
    one year before the election in question.
    Here, by way of contrast, Lewis did not register to vote in New Jersey until April
    of 2011, he continued to affirm his domicile in California through the Spring of 2009 by
    voting in California elections, and is a candidate for a New Jersey statewide office that is
    subject to a constitutional durational residency requirement. Under these circumstances,
    he cannot show that the New Jersey constitutional provision has been applied unevenly as
    to him. As he was treated no differently than others who are in other respects alike, there
    is not even a prima facie showing of an equal protection violation.
    What Lewis is left with is a claim that the residency requirement infringes on
    fundamental rights – the right of the voters to elect a candidate of their choosing, the right
    of an individual to run for office unencumbered by discrimination, and the right to travel.
    This comes across as more of a facial as opposed to an as-applied equal protection
    challenge to New Jersey‟s durational residency requirement. That issue is not before us
    today.
    Turning back to the as-applied challenge, Lewis “proceeds from the erroneous
    assumption that a law that imposes any burden upon the right to vote must be subject to
    strict scrutiny.” Burdick v. Takushi, 
    504 U.S. 428
    , 432 (1992). On the contrary, courts
    must “examine in a realistic light the extent and nature of [the residency requirement‟s]
    impact on voters.” Bullock v. Carter, 
    405 U.S. 134
    , 143 (1972). Lewis argues the
    8
    requirement prohibits citizens from voting for him. However, “[e]lection laws will
    invariably impose some burdens upon individual voters.” 
    Burdick, 504 U.S. at 433
    . A
    period of waiting simply delays votes for him should he choose to run at a later time
    meeting New Jersey‟s requirement of residency.
    Lewis‟s contention that he has a right to run “unencumbered by discrimination” is
    correct. But he fails to articulate what discrimination the residency requirement imposes.
    Rather, he appears to argue that he has a fundamental right to run for office, but the
    Supreme Court has rejected the argument that an individual has a fundamental right to
    candidacy. See Clements v. Fashing, 
    457 U.S. 957
    , 963 (1982); 
    Bullock, 405 U.S. at 142
    -
    43.
    Lewis also claims the constitutional residency requirement imposes an “extreme
    burden” on his right to travel. He does not demonstrate, however, how the requirement
    forces him to choose between travel and another fundamental right. See 
    Dunn, 405 U.S. at 342
    (holding that a durational residency requirement cannot force a person to choose
    between travel and the basic right to vote).
    Lewis has invited us to relitigate the New Jersey court‟s finding of his failure to
    meet the four-year residency requirement. We decline to revisit this state law issue that
    was fully litigated in state court. Moreover, the New Jersey court‟s reference to, and
    even reliance upon, Lewis‟s voting in California in 2008 and 2009 as an “implicit
    declaration of not only residence but domicile,” Layton, 
    2011 WL 1632039
    , at *6, affords
    no basis for our re-examination of the state court‟s factual finding. While the
    presumption of domicile arising from the act of voting in California may be rebuttable,
    9
    there is no issue of constitutional dimension arising from the state court‟s treatment of
    this fact. Indeed, even Lewis‟s counsel acknowledged the significance of the California
    voting record by conceding that he would not be in court on this issue but for the fact that
    Lewis continued to vote in California within four years of the New Jersey election date.
    In short, Lewis has failed to show that, as applied to him, the four-year state
    residency requirement for the office of State Senator in New Jersey has treated him
    unequally. Accordingly, we will affirm the judgment of the District Court.7
    7
    In light of our affirmance of the District Court, the printing of ballots without
    Lewis‟s name may proceed.
    10