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CALLAWAY v. SAMSON
April 5, 2002
CRAIG CALLAWAY, CHERLYN KING, JOCELYN VALENCIA, STEPHANIE DAVIES-KAHN, PLAINTIFFS,
DAVID SAMSON, ATTORNEY GENERAL OF THE STATE OF NEW JERSEY; ROSEMARY ADAMS, CITY CLERK OF THE CITY OF ATLANTIC CITY; JOSEPH G. GINDHART, CITY SOLICITOR OF THE CITY OF ATLANTIC CITY; CITY OF ATLANTIC CITY, DEFENDANTS.
The opinion of the court was delivered by: Stephen M. Orlofsky, United States District Judge.
Although the combined rights of voters and candidates to be free of
durational residency restrictions have been the subject of other recent
litigation in this Court, see Robertson v. Bartels, 150 F. Supp.2d 691
(D.N.J. 2001), the standard of review for violations of those rights is
uncertain. However, New Jersey's durational residency requirement may
also affect the Plaintiff candidate's right to intrastate travel, a right
recognized in this Circuit. See Lutz v. City of York, 899 F.2d 255, 256
(3d Cir. 1990). Indeed, the Third Circuit has held that state enactments
burdening the right to intrastate travel are subject to intermediate
scrutiny. Id. at 269.
Thus, rather than explore the uncertain boundaries of the collective
right of candidates and voters to be free of ballot restrictions, I
consider simply whether the State of New Jersey can justify with a
narrowly tailored and significant interest the burdens it has imposed on
the right to intrastate travel. I conclude that, based on the facts and
circumstances of this case, it cannot do so. In particular, where the
Plaintiff candidate has worked for almost twenty years in the very ward
where he seeks election, has moved a distance of approximately thirteen
city blocks from his prior residence, and has lived in the City he seeks
to represent on the city council for his entire life, I find little State
interest in excluding him from the ballot. I need not, and therefore do
not, consider whether New Jersey's durational residence requirement for
candidates seeking local office might be constitutional as applied to
other candidates in other factual settings.
Thus, for the reasons set forth in more detail below, I conclude that
New Jersey's durational residency requirement is unconstitutional as
applied to the Plaintiff candidate, and shall order Defendants to place
his name on the primary ballot.
II. FACTS AND PROCEDURAL HISTORY
The material facts giving rise to this dispute are uncontested and have
been stipulated to by the parties. Craig Callaway is a lifelong resident
of Atlantic City. Until January of this year, he resided at 500 Wabash
Avenue in Atlantic City. On January 31, 2002, he moved approximately
thirteen blocks, to 725 North Ohio Avenue. He has since relocated twice
more, both times apparently a relatively short distance.
Callaway's perambulations are explained by the electoral map of his
home city. Atlantic City is divided into six "wards," each of which is
entitled to one representative on the city council. The council also
includes three at-large members. Callaway's pre-January residence, at 500
Avenue, was in what was then the Second Ward, and is now,
subsequent to redistricting based upon the 2000 census, in the First
Ward. 725 North Ohio Avenue, and the two residences Callaway has
occupied since, are all within the City's Third Ward. Not
coincidentally, the city council seat for the Third Ward became vacant on
or about February 13, 2002. Callaway, by his own admission, moved in
order to become eligible to occupy that seat.
Callaway's ambitions were stymied, however, by a ruling of the City of
Atlantic City's Solicitor's Office that he was not eligible to run for
the Third Ward seat, notwithstanding his move. According to the City
Solicitor, New Jersey law requires that a candidate for local office have
resided in the "local unit" for which he seeks office for "at least one
year prior to the date upon which the election for the office is to be
held." See N.J. Stat. Ann. § 40A:9-1.13 (West 1993) ("the residency
requirement"). "[W]henever an office is required to be filled by election
from a district, ward or other subdivision," the term "local unit" means
"the district, ward or subdivision to which the office pertains." Id.
§ 40A:9-1.11. In other words, it is not enough that Callaway has
lived in Atlantic City for over forty years; he must have lived in the
particular ward for which he seeks election for at least one year before
he can be elected to represent it.
Callaway responded to the City Solicitor's Letter Opinion by filing
this Complaint, pursuant to 42 U.S.C. § 1983 and the Fourteenth
Amendment, in which he requests that this Court declare the durational
residency requirement unconstitutional, and issue an injunction,
directing the City Clerk of Atlantic City to enter Callaway's name as a
candidate eligible for election to the city council from the Third Ward.
Callaway's Complaint named not only the City of Atlantic City, and its
City Clerk and City Solicitor, but also the Attorney General of New
Jersey, David Samson. As the parties agreed that the statutory deadline
for the City Clerk to act is April 8, 2002, I directed the parties to
brief the issues presented on an expedited schedule. On April 3, 2002, I
held a hearing and heard oral argument on Callaway's Motion for a
Temporary Restraining Order. The parties agreed at the hearing that no
material fact was in dispute, and upon my suggestion, further agreed
that, pursuant to Fed.R.Civ.P. 65(a)(2), the pending Motion for a
Temporary Restraining Order could be converted to a Motion for Permanent
The first task in addressing any constitutional challenge is,
necessarily, to identify the constitutional rights at issue. That
determination, in turn, will likely reveal what level of scrutiny the
court should apply to the challenged statutory provisions. As the array
of plaintiffs in this case suggests, state restrictions limiting a
candidate's access to the ballot may implicate a variety of different
interests. The Supreme Court has attempted to simplify matters by
lumping together the rights of candidates, voters and, at times,
political parties, and comparing the composite whole against the putative
interests of the State in its regulation. See, e.g., Timmons v. Twin
Cities Area New Party, 520 U.S. 351 (1997); Munro v. Socialist Workers
Party, 479 U.S. 189 (1986); Anderson v. Celebrezze, 460 U.S. 780 (1983);
Bullock v. Carter, 405 U.S. 134 (1972).
Unfortunately, even after consolidating many of the Plaintiffs'
possible rights at issue, the level of scrutiny that this Court should
apply is not particularly clear. The Attorney General contends that,
Timmons, I should conduct a straightforward balancing of the
interests on either side, such that the residency requirement in question
here can be sustained as an "important" and "reasonable,
nondiscriminatory" restriction that outweighs the relatively modest
combined interests of Callaway in running for local elective office and
of affected voters in selecting him as their candidate of choice.
Timmons, 520 U.S. at 358. The Third Circuit, when it last considered the
question of durational residency requirements for candidates for local
office, read the Supreme Court's ballot restriction line of cases as
mandating strict scrutiny of those requirements. See Wellford v.
Battaglia, 485 F.2d 1151, 1152 (3d Cir. 1973) (per curiam). In other
cases challenging different ballot access restrictions, however, the
Third Circuit has adopted a more liberal balancing test. See Council of
Alternative Political Parties v. Hooks, 179 F.3d 64, 70-71 (3d Cir.
1999). Some members of the Supreme Court itself were, as of 1986, of the
view that the Court applied strict scrutiny to at least some ballot
access cases. See Munro, 479 U.S. at 201 (Marshall, J., dissenting).
While there is a plausible argument that Timmons demonstrates that both
the Wellford court ...
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