Filed: Mar. 19, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-19-2004 Biener v. Calio Precedential or Non-Precedential: Precedential Docket No. 03-1607 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Biener v. Calio" (2004). 2004 Decisions. Paper 885. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/885 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-19-2004 Biener v. Calio Precedential or Non-Precedential: Precedential Docket No. 03-1607 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Biener v. Calio" (2004). 2004 Decisions. Paper 885. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/885 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-19-2004
Biener v. Calio
Precedential or Non-Precedential: Precedential
Docket No. 03-1607
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Biener v. Calio" (2004). 2004 Decisions. Paper 885.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/885
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PRECEDENTIAL Leslie G. Bohner, Esq.
Drinker Biddle & Reath
THE UNITED STATES COURT OF 18 th and Cherry Streets
APPEALS FOR THE THIRD CIRCUIT One Logan Square
___________ Philadelphia, PA 19103
No. 03-1607 Charles H. Wampold, III, Esq. (Argued)
___________ Drinker, Biddle & Shanley
105 College Road East
STEVEN BIENER; CAROL P. O. Box 627, Suite 300
GREENWAY, Princeton, NJ 08542
Appellants Counsel for Appellants
v. C. Drue Chichi, Esq. (Argued)
Aleph Ann Woolfold, Esq.
FRANK CALIO, The Honorable, State Department of Justice
Election Commissioner; 820 North French Street
DEMOCRATIC PARTY OF THE Wilmington, DE 19801
STATE OF DELAWARE Counsel for Appellee, The Honorable
Frank Calio
___________
Charles J. Durante, Esq. (Argued)
APPEAL FROM THE UNITED Connolly, Bove, Lodge & Hutz
STATES DISTRICT COURT FOR THE 1007 North Orange Street
DISTRICT OF DELAWARE P. O. Box 2207
Wilmington, DE 19899
(D.C. No. 02-cv-00514) Counsel for Appellee, Democratic
District Judge: The Honorable Party DE
Gregory M. Sleet
___________ Bonita P. Tenneriello, Esq.
National Voting Rights Institute
ARGUED OCTOBER 28, 2003 27 School Street
Suite 500
BEFORE: SCIRICA, Chief Judge, Boston, MA 02108
NYGAARD, and AMBRO, Counsel for Amicus-Appellant
Circuit Judges.
___________
(Filed: March 19, 2004) OPINION OF THE COURT
___________ ___________
NYGAARD, Circuit Judge. I. FACTS AND PROCEDURAL
HISTORY
Appellant Steven Biener, a
Delaware citizen who sought nomination Unlike general elections, which
as the Democratic Party’s candidate for are held by the state to select government
the United States House of office-holders, primary elections are
Representatives (“the House”), appeals conducted by the state on behalf of and
the District Court’s grant of summary as a convenience to political parties to
judgment against him. Biener and Carol assist them in selecting their candidates
Greenway, a registered voter who is a for office. Under Delaware law,
Biener supporter, sued the Democratic individual political parties share
Party of the State of Delaware (“the responsibility with the state for election
Party”) and Frank Calio, Delaware’s primaries. Political parties are
state commissioner for elections, alleging authorized to set the filing fee amount, so
that the $3000 filing fee for the 2002 long as it does not exceed 1% of the total
Democratic primary was salary for the term of office the candidate
unconstitutional. The District Court seeks. 15 Del. Code § 3103(a)-(c). In
rejected Biener’s arguments under the 2002, the Party set the filing fee for
Qualifications, Equal Protection, and candidacy to the House at $3000.
Due Process Clauses and granted
When a party opts to impose a
summary judgment on behalf of the Party
filing fee on candidates, Delaware law
and Calio.
provides only one exception. 15 Del.
The Delaware statute provides a Code § 3103(d)-(e). Candidates who
filing fee exception for indigent demonstrate they are indigent by virtue
candidates who are unable to pay a fee. of qualification for federal benefits may,
Biener challenges the lack of a ballot in lieu of a filing fee, access the primary
access alternative for non-indigent ballot by obtaining signatures on a
candidates. He asserts that he should petition. Id.
have a choice not to pay the fee. We
Biener sought to be included on
conclude that the availability of a choice
the ballot for the 2002 Democratic
is outcome determinative for Biener’s
primary as a candidate for the House. He
Qualifications and Equal Protection
ran on an anti-election spending and anti-
Clause claims. Those claims fail.
special interest platform, and did not
Additionally, we conclude that there is
solicit money for his campaign. Biener
no due process violation. We will
submitted the necessary paperwork to the
therefore affirm the District Court’s grant
state and the Party, but was informed that
of summary judgment.
because he is non-indigent he needed to
remit the $3000 filing fee or would be
left off the Democratic primary ballot.
2
Biener filed suit against Calio all jurisdictional questions, including
seeking declaratory and injunctive relief. whether a plaintiff has standing to assert
Calio filed an unopposed motion to join a particular claim. See Gen. Instrument
the Party as a defendant, and that motion Corp. of Del. v. Nu-Tek Elec. & Mfg.,
was granted. The District Court denied Inc., 197 F.3d 83, 86 (3d Cir. 1999). We
Biener relief, stating that Biener had not also review the District Court’s decision
shown a likelihood of success on any of to grant summary judgment on a plenary
his claims. basis. See Blair v. Scott Specialty Gases,
283 F.3d 595, 602-03 (3d Cir. 2002). A
Once his complaint for
grant of summary judgment is
declaratory and injunctive relief was
appropriate “if the pleadings,
rejected, Biener paid the $3000 filing
depositions, answers to interrogatories,
fee. He then amended his complaint to
and admissions on file, together with the
seek a refund of the fee, which
affidavits, if any, show that there is no
constituted two-thirds of the entire
genuine issue as to any material fact and
amount expended on his campaign.
that the moving party is entitled to a
After paying the fee, Biener was
judgment as a matter of law.” Fed. R.
included on the Democratic primary
Civ. P. 56(c). “In reviewing the grant of
ballot and received 48% of the votes but
summary judgment, we must affirm if the
did not win the Democratic nomination.
record evidence submitted by the non-
Biener’s suit alleged that the filing movant ‘is merely colorable or is not
fee requirement is unconstitutional on significantly probative.’” See Port Auth.
three grounds: (1) it adds an of N.Y. & N.J. v. Affiliated FM Ins. Co.,
impermissible wealth requirement to the 311 F.3d 226, 232 (3d Cir. 2002)
qualifications for House membership, (2) (quoting Anderson v. Liberty Lobby, Inc.,
it denies equal protection to non-indigent
477 U.S. 242, 249-50 (1986)).
candidates who would like to seek office
A. STANDING
without paying a filing fee, and (3) it
violates the Due Process Clause because As a threshold matter, we must
it inappropriately delegates state power consider whether Biener has standing to
to political parties. Calio and the Party make his claims. Our decision here is
made a motion for summary judgment, informed by our recent opinion in
which the District Court granted on all Belitskus v. Pizzingrilli, 343 F.3d 632 (3d
three grounds. Cir. 2003). In that case, which involved
a challenge to Pennsylvania’s election
II. DISCUSSION
filing fees, we rejected the argument
We have jurisdiction pursuant to “that a candidate challenging a
28 U.S.C. § 1291, since this is an appeal mandatory filing fee must establish that
of a final decision of a federal district payment of the fee would result in the
court. We exercise plenary review over complete depletion of personal or
3
campaign funds in order to demonstrate him to act as a third-party, Biener lacks
injury to a protected interest.” Id. at 640. standing to make this claim. See Pa.
Psychiatric Soc’y v. Green Spring Health
Servs., 280 F.3d 278, 288 (3d Cir. 2002)
Biener, by paying the $3000 filing
(“It is a well-established tenet of
fee in protest, depleted two-thirds of his
standing that a litigant must assert his or
campaign funds. This is an injury in fact,
her own legal rights and interests, and
which is clearly traceable to the filing fee
cannot rest a claim to relief on the legal
set by the Party and Calio. The injury
rights or interests of third parties.”)
also can be redressed by a favorable
(internal quotations omitted).
decision in this court. Biener thus has
standing to challenge the filing fee on his B. QUALIFICATIONS CLAUSE
own behalf. See AT&T Communications
The District Court held that
of N.J., Inc. v. Verizon N.J., Inc., 270
Delaware’s filing fee for the Democratic
F.3d 162, 170 (3d Cir. 2001) (reciting the
primary does not violate the
three elements of a case or controversy
Qualifications Clause by improperly
for purposes of standing: injury,
adding a wealth requirement to the
causation, and redressability); see also
qualifications for House membership.
Belitskus, 343 F.3d at 640 (citing Green
The Qualifications Clause of the United
v. Mortham, 155 F.3d 1332 (1998), an
States Constitution states that “No
Eleventh Circuit Court of Appeals case
Person shall be a Representative who
in which the candidate used campaign
shall not have attained to the Age of
contributions to pay the filing fee under
twenty five Years, and been seven Years
protest and the court did not question his
a Citizen of the United States, and who
standing).
shall not, when elected, be an Inhabitant
Biener also purports to make of that State in which he shall be
claims on behalf of indigent or near- chosen.” U.S. C ONST. art. I, § 2, cl. 2.
indigent individuals. For example, Supreme Court precedent establishes that
Biener alleges that Delaware’s states have no power to add to these age,
alternative to filing fees for indigent citizenship, and residency requirements.
candidates is illusory because so few U.S. Term Limits, Inc. v. Thornton, 514
people qualify as indigent under the U.S. 779, 798-99 (1995) (citing a long
statutory definition. Biener does not list of cases in numerous courts that
contend, however, that he is in the group conclude states lack the authority to
of near-indigent individuals who are supplement the qualifications in the
allegedly prevented from availing Qualifications Clause). Furthermore,
themselves of this ballot-access states should not attempt to disguise
alternative. Because he is not a member qualifications for office as qualifications
of that group nor does he possess a for election as a way to circumvent this
“close relationship” worthy of allowing rule, or they risk the qualifications for
4
election being found unconstitutional. residency requirements; loyalty oath
Id. at 831 (“[D]ressing eligibility to stand requirements; voter registration
for Congress in ballot access clothing requirements; and restrictions on those
trivializes the basic principles of our convicted of felonies. See, e.g.,
id. at
democracy that underlie [the 799; Schaefer v. Townsend, 215 F.3d
Qualifications] clause[].”) (internal 1031, 1039 (9th Cir. 2000); Campbell v.
quotations omitted). The issue here is Davidson,
233 F.3d 1229, 1231 (10th
whether the filing fee for the Democratic Cir. 2000). Unlike these impermissible
primary constitutes an additional qualifications, the filing fee for the
qualification for House membership. Democratic primary is not inherent in the
candidate. See Fowler v. Adams, 315
Biener’s Qualifications Clause
F.Supp. 592, 594 (M.D. Fla. 1970)
claim is based in large part on Thornton,
(stating that a filing fee, unlike the
in which the Supreme Court found a
Article I, Section 2, Clause 2
term-limitation statute unconstitutional
“Qualifications,” “is not personal to the
as an impermissible attempt to add to the
candidate but may be paid by anyone in
qualifications for office established by
his behalf”).
the Constitution. Id. at 837-38. Latching
onto Thornton, Biener argues that In a recent case before this Court,
Delaware’s filing fee is an eligibility we rejected a Qualifications Clause
requirement for office and thus an challenge to the Hatch Act because
impermissible wealth qualification. In “[t]he Act allows a citizen a choice.”
support of his claim, Biener points to the Merle v. United States,
351 F.3d 92, 97
debate by the Framers of the Constitution (3d Cir. 2003). There, we took notice
over whether to include a wealth or that a “resign to run” law may force the
property-holding requirement in the prospective candidate to make a choice
Qualifications Clause, and their ultimate between federal employment and running
decision that qualifications would be for elective office, but does not
limited to age, citizenship, and residency. constitute an “additional qualification for
the office of United States
Thornton and the “impressive and
Representative.” Id. Likewise, a
uniform body of judicial decisions” cited
candidate financially able to pay a filing
therein where courts have struck down
fee, but unwilling to do so, is not being
laws on the basis that they improperly
subjected to an impermissible wealth
added qualifications to those found in the
requirement.
Qualifications Clause focus on
qualifications that were inherent in the Finally, we disagree with Biener’s
candidate. See, e.g., Thornton, 514 U.S. contention that Thornton capsized
at 800. For instance, all of the following existing precedent upholding states’
qualifications have been found rights to require filing fees. See Fowler,
unconstitutional: term limits; district 315 F. Supp. at 594; Cassidy v. Willis,
5
323 A.2d 598, 602 (Del. 1974); Bodner Supreme Court struck down an election
v. Gray,
129 So. 2d 419, 420-21 (Fla. primary filing fee where it was an
1961); Kenneweg v. Allegheny County “absolute prerequisite” to participation.
Comm’rs,
62 A. 249, 251 (Md. 1905). Bullock v. Carter,
405 U.S. 134, 137
Even after Thornton, states still have the (1972). The filing fees in that case were
right to regulate elections by imposing set by the county executive committees
reasonable requirements on candidates. of the individual political parties and
In Thornton, the Court held that “an were subject to limitations only in some
amendment with the avowed purpose and counties.
Id. at 137-38. The proceeds of
obvious effect of evading the the fee went to the party.
Id. at 137. The
requirements of the Qualifications Bullock court said that despite the
Clause[] by handicapping a class of political parties’ involvement with the
candidates cannot stand.” 514 U.S. at filing fees, “the mechanism of such
831. Here, there is no avowed purpose to elections is the creature of state
evade the constitution and exclude a legislative choice and hence is state
class; instead, the purpose of the filing action within the meaning of the
fee is to keep Delaware’s ballots Fourteenth Amendment.”
Id. at 140
manageable. Moreover, the logical (internal citations and quotations
consequences of Biener’s argument omitted).
would jeopardize states’ use of signature
The Bullock court “closely
requirements.
scrutinized” the filing fee, looking at
C. EQUAL PROTECTION CLAUSE whether the fee was reasonably necessary
to the accomplishment of legitimate state
Next, we address whether the
objectives. Id. at 144. The Court
District Court erred when it granted
recognized that states have a legitimate
summary judgment for Appellees Calio
interest in regulating the number of
and the Party on the Equal Protection
candidates on the ballot to “prevent the
Clause claim. Like the District Court,
clogging of its election machinery, avoid
we hold that there is no equal protection
voter confusion, and assure that the
violation. Equal protection jurisprudence
winner is the choice of a majority, or at
mandates a ballot-access alternative for
least a strong plurality.” Id. at 145.
those unable to pay a filing fee.
Additionally, it is a legitimate objective
Delaware law complies with this
for states to protect the ballot from
precedent by providing an alternative for
including frivolous or fraudulent
indigent candidates. Here, Biener alleges
candidates. Id. But “[t]o say that the
only an unwillingness, not an inability, to
filing-fee requirement tends to limit the
pay. In its history, the Supreme Court
ballot to the more serious candidates is
has considered only two election filing
not enough.” Id. The Court held the
fee cases, both of which were decided on
differing treatment must also bear some
equal protection grounds. In 1972, the
6
relevance to the objective, and that in provide a reasonable alternative means of
Bullock the fee was not reasonably ballot access to indigent candidates. Id.
necessary because other means to protect at 647. We applied a heightened level of
the state’s valid interests were available. scrutiny because indigent plaintiffs were
Id. at 145-46. The decision was challenging a mandatory filing fee.
Id. at
motivated by a concern that without an 644-45.
alternative means of ballot access
The issue here is whether the
affluent candidates were advantaged. Id.
filing fee violated the Equal Protection
at 144.
Clause by extending alternate means of
A few years later, in Lubin v. ballot access only to indigent candidates.1
Panish, an indigent candidate brought a The parties agree that Biener cannot avail
class-action suit to prevent California himself of Delaware’s alternate means of
from enforcing its filing fee. 415 U.S. accessing the ballot—receiving the
709 (1974). The California Elections requisite number of signatures on a
Code made forms required for campaign petition—because he is not
nomination and election issuable only indigent or even near-indigent. Biener’s
once candidates paid a non-refundable claim is that Delaware’s filing fee is
filing fee. Id. at 710. The fee amount unconstitutional because it lacks an
was tied to the salary of the office equivalent alternative for non-indigent
sought.
Id. As in Bullock, the Supreme candidates.2
Court applied a close scrutiny test and
Biener urges us to find
held that the fee was unconstitutional
Delaware’s filing fee unconstitutional
because no alternate means of ballot
under Bullock and Lubin. But Biener’s
access was available for indigent
reliance on Bullock and Lubin is
candidates. Id. at 717-18. According to
misplaced because the candidates in both
the Court, Lubin was a less
cases were indigent. See Bullock, 405
straightforward case than Bullock
because California’s fees were not as
exorbitant. Id. at 715 n.4. 1. Biener does not challenge the
More recently, we considered the reasonableness of the $3000 filing fee.
constitutionality of Pennsylvania’s
2. Biener makes an argument that
election filing fees. Because the ruling
Delaware’s definition of indigence is
occurred after briefs were filed in this
useless because so few people qualify for
case, we sought comment from the
the alternative means of ballot access.
parties on the applicability of Belitskus,
See 15 Del. Code § 3101(e). As
343 F.3d 632. In Belitskus, we held that
discussed supra, Biener lacks standing to
Pennsylvania’s filing-fee requirement
make this argument, as he does not
was unconstitutional under the Equal
purport to be in the class of near-indigent
Protection Clause because it failed to
persons who are excluded.
7
U.S. at 146 (“the candidates . . . depends on the filing fee’s effect on
affirmatively alleged that they were Biener’s rights.
Id. We need not
unable, not simply unwilling, to pay the automatically apply close scrutiny just
assessed fees”); see also Cassidy, 323 because this case deals with ballot
A.2d at 601 (noting that in Lubin the access. See Burdick v. Takushi, 504 U.S.
“inability to pay the fee . . . is so much a 428, 433-34 (1992).
part of the decision that we cannot ignore
In Belitskus, we followed the
it here”). Biener turns Bullock and Lubin
flexible standard set forth in Anderson v.
on their heads when he argues that
Celebrezze for determining the
indigents are advantaged under
appropriate level of scrutiny in ballot
Delaware’s current system because they
access cases. 460 U.S. 780, 789 (1983),
have an alternative that other candidates
cited in Belitskus, 343 F.3d at 643. We
do not. Biener’s assertion that we should
decline to apply the Anderson balancing
reach the same result as Bullock is
test here. In Belitskus, such an inquiry
discouraged by the language of that case,
was appropriate because First
where the Court said the opinion should
Amendment considerations were at issue.
not be read to “cast doubt on the validity
Unlike Belitskus, Biener’s challenge
of reasonable candidate filing fees . . . in
relies solely on the Fourteenth
other contexts.” 405 U.S. at 149.
Amendment and he makes no allegations
Because Biener is not claiming based on freedom of association. See
indigence, Bullock, Lubin, and Belitskus, Belitskus, 343 F.3d at 643 n.8 (noting
while not determinative, are informative that Anderson was not expressly decided
on the Equal Protection analysis. “In on equal protection grounds and thus
determining whether or not a state law “some uncertainty exists regarding its
violates the Equal Protection Clause, we applicability to equal protection-based
must consider the facts and challenges,” but applying Anderson
circumstances behind the law, the nonetheless because “neither party
interests which the State claims to be challenges its application”); Anderson,
protecting, and the interests of those
who 460 U.S. at 787 n.7 (“In this case, we
are disadvantaged by the classification.” base our conclusions directly on the First
Williams v. Rhodes,
393 U.S. 23, 30 and Fourteenth Amendments and do not
(1968) (cited in Bullock, Lubin, and engage in a separate Equal Protection
Belitskus). Clause analysis.”).3
Our first inquiry in an equal
protection challenge is the appropriate
level of scrutiny. See Reform Party of
3. Even if we were to apply the
Allegheny County v. Allegheny County
Anderson balancing test, our conclusion
Dep’t of Elections, 174 F.3d 305, 314 (3d
that we would use a rational basis test
Cir. 1999) (en banc). The scrutiny test
would remain unchanged.
8
Rather than apply Anderson, we objective “of the highest order.” Lubin,
proceed on a traditional equal protection 415 U.S. at 715 (referencing Bullock,
analysis, whereby only suspect classes
405 U.S. 134);
Bullock, 405 U.S. at 145-
and fundamental rights receive 46 (stating in dicta that “there may well
intermediate or strict scrutiny. The right be some rational relationship between a
to run for office has not been deemed a candidate’s willingness to pay a filing fee
fundamental right. Bullock, 405 U.S. at and the seriousness with which he takes
142-43. Biener also cannot establish an his candidacy”). Keeping the ballot
infringement on the fundamental right to manageable is an interest sufficient to
vote, because “voter’s rights are not meet the low standard of review. See
infringed where a candidate chooses not
Belitskus, 343 F.3d at 647 (stating that
to run because he is unwilling to comply distinguishing serious from non-serious
with reasonable state requirements.” See candidates is a legitimate interest, but it
Adams v. Askew,
511 F.2d 700, 703 (5th is not enough where there is no
Cir. 1975). As the filing fee does not reasonable alternative means of ballot
infringe upon a fundamental right, nor is access for indigents).
Biener in a suspect class, we consider the
In concluding that Biener has
claims under a rational basis test. See id.
suffered no equal protection violation
at 703-04 (applying a rational basis test
here, we follow the conclusion reached
to hold that an alternative to a filing fee
by the Fifth Circuit Court of Appeals in
was required only for indigent
Adams. 511 F.2d 700. There, the Court
candidates).
was faced with non-indigent candidates
Having established that the who paid the requisite filing fee under
appropriate test is rational review, the protest and sued for a refund alleging the
question becomes whether the filing fee fee was unconstitutional. Id. at 701.
meets that standard. See, e.g., Romer v. Basing its decision on Bullock and Lubin,
Evans,
517 U.S. 620, 632 (1996) (noting the Fifth Circuit Court of Appeals held
that even under the most deferential of that candidates who were able, but
standards, “we insist on knowing the simply unwilling, to pay a filing fee are
relation between the classification not entitled to another route to the ballot.
adopted and the object to be obtained”).
Id. at 702. The court found
The justification for the filing fee offered determinative that “it is not the statute
by both the State of Delaware and the which perforce restricts the ballot but the
Party is that it will help distinguish candidate’s decision to pay or not to
serious from non-serious candidates to pay.”
Id. at 703 (emphasis added).
keep the ballot manageable. The
Voters’ rights are not infringed
Supreme Court has recognized that the
where a candidate chooses not to
interest in keeping ballots manageable,
run because he is unwilling to
often manifested in a filing fee, is an
comply with reasonable state
9
requirements. They are no more 189, 196 (1989) (internal citations and
affected by a candidate’s quotations omitted). The threshold issue
unwillingness to pay a reasonable here is whether Biener possesses a
filing fee than they are when he protected liberty or property interest in
refuses to comply with financial access to the Democratic primary ballot.
disclosure laws, or, for that In an analogous case, the Supreme Court
matter, a reasonable petitioning held that impositions on the right to run
requirement. for state political office do not implicate
the Due Process Clause. See Snowden v.
Id. We quite agree. The availability of
Hughes, 321 U.S. 1, 7 (1944). We do not
choice is fatal to Biener’s equal
decide here whether the Snowden
protection claim.
holding would extend to federal elective
D. DUE PROCESS CLAUSE offices, because even if we were to
follow the result of the Supreme Court
Next, Biener alleges an improper
and hold that the right to run for federal
delegation of power under the Due
elected office warrants due process
Process Clause. Biener argues that
protection, doing so would not save
because Delaware allows political parties
Biener’s due process claim.
to set and retain filing fees, 15 Del. Code
§ 3103 is unconstitutional.4 We will Generally, the Fourteenth
affirm the District Court, because there is Amendment protects individuals only
no due process violation where, as here, against government action, unless the
the state limits the private party’s state has delegated authority to a private
discretion and the private party operates party, thereby making the actor a “state
within the established limitations. The actor” and implicating the Due Process
Due Process Clause of the Fourteenth Clause. See Nat’l Collegiate Athletic
Amendment provides that “no State shall Ass’n v. Tarkanian, 488 U.S. 179, 195
. . . deprive any person of life, liberty, or (1988). The Due Process Clause limits
property without due process of law.” the manner and extent to which a state
The Clause “was intended to prevent legislature may delegate legislative
government from abusing its power, or authority to a private party acting as a
employing it as an instrument of state actor. See, e.g., Yick Wo v.
oppression.” Deshaney v. Winnebago Hopkins,
118 U.S. 356, 373-74 (1886).
County Dep’t of Soc. Servs., 489 U.S. Only if the state legislature imposes
sufficient limitations is the exercise of
authority by the private party
4. Delaware’s authority to set filing constitutional. See, e.g., Seattle Title
fees itself is not at issue. Nor is there a Trust Co. v. Roberge, 278 U.S. 116, 121-
contention that the Party has exceeded 22 (1928) (concluding that the delegation
the scope of authority delegated to it by of zoning power to individual
the state.
10
landowners violated the due process imposing an upper limit.5 Contrary to
clause because the ordinance allowed no Biener’s contention that the Party
opportunity for review and left the “controls the price of admission to the
private parties “free to withhold consent electoral process,” it is the state that sets
for selfish reasons or arbitrarily . . . the only price that matters to potential
[based on] will or caprice”); Eubank v. candidates who generally pay the filing
City of Richmond, 226 U.S. 137, 143-44 fee out of campaign coffers—the
(1912); Gen. Elec. Co. v. New York State maximum price.
Dep’t of Labor,
936 F.2d 1448, 1455 (2d
We have not found, nor has
Cir. 1991) (noting that delegation
Biener asserted, any instance where a
without standards allows the private
federal appellate court deemed a state
party to exercise selfish or arbitrary
delegation unconstitutional under the
motivations or whims). Without
Due Process Clause for any reason but a
sufficient limitations, the delegation of
lack of standards allowing exercise of the
authority can be deemed void for
authority on a whim or caprice. There is
vagueness as allowing ad hoc decisions
no evidence that the Party could exercise
or giving unfettered discretion to the
its ability to set filing fees selfishly,
private party.
arbitrarily, or based on will or caprice.
In this case, the District Court See Roberge, 278 U.S. at 121-22.
held that Delaware’s limitation on the Biener’s reference to Bartley v. Davis, a
filing fee amount is a sufficient 1986 case from the Delaware Court of
limitation on the Party’s authority to Chancery, fails to convince us that the
prevent the delegation from running delegation of authority for setting filing
afoul of the Due Process Clause. We fees has been abused by the Party.
agree. Delaware delegates to political
parties the authority to set the filing fee
for election primaries, so long as the fee III. CONCLUSION
does not exceed 1% of the total salary for
In sum, Delaware’s filing fee is
the term of office the candidate seeks.
constitutional under the Qualifications,
15 Del. Code § 3103. The State also
Equal Protection, and Due Process
allocates 100% of the fee to the Party for
Clauses. We will affirm the District
it to keep, or choose to rebate to the
Court’s summary judgment order.
candidate in whole or in part.
Effectively, the State of Delaware has
created a means of revenue production
for the Party, but caps the profitability by 5. What use the Party puts filing fee
proceeds to is irrelevant to our analysis.
We consider only whether the delegation
of authority by the State of Delaware is
facially impermissible.
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