UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

FREDERICK CARLTON “CARL” :

LEWIS, :

: Civil Action No. 

Plaintiff, : 11-cv-2381 (NLH)(AMD)

:

v. : OPINION

:

SECRETARY OF STATE KIM :

GUADAGNO, et al., :

:

Defendants. :

 :

APPEARANCES:

William M. Tambussi, Esquire

John E. Wallace, Jr., Esquire

William F. Cook, Esquire

Christopher A. Orlando, Esquire

and

Michael Joseph Miles, Esquire

Brown & Connery L.L.P.

360 Haddon Avenue

Westmont, N.J. 08108

Attorneys for Plaintiff Frederick Carlton Lewis

Donna Kelly, Esquire

and

Robert T. Lougy, Esquire

Division of Law & Public Safety

Office of Attorney General of New Jersey

Richard J. Hughes Justice Complex

25 Main Street

P.O. Box 112

Trenton, N.J. 08625

Attorneys for Defendants Kim Guadagno and Paula Dow

Howard Lane Goldberg, Esquire

and

Sherri L. Schweitzer, Esquire

Office of Camden County Counsel

520 Market Street

Courthouse, 14th Floor

Camden, N.J. 08102

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Attorneys for Defendant Joseph Ripa

James T. Dugan, Esquire

Atlantic County Department of Law

1333 Atlantic Avenue

8th Floor

Atlantic City, N.J. 08401

Attorney for Defendant Edward P. McGettigan

Mark D. Sheridan, Esquire

and

Mark C. Errico, Esquire

Drinker Biddle & Reath, L.L.P.

500 Campus Drive

Florham Park, N.J. 07932

Attorneys for Intervenors-Defendants William Layton and Ted Costa

HILLMAN, District Judge

Plaintiff, Frederick Carlton “Carl” Lewis, has brought suit

against Defendants, New Jersey Secretary of State Kim Guadagno,

New Jersey Attorney General Paula Dow, Camden County Clerk Joseph

Ripa, Burlington County Clerk Timothy Tyler, and Atlantic County

Clerk Edward P. McGettigan, alleging, inter alia, that his

constitutional right to equal protection will be violated if he

is prohibited from running as a candidate for New Jersey State

Senate. On appeal, the Third Circuit Court of Appeals

preliminarily enjoined Defendants from removing Plaintiff’s name

from the ballot, thereby permitting Plaintiff’s name to appear on

the primary election ballot as a Democratic candidate for New

Jersey State Senate in the 8th Legislative District. Moreover,

the Third Circuit remanded the matter to this Court, instructing

the Court to consider Plaintiff’s as-applied equal protection

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claim.

Secretary of State Guadagno and Attorney General Dow (or,

“Defendants”) and Intervenors-Defendants, William Layton and Ted

Costa (or, “Intervenors”) have moved for summary judgment against

Plaintiff’s claims, asserting that Plaintiff’s name should not

appear on the ballot for New Jersey’s upcoming general election. 

Plaintiff cross-moves for summary judgment in favor of his

claims.

For the following reasons, the Motions for Summary Judgment

filed by Defendants and Intervenors will be granted. Further,

Plaintiff’s Cross-motion for Summary Judgment will be denied.

I. JURISDICTION

Plaintiff has brought federal constitutional claims pursuant

to 42 U.S.C. § 1983, as well as a claim under New Jersey law. 

This Court has jurisdiction over Plaintiff’s federal claims under

28 U.S.C. § 1331, and may exercise supplemental jurisdiction over

Plaintiff’s related state law claim under 28 U.S.C. § 1367. 

II. BACKGROUND

On April 11, 2011, Plaintiff, Frederick Carlton “Carl”

Lewis, in accordance with New Jersey election law, filed his 1

nomination petition seeking to have his name placed on the ballot

 Carl Lewis represented the United States in the 1984, 1

1988, 1992 and 1996 Olympic games. He won nine gold medals in

track and field and is considered by some as the greatest

Olympian of all time. 

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for the June 7, 2011 Democratic Party Primary Election for the

office of New Jersey State Senate, 8th Legislative District. 

Several days later, William Layton and Ted Costa, intervenors in

this action, contested the validity of Plaintiff’s candidacy. 

They specifically argued that Plaintiff did not meet the New

Jersey Constitution’s four-year durational residency requirement

for the office of state senator. After a hearing on April 20,

2011, an administrative law judge determined the challengers of

Plaintiff’s candidacy failed to prove that Lewis did not meet the

residency requirement. Several days later, on April 26, 2011,

Defendant, Secretary of State Kim Guadagno, reversed the 2

In New Jersey, the Secretary of State is appointed. As in 2

most states, the Secretary is the state’s highest election

official. Defendant Guadagno also serves as the State’s first

elected Lieutenant Governor, elected to that position on a

Republican slate that included Governor Chris Christie. Whatever

the wisdom of appointing an elected official to serve as

Secretary of State may be, and there is much to counsel against

it, the appointment does not violate state or federal law. It

also appears that of the forty-seven (47) states that have the

position, thirty-five (35) are elected by statewide ballot and

twelve (12) are appointed. 

http://ballotpedia.org/wiki/index.php/Secretary_of_State (last

visited September 6, 2011).

Plaintiff argues that Secretary of State Guadagno’s dual

role as the chief election officer and partisan elected official,

coupled with certain comments and conduct by the Republican

Governor, evidence that Plaintiff is the victim of a political

vendetta and a skewed and biased application of the law. This

argument might have some merit, and might justify an inquiry into

the decisional process, if the buck stopped at the desk of the

Secretary of State, or if the Governor himself determined or had

influence over the final determination of candidate

qualifications. Indeed, exercise of the power to regulate

elections to gain a partisan advantage would be a gross and

corrupt use of power. Here, however, the issue of Plaintiff’s

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decision of the administrative law judge and concluded that

Plaintiff was not a resident of the State of New Jersey for the

constitutionally prescribed time period. Thus, Plaintiff’s name

was ordered removed from the ballot.

Plaintiff appealed Secretary of State Guadagno’s decision to

the Appellate Division of New Jersey. On May 2, 2011, the

Appellate Division affirmed the Secretary’s decision to bar

Plaintiff’s name from appearing on the primary ballot. The next

day, Plaintiff moved before the Supreme Court of New Jersey for a

stay and sought certification to appeal the appellate panel’s

decision. The Supreme Court denied the stay and the petition for

certification.

During the course of those proceedings, Plaintiff filed a

Verified Complaint before this Court alleging that Secretary of

State Guadagno’s decision violated the Equal Protection Clause of

the Fourteenth Amendment and the New Jersey Civil Rights Act. 

Plaintiff additionally filed a Motion for a Temporary Restraining

Order and Order to Show Cause Why a Preliminary Injunction Should

Not be Entered. After a hearing and oral argument on April 28,

2011, the Court denied Plaintiff’s motion. The Court

qualifications under state law was reviewed -- and the

disqualification upheld -- by the State’s judiciary up to and

including its highest court. This review by an independent

branch of government insulated from political influence or

partisan bias renders the argument of improper influence a

superficially attractive but ultimately irrelevant red herring. 

 

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supplemented its decision in its Opinion dated May 3, 2011.

Plaintiff appealed the Court’s decision to the Third Circuit

Court of Appeals. In its Order dated May 5, 2011, the Third

Circuit entered a preliminary injunction mandating that

Plaintiff’s name be included on the ballots, and remanded the

case to this Court for purposes of analyzing Plaintiff’s asapplied equal protection claim. On May 10, 2011, Plaintiff 3

filed an Amended Verified Complaint.

On remand, Intervenors moved for summary judgment against

Plaintiff’s claims on June 3, 2011. Days later, Defendants also

moved for summary judgment. Along with his opposition to

Defendants and Intervenors’ motions, on August 29, 2011,

Plaintiff cross-moved for summary judgment. With this 4

procedural history in mind, the Court turns to the following

facts set forth by the parties as part of their motions for

 This Court’s April 28, 2011 Opinion only addressed 3

Plaintiff’s facial challenge to the state constitutional

provision at issue and expressly declined to address an asapplied challenge, believing that such a claim either had been

heard -- or going forward would be best heard -- by the state

courts hearing Plaintiff’s claims. As discussed more fully

infra, the interim relief granted by the Court of Appeals was

based on a claim that had not yet been fully presented or decided

in any other court. 

On August 19, 2011, the Court held a hearing in this matter 4

to address several issues, including Plaintiff’s request for

certain discovery. For the reasons expressed on the record at

that hearing, and in a separate order to be entered this date,

the Court denied Plaintiff’s request, specifically his request to

depose Secretary of State Guadagno. 

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summary judgment and that are relevant to the analysis here.5

Plaintiff first moved to the State of New Jersey while an

infant in 1963. Until 1979, Plaintiff resided with his parents

in Willingboro. He attended school in Willingboro, competed as 6

a track and field athlete in school and as a member of the

Willingboro Track Club, and ultimately, in 1979, graduated from

Willingboro High School. Thereafter, beginning in 1979,

Plaintiff accepted a scholarship and competed as a collegiate

track and field athlete at the University of Houston, in Houston,

Texas. He continued to reside in the State of Texas until

approximately 1999, when he moved to the State of California. In

1999, he purchased a home in California. As of November 8, 2007,

Lewis owned three homes in California, for which he paid taxes

and utilities. Also, at that time, Lewis was registered to vote

in California, a right he exercised thrice in 2008 and once in

2009. Between 2002 and 2008, and possibly including 2009,

Plaintiff paid income taxes in California. Plaintiff maintained

a business, the Carl Lewis Foundation, in California where it had

In light of its disposition of the pending motions, the 5

Court resolves any factual disputes in favor of Plaintiff and

accepts Plaintiff’s proffered facts as true for purposes of these

motions. 

Willingboro is located in the southernmost part of 6

Burlington County. Although not in the 8th Legislative District

as presently reconstituted, it is very close geographically. 

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been incorporated in 2001. In September 2010, he filed an 7

annual report indicating that his foundation continued to pay

taxes in California. In May 2008, Plaintiff executed an amended

deed on his New Jersey property in which he identified his

address in California.

In addition to his contacts with the State of California,

Plaintiff has also maintained significant connections with the

State of New Jersey. Throughout his collegiate career at the

University of Houston and during his professional athletic

career, Plaintiff returned repeatedly to New Jersey to visit and

stay with his parents in Willingboro, as well as to attend track

meets in the area. In 1997, after he retired from professional

competition, Plaintiff continued to frequent his former home

state. In 1999, he participated in an event to celebrate the

millennium in Willingboro. In 2000 and 2001, Plaintiff assisted

in community fund-raising efforts to save Willingboro High

School’s track, known as Carl Lewis Stadium. Pursuant to

Plaintiff’s request, the athletic apparel company, Nike,

contributed a significant amount of money to renovate and

resurface the track. Plaintiff appeared in Willingboro in

support of the campaign. Thereafter, in 2003 and 2004, Plaintiff

According to Plaintiff, the Carl Lewis Foundation “promotes 7

fitness, lifestyle, health and education for youth and families,”

“donates money for uniforms and equipment,” and “mentors children

and provides scholarships.” (Pl. Cross-mot., at 11-12). 

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visited every public school in Willingboro to speak with

students, an endeavor he continues to pursue to this day.

In 2005, Plaintiff purchased two condominiums in Mount

Laurel, New Jersey, one for his mother and the other for himself. 

Ever since then, he has paid property taxes and utilities for his

condominium and property taxes for his mother’s condominium. 

With the intent to permanently reside in New Jersey, Plaintiff

began to move his vehicles, personal belongings, and other things

from California to New Jersey in October 2005. Also in or around

that time, Plaintiff purchased a vehicle in New Jersey to use in

the State; he sold his home in Texas; and in 2006, he obtained a

New Jersey driver’s license. In August 2007, Plaintiff bought a

home in Medford, New Jersey, and transferred his belongings from

his condominium in Mount Laurel to his new residence in Medford. 

Plaintiff continues to reside in the Medford home, for which he

pays property taxes and utilities, while renting the Mount Laurel

condominium. In the autumn of 2007, Plaintiff started to

relocate his Carl Lewis Foundation to New Jersey, with its office

and principal functions now situated in Willingboro.

Also during 2007, Plaintiff became a volunteer assistant

track coach at Willingboro High School. He has regularly

attended practices and track meets. During the subsequent years,

he has been actively involved with Willingboro High School,

speaking with and mentoring students, establishing and presenting

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scholarships, and appearing at and arranging student events. 

Beginning in May 2009, for example, he hosted the annual Carl

Lewis Relay Championships, which are held at Carl Lewis Stadium

in Willingboro.

Since 2009, Plaintiff has attended church in Camden, New

Jersey. In 2009, he also established in New Jersey a chapter of

an organization called Best Buddies, which encourages

volunteerism and opportunities for mentally and physically

disabled people. That same year, Plaintiff was elected into the

New Jersey Hall of Fame. More recently, in April 2011, Plaintiff

registered to vote in New Jersey.

III. DISCUSSION

A. Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied

that “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law.”

Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ.

P. 56. 

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

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substantive law, a dispute about the fact might affect the

outcome of the suit. Id. In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence;

instead, the nonmoving party’s evidence “is to be believed and

all justifiable inferences are to be drawn in his favor.” Marino

v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting

Anderson, 477 U.S. at 255).

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex, 477

U.S. at 323. Once the moving party has met this burden, the

nonmoving party must identify, by affidavits or otherwise,

specific facts showing that there is a genuine issue for trial. 

Id. Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 256-57. A party opposing summary

judgment must do more than just rest upon mere allegations,

general denials, or vague statements. Saldana v. Kmart Corp.,

260 F.3d 228, 232 (3d Cir. 2001).

B. Equal Protection Claim

The Equal Protection Clause to the Fourteenth Amendment to

the United States Constitution provides that “[n]o State shall

make or enforce any law which shall . . . deny to any person

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within its jurisdiction the equal protection of the laws.” U.S.

Const. Amend. XIV, § 1. When determining whether a law violates

the Equal Protection Clause, three elements are paramount: “the

character of the classification in question; the individual

interests affected by the classification; and the governmental

interests asserted in support of the classification.” Dunn v.

Blumstein, 405 U.S. 330, 335 (1972). Moreover, the standard of

review for an equal protection claim varies depending upon the

scope of, and burden imposed by, the law in question. “If state

action does not burden a fundamental Constitutional right or

target a suspect class, the challenged classification must be

upheld if there is any reasonably conceivable state of facts that

could provide a rational basis for the classification.” Doe v.

Pa. Bd. of Prob. & Parole, 513 F.3d 95, 107 (3d Cir. 2008)

(citation and internal quotation marks omitted). “If the

challenged state action involves a ‘suspect’ classification based

on race, alienage or national origin, or infringes on a

fundamental constitutional right, [the court] must apply the

strict scrutiny standard.” Id.

Accordingly, as a threshold matter, and vital to the Court’s

analysis, the parties dispute the appropriate standard of review

applicable to Plaintiff’s equal protection claim. The Court

therefore will address the standard of review before turning to

the merits of Plaintiff’s as-applied challenge to New Jersey’s

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durational residency requirement.

1. Standard of Review

Plaintiff argues that given the severe restriction it

imposes upon citizens’ rights to vote and Plaintiff’s right to

travel, the durational residency requirement at issue must be

subjected to strict scrutiny. Conversely, Defendants and

Intervenors submit that the residency requirement does not

implicate the fundamental rights to vote or travel, but merely

impacts an individual’s ability to run for political office,

which in and of itself does not amount to a constitutional right. 

Because the residency requirement does not restrict on the basis

of some impermissible classification, Defendants and Intervenors

surmise that only a rational basis review is appropriate under

these circumstances.

In Bullock v. Carter, 405 U.S. 134 (1972), the Supreme Court

of the United States held that the imposition of a filing fee as

a condition to having a political candidate’s name placed on a

ballot in a primary election violated the Equal Protection

Clause. At the outset of its analysis, the Supreme Court had to

choose what level of scrutiny to apply to the Texas filing-fee

requirement. Id. at 142. The Court explained:

The initial and direct impact of filing

fees is felt by aspirants for office, rather

than voters, and 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

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of candidates do not lend themselves to neat

separation; laws that affect candidates always

have at least some theoretical, correlative

effect on voters. Of course, not every

limitation or incidental burden on the

exercise of voting rights is subject to a

stringent standard of review. McDonald v.

Board of Election, 394 U.S. 802 (1969). Texas

does not place a condition on the exercise of

the right to vote, nor does it quantitatively

dilute votes that have been cast. Rather, the

Texas system creates barriers to candidate

access to the primary ballot, thereby tending

to limit the field of candidates from which

voters might choose. The existence of such

barriers does not of itself compel close

scrutiny. Compare Jenness v. Fortson, 403

U.S. 431 (1971), with Williams v. Rhodes, 393

U.S. 23 (1968). In approaching candidate

restrictions, it is essential to examine in a

realistic light the extent and nature of their

impact on voters.

Id. at 142-43 (footnotes omitted). The Supreme Court determined

that the filing-fee requirement must withstand close scrutiny

because the requirement, in essence, served as an “exclusionary

mechanism” that precluded potential candidates from running for

office simply due to their inability to afford a considerable,

initial fee. Id. at 143-44. That imposition upon potential

candidates, in turn, “substantially limited” voters’ choice of

candidates by burdening, and perhaps proving cost prohibitive to,

office seekers of modest means who do not attract sizeable

contributions from their supporters. Id. at 144. The filing-fee

requirement essentially eliminated what otherwise might have been

highly qualified candidates, for whom voters may have cast their

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ballots, merely because of the candidates’ financial constraints.8

The significance of Bullock in this matter is its conclusion

that a restriction placed upon political candidates does not

warrant heightened scrutiny unless the restriction substantially

interferes with or disrupts the right to vote, severely distorts

the political playing field, or otherwise offends another

constitutional right. In other words, standing alone, there is

no fundamental, unfettered right to pursue public office. See

id. at 142-43; Hankins v. State of Hawaii, 639 F. Supp. 1552,

1555-56 (D. Haw. 1986) (finding that the right to run for or hold

public office is not a fundamental constitutional right). Only

when a restriction on candidacy threatens serious harm to a

cognizable constitutional right or freedom must that restriction

endure strict scrutiny; otherwise, the restriction simply must

have a rational basis to justify it.9

In essence, the state law at issue in Bullock created two 8

tiers, or wide classes, of potential candidates -- those rich

enough to run and those who could not afford the exorbitant

filing fees. In some cases the filing fee was a substantial

percentage of the salary of the office sought by the candidate. 

Although the impact on voters was derivative of the rights of the

candidates who could not afford to run, it is not surprising that

the Court would apply a strict scrutiny analysis to a state

scheme which had the effect of barring the poor from

participating in our democracy by limiting the opportunity to

seek public office to the wealthy. There is no rational basis,

much less a compelling one, to limit participation in political

life based on economic status. 

In further support of the conclusion that rational basis 9

review is appropriate to evaluate a law restricting an

individual’s right to candidacy, absent any invidious

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Numerous cases, including several cited by the parties here,

illustrate, either expressly or tacitly, the need for strict

scrutiny of restrictions on candidacy only when those

restrictions substantially and appreciably impact constitutional

rights or basic political freedoms independent of the candidate’s

ability to run for public office. For instance, the Texas

filing-fee requirement in Bullock garnered close scrutiny

because, by its nature, it arbitrarily eliminated candidates of

modest means and therefore profoundly disturbed citizens’

fundamental rights to vote for candidates of their choice. 

In Dunn v. Blumstein, 405 U.S. 330 (1972), a durational

residency requirement failed under a strict scrutiny analysis and

thus violated the Equal Protection Clause. But that residency

requirement, in complete contrast to the one at issue here,

applied directly to residents’ fundamental right to vote; the

discrimination or infringement of a constitutional right, the

Court notes the plurality opinion of the Supreme Court in

Clements v. Fashing, 457 U.S. 957 (1982). In that case, a

plurality of the Court explained: “Far from recognizing candidacy

as a ‘fundamental right,’ we have held that the existence of

barriers to a candidate’s access to the ballot ‘does not itself

compel close scrutiny.’” Id. at 963 (Rehnquist, J., plurality)

(quoting Bullock, 405 U.S. at 143). In Clements, the Supreme

Court upheld a Texas state statute that barred certain state

officers with more than a year remaining on their elected or

appointed terms from running for the state legislature. The

plurality went on to hold: “We conclude that this sort of

insignificant interference with access to the ballot need only

rest on a rational predicate in order to survive a challenge

under the Equal Protection Clause.” Id. at 968 (emphasis added). 

 

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requirement in Dunn had nothing to do with candidates running for

public office. In Williams v. Rhodes, 393 U.S. 23 (1968), the

Supreme Court closely scrutinized and, under equal protection

principles, struck down an Ohio statutory scheme that effectively

prohibited the creation of new political parties independent of

the Democratic and Republican parties. Those restrictions, the

Court reasoned, impede the fundamental rights to associate and

vote, and wilt under strict scrutiny given the disparate, heavy

burdens they impose on minority political groups to the benefit

of the established two-party paradigm. Id. at 31-32. Like the

burdensome financial hurdles at issue in Bullock, the state

scheme in Rhodes represented a deep and systemic defect designed

to maintain the political status quo and exclude whole classes of

groups and individuals who might seek to challenge the

established order. In Turner v. Fouche, 396 U.S. 346 (1970), the

Supreme Court deemed unconstitutional the compilation of a grand

jury list and, under a more lenient standard of review, the

membership requirements for a school board. However, in that

case, the Court noted that the violations of equal protection

were not linked to some right to public service, but rather to

the unassailable right to be free of racial discrimination and

other invidiously discriminatory qualifications. Id. at 359-63.

All of those cases employing heightened scrutiny are

materially different and distinguishable from the present matter. 

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Here, the durational residency provision requires that any and

all persons aspiring for the office of state senator in the State

of New Jersey must have been a citizen and resident in the State

for at least four years before the election. See N.J. Const.

Art. 4, § 1, ¶ 2. Therefore, on its face, the residency

requirement governs all individuals fairly and equally, without

regard to or reliance on any suspect classification. It demands

that any person, irrespective of his or her natural attributes,

beliefs, opinions, or proclivities, be immersed in the civic,

social, and political fabric of New Jersey for a specific period

of time in order to qualify as a candidate for one of the State’s

highest offices. Further, the constitutional mandate has an

appreciable impact on only certain, aspiring political candidates

–- i.e., those who have not resided, as defined by state law,

within New Jersey’s borders for four years before election -- and

not voters, political parties, or persons with particularized

views or minimal wealth. Unlike the restrictions overturned in

Bullock, Rhodes, and Turner, the durational residency requirement

does not shrink the pool of political candidates so profoundly,

and on such arbitrary or impermissible grounds such as financial

status, political opinion, or membership in a protected class, as

to undermine fundamental rights and privileges, including the

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rights of voters.10

On the contrary, a durational residency requirement for

aspirants of state political office has nothing more than a

minor, incidental impact on the rights of citizens to vote. That

fact alone does not warrant strict scrutiny. After all, citizens

do not have an unfettered right to select any person of their

choosing for public office. The institution of qualifications

and restrictions for political elective office are nearly

universal, see, e.g., U.S. Const. Art. II, § 1, cl. 5 (fourteenyear residency requirement for President); Art. I, § 2, cl. 2

(seven-year residency requirement for congressional

representative); Art. I, § 3, cl. 3 (nine-year residency

requirement for senator), and present an acceptable means to

ensure the legitimacy, suitability, and integrity of our

political leaders and public servants. In the universe of

The durational residency requirement also cannot be said 10

to violate Plaintiff’s right to travel because the provision,

limited in its scope and duration, in no way penalizes Plaintiff

from exercising that right. Because candidacy for political

office is not a fundamental right, Plaintiff is not being forced

to choose between his right to travel and another constitutional

entitlement or freedom. See Hankins, 639 F. Supp. at 1555

(finding that a durational residency requirement for candidacy

does not “penalize,” and thus violate, the potential candidate’s

right to travel because the candidate need not choose between

exercising different fundamental rights). Rather, the residency

requirement here merely delays Plaintiff from running for New

Jersey state senator until he has chosen to reside in the State

for four years leading up to the election. That choice falls

entirely within Plaintiff’s purview, and does not impede his

ability to indulge in any rights afforded to him by the

Constitution or any other law. 

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political qualifications and restrictions, a durational residency

requirement is among the fairest and most circumscribed ways in

which to regulate a pool of candidates without encumbering

individual rights and freedoms.

In sum, because New Jersey’s durational residency

requirement for the office of state senator does not

substantially or severely impede the fundamental, constitutional

rights of potential candidates, voters, or anyone else, the

requirement, to withstand an equal protection challenge, must

“bear[] a rational relationship to some legitimate end” -- that

is, the requirement is constitutional if “‘any reasonably

conceivable set of facts [] could provide a rational basis for’

it.” Doe, 513 F.3d at 107 (quoting FCC v. Beach Commc’ns, 508

U.S. 307, 313 (1993)). Mindful of this standard, the Court will

turn to the merits of Plaintiff’s as-applied cause of action.

2. As-Applied Analysis

At the conclusion of the April 28, 2011 hearing and in its

Supplemental Opinion dated May 3, 2011, this Court denied

Plaintiff’s request for a preliminary injunction, finding that he

failed to show a likelihood of success on the merits of his equal

protection claim. The Court, however, made clear that it 11

To the extent necessary to resolve the motions for summary 11

judgment and for purposes of this Opinion, the Court adopts and

reiterates its reasoning set forth at the April 28, 2011 hearing

and in its Supplemental Opinion. In so doing, the Court again

finds in favor of Defendants and Intervenors concerning any

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understood and considered Plaintiff’s claim as only a facial

challenge to New Jersey’s durational residency requirement. On

appeal, the Third Circuit entered a preliminary injunction in

Plaintiff’s favor and directed this Court, on remand, to consider

Plaintiff’s as-applied equal protection claim. “An as-applied

attack . . . does not contend that a law is unconstitutional as

written but that its application to a particular person under

particular circumstances deprived that person of a constitutional

right.” United States v. Marcavage, 609 F.3d 264, 273 (3d Cir.

2010).

According to Plaintiff, his history and ongoing connections

with the State of New Jersey, his current residency, and his

substantial involvement in public affairs demonstrate that, as

applied to him, the durational residency requirement is

unconstitutional. Plaintiff attests to his close ties to the

State and its people and institutions. In support of his claim,

Plaintiff has thoroughly and painstakingly articulated details of

his childhood and adolescence, his family, his amateur and

professional athletic careers, his home ownership and residency,

his tax obligations, his volunteerism and community service, and

his other endeavors and general reputation in the State. Through

those connections and contributions, Plaintiff believes that he

facial challenge asserted by Plaintiff against New Jersey’s

durational residency requirement. 

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is intimately familiar with the residents of New Jersey and their

concerns, and, in turn, they are familiar with him.12

Defendants and Intervenors counter that notwithstanding his

connections with the State, Plaintiff simply cannot satisfy the

durational residency requirement and the purposes and policies

animating it. By their assessment, Plaintiff, on account of his

prolonged absence away from New Jersey, is not sufficiently

familiar with the State and its citizens, nor are its citizens

sufficiently familiar with him as a potential candidate, to find

that the residency requirement as applied to him violates the

Equal Protection Clause.

Article 4, Section 1, Paragraph 2 of the New Jersey

Constitution reads, in pertinent part, that “[n]o person shall be

a member of the Senate who shall not . . . have been a citizen

and resident of the State for four years . . . before his

election.” N.J. Const. Art. 4, § 1, ¶ 2. The justifications for

New Jersey’s durational residency requirement, according to

Defendants and Intervenors, is two-fold: the State has a

paramount interest in ensuring that (1) its candidates for State

Senate are familiar with their constituents and the concerns and

issues relevant to New Jersey, and (2) its citizens are familiar

with their candidates and the platforms, ideas, and opinions

In the uncontested Democratic primary held June 7, 2011, 12

Plaintiff received 2,418 votes. 

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espoused by those candidates. Unquestionably, those interests

formulate a rational basis for the policy encompassed by Article

4, Section 1, Paragraph 2 of the New Jersey Constitution. See

Hankins, 639 F. Supp. at 1556 (“Indisputably, candidates who

possess a familiarity with, and an awareness of, local conditions

are a commodity desirable to state residents. That the voters

are more likely to come into personal contact with the

candidates, prior to election, if a residency requirement is

imposed is also self-evident.”); Sununu v. Stark, 383 F. Supp.

1287, 1290 (D.N.H. 1974) (finding compelling state interests in

durational residency requirements, including the interests

“first, to ensure that the candidate is familiar with his

constituency; second, to ensure that the voters have been

thoroughly exposed to the candidate; and third, to prevent

political carpetbagging”), aff’d mem., 420 U.S. 958 (1975). The 13

importance of the durational residency requirement is reflected

by its inclusion in the New Jersey Constitution for approximately

167 years, and the decision of the people of New Jersey not to

amend or delete it over that time.

Notwithstanding its history and purpose, the question

remains, does New Jersey’s otherwise valid, constitutional

The Court also refers to and incorporates its May 3, 2011 13

Supplemental Opinion for further examination and explanation of

the justifications and purposes underlying the durational

residency requirement. 

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residency requirement violate the Fourteenth Amendment when

applied to Plaintiff and his particular set of circumstances? 

The Court finds that it does not. Central to the resolution of

that question is not whether Defendants and Intervenors have

articulated a sufficient empirical justification for the

provision’s existence and application. They have no such burden. 

See Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986)

(noting that a state need not “make a particularized showing” to

support the enforcement of reasonable restrictions on ballot

access); see also Timmons v. Twin Cities Area New Party, 520 U.S.

351, 364 (1997) (stating that the court does not “require

elaborate, empirical verification of the weightiness of the

State’s asserted justifications”). Nor is the pertinent

consideration whether Plaintiff has averred sufficient facts to

somehow undermine those legitimate, rational justifications.14

 This Court will not address whether Secretary of State 14

Guadagno properly interpreted New Jersey’s durational residency

requirement and reasonably determined that Plaintiff did not

satisfy that requirement. Secretary of State Guadagno’s

determination of Plaintiff’s residency and citizenship was

affirmed by the Appellate Division, and the New Jersey Supreme

Court denied certification regarding that matter. That issue,

one solely of state law, was fully and fairly litigated by the

parties and reviewed by the State’s highest court. This Court is

precluded from reexamining those decisions. See M & M Stone Co.

v. Commonwealth of Pennsylvania, 388 F. App’x 156, 161 (3d Cir.

2010) (“With regard to issues first presented to a state

tribunal, the federal courts have consistently accorded

preclusive effect to issues decided by state courts, and, thus

‘res judicata and collateral estoppel not only reduce unnecessary

litigation and foster reliance on adjudication, but also promote

the comity between state and federal courts that has been

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Stated differently, Plaintiff does not undermine a state

constitutional provision designed to insure voter familiarity

generally by merely offering evidence, or even proving, that

voters are sufficiently familiar with him. Rather, the relevant 15

recognized as a bulwark of the federal system’” (quoting Allen v.

McCurry, 449 U.S. 90, 95-96 (1980))). Under more ordinary

circumstances, principles of comity and, more specifically, New

Jersey’s entire controversy doctrine might also preclude this

Court’s consideration of an as-applied challenge. See Paramount

Aviation Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999)

(“Under the entire controversy doctrine, a party cannot withhold

part of a controversy for separate later litigation even when the

withheld component is a separate and independently cognizable

cause of action.”). As all litigants do in state court,

Plaintiff had an obligation to assert all valid bases for relief

in one proceeding and be barred from raising them in later

proceedings. The state courts are fully competent to apply

federal law principles of equal protection. However, under the

unique procedural history of this case, application of that rule

would work an inequity. See id. (“As an equitable doctrine, [the

entire controversy doctrine’s] application is flexible, with a

case-by-case appreciation for fairness to the parties.”); Circle

Chevrolet Co. v. Giordano, Halleran & Ciesla, 662 A.2d 509, 513

(N.J. 1995) (noting that use of the entire controversy doctrine

“is discretionary and clarification of the limits of the doctrine

is best left to case-by-case determination”). Therefore, the

Court considers only the merits of Plaintiff’s as-applied

constitutional challenge to the durational residency requirement

–- not the adequacy of the Secretary’s findings and judgment

related to Plaintiff’s residency and citizenship.

If this Court were to frame the issue as Plaintiff has, 15

trial courts faced with as-applied challenges to this and similar

provisions would have to substitute their own judgment on a caseby-case basis as to whether the particular candidate’s knowledge

of the community and the community’s familiarity with the

candidate met some undefined and undefinable standard. Where

would that line be drawn? Would every judge draw it in the same

place? Would it be enough to be merely famous? Would some

qualities or organizational affiliations be favored more highly

than others? Would having some public facility bear your name be

a necessary requisite or merely sufficient? The effect would not

be the laudable and necessary goal of equal protection but rather

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constitutional inquiry is whether Plaintiff has carried his

considerable burden to demonstrate that a facially neutral, nondiscriminatory state constitutional mandate nonetheless has

deprived him of a constitutional right, or unduly burdened such a

right, because of his unique personal circumstances or

characteristics.

This Court holds that the durational residency requirement

does not in any way discriminate against Plaintiff or deprive him

of fundamental rights to which he is entitled. By failing to

satisfy the New Jersey residency requirement at issue, Plaintiff

is not precluded from participating in the political process,

from voting for or supporting particular candidates, from

advocating for or contributing to certain causes, from

associating with certain groups or lobbies, or from running for

another political office, including the New Jersey General

Assembly. Likewise, he may exercise his rights to speak freely,

to assemble peaceably, and to travel widely. The only impediment

Plaintiff suffers as a result of the residency requirement is

the opposite -- the ad hoc application of an arbitrary and

capricious standard by the branch of government least responsive

to the public at large. As between an unelected federal judge --

even one sworn to uphold the Constitution -- and a state

constitution, it is for the latter and not the former to set the

qualifications for state office. See Munro, 479 U.S. at 195

(expressing concern about “endless court battles” over the

sufficiency of factual predicates to reasonable state

provisions); Sununu, 383 F. Supp. at 1290-91 (lamenting the lack

of discernable judicial standards in judging durational residency

terms). 

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enjoinment from pursuing the New Jersey office of state senator,

and only then until he has been a citizen and resident in New

Jersey for four years. Thus, the restriction is not permanent,

but limited to a relatively short temporal period. Indeed, it is

difficult to imagine many electoral restrictions narrower in

their restraint than the one at issue.

Given the durational residency requirement’s importance, as

well as its state constitutional dimension, and the incidental, 16

minimal burden it imposes on Plaintiff, the Court cannot find

that Plaintiff has sufficiently demonstrated why, under equal

protection jurisprudence, he should be excepted from the

application of a New Jersey state constitutional provision

reasonably related to legitimate, even compelling, state

interests concerning a matter entrusted entirely to a state

It is, of course, a truism that a state has no more a 16

right to violate the Federal Constitution in its own constitution

than it does in any other exercise of state power. That having

been said, state constitutions are different in kind from other

state action. Unlike unilateral action by a state executive or

the enactment of a state statute by elected representatives,

which may or may not reflect the will of the people, the

provisions of a state constitution reflect the direct vote of the

citizens. On one level, the dispute in this case can be fairly

characterized as whether the desire of some voters in the 8th

Legislative District to vote for Plaintiff should trump the

decision of the majority of statewide voters who approved the

durational residency requirement. While this Court, or any

federal court, should not hesitate to vindicate the checks and

balances inherent in the Fourteenth Amendment, it should be

equally reluctant to intrude into sensitive matters reserved by

the Tenth Amendment to the sovereignty of the state. See Sununu,

383 F. Supp. at 1290-91.

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sovereignty –- the qualifications of its own political office

holders and elected officials. Plaintiff supposes that his

individual attributes and experiences should exempt him from the

residency requirement, but that simply is not the case here. The

Court respects and commends Plaintiff for his athletic,

professional, and altruistic achievements. Indeed, those kinds

of achievements and the personal qualities and attributes

necessary to accomplish them may make Plaintiff an attractive

candidate for political office and, perhaps one day, an effective

public official. Nothing in the State Constitution or this

ruling preclude him from running for a whole host of important

local and county offices as well as for the State Assembly. But

his accomplishments and connections to New Jersey do not excuse

Plaintiff from having to reside in the State and commit himself

as a citizen of New Jersey within its territorial borders for the

unique and special office of state senator.

As explained in this Court’s Supplemental Opinion dated May

3, 2011, the position of state senator in the State of New Jersey

is entrusted with immense authority and responsibility. To

properly employ those powers and perform those functions, a

senator must be intimately familiar with the State -- its people,

government, institutions, businesses, history, culture,

strengths, and weaknesses. Likewise, for the State’s citizens to

effectively choose their senators, those citizens must have the

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opportunity to learn about their senatorial candidates, including

their political platforms and plans for the State. The

durational residency requirement -- and, by extension, the

citizens of New Jersey, as illustrated by their approval of the

requirement’s inclusion in the New Jersey Constitution -- assumes

that the requisite manner and degree of familiarity between

citizen and candidate cannot occur unless, or at least is more

likely to occur when, the senatorial office seeker lives in the

State and among its people, where the candidate can experience

with his or her constituents hardship and prosperity, challenge

and accomplishment, disappointment and pride. For all that he

has done, Plaintiff has not proven that his particular

involvement with the State of New Jersey sets him apart from all

others who must reside in the State for four years to acquire the

knowledge and familiarity of the State that the New Jersey

Constitution and the New Jersey citizenry asks of its senators.

This irony in Plaintiff’s position -- that his fame and

civic involvement are such that he may leap ahead of other local

leaders known in their communities who must wait the requisite

waiting period -- is highlighted by the decisions in Hankins v.

State of Hawaii, 639 F. Supp. 1552 (D. Haw. 1986) and Sununu v.

Stark, 383 F. Supp. 1287 (D.N.H. 1974). Though neither of those

cases expressly addressed an as-applied challenge, in both of

them the courts determined that the durational residency

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requirements for state public office did not violate the equal

protection rights of the plaintiffs, both of whom had significant

connections to their respective states. For instance, in

Hankins, the plaintiff, who sought to run as a candidate for

governor, had resided in Hawaii for seventeen years, including

the three years preceding his candidacy. Hankins, 639 F. Supp.

at 1553. Nevertheless, the district court rejected his equal

protection claim against the five-year residency requirement

enunciated in the state constitution. Id. at 1556-58.

Similarly, in Sununu, the plaintiff, seeking to become a

state senator, had been a resident in New Hampshire for more than

four-and-a-half years, during which time he served as the

chairman of the municipal water and sewer planning committee and

of the municipal planning board, and had been elected to

represent the municipality in the New Hampshire General Court. 

Sununu, 383 F. Supp. at 1289. Despite the length of his

residency and his multiple roles in government and public

service, including an elected position, a three-judge panel of

the district court rejected his equal protection claim against

the seven-year residency requirement set forth in the state

constitution. Id. at 1290-92.

On this record, to conclude that Plaintiff is exempt from a

durational residency requirement that is materially similar to

and indeed shorter in duration and thus less onerous than those

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constitutionally valid residency requirements described in

Hankins and Sununu, the Court would have to reach a result

inconsistent with the aforementioned authority –- including a

case, Sununu, that had been summarily affirmed by the United

States Supreme Court. See Sununu v. Stark, 420 U.S. 958 (1975).17

The fact is, given their residencies within their respective

states and their political involvement, the plaintiff-candidates

in Hankins and Sununu were as qualified as Plaintiff, if not more

so. 

While the Sununu decision did not address an as-applied

challenge expressly, the decision recited Sununu’s individual

attributes for the office in question and his extensive

connection with the political life of his state. The scope and

underlying rationale of that decision is clear. A rational,

evenly applied, state constitutional provision that does not

preclude, but merely delays, candidacy for a particular state

office -- even to one who already holds a significant elected

office -- does not offend the Federal Constitution. Simply put,

A summary affirmance is a decision of the Supreme Court 17

affirming the merits of a lower court’s judgment. See

Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 499 (1981)

(“This Court has repeatedly stated that although summary

dispositions are decisions on the merits, the decisions extend

only to the precise issues presented and necessarily decided by

those actions.” (citation and internal quotation marks omitted));

see also Hicks v. Miranda, 453 U.S. 332, 344-345 (1975) (noting

“that the lower courts are bound by summary decisions by this

Court until such time as the Court informs them that they are

not” (citation and internal quotation marks omitted)). 

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barring Plaintiff from running from state senate would not be

unfair, would not preclude him from other public office, and

would be wholly consistent with the existing legal precedents. 

On the other hand, while it is not direct precedent given the

legal analysis applied, it is difficult to see how allowing

Plaintiff to run for state senator would be fair to John Sununu

or logically consistent with the restrictions placed on him and

approved by the United States Supreme Court. Until it is

overturned -- or, at a bare minimum, undermined by intervening

authority of sufficient clarity, which the Court has looked for

and cannot find -- it is not for this Court to ignore the spirit

and import of the Sununu decision. This Court holds that

Plaintiff’s connections to New Jersey, including his good deeds

and notoriety, do not place him beyond a constitutional

restriction that applies to anyone and everyone who seeks to

become a New Jersey state senator.18

It is tempting in this case to wish for, or to seek a path

to, a different result than the one determined in this Opinion. 

Intervenors assert that should the rational basis standard 18

not apply, the Court should employ the balancing test articulated

in Rogers v. Corbett, 468 F.3d 188 (3d Cir. 2006). The weighing

process requires a court to “consider what burden is placed on

the rights which plaintiffs seek to assert and then [] balance

that burden against the precise interests identified by the state

and the extent to which these interests require that plaintiffs’

rights be burdened.” Id. at 194. Were the Court to apply that

balancing analysis, the reasoning and outcome would be the same

as here.

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The plaintiff is a man of great and inspiring achievement,

justifiably held in high regard, and possessed of promise for the

future. More importantly, he is the candidate of choice of his

political party. And it is more than just a populist notion --

indeed it is ingrained in our collective political DNA -- to

level the playing field, to welcome all comers, and to root for

the underdog. If constitutional law in the area of elections can

be neatly summarized, it is certainly the case that for at least

the last fifty years our courts have been, and ought to be, more

than a little skeptical of state machinations to preserve and

perpetuate the status quo of entrenched powers and ever vigilant

against discrimination in all its sinister forms. If any

presumption would apply here, it would work to remove barriers to

speech and active participation in political life, not fortify

them, and to jealously guard the franchise on behalf of the

voting public. 

But against the clamor, and the hue and cry of the editorial

board, must be balanced an equally powerful and fundamental

premise -- that our democracy is one of laws, not men. The

citizens of the State of New Jersey, exercising their

constitutional right in our federalist system to formulate their

own government, have chosen and left undisturbed a universally

applied and neutral prerequisite to hold the office of state

senator. The durational residency requirement applies to all,

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regardless of economic status, race, creed, color, age, gender,

and political affiliation. And it applies, has been applied, and

ought to be applied, equally to the famous and the obscure, to

the overachiever and the pedestrian, to the athletically gifted

and the passive observer. Its populist appeal, and its

democratic strength, lies in its universalism and objective

application. In that way it vindicates an equally strong

principle of constitutional law -- the corollary to equal

protection is equal application to all. 

Therefore, for the reasons stated above, the Court rejects

Plaintiff’s equal protection claim. Accordingly, the Court

grants summary judgment in favor of Defendants and Intervenors. 

Further, Plaintiff’s cross-motion for summary judgment is

denied.19

IV. CONCLUSION

For the foregoing reasons, Defendants and Intervenors’

Motions for Summary Judgment are granted. Further, Plaintiff’s

Cross-motion for Summary Judgment is denied.

Date September 6, 2011 /s/ NOEL L. HILLMAN 

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

Plaintiff also sets forth a cause of action under New 19

Jersey’s Civil Rights Act. That claim, too, cannot survive

summary judgment because Plaintiff has failed to prove a

violation of a constitutional or statutory right. 

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