UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

 :

FREDERICK CARLTON “CARL” :

LEWIS, :

: Civil Action No. 

Plaintiff, : 11-2381-NLH

:

v. : SUPPLEMENTAL OPINION

:

SECRETARY OF STATE KIM :

GUADAGNO, et. al., :

:

Defendants. :

 :

HILLMAN, District Judge

This matter comes before the Court upon the application of

the Plaintiff, Frederick Carlton “Carl” Lewis, for a preliminary

injunction barring Defendants from removing his name from a

primary ballot. Plaintiff contends that the provision of New

Jersey’s state constitution relied upon to remove his name from

the ballot violates the Equal Protection Clause of the Fourteenth

Amendment. On April 28, 2011, after a hearing and oral argument,

the Court concluded Plaintiff failed to demonstrate a likelihood

of success on the merits, in that Sununu v. Stark, 383 F.Supp.

1287 (D.N.H. 1974), aff’d mem., 420 U.S. 958 (1975), was binding

and controlling precedent. The Court further opined that even if

the Supreme Court’s summary affirmance of Sununu were not

controlling precedent, this Court would apply a strict scrutiny

standard, adopt the reasoning of the Sununu three judge panel,

and find that the constitutional provision at issue furthers a

compelling state interest. In this Opinion, the Court will

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provide a written explanation for its April 28, 2011 oral

decision. 

I. 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

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, interveners in

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

They specifically argued that Plaintiff did not meet the state

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 (hereinafter

“Defendant”) reversed the 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

 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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ballot. On the same day, April 26, 2011, Plaintiff filed a

Verified Complaint in federal court alleging that Defendant

Secretary of State’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. 

II. ANALYSIS

This Opinion is intended to supplement the Court’s oral

decision denying Plaintiff’s Motion. Plaintiff requested that

the Court enter a preliminary injunction enjoining Defendants

Atlantic County Clerk, Burlington County Clerk and Camden County

Clerk (hereinafter “Defendant County Clerks”) from printing or

mailing the primary election ballots without his name. In

support of his Motion, Plaintiff claimed that the New Jersey

State Constitution’s four-year residency requirement for a

candidate for the office of state senator violated the Equal

Protection Clause of the Fourteenth Amendment. The 2

Constitutional provision states, in pertinent part, that “[n]o

person shall be a member of the Senate who shall not . . . have

 The Court interpreted this claim as a facial challenge to 2

the provision.

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been a citizen and resident of the State for four years . . .

before his election.” N.J.S.A. Const. Art. 4, § 1, ¶ 2. In

response to Plaintiff’s claims, Defendants Secretary of State and

Attorney General contended that the Court should abstain under

the Pullman and Younger doctrines. The Defendants further 3

argued that if the Court declined to abstain, it should deny

Plaintiff’s Motion because he fails to demonstrate a likelihood

of success on the merits.

A. Pullman

In Railroad Commission of Texas v. Pullman Co., 312 U.S. 496

(1941), the Supreme Court stated that when considering whether to

abstain, a court shall consider three specific preconditions:

“(1) uncertain issues of state law underlying federal

constitutional claims brought in federal court, (2) state law

issues amenable to interpretation that would obviate the need for

or narrow the scope of the federal constitutional claims, and (3)

conditions such that an erroneous federal court interpretation of

state law would disrupt important state policies.” Ohad Assocs.

v. Twp. of Marlboro, No. 10-2183, 2010 WL 3326674, at * 3 (D.N.J.

Aug. 23, 2010) (citing Chez Sez III Corp. v. Twp. of Union, 945

F.2d 628, 631 (3d Cir.1991)). “In addressing an abstention

 During oral argument, Defendants appeared to concede that 3

the Court could exercise its jurisdiction to address whether, on

its face, the Constitution’s four-year residency provision

violated the Equal Protection Clause of the Fourteenth Amendment. 

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claim, a district court must first consider whether the

particular case falls within the ambit of Pullman as defined by

these criteria, and must then make a discretionary determination,

based on the weight of these criteria and other relevant factors,

as to whether abstention is in fact appropriate.” D’Iorio v.

Delaware County, 592 F.2d 681, 686 (3d Cir. 1978).

The Court concluded that the present matter failed to

implicate the first and third prongs of Pullman. With respect to

the first prong, the issue before the Court, while important to

the parties, was exceptionally narrow. The Court only decided

whether New Jersey’s constitutional provision requiring

candidates for state senate to reside in New Jersey for at least

four-years was, on its face, violative of the federal

constitution. This question is purely one of federal law, which

can be resolved entirely without opining on, or resolving, any

issue of state law. Consequently, the Court did not need to

address any uncertain issues of state law. 

The third prong was also not implicated. The Court did not

interpret any provisions of state law, but merely determined

whether the provision in the state constitution violated the

Equal Protection Clause. Furthermore, in the present matter, the

Court concluded that the provision did not violate the Fourteenth

Amendment. Therefore, the Court’s decision did not disrupt any

state interests. 

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B. Younger Abstention

“Under Younger v. Harris, 401 U.S. 37 (1971), federal courts

must abstain in certain circumstances from exercising

jurisdiction over a claim where resolution of that claim would

interfere with an ongoing state proceeding.” Miller v. Mitchell,

598 F.3d 139, 145 (3d Cir. 2010). Abstention, however, is only

appropriate “when (1) there are ongoing state proceedings that

are judicial in nature; (2) the state proceedings implicate

important state interests; and (3) the state proceedings afford

an adequate opportunity to raise federal claims.” Kendall v.

Russell, 572 F.3d 126, 131 (3d Cir. 2009).

In rendering its decision on abstention, the Court was

especially mindful of the delicate balance between state and

federal interests. Specifically, the Court recognized that the

underlying principles of Younger are grounded in notions of

comity, and the idea that, in some instances, federal courts

should not interfere with state courts or state sovereignty. 

Although a literal application of Younger may suggest this Court

should abstain, (1) the binding Supreme Court authority

addressing the narrow issue presented and (2) the extraordinary

pressing need for resolution of the federal issue justified the

Court’s exercise of jurisdiction.

The Court was asked to address whether, on its face, Article

4, Section 1, Paragraph 2 of the New Jersey Constitution violated

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the Equal Protection Clause of the Fourteenth Amendment. This

issue is not only a question of substantial federal concern, but

also is controlled, as discussed in greater detail below, by

binding Supreme Court precedent. Consequently, to resolve the

federal constitutional issue this Court did not need to apply or

interpret any provisions of the state constitution. Rather, in

deciding the narrow issue presented, we only needed to examine

whether the provision, on its face, violated the Constitution,

and this inquiry merely required an application of Sununu.4

The Court also concluded that a quick resolution of this

matter was of paramount concern. See Diamond D Constr. Corp. v.

McGowan, 282 F.3d 191, 201 (2d Cir. 2002) (stating that an

exception to Younger abstention requires “extraordinarily

pressing need for immediate federal equitable relief”) (quoting

Kugler v. Helfant, 421 U.S. 117, 124-25 (1975)). According to

Defendant County Clerks, the printing of the primary election

 Furthermore, as discussed in the merits section, this 4

Court upheld the constitutionality of the provision at issue

because of binding Supreme Court precedent. In such a situation

where an inferior federal court cannot engage in its own analysis

of the issue because the precise legal question has already been

resolved by a higher court, in this instance the Supreme Court no

less, we find that the principles behind Younger are

substantially less pronounced. This conclusion is especially

true when a court’s ultimate resolution is to uphold the state

action, law, or constitution provision. When a court affirms a

state’s law, the notions of comity and concern for the respect of

states are simply not present because the delicate balance

between state and federal relations is not interfered with or

otherwise disturbed. 

7

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ballots had to commence in the very near term in order to meet

state statutory requirements designed to insure that New Jersey 

voters have sufficient time not only to review the ballots but

also to participate in the political process and educate

themselves about the candidates and their positions. This Court

felt it necessary, therefore, to resolve, as soon as possible,

the issue of the requested federal equitable relief in the forum

chosen by the plaintiff. When faced with an extremely time 5

sensitive matter that is both pending and ripe for a decision, it

would have been inappropriate for this Court, under the unique

circumstances present here, to abstain from rendering a judgment. 

Thus, in order to resolve a matter of substantial public interest

in a timely matter and with the tacit or express approval of the

parties, the Court determined to address the merits of the case.

C. The Merits

“[T]he grant of injunctive relief is an extraordinary

remedy, which should be granted only in limited circumstances.”

Frank’s GMC Truck Ctr., Inc. v. General Motors Corp., 847 F.2d

100, 102 (3d Cir. 1988) (internal citations omitted). In

determining whether to issue a preliminary injunction, the Court

 We recognize that at the time of this Court’s oral ruling 5

a judicial proceeding in a forum competent to consider the

federal constitutional claim was pending. However, final briefs

had not yet been filed in the state appellate division and while

we were confident that the state courts would act promptly, the

actual date and the scope of that ruling was unknown at the time

this Court ruled. 

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must consider whether: “(1) [there is] a likelihood of success

on the merits; (2) he or she will suffer irreparable harm if the

injunction is denied; (3) granting relief will not result in even

greater harm to the nonmoving party; and (4) the public interest

favors such relief.” Bimbo Bakeries USA, Inc. v. Botticella, 613

F.3d 102, 109 (3d Cir. 2010). “The injunction should issue only

if the plaintiff produces evidence sufficient to convince the

district court that all four factors favor preliminary relief.”

Am. Tel. and Tel. Co. v. Winback and Conserve Program, Inc., 42

F.3d 1421, 1427 (3d Cir. 1994) (quoting Merchant & Evans, Inc. v.

Roosevelt Bldg. Prods., 963 F.2d 628, 632-33 (3d Cir. 1992)).

In the present matter, after the April 28, 2011 hearing and

oral argument, the Court concluded Plaintiff had failed to

establish a likelihood that he would prevail on the merits at the

final hearing. This decision was grounded in two alternative 6

rulings: (1) Sununu was binding and controlling precedent and (2)

even if the Supreme Court’s summary affirmance of Sununu were not

controlling precedent, this Court would apply the strict scrutiny

standard as had the Sununu district court, adopt the reasoning of

that decision and find that the constitutional provision at

issue, Art. IV, Section I, Paragraph 2, furthered a compelling

state interest. 

 The Court concluded that the other three prongs of the 6

test weighed in Plaintiff’s favor. 

9

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1. Sununu is Controlling Precedent 

The Court found Sununu to control the outcome of this

matter. In Sununu, a three-judge panel concluded that the New

Hampshire Constitution’s seven-year durational residency

requirement for the office of state senator did not violate the

Equal Protection Clause of the Fourteenth Amendment because the

state articulated a compelling interest for the provision.

Sununu, 383 F.Supp. at 1290. As indicated above, in a summary

affirmance, the United States Supreme Court upheld the district

court’s opinion. Unlike a denial of a petition for writ of 7

certiorari , a summary affirmance is a decision of the Supreme 8

Court 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”); see also Hicks v. Miranda, 422 U.S. 332, 344-345

 Approximately a year before Sununu, a three-judge panel 7

in the District of New Hampshire decided Chimento v. Stark,353

F.Supp. 1211 (D.N.H. 1973). In that case the panel concluded

that a seven-year durational residency requirement for the office

of governor did not violate the Equal Protection Clause of the

Fourteenth Amendment. Chimento, 353 F. Supp. at 1218. This case

was also summarily affirmed by the United States Supreme Court.

414 U.S. 802 (1973). 

 See United States v. Carver, 260 U.S. 482, 490 (1923) 8

(“The denial of a writ of certiorari imports no expression of

opinion upon the merits of the case, as the bar has been told

many times”).

10

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(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”). 

Several courts have specifically found Sununu binding and

controlling precedent. In City of Akron v. Beil, the Sixth

Circuit Court of Appeals opined that in Sununu and Chimento the

Supreme Court summarily affirmed “that seven year durational

residency requirements are not violative of the equal protection

clause.” City of Akron v. Beil, 660 F.2d 166, 168 (6th Cir.

1981). With respect to the precedential value of these summary

affirmances, the Sixth Circuit stated “[w]hile it is true that

summary affirmances must be read with care, there can be no doubt

that these recent cases hold that some durational residency

requirements are constitutionally permissible. . . . That some

durational residency requirements are constitutional was

essential to disposition of these cases. Thus we are of the

opinion that these recent Supreme Court affirmances control the

outcome of the present controversy.” Id. 

Although not directly addressing the precedential value of

Sununu, the Second Circuit Court of Appeals, in dicta, stated

“[w]e, accordingly, do not reach the question of the

constitutional validity of the five-year duration-of-residency

requirement, though we should indicate that we have grave doubt

as to whether this matter is not foreclosed by the action of the

11

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Supreme Court in summary affirmances of . . . seven-year

residency duration statutes” in Sununu. Billington v. Hayduk,

565 F.2d 824, 826 (2nd Cir. 1977). The Supreme Court itself, in

a plurality opinion, recognized the precedential value of its

summary affirmance in Chimento , and opined that in that case “we 9

upheld a 7-year durational residency requirement for candidacy.”

Clements v. Fashing, 457 U.S. 957, 967 (1982) (Rehnquist, J.,

plurality). 

Other courts have similarly concluded that Sununu

constitutes binding authority. See, e.g. Joseph v. City of

Birmingham, 510 F.Supp. 1319, 1326 (D. Mich. 1981) (“Moreover,

the Supreme Court has directly held that some durational

residency requirements for candidates are constitutional. In

Sununu . . . the Supreme Court affirmed [a] lower court

judgment[] upholding New Hampshire’s seven year durational

residency requirement for state senatorial . . . against equal

protection challenges”); see also, e.g., Schiavone v. Destefano,

852 A.2d 862, 867 (Conn. Super. Ct. 2001) (“Since Akron, no

federal court has struck down a durational residency requirement

for political office. . . until such time as the Supreme Court

changes its mind, lower courts are not free to invalidate such

 As discussed in an earlier footnote, both Chimento and 9

Sununu involved the New Hampshire Constitution’s seven-year

durational residency requirement for candidates for the public

offices of state senator and governor. 

12

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requirements (unless those requirements exceed seven years) on

federal equal protection grounds”). 

 In Metromedia the Supreme Court opined that the

precedential value of summary affirmances is limited to the

“precise issues presented and necessarily decided by those

actions.” Metromedia, Inc., 453 U.S. at 499. This Court

interpreted Metromedia’s command as indicating that the

precedential value of summary affirmances should not be

overstated as a legal matter, nor should they be interpreted as

applicable beyond the facts of the case. In other words, a

summary affirmance should be narrowly interpreted and should only

be binding authority in a case that presents the same legal issue

decided in the earlier case and only when the facts are not

materially different. Although Plaintiff attempts to

differentiate the present matter from Sununu, his efforts are

futile because any distinction is immaterial. 

In support of his position Plaintiff only argued one

dissimilarity and noted a second. First, he argued that in

Sununu, decided in 1974, the people of New Hampshire had directly

rejected any changes to the durational residency requirement for

state senator only eight years before, in 1966. In the present

matter, however, the last direct vote on the particular provision

of the New Jersey Constitution at issue here occurred in 1947. 

Additionally, the Plaintiff noted that the ratio between the

13

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number of members of the upper house and the lower house is

smaller in New Jersey, suggesting a greater parity between the

two than might exist in New Hampshire. The Court does not find

these differences substantial enough to undermine the

precedential value of Sununu. 

Moreover, these two minor differences are far outweighed by

the similarities between the cases. Both cases involve a

bicameral legislature, a substantial difference in the length of

office between a state senator and a member of the lower house,10

and similarities in the job function of a state senator, which,

as stated in Defendant State’s brief, is one of the most

important positions within the State government. Members of the

New Jersey and New Hampshire Senate hold and exercise special

powers, including the trial of impeachments. Additionally, 11

both cases involve a constitutional provision that was at least

twice approved by voters in a direct vote and existent in the

constitutions for more than 150 years. Ultimately, no

 We note that in New Jersey this difference between the 10

terms of office is mirrored in the durational residency

requirements found in the state constitution. In New Jersey, as

in New Hampshire, the longer the term of office the longer the

durational residency requirement. 

 It should be noted that the members of the New Jersey 11

Senate have even greater power than their counterparts in New

Hampshire. New Jersey Senators also have the power to advise and

consent on the confirmation of judicial and executive officers. 

In New Hampshire these duties are performed by a board of

councilors. Albeit this is a distinction between the two cases,

it cannot preclude Sununu‘s binding effect. 

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discernable difference existed between the facts of Sununu and

the facts of the present matter. In fact, the facts could not be

more on all fours. Consequently, the Court was bound to follow

the Supreme Court’s decision. It had no discretion to conclude

otherwise because Sununu and the present matter are in all

material ways legally and factually identical.12

2. Strict Scrutiny Analysis

Even if the Court did not find Sununu controlling, it would

still conclude that Plaintiff would not prevail on the merits. 

Despite language in Clements that may suggest a standard of 13

review lower than strict scrutiny, the Court applied the higher

standard because Plaintiff described a group of significant

 During oral argument Plaintiff contended that the Court 12

was bound by the Third Circuit’s decision in Wellford v.

Battaglia. 485 F.2d 1151 (3d Cir. 1973)(per curiam). In

Wellford, the Third Circuit Court of Appeals, in a per curiam

opinion, upheld the district court’s conclusion that a city

charter’s requirement that a candidate for mayor be a resident of

the municipal for at least five years at the time of his election

violated the Equal Protection Clause of the Fourteenth Amendment. 

For several reasons the Court does not find this case binding. 

First, it was decided in September 1973, which was approximately

one month before the Supreme Court summarily affirmed Chimento,

and one and a half years before the Court summarily affirmed

Sununu. Second, the law at issue in Wellford was a provision of

the city charter, not a state constitutional provision. Finally,

based upon the facts, it appears that the dispute was an

intrastate, not an interstate, matter. 

 The Court opined that a durational residency requirement 13

for candidacy, is the “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.”

Clements, 457 U.S. at 968 (Rehnquist, J., plurality). 

15

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rights that would be implicated, including the right to travel,

right to vote and right to participate in political office. 

Although standing alone there is no fundamental right to run for

political office, see Bullock v. Carter, 405 U.S. 134, 143 (1972)

(concluding that candidate restrictions have not been granted the

same fundamental rights status as voting), when combined with the

other rights discussed, which in our legal hierarchy are some of

the most important rights protected by the Constitution, the

Court concluded that it should apply the strict scrutiny

standard. To withstand a strict scrutiny challenge, the State 14

must prove that the challenged law furthers a compelling

governmental interest. In applying strict scrutiny analysis, the

Court wholly adopted the very reasoned rationale articulated by

the district court in Sununu and Chimento for why a durational

residency requirement furthered a compelling interest.

Presently, the State met its burden and articulated a

compelling interest for its four-year residency requirement. 

First, the State has a compelling interest to ensure that its

senate candidates are familiar with the district because of the

important duties and authority a New Jersey state senator

 By applying the strict scrutiny standard, the Court 14

recognized that if it were to apply the rational basis standard,

the result would remain the same and the constitutional provision

would be upheld. Furthermore, because the Court applied

essentially the same reasoning of the District Court in Sununu,

it felt further bound to apply the heightened standard of review.

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possesses. As articulated by the State Defendants, the office of

senator is of ancient origin and its more modern version dates to

the American Revolution. A senator exercises a variety of

powers, including trial of impeachments and advice and consent on

the appointment of judges, executive cabinet officials and

prosecutors. State senators also vote for governor and

lieutenant governor in the event of a tie, stand in the line of

succession to the governorship, may exercise the executive power

when the governor and lieutenant governor are not in the State,

and, just to name a few additional powers, exercise police and

taxing powers. 

Furthermore, a senator’s authority is not limited to a city,

district or municipality. Rather, the entire State is affected

by his or her decisions. In order to properly perform these

functions, it is of upmost importance for the senator to be

intimately familiar with not only his or her district, its

people, its problems and its issues, but also the issues and

political structure of the entire State. This type of

familiarity does not occur overnight and cannot be gleamed from

watching television, reading the newspaper or surfing the

Internet. Ultimately, the State has a compelling interest that

this individual not only possess knowledge of the operation of

the State Government, but also to ensure that he or she is

sufficiently well-versed in the needs and interests of all the

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State’s citizens. Without this type of knowledge of the needs of

both the government and the governed, a senator cannot wield the

aforementioned important powers and properly exercise this

significant responsibility. 

15

The State also provided a second compelling interest as

justification for its four-year residency requirement. According

to the State, the people of the district need time to become

familiar with a candidate and their position on the substantive

issues of the day. Although Plaintiff’s counsel described

Plaintiff as the “Bruce Springsteen of track”, his fame and

notoriety are not directly relevant to the proper exercise of a

position of public trust. The State has a compelling interest in 

insuring the voters become familiar with the candidate’s

platform. This type of familiarity develops over time and

requires the candidate to “press the flesh.” In order to become

an effective state senator, a candidate must live among and

interact with his or her potential constituents. Even in the age

of the Internet, there is a meaningful difference between what

one hears or reads on a computer screen and what one learns and

 During oral argument Plaintiff contended that the State 15

cannot justify why the residency requirement for a state senator

was two years longer than the residency requirement of a member

of the general assembly. The Court concluded that the State is

justified in making this distinction because (1) assembly members

serve two year terms and senators serve four year terms and (2) a

state senator exercises greater power and has more

responsibilities than a member of the general assembly.

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hears at the local coffee shop or firehouse. 

The cases Plaintiff relied upon to demonstrate that the

State does not have a compelling interest are distinguishable

because they address intrastate durational residency

requirements. In the present matter, however, an interstate

requirement is at issue. In other words, Plaintiff relies upon

cases that address a candidate’s ineligibility because he failed

to live in the proper area of the state, not the state itself. 

This intrastate/interstate dichotomy is of primary significance. 

First, the intrastate cases invalidate local ordinances or

state statutes rather than organic law of state constitutional

dimension. Second, the federal constitutional concerns and the

opportunity for an improper motive to bar an otherwise legitimate

candidate, may be more pronounced where the case involves a

narrowly defined geographical area and a less significant

political subdivision. As an example, imagine a city which

annexes an adjoining municipality and imposes a durational

residency requirement to run for office. This action would

essentially disenfranchise the residents of the annexed

municipality because they would be precluded from running for

municipal office or city government by the simple fact of having

been annexed. In this example, the state or township cannot 16

 This type of situation could further implicate the Equal 16

Protection Clause because it might adversely impact a protected

class of individuals, such as a minority or ethnic group.

19

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assert any compelling justification or discernable reason why

someone from one side of town could not be equally competent as

someone from the other side of the town to serve in the city

government. See, e.g., Callaway v. Samson, 193 F. Supp.2d 783

(D.N.J. 2002) (finding a residency restriction that prevents a

candidate from moving within the city as unconstitutional); see

also Robertson v. Bartels, 150 F. Supp.2d 691 (D.N.J. 2001)

(holding that a residency requirement requiring a candidate, a

lifelong resident of New Jersey, for the New Jersey general

assembly to reside within his district for one year prior to the

election as unconstitutional because as a result of redistricting

the candidate’s home was moved from one district to another, thus

he could no longer meet the residency requirement). 

Both Sununu and the present matter, however, are different.

Absent invidious discrimination, the federal constitutional

concerns present in interstate matters are not as pronounced as

they are intrastate cases. In contrast, in interstate cases the

interests of the state are substantially greater. For example,

states have an interest in insuring that candidates for state

office are familiar with the issues facing that sovereign and its

constituents before wielding state-wide power. In intrastate

matters, candidates need only be concerned with the issues of the

city or municipality. Additionally, courts and our constitution

have historically treated states and municipalities very

20

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differently. They have prescribed states with greater

constitutional powers and protections. See Hess v. Port Auth.

Trans-Hudson Corp., 513 U.S. 30, 47 (1994) (reiterating a wellestablished prior holding of the Court that “cities and counties

do not enjoy Eleventh Amendment immunity”); see also Chisolm v.

McManimon, 275 F.3d 315, 322 (3d Cir. 2001) (“While Eleventh

Amendment immunity may be available for states, its protections

do not extend to counties”) (citing Lincoln County v. Luning, 133

U.S. 529 (1890)). Therefore, in interstate matters where the

state’s concerns are more pronounced, Courts should more

carefully examine and consider the state’s compelling reasons for

residency requirements. 

Furthermore, unlike the intrastate disenfranchisement

scenario discussed above, the provision at issue in this case

treats everyone from outside the state similarly. Whether a

Democratic African-American male from California, a Republican

Asian-American female from Topeka or a Native American third

party candidate from Maine, each has the same hurdle to overcome. 

All classes of individuals must reside in this State for four

years before they could run for the Office of State Senator. No

recently re-drawn line, intentionally or not, harms any protected

class of citizens or represents a sinister political plot to

shift some geographical balance of power. The borders of the

state are static and have remained so and are likely to remain

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so. Consequently, it is difficult to articulate how Plaintiff is

treated differently than anyone else from outside the State of

New Jersey or how he could be fairly characterized as a victim of

anything other than his own volitional decisions as to his

domicile. 

Finally, the Court acknowledges the principles of comity and

the proper balance between the State and Federal Government

required by the Tenth Amendment. Although Plaintiff might one

day be an excellent state senator and appears to have many fine

qualities that would commend him to public office, it is not for

this Court to overturn a provision of the New Jersey Constitution

that has been part of the state’s standing law for approximately

167 years. The people of the State of New Jersey, as reflected 17

in their Constitution, have determined that whatever a

candidate’s personal qualities may be, they must reside within

the State for four years before running for the Office of State

Senator. In no way does this ruling preclude Plaintiff from

serving either New Jersey or his community in another capacity. 

It appears that he would qualify to run for state assembly, for

 As mentioned above, the people of New Jersey had two 17

opportunities to amend this provision, first in the 1844 revision

of the New Jersey Constitution and, most recently, in 1947 and

failed to do so. The power to change this provision and the

failure to do so stands for the proposition that a majority of

the people of New Jersey want a four-year restriction on

candidates for the office of state senator and have always wanted

such a restriction. 

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county freeholder or for municipal office. Whether one must wait

four years to be a state senator is, in the Court’s opinion,

ultimately not a question of federal constitutional dimension. 

Rather, such a question is a policy determination. The right of

the people of the State of New Jersey to choose that policy

through their elected representatives and to maintain it is

protected by the Tenth Amendment. See Sununu, 383 F.Supp. at

1290-91 (opining that, in this instance, a conclusion that a

residency requirement is unconstitutional “would be an improper

intervention into an area reserved to the states by the Tenth

Amendment”). It is certainly not the place of this single,

unelected Judge to disturb the otherwise legitimate decision of a

representative Government. 

18

III. CONCLUSION

For the reasons stated both above and in the Court’s April

28, 2011 oral decision, Plaintiff’s Motion for a Temporary

Restraining Order and Order to Show Cause Why a Preliminary

Injunction Should Not be Entered was denied.

Date: May 3, 2011 s/ Noel L. Hillman 

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

 Of course the Tenth Amendment can not save state law, 18

even a constitutional provision, that violates the Fourteenth

Amendment. Indeed, the history and function of the Fourteenth

Amendment is to act as a check against state action which

violates fundamental rights and privileges. While this Court

would not hesitate to strike a different balance in the right

case, no such violation has occurred here. 

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