APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE (D.C. Civil NO. 83-436)
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
Before: WEIS and SLOVITER, Circuit Judges and ZIEGLER,*fn* District Judge.
The instant case present the question whether a provision of the charter of the City of Rehoboth Beach, Delaware, which requires that a candidate for the elected position of commission be a nondelinquent taxpayer and freeholder, violates the rights of association, due process and equal protection of the Fourteenth Amendment. We hold that the ballot access restriction is not rationally related to any legitimate governmental interest and violates the equal protection clause of the Fourteenth Amendment. The judgment of the district court will be reversed.
The City of Rehoboth Beach is a resort community of the Atlantic coast of Delaware. The city of governed by a seven-member commission. Four members, one whom serves as mayor, are residents. The remaining members are nonresidents. The charter provides that commissioners and candidates for the position must be at least 21 years old, current in their tax payments and owners of real estate within the city. The charter also provides that the commissioners are to judge, during a July meeting, whether a candidate meets these qualifications for the August election.
Appellant, David H. Deibler, decided to be a candidate for one of two vacant, nonresident commissioner seats in the election of August 1981. When he filed a nominating petition in early July, appellant was a resident of Maryland and the owner of four parcels of land in Rehoboth Beach. After reviewing appellant's petition and finding no errors, a city clerk accepted the petition and forwarded it to the commissioners. At the July 1981 meeting, while appellant was attending a boat show in Florida, the commissioners rejected the petition because Deibler did not meet the requirements of the charter that a candidate be a non-delinquent taxable. Appellant owed $264 in real estate taxes.
Deibler was an organizer and member of the Rehoboth Concerned Taxpayers Association, a group of business owners who disagreed with and criticized the tax policies of the city. Appellant and other members of the association apparently paid their disputed tax obligations into an escrow account while striving to reform the city's tax structure and rates. Appellant claims that he intended to run for office to represent the views of the association.
Alleging that the city, various commissioners and the manager of Rehoboth Beach denied him access to the ballot, appellant filed a civil action under 42 U.S.C. § 1983, seeking a declaratory judgment, compensatory and punitive damages. The complaint asserts that the charter provision, which requires candidates to be non-delinquent taxable and freeholders, denied appellant the right to freedom of political association and equal protection under the First and Fourteenth Amendments to the United States Constitution.
The district court entered summary judgment for the city and its officials. Based on an equal protection analysis, the court held that the non-delinquency requirements bears a rational relationship to the municipality's legitimate interest in securing candidates for the position of commissioner who demonstrate community interest and commitment. The district court did not consider appellant's First Amendment claim because the motion for summary judgment and the arguments of the parties focused on the equal protection claim. Deibler v. City of Rehoboth Beach, No. 83-436, slip op. at 7, n.6 (D.Del. June 26, 1985). The First-Amendment claim has been raised in this appeal and we will address that claim, as well as the equal protection holding of the district court.
Section 3(a) of the charter of Rehoboth Beach provides in relevant part:
The government of The City and the exercise of all power conferred by this Charter, except as otherwise provided herein, shall be vested in The Commissioners of Rehoboth Beach . . . . Each of the seven (7) Commissioners of Rehoboth Beach, at the time of the approval of his qualifications by The Commissioners as hereinafter provided or at the time of his appointment as the case may be, and throughout the term of office, shall have attained the age of twenty-one (21) years of age, be a non-delinquent taxable of The City and a freeholder of The City. . . .
Appellant challenges the language requiring that a candidate for commissioner "be a non-delinquent taxable of The City and a freeholder of the City."
Preliminarily, we must define the scope of appellant's standing to challenge the charter provision and then refine the issues presented. As the district court correctly held, appellant's claimed injury was caused by the requirement of non-delinquency, not by the freeholder requirement. Appellant is not a proper party to contest the freeholder requirement and, therefore, we cannot pass on the constitutionality of that provision. Warth v. Seldin, 422 U.S. 490, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1974). However, we may consider the propriety of the freeholder requirement insofar as it bears upon the constitutionality of the non-delinquency requirement. A legislative phrase should be viewed in the context of the entire legislation and not in a vacuum. See Dunn v. United States, 775 F.2d 99, 103 (3d Cir. 1985).
Secondly, unlike the district court, we conclude that appellant's status as a nonresident candidate is not relevant to the issues presented. The district court noted that Rehoboth Beach voluntarily extended representation and gave a voice in government to nonresident landowners of the resort city. The court then defined the issue as the validity "of distinguishing between nonresident owners of real estate who have met their tax responsibilities and nonresident owners of real estate who have not." In our judgment, Deibler's nonresident status is merely adventitious because the non-delinquency requirement applies to both resident and nonresident candidates.
Finally, we not that appellant may be advocating surgery for a terminally ill patient. Appellant urges that we dissect the non-delinquency language from an election scheme that, even the appellees concede, may violate the "one person-one vote" rule of Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), because the nonresident vote of freeholders may arguably dilute the voting strength of resident voters. See Lucas v. Colorado General Assembly, 377 U.S. 713, 736, 84 S. Ct. 1459, 12 L. Ed. 2d 632 (1964). Moreover, candidacy tied to the ownership of real property was held to violate the equal protection clause in Turner v. Fouche, 396 U.S. 346, 362-363, 24 L. Ed. 2d 567, 90 S. Ct. 532 (1970), as was a similar provision in the town charter of Frederica, Delaware. Gebelein v. Nashold, 406 A.2d 279 (Del. Ch. 1979). We turn now to the questions presented.
Deibler advances three arguments in this appeal. First, the commissioners of Rehoboth Beach denied procedural due process when they rejected his nominating petition. Second, the non-delinquency requirement should be accorded heightened scrutiny because of burdened his First Amendment right of association. And third, the non-delinquency requirement lacks a rational relationship to any legitimate governmental interest.
A. Procedural Due Process
After collecting the necessary number of signatures, appellant presented a nominating petition to the clerk of Rehoboth Beach. Unfamiliar with the requirements that candidates be non-delinquent taxpayers, the clerk approved the petition and forwarded the document to the commissioners. Appellant, apparently satisfied with the clerk's review and knowing that the commissioners had final approval of the petition, did not attend the meeting of the commissioners. After the petition was rejected, appellant argued in the district court that he was denied notice of the non-delinquency requirement prior to the rejection and was denied an opportunity to be heard. The district court rejected the claim, and we agree with that conclusion.
The Fourteenth Amendment commands that no state shall deprive any person of life, liberty or property without due process of law. Procedural due process involves three elements. State action must burden a protected right. Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981). The right must be deprived without a fair hearing either because a claimant did not receive adequate notice, Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950), or a reasonable opportunity to be heard. Wolff v. McDonnell, 418 U.S. 539, 41 L. Ed. 2d 935, 94 S. Ct. 2963 (1974).
Appellant contends that he was denied the "availability of political opportunity." Lubin v. Panish 415 U.S. 709, 716, 39 L. Ed. 2d 702, 94 S. Ct. 1315 (1974). Although the argument is not entirely clear, appellant apparently contends that he should have been notified by the clerk or by other city officials that his petition would be disqualified by the commissioners due to tax delinquency.
Section 3(a) of the city charter, governing the composition and qualifications of the seven-member commission, provides that nominees be non-delinquent taxables of the city. Section 6(b) states that candidates must possess the qualifications set forth in section 3(a), and that the commissioners shall determine at their regular July meeting whether a candidate meets such qualifications. There is no evidence of record that appellant was advised that it was unnecessary to attend this meeting or that he would be unable to speak and defend his petition.
The charter provides a nominating procedure which affords a candidate with notice of the commissioners' hearing and fair notice of the standards by which petitions will be judged. Procedural due process requires no more. Appellant's claimed ignorance of the charter provisions is unpersuasive. "All persons are charged with knowledge of the provisions of statutes and must take note of the procedure adopted by them; and when that procedure is not unreasonable or arbitrary there are not constitutional ...