Brassell v. Baker

805 F. Supp. 925, 1992 U.S. Dist. LEXIS 17132, 1992 WL 328503
CourtDistrict Court, M.D. Alabama
DecidedNovember 2, 1992
DocketCiv. A. No. 92-59-N
StatusPublished
Cited by1 cases

This text of 805 F. Supp. 925 (Brassell v. Baker) is published on Counsel Stack Legal Research, covering District Court, M.D. Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brassell v. Baker, 805 F. Supp. 925, 1992 U.S. Dist. LEXIS 17132, 1992 WL 328503 (M.D. Ala. 1992).

Opinion

MEMORANDUM OPINION

MYRON H. THOMPSON, Chief Judge.

Plaintiff Malcolm S. Brassell, a citizen of the City of Montgomery, Alabama, filed this lawsuit because the city does not have procedures for recall elections and thus could not grant his request for a recall election in a district represented by a city council member who, according to Brassell, voted on an issue contrary to what he had led his constituency to believe that he would do. Brassell claims that the first and fourteenth amendments to the United States Constitution require that the city provide procedures for the recall election of members of the city council. He argues that, under these two amendments, all elected public officials are at all times subject to voter-initiated recall elections if, among other things, they breach promises and representations made during their campaigns. Brassell seeks enforcement of these amendments through 42 U.S.C.A. § 1983, and jurisdiction is based on 28 U.S.C.A. §§ 1331, 1343. Brassell has named only one defendant: the clerk of the City of Montgomery.

This lawsuit is before the court on the recommendation of the United States Magistrate Judge that Brassell’s claim lacks merit and that summary judgment should be entered in favor of the city clerk. For the reasons given below, the court agrees.

I.

In 1988, Billy Turner, a member of the Montgomery City Council, opposed an ordinance which provided for an annual expense allowance for council members. The council passed the ordinance but Turner refused to accept any expense allowance. In 1991, however, after Turner had won reelection in a campaign in which the ordinance was an issue, he voted to retain the ordinance and began accepting an expense allowance. Brassell responded to Turner’s changed vote by gathering signatures on a recall petition and presenting the petition to the city clerk with a request that the city conduct a recall election for the district from which Turner was elected. The city clerk rejected the request on the ground that the city lacks authority to conduct recall elections. This lawsuit then ensued, and, after a brief period of discovery, the parties filed cross-motions for summary judgment.

II.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Brassell and the city clerk agree that there are no disputed [927]*927issues of material fact and that the only issues for resolution are ones of law. Although Brassell has not expressly and clearly delineated the legal grounds for his recall-election claim, it appears from his pleadings and briefs, when all read together, that he is resting his claim on the following: the right to vote as a fundamental right embodied in the first and fourteenth amendments; the petition clause of the first amendment; and the equal protection clause of the fourteenth amendment.

A. The Right to Vote

Brassell contends that the City of Montgomery’s failure to provide for voter-initiated recall elections violates his right to vote under the first and fourteenth amendments. The court cannot agree.

Without question, “voting is of the most fundamental significance under our constitutional structure.” Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979). Nevertheless, the electoral process is subject to substantial regulation by government. “Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’ ” Burdick v. Takushi, — U.S. —, —, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992), quoting Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). Indeed, for example, the United States Constitution provides that states may prescribe “The Times, Places and Manner of holding Elections for Senators and Representatives.” Art. I, § 4, cl. 1.

Because “Election laws will invariably impose some burden on individual voters,” Burdick, — U.S. at —, 112 S.Ct. at 2063, the Supreme Court has instructed lower courts to apply a “flexible standard” in determining whether a state regulation is permissible. Id. Under this standard, “the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Id. When “those rights are subjected to ‘severe’ restrictions, the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.’ ” Id., quoting Norman v. Reed, 502 U.S. —, —, 112 S.Ct. 698, 705, 116 L.Ed.2d 711 (1992). However, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick, — U.S. at — - —, 112 S.Ct. at 2063-64, quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 1569-70, 75 L.Ed.2d 547 (1983). Applying this flexible standard, this court finds that, although the City of Montgomery’s electoral process does not provide for recall elections, the process does not violate the right to vote of the city’s citizens.

There are two methods by which Montgomery city council members may be removed from office. First and obviously, council members are subject to periodic elections. They must run for office every four years, and city voters may remove them from office by simply not reelecting them. Second, city council members are subject to impeachment and removal for certain serious offenses: “for willful neglect of duty, corruption in office, incompetency, or intemperance in the use of intoxicating liquors or narcotics to such an extent, in view of the dignity of the office and importance of its duties, as unfits the officer for the discharge of such duties, or for any offense involving moral turpitude which in office, or committed under color thereof, or connected therewith.” 1901 Ala. Const, art. 7, § 173; see also id. § 175. The city and State of Alabama therefore provide a reasonable and responsive process through which city voters may at any time remove an elected official for specific serious causes and may periodically remove elected officials at will.

Brassell argues that this process does not go far enough because it does not allow [928]*928voters to remove an official at any time if, as he charges Turner, that official breaks a campaign promise or representation. An effective and responsive electoral process does not require this, however. The Supreme Court has made clear that “the function of the election process is ... not to provide a means of giving vent to ‘short-range political goals, pique, or personals quarrel[s].’ ” Burdick, — U.S. at —, 112 S.Ct. at 2066,

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Cite This Page — Counsel Stack

Bluebook (online)
805 F. Supp. 925, 1992 U.S. Dist. LEXIS 17132, 1992 WL 328503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brassell-v-baker-almd-1992.