Bolanowski v. Raich

• Decision Date: 09 July 1971
• Docket Number: Civ. A. No. 36649.
• Citation: 330 F. Supp. 724
• Parties: Eugene R. BOLANOWSKI v. Joseph S. RAICH, Clerk, City of Warren, Michigan.
• Court: U.S. District Court — Western District of Michigan

330 F. Supp. 724

Eugene R. BOLANOWSKI v. Joseph S. RAICH, Clerk, City of Warren, Michigan.

Civ. A. No. 36649.

United States District Court, E. D. Michigan, S. D.

July 9, 1971.

Robert J. Lord, Warren, Mich., for plaintiff, Alexander B. Ritchie, Detroit, Mich., Clark, Klein, Winter, Parsons & Prewitt, Detroit, Mich., of counsel.

Sherman Faunce II, John J. Murray, William S. Wolanin, Thomas Landy, Warren, Mich., for defendant.

OPINION

FEIKENS, District Judge.

This is an action brought by Eugene R. Bolanowski, a potential candidate for the office of Mayor of the City of Warren, Michigan, on behalf of himself and all registered electors of the City. Plaintiff claims that Section 7.2 of the City Charter unreasonably burdens his right to run for office and the right of the electors to vote for the candidate of their choice, in violation of the Equal Protection Clause of the Fourteenth Amendment.

The complaint was filed on June 14, 1971, and a hearing was held pursuant to an order to show cause on June 21, 1971. Because of the imminence of the primary election and the consequent need for immediate determination of the issues presented, on June 25, 1971, this court ordered that plaintiff Bolanowski's name be placed on the ballot because Section 7.2 of the Charter of the City of Warren violated the Equal Protection Clause. This opinion sets forth the reasons for that ruling.

On May 12, 1971, plaintiff filed with defendant City Clerk his declaration of candidacy for nomination for the office of Mayor, which was accepted along with the required fee. On June 14, 1971, he filed this action seeking declaratory and other relief under Title 28 United States Code, Sections 2201¹ and 2202,² on grounds that Section 7.2 of the Charter was in violation of the Equal Protection Clause and that defendant Clerk was about to make a determination under that section that he was ineligible to file for office.

On June 18, 1971, the defendant Clerk did send plaintiff a letter informing him that:

"* * * your filing for the candidacy for the Office of Mayor in the City of Warren Primary Election of August 3, 1971, is rejected and invalid, due to your not meeting Section 7.2 of the City of Warren Charter * * * "Therefore, you are ineligible to be a candidate for the Office of Mayor at the Primary Election to be held on August 3, 1971 in the City of Warren."

The issue has thus been joined, and an "actual controversy" exists within the meaning of the Declaratory Judgment Act, supra. It is clear that this court has jurisdiction to determine the issues herein. Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958). The court also finds that this is a proper class action under Rule 23, Federal Rules of Civil Procedure, and that it is therefore proper to consider the rights of the electors of the City along with the rights of the plaintiff.

I

Section 7.2 of the Charter of the City of Warren provides:

"* * * the Mayor shall be a person who has been a resident of the city for at least three years immediately prior to the filing of his nominating petition or declaration of candidacy, and who possesses the further qualifications prescribed in Chapter 4 of this Charter." (Emphasis added.)

Section 4.2 states:

"Except as otherwise provided in this charter, a person is eligible to hold an elective city office if he has been a registered elector of the city * * * for at least two years immediately preceding his election * * *" (Emphasis added.)

Under Section 4.1 of the Charter, the elective offices of the City are "the Mayor, the nine Councilmen, the Clerk, the Treasurer, and * * * the two Municipal Judges." Plaintiff meets the "registered elector" requirement of Section 4.2, but he has not been a resident of the City for three years as required by Section 7.2.

The language of Section 7.2 goes only to plaintiff's ability to file as a candidate, since it appears that he is presently qualified to hold office under Section 4.2 of the Charter. Of course, the practical effect of the two sections taken together is that plaintiff is prevented both from running in the mayoral primary and holding the office of Mayor, and thus the electors of the City are prevented from voting for him, or any other person similarly situated. Plaintiff is not prevented by Section 7.2 from running for any other elective office of the City. The additional one-year residency requirement in Section 7.2 affects only those who wish to file for, or vote in, mayoral elections.

Plaintiff does not challenge the two-year "registered elector" requirement. What he does claim is that the additional one-year "resident of the City" requirement created by Section 7.2 disenfranchises him of his right to be considered for public service and also disenfranchises the electors of the City of their right to vote for him or any other person in his situation as a candidate for nomination. He claims that a municipal statutory classification which classifies candidates so as to selectively distribute the right to run for office (and thus the right to vote) must be justified by a compelling municipal interest. And, he argues, no compelling interest of the City of Warren justifies the classification which requires an extra year of residency for mayoral candidates, as opposed to other candidates for office. The City, on the other hand, seeks to rely on the presumption in favor of the constitutionality of a legislative act. It claims that the right to become a candidate for Mayor is a right or privilege of city citizenship, not national citizenship; that it therefore has the unquestioned power to impose reasonable residency restrictions on candidacy; and that the three-year residency requirement is a reasonable classification designed to serve a legitimate municipal aim.

II

In recent times, these opposing contentions as to municipal and state powers to regulate residency and other conditions for candidacy and voting have afforded the federal courts, including the Supreme Court, much opportunity for discussion of the requirements of the Equal Protection Clause. Several basic principles have become clear.

States do have "unquestioned power to impose reasonable residence restrictions on the availability of the ballot. Pope v. Williams, 193 U.S. 621 (1904) 24 S.Ct. 573, 48 L.Ed. 817." Carrington v. Rash, 380 U.S. 89, 91, 85 S.Ct. 775, 13 L.Ed.2d 675 (1965). But no discrimination may be made between individuals in violation of the federal constitution. Id. There exists "a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications," and a state "may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees." Turner v. Fouche, 396 U.S. 346, 362-363, 90 S.Ct. 532, 541, 24 L.Ed.2d 567 (1970). When a state law imposes heavily unequal burdens on the ability of candidates to obtain a position on the ballot, it places:

"burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States." Williams v. Rhodes, 393 U.S. 23, 30-31, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968).

The Supreme Court has also made it clear that when the right of association and the right to vote effectively are infringed, "only a compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms. NAACP v. Button, 371 U.S. 415, at 438 83 S.Ct. 328, at 341, 9 L.Ed. 2d 405 (1963)"; Williams v. Rhodes, supra at 31, 89 S.Ct. at 11.

The parties do not, of course, contest these basic principles or their applicability to this case. The nub of their opposing claims relates to the nature of the right subject to the requirement of Section 7.2 and the standard by which the City must justify that requirement.

The City has relied on certain language which appears in the case of Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 (1944). There the Supreme Court considered whether the unlawful refusal of state officials to put a candidate who had won a nomination on the ballot gave that candidate a cause of action under the Civil Rights Act. The court stated, at page 7, 64 S.Ct. at page 400:

"The right to become a candidate for state office, like the right to vote for the election of state officers * * * is a right or privilege of state citizenship, not of national citizenship which alone is protected by the privileges and immunities clause."

The City claims that this language, along with that quoted above in Carrington v. Rash, supra, gives it sole legislative power to control requirements for running for city office. Therefore, it is contended, under the presumption of constitutionality afforded a legislative act concerning a subject within a legislature's power to regulate, the City's charter provision must be judged by the test of whether the court can conceive of a "rational basis" for the distinction made. See, e. g., McGowan v. Maryland, 366 U.S. 420, 425-428, 81 S.Ct. 1101, 6 L.Ed. 2d 393 (1961); Allied Stores of Ohio v. Bowers, 358 U.S. 522, 527, 79 S.Ct. 437, 3 L.Ed.2d 480 (1959); Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 556, 67 S.Ct. 910, 91 L.Ed. 1093 (1947).

The City's authority for the proposition that Snowden, supra, should control is Del Rio v. City of Detroit, Elections Commission, No. 19,972, 6th Cir., an...