Green v. McKeon

• Decision Date: 21 October 1971
• Docket Number: Civ. A. No. 36790.
• Citation: 335 F. Supp. 630
• Parties: Mahlon D. GREEN, Plaintiff, v. James B. McKEON et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

335 F. Supp. 630

Mahlon D. GREEN, Plaintiff, v. James B. McKEON et al., Defendants.

Civ. A. No. 36790.

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

October 21, 1971.

Barton, Whall & Perry, Livonia, Mich., for plaintiff.

Russell W. Schmidt, Wayne, Mich., for defendants.

OPINION

KEITH, District Judge.

This action was instituted by Mahlon Green, a registered elector and resident of the City of Plymouth, Michigan, individually and for all others similarly situated. Defendants McKeon, Slider, and Lowe, are respectively the Mayor, the Clerk of the City, and the City Attorney of Plymouth and simultaneously all three serve as members of the Defendant Elections Commission of the City.

Jurisdiction of this court is properly invoked by plaintiff under 28 U.S.C.A. §§ 1343(3), 2201, 2202 asserting a denial of his 14th Amendment Rights.

This court has determined that the instant matter is properly postured as a class action under Rule 23 of the Federal Rules of Civil Procedure and that it is therefore proper to consider the rights of the qualified electors of the City of Plymouth.

At the inception of this action plaintiff was a registered elector and resident of the City of Plymouth. On June 18, 1971 plaintiff attempted to file a nominating petition with defendant clerk for the office of City Commissioner pursuant to the City Charter. This Charter provides, in part

"Section 4.4 Except as otherwise provided in this charter, an elector of the city shall be eligible to hold elective or appointive office, if he shall have been a resident of the city for two years immediately prior to the date of his election or appointment to office, . . . . To be eligible to hold an elective office, a person shall also have been, for a period of two years prior to the date of his election or appointment to office, the owner of property located within and assessed for taxes by the city. In the case of appointive officers, the Commission may, by a two thirds vote, waive the requirement of residence in the City at the time of appointment: Provided, that each person for whom such requirement is waived shall become a resident of the city within one year following this appointment and shall remain a resident of the city during the entire time that he holds office in the city government. Failure so to become a resident of the city shall create a vacancy in the office to which any such person was appointed."

Plaintiff failed to satisfy either the requirement of two years residency or property ownership and was therefore determined to be ineligible to file his nominating petition on June 15, 1971.

The broad question presented for this court's determination is whether the Plymouth City Charter requirement of two years residency and property ownership as a condition precedent to standing for elective office violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.

I

Counsel's arguments focus on whether the court is to apply the so called "reasonable basis" or "compelling interest" test in determining the validity of the charter provision in question. Although it is not clear from the briefs submitted, it seems that defendants rely on Morey v. Doud, 354 U.S. 457, 77 S.Ct. 1344, 1 L.Ed.2d 1485, Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567, McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393, and Snowden v. Hughes, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497 in support of their position that this court follow the "reasonable basis" test. Plaintiff, on the other hand, contends that the proper measure is the "compelling interest" standard emanating from a recent line of U. S. Supreme Court cases and recently applied by a three judge court of this circuit in Mogk v. City of Detroit, 335 F. Supp. 698 (1971).

Concomitantly defendants also argue that the residency requirement in the charter is entitled to a "strong presumption in favor of its constitutionality" because the qualification is uniform in that all potential candidates for election must satisfy the requirement.

With respect to the property holding requirement in the aforequoted charter provision, it becomes difficult to ascertain exactly what position defendants take as to its constitutionality. At one point they fervently argue that under the reasonableness test this requirement should certainly withstand constitutional attack because it is, ipso facto, reasonable since the voters of the city have continuously re-enacted that particular provision. No authority is however cited in support of this reasoning. Thereafter defendants state that "insofar as ownership of property assessed for taxes may be concerned it seems settled in this jurisdiction, and nationally, that property ownership as a qualification for exercise of the elective franchise is `invidious discrimination' as viewed from the standpoint of the compelling interest test if the defendant has not affirmatively demonstrated such interest." Defendants then go on to "concede that such compelling interest is not demonstrated in the pleadings on file."

II

The threshold question that must be determined is whether the relevant test herein is to be the "reasonableness" or "compelling interest" test. For the reasons that follow this court is of the opinion that it is required to apply the compelling interest standard in its resolution of this controversy.

In Kramer v. Union Free School District No. 15, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583, the Supreme Court concluded that where restrictions on the exercise of the franchise were involved the stricter standard of the "compelling state interest" was to be the measure. The Court stated that

"Any unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government. . . . Statutes granting the franchise to residents on a selective basis always pose the danger of denying some citizens any effective voice in the governmental affairs which substantially affect their lives. Therefore, if a challenged statute grants the right to vote to some bona fide residents of requisite age and citizenship and denies the franchise to others, the Court must determine whether the exclusions are necessary to promote a compelling state interest. See Carrington v. Rash, 380 U.S. 89, at 96, 85 S.Ct. 775, 13 L.Ed.2d 675.

"And, for these reasons, the deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. Those decisions must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections. Accordingly, when we are reviewing statutes which deny some residents the right to vote, the general presumption of constitutionality afforded state statutes and the traditional approval given state classifications if the Court can conceive of a `rational basis' for the distinctions made are not applicable. See Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L. Ed.2d 169. The presumption of constitutionality and the approval given `rational' classifications in other types of enactments are based on an assumption that the institutions of state government are structured so as to represent fairly all the people. However, when the challenge to the statute is in effect a challenge of this basic assumption, the assumption can no longer serve as the basis for presuming constitutionality . . ."

This case thus makes it quite clear that in cases restricting the right to vote the compelling interest standard is the proper yardstock for judicial scrutiny.¹ We are of a view similar to that expressed by Chief Judge Freeman of this District in Stapleton v. Clerk for City of Inkster, 311 F.Supp. 1187 (1970) where he opined that

". . . the reasons given for requiring the compelling interest standard in voting cases are equally applicable to cases challenging qualifications for public office; in both situations the challenge is directed to the assumption that the institutions of state government are structured so as to fairly represent all the people.

"Thus, the City must demonstrate a compelling interest to justify the ownership of real property in the City as a qualification to hold office and the City does not have the advantage of the usual presumption that the Charter is constitutional."

Judge Freeman felt compelled to analyze the officeholding requirement therein under both standards because the U.S. Supreme Court had declined to reach the question of precisely which test should be applied. However, since the Stapleton, id., decision a three Judge panel from this circuit has given an answer to that question. In Mogk, supra, the court concluded that the proper test in candidate qualification controversies was indeed the compelling interest test.

The controversy in Mogk was centered on a requirement in the Michigan Home Rule Act, Mich.Comp.Laws, § 117.18 (M.S.A. § 5.2097) that a candidate for a municipal office reside in that municipality for three years preceding the forthcoming election. The plaintiff attempted to register as a candidate for the City Charter Commission but was rejected by the defendants on the grounds that he failed to satisfy the above stated requirement. The Court rejected the application of the `reasonableness' test stating that

"it appears to us . . . that not only the Supreme Court of the United States but the Congress as well has discarded the `reasonableness' test in favor of the `compelling state interest' test. See the Voting Rights Amendment Act of 1970, Pub.L.No. 91-285, 84 Stat. 314; Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L. Ed.2d 600; Kramer v. Union Free School Dist., 395 U.S. 621, 89 S.Ct. 1886,

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