Green v. McKeon, 71-2077.

• Decision Date: 12 October 1972
• Docket Number: No. 71-2077.,71-2077.
• Citation: 468 F.2d 883
• Parties: Mahlon D. GREEN, Plaintiff-Appellee, v. James B. McKEON et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

468 F.2d 883 (1972)

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

No. 71-2077.

United States Court of Appeals, Sixth Circuit.

October 12, 1972.

Russel W. Schmidt, Wayne, Mich., for appellants.

Robert J. Whall, Livonia, Mich., for appellee; Barton, Whall & Perry, Livonia, Mich., on briefs.

Before PHILLIPS, Chief Judge, KENT, Circuit Judge, and O'SULLIVAN, Senior Circuit Judge.

PHILLIPS, Chief Judge.

This is an appeal from a decision, 335 F.Supp. 630, declaring unconstitutional a section of the city charter of Plymouth, Michigan, which requires two years residence in the city as a condition of eligibility to hold elective office. We affirm.

One week prior to the filing deadline for the August 1971 primary election, Mahlon D. Green filed with the Plymouth City Clerk a nominating petition for the office of City Commissioner. On the deadline date the Plymouth Elections Commission rejected Green's petition on the grounds that he had not complied with the two year residency and property ownership requirements of the city charter.¹ Green filed a civil rights action against the Commission, individually and on behalf of all registered electors of the city, seeking a declaration that the charter provision was a denial of equal protection and an order requiring that his name be placed on the ballot. District Judge Damon J. Keith ruled that the durational residency and property ownership requirements were invalid and granted the requested relief. The Election Commission appeals from that part of the order invalidating the residence requirement. No appeal has been taken from the invalidation of the property ownership restriction.

The principal controversy on appeal, as it was in the District Court, involves the appropriate standard for judicial review of the challenged requirement. The Commission urges that since there is no constitutional right to public office, the equal protection clause is offended only if the regulation is shown to be invidiously discriminatory. Green contends that the restriction can not stand unless shown to be necessary to promote a compelling city interest. The inextricable intertwining of the rights of the voters and the rights of potential candidates is said to mandate this strict scrutiny.

In its most recent consideration of candidate restrictions, the Supreme Court noted:

"The initial and direct impact . . . is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. . . . In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters." Bullock v. Carter, 405 U.S. 134, 142-143, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972) (citation and footnote omitted).

Close scrutiny of the challenged restriction is required where the restriction has "a real and appreciable impact on the exercise of the franchise." Id. at 144, 92 S.Ct. at 856. In addition to Judge Keith's decision in the instant case, three other District Court opinions from the Eastern District of Michigan have held that the interests of the voters required strict review of limitations placed on candidates. See Mogk v. Detroit, 335 F.Supp. 698 (1971) (McCree, Thornton, Roth, JJ.); Bolanowski v. Raich, 330 F.Supp. 724 (1971) (Feikins, J.); Stapleton v. Clerk for Inkster, 311 F.Supp. 1187 (1970) (Freeman, C. J.). In light of the alternative ground for affirmance set forth below, we do not pass on the question of whether the impact of Plymouth's charter provision on the exercise of the franchise is sufficient to satisfy the criteria of Bullock to trigger application of the more stringent standard.

The durational residency requirement at issue classifies Plymouth residents on the basis of recent travel. That classification alone requires that the requirement be strictly scrutinized because it operates to penalize the exercise of the basic constitutional right to travel. Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). It is not material that the classification denies new residents something that is not a constitutional right, i.e., the right to become a candidate for public office. See, e.g., Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969) (public assistance benefits); King v. New Rochelle Mun. Housing Auth., 442 F.2d 646 (2d Cir.), cert. denied, 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d 107 (1971) (public housing); Keenan v. Board of Law Examiners, 317 F.Supp. 1350 (E.D.N.C. 1970) (3-judge court, admission to the bar); Vaughan v. Bower, 313 F.Supp. 37 (D. Ariz.) (3-judge court), aff'd mem., 400 U.S. 884, 91 S.Ct. 139, 27 L.Ed.2d 129 (1970) (medical aid). We see no reason to apply a lesser standard to the present case.

The Commission says that the two year residency requirement is justified because every candidate for City office needs to become familiar with the local form of government and the problems peculiar to the municipality. We hold that the two year residence requirement is too broad for the achievement of that objective.

"It is not sufficient for the State to show that durational residence requirements further a very substantial state interest. In pursuing that important interest, the State cannot choose means which unnecessarily burden or restrict constitutionally protected activity. Statutes affecting constitutional rights must be drawn with `precision,\' . . . and must be `tailored\' to serve their legitimate objectives. . . . And if there are other, reasonable ways to achieve those goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference. If it acts at all, it must choose `less drastic means.\'" Dunn v. Blumstein, supra, 405 U.S. at 343, 92 S.Ct. at 1003 (citations omitted).

The restriction is in no way "tailored" to achieve the stated municipal goal. It permits a two year resident of Plymouth to hold public office regardless of his lack of knowledge of the governmental problems of the city. On the other hand, it excludes more recent arrivals who have had experience in local government elsewhere or who have made diligent efforts to become well acquainted with the municipality. Further, in our representative form of government, the voters are the arbiters of the suitability of candidates for public office. Whether a candidate has the ability to carry out the duties of a particular city office, even though he arrived in Plymouth less than two years prior to election day, is a matter for consideration by the voters in choosing between candidates running for that office. Opposing...