Joseph v. City of Birmingham

• Decision Date: 11 March 1981
• Docket Number: Civ. A. No. 81-70419.
• Citation: 510 F. Supp. 1319
• Parties: Raymond Frank JOSEPH, Plaintiff, v. CITY OF BIRMINGHAM, a Michigan Municipal Corporation, Phyllis Armour, City Clerk for the City of Birmingham, Jeofrey Hockman, Donald Jensen, Barbara Jeske, Jack Sights, William York, Gary Kain, and Jack Sights, Election Commissioners for the City of Birmingham, Jointly and Severally, Defendants.
• Court: U.S. District Court — Western District of Michigan

510 F. Supp. 1319

Raymond Frank JOSEPH, Plaintiff, v. CITY OF BIRMINGHAM, a Michigan Municipal Corporation, Phyllis Armour, City Clerk for the City of Birmingham, Jeofrey Hockman, Donald Jensen, Barbara Jeske, Jack Sights, William York, Gary Kain, and Jack Sights, Election Commissioners for the City of Birmingham, Jointly and Severally, Defendants.

Civ. A. No. 81-70419.

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

March 11, 1981.

Gregory Fisher Lord, Detroit, Mich., for plaintiff.

Dean G. Beier, Bloomfield Hills, Mich., for defendants.

MEMORANDUM OPINION AND ORDER CONCERNING PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

PHILIP PRATT, District Judge.

This lawsuit involves a challenge to the constitutionality of certain provisions of the city charter of the City of Birmingham, Michigan. These provisions disqualify any person from becoming a candidate for the office of city commissioner unless that person has been a city resident for at least one year immediately prior to the general election. Plaintiff aspires to run for the office of city commissioner in the upcoming election on April 6, 1981. Although he is apparently qualified in all other respects, he concedes that he cannot meet the one year residency requirement.

Plaintiff has filed a motion for a preliminary injunction to restrain the defendant city officials from enforcing the city charter's one year residency requirement, and to compel the defendants to place plaintiff's name on the ballot for the April 6th election.

Broadly stated, plaintiff's theory is that the city charter provision violates the equal protection clause of the Fourteenth Amendment because the charter provision discriminates against newly-arrived residents. According to plaintiff, such differential treatment is impermissible in that it trenches upon fundamental rights of interstate travel, voting, and political activity.

Although they can be simply stated, the issues in this case are enormously difficult. In the first place, there is an agonizing split of case authority—the tug of precedent in this Circuit pulls one way, but more recent developments in other courts pull the opposite way. In addition to the equivocal direction of the decisions in this area, the Court must face intrinsically complex questions of legal doctrine. And, assuming these conceptual problems are resolved, there remains the arduous task of application and the reconciliation or balancing of competing interests.

Deciding this motion is made more difficult by the press of time. Oral arguments were heard on March 2nd. The Court was then informed that the election ballots will be sent to the printer on March 10th. The Court has attempted to decide this matter as expeditiously as possible with due regard for the complexity and substantiality of the issues.

The Court will organize the discussion by first stating plaintiff's arguments in favor of striking the residency requirements, then examining defendants' arguments for upholding the requirement, and finally suggesting three alternative approaches to resolve this controversy.

I. THE ARGUMENT FOR INVALIDATING THE DURATIONAL RESIDENCY REQUIREMENT

Briefly put, plaintiff's argument is that the law of the Sixth Circuit clearly compels this Court to employ the most demanding sort of strict scrutiny in reviewing the city charter provision at issue here. In fact, every one of the decisions in this Circuit that has considered a durational residency requirement for candidates has held the requirement unconstitutional. On plaintiff's view, the logical thrust of these cases dictates that the Court strike the city's one year residency provision.

A. The Appropriate Standard of Review

Generally, when deciding whether a law violates the equal protection clause, the courts consider three elements:

"The character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification." Dunn v. Blumstein, 405 U.S. 330, 335, 92 S.Ct. 995, 999, 31 L.Ed.2d 274 (1972).

Customarily the courts have not engaged in ad hoc balancing of these elements. Instead a categorical approach has evolved: equal protection cases have been divided into two categories and a specific standard of review has been formulated for each. See generally, Gunther, "Forward: In Search of Evolving Doctrine on a Changing Court—A Model for a Newer Equal Protection", 86 Harv.L.Rev. 1 (1972); "Developments in the Law—Equal Protection", 82 Harv.L.Rev. 1065 (1969).

First, in the ordinary equal protection case, the courts will uphold the challenged law as long as it has some rational basis, or as long as it is reasonably related to a legitimate governmental concern. McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). This minimal level of scrutiny reflects the courts' traditional deference to legislative acts in equal protection cases.

A second standard of review comes into play, however, when the challenged law creates or recognizes a suspect classification (such as race) or impinges upon a fundamental constitutional right (such as freedom of speech). In such circumstances, the legislative act will be subjected to heightened scrutiny: the law will be invalidated unless it is "necessary to promote a compelling governmental interest." Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 (1968). In this second category of cases, it is not enough that the challenged law meets the traditional test of reasonableness:

"Statutes affecting constitutional rights must be drawn with `precision', NAACP v. Button, 371 U.S. 415, 438 83 S.Ct. 328, 340, 9 L.Ed.2d 405 (1963); United States v. Robel, 389 U.S. 258, 265 88 S.Ct. 419, 424, 19 L.Ed.2d 508 (1967), and must be `tailored' to serve their legitimate objectives. Shapiro v. Thompson, supra 394 U.S., at 631 89 S.Ct. at 1329. 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.' Shelton v. Tucker, 364 U.S. 479, 488 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960)." Dunn v. Blumstein, supra 415 U.S. at 343, 92 S.Ct. at 1003.

This second tier of equal protection analysis, developed by the Supreme Court under the stewardship of Chief Justice Warren, has allowed for more frequent invalidation of legislative enactments within the class of laws designated for strict scrutiny. Gunther, supra at page 8. Indeed, the second level of review has been called "`strict' in theory and fatal in fact"; the court's initial decision regarding the appropriate standard of review is virtually determinative of the outcome.¹ Gunther, supra. Thus the critical inquiry concerns the presence of a fundamental right or a suspect classification which would trigger strict scrutiny.

The Supreme Court has not yet addressed the question of the appropriate standard of review for cases involving durational residency requirements for candidates. 65 A.L. R.3d 1048 "Validity of Requirement That Candidate or Public Officer Have Been Resident of Government Unit for a Specified Period" § 5. Yet many federal and state courts have decided this question in contexts similar to that at bar. The substantial majority of these courts, and apparently all the courts in this Circuit which have faced the question, have held that strict scrutiny must be applied to durational residency requirements for candidates. Id. (collecting cases). Howlett v. Salish and Kootenai Tribes, 529 F.2d 233, 242-243 (9th Cir. 1976); Alexander v. Kammer, 363 F.Supp. 324, 326 (E.D.Mich.1973).²

There is some disagreement among these cases regarding the basis for invoking the more rigorous standard of review. Some hold that candidate durational residency requirements implicate the fundamental right of interstate travel. E. g., Green v. McKeon, 468 F.2d 883 (6th Cir. 1972); Headlee v. Franklin Co. Bd. of Elections, 368 F.Supp. 999 (three judge court Ohio 1973); Thompson v. Mellon, 507 P.2d 628 (S.C.Cal.1973).³ Other cases declare that strict scrutiny is justified because the fundamental right to vote is impaired by candidate residency qualifying periods. Wellford v. Battaglia, supra; Mogk v. City of Detroit, 335 F.Supp. 698 (three judge court E.D.Mich.1971); Bolanowski v. Raich, 330 F.Supp. 724 (E.D.Mich.1971).⁴ Finally, some cases find strict scrutiny triggered by the fundamental rights of political expression and association, Headlee and Mogk, supra, or by the conceived distinct right to be a candidate for public office, Thompson, supra, and Cowan v. Aspen, 181 Colo. 343, 509 P.2d 1269 (1973).⁵ Despite these varying opinions as to the constitutional grounds for applying strict scrutiny, the majority of courts have employed the strict scrutiny test in a rigorous manner and have found residency requirements invalid.

B. The Law of the Sixth Circuit

The leading cases from the Sixth Circuit illustrate these patterns. Of major importance is the Sixth Circuit's decision in Green v. McKeon, supra. There the Court of Appeals, in a two-to-one decision, struck down a provision of the Plymouth, Michigan, city charter requiring two years residency for city commissioner candidates. The Court of Appeals held that close scrutiny was required because the law infringed the fundamental right of interstate travel. 468 F.2d at 884. The Court of Appeals discussed the primary justification urged in support of the residency period—the need for candidates to become familiar with the local government and the problems of the community:

"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

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