Sorenson v. City of Bellingham

• Decision Date: 27 April 1972
• Docket Number: No. 42292,42292
• Citation: 496 P.2d 512,80 Wn.2d 547
• Parties: Ron SORENSON, Appellant, v. The CITY OF BELLINGHAM et al., Respondents.
• Court: Washington Supreme Court

Page 547

80 Wn.2d 547

496 P.2d 512

Ron SORENSON, Appellant, v. The CITY OF BELLINGHAM et al., Respondents.

No. 42292.

Supreme Court of Washington, En Banc.

April 27, 1972.

Craig P. Hayes, American Civil Liberties Union of Washington, Bellingham, Robert Czeisler, Seattle, for appellant.

Richard A. Busse, City Atty., Bellingham, for respondents.

UTTER, Associate Justice.

The City of Bellingham denied an application by Ron Sorenson to run for a position on a board of freeholders, who were to draft a new city charter, on the ground that Sorenson owned no real property in the city. The city acted pursuant to relevant Washington statutory and constitutional requirements. In a declaratory judgment proceeding brought by Sorenson, the superior court upheld the validity of the city's action. Sorenson now appeals.

Sorenson's lack of ownership of property in the city is the sole basis of his disqualification. The constitutional question presented on appeal is whether the Bellingham ordinance conditioning qualification for office on property ownership violates the equal protection clause of the fourteenth amendment to the United States Constitution. We hold that it does.

The fortieth amendment to the Washington State Constitution and certain enabling statutes ¹ provide that a body of citizens who are freeholders may be elected to prepare a new charter for cities in which they reside. The Bellingham ordinance was enacted pursuant to these provisions. ² Freeholders are owners of either a legal or equitable title to real estate. Daniels v. Fossas, 152 Wash. 516, 278 P. 412 (1929).

The relevant portion of the Fourteenth Amendment declares 'No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.' U.S.Const. amend. 14, § 1. The equal protection clause applies to cases imposing qualifications on the right to hold public office. Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970). State action is present where the ordinance is an enactment of a municipal corporation. Hsieh v. Civil Serv. Comm'n, 79 Wash.2d 529, 532, 488 P.2d 515 (1971).

A pivotal question is the determination of what standard is to be applied to determine whether the Washington laws and state constitution invidiously discriminate against nonproperty owners. The test differs depending upon the interests affected and the classification involved. On one hand, courts have given special treatment to interests they deem fundamental and have required the state to show a 'compelling interest' to justify classification in these areas. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Kramer v. Union Free School Dist. 15,395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969); Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). This would seem to reflect a belief that regulation of personal interests is of sufficient importance to require close judicial scrutiny. See Developments in the Law--Equal Protection, 82 Harv.L.Rev. 1065, 1129 (1969).

In areas dealing primarily with economic regulation, the court has upheld classifications, on federal constitutional grounds, unless the classifications are wholly irrelevant to the achievement of a valid state objective. Turner v. Fouche, Supra; Kotch v. Board of River Port Pilot Comm'rs, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1947); McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). This has been a recognition of the fact that, in areas of economic regulation, classification may depend on local conditions upon which the court is not as well informed. It is, as well, a recognition of the superior legislative procedures for gathering information. Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 57 S.Ct. 868, 81 L.Ed. 1245, 109 A.L.R. 1327 (1937); Madden v. Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940); Clark v. Dwyer, 56 Wash.2d 425, 353 P.2d 941 (1960). In addition, the presumption of constitutionality and the approval given rational classifications in areas not affecting fundamental interests is based on the assumption that the institutions of state government are structured so as to fairly represent 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.' Kramer v. Union Free School Dist. 15, Supra, 395 U.S. at page 628, 89 S.Ct. at page 1890.

In Kramer, the Supreme Court justified a special scrutiny of voting cases on the ground that voting is preservative of other basic civil and political rights and 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. As emphasized by the court in Dunn v. Blumstein, Supra, 405 U.S. at page 336, 92 S.Ct. at page 1000, 'before that right (to vote) can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.'

The court declined to decide in Turner whether to apply the compelling interest test in cases involving restrictions on qualification for office. Turner involved a limitation of school board membership to freeholders and this limitation was challenged as violative of the equal protection clause of the Fourteenth Amendment. It was held that, even if a less stringent standard was applied, the classification rested on grounds wholly irrelevant to a valid state objective.

We could reach the same result for the same reasons used in Turner since restricting members of an elected committee to form a new city charter violates equal protection by either test. We believe it is important, however, to clearly state for the benefit of the lawmakers and voters of this state that a restriction placed upon qualification for office, unless necessary to promote a compelling state interest is unconstitutional.

Those cases dealing with restrictions on qualifications for office are of equal importance to those restricting the right to vote. A fundamental principle in our democracy is 'the people should choose whom they please to govern them' and 'this principle is undermined as much by limiting whom the people can select as by limiting the franchise itself.' Powell v. McCormack, 395 U.S. 486, 547, 89 S.Ct. 1944, 1977, 23 L.Ed.2d 491 (1969). The right to run for elective office is a fundamental right which should be restricted only by a compelling state interest. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968).

An additional reason for choosing the compelling interest test is that, where a candidate representative of a viewpoint of affected voters is prevented from running, those voters who support him have lost an opportunity to cast their votes effectively. Williams v. Rhodes, Supra. The majority may not burden the voting rights of a minority and, as was recognized in cases involving apportionment schemes, 'An individual's constitutionally protected right to cast an equally weighted vote cannot be denied even by a vote of a majority of a State's electorate . . .' Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 736, 84 S.Ct. 1459, 1473, 12 L.Ed.2d 632 (1964). Malapportionment is similar to restrictions on candidates in that they both decrease the effectiveness of the vote of a certain segment of the electorate.

The freeholder requirement, also, arguably trespasses on another disfavored area of classification by making possession of wealth a basis for the classification. 'Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process.' Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 668, 86 S.Ct. 1079, 1082, 16 L.Ed.2d 169 (1966).

The requirement that one own property in a community in order to be a candidate conceivably runs afoul of yet another constitutionally protected right, the right to travel. In Dunn, the court struck down durational residence laws which singled out the class of bona fide state and county residents who recently exercised the constitutionally protected right to travel and penalized them directly. The court there applied the compelling state interest test to any classification penalizing the exercise of the right to travel.

Citizens who are bona fide residents either purchase or fail to purchase property in a given community for a variety of reasons. It would seem that, to the extent purchase of property is deferred in a community for reasons involving the desire of a resident to be free to travel, a compelling state interest is required to invade that right. A person desiring to be free to travel could meet all the requirements for valid residency but not wish to be encumbered by the restraints of property ownership.

In defense of the claim that there is a compelling state interest in the classification and that it is not wholly irrelevant to a valid state objective, the city urges that freeholders, as property owners, are most responsible for the economic well-being of the city inasmuch as they are directly involved in the vitality of the physical base upon which the city rests. We believe this argument is unconvincing and shows both a lack of compelling state interest and that the classification is wholly irrelevant to a valid state objective.

The basic premise that landowners are more directly involved in the vitality of a city has been directly attacked in Turner were the court noted that lack of ownership of realty does not establish a lack of attachment to the community. However reasonable the assumption is that those who do own realty possess such an attachment, the state may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold. Turner v. Fouche, Supra, 396 U.S. at page 364, 90 S.Ct. 532. 'In a society such...