State ex rel. Piccirillo v. City of Follansbee, 13905

Citation160 W.Va. 329,233 S.E.2d 419
Decision Date07 June 1977
Docket NumberNo. 13905,13905
PartiesSTATE ex rel. Janet PICCIRILLO v. The CITY OF FOLLANSBEE, a Municipal Corporation, et al.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. The right to become a candidate for the office of city council is a fundamental right under the equal protection section of the West Virginia Constitution, Article III, Section 17, and the State, in order to restrict this right, must demonstrate that a compelling state interest is served by such restriction.

2. The placing of a statutory restriction on the office of city council that a candidate must have been assessed with and paid taxes upon at least One Hundred Dollars of real or personal property serves no compelling state interest and, therefore, violates Article III, Section 17 of the West Virginia Constitution.

Leonard J. Tost, Weirton, for relator.

MILLER, Justice:

Petitioner, Janet Piccirillo, brings this original mandamus action against the City of Follansbee, its Council members and Clerk to compel the respondents to place her name on the ballot for the forthcoming municipal election. She had presented her petition and filing fee as a candidate for Council but was refused access to the ballot on the ground that she did not possess the requisite property qualification as required by the Charter of Follansbee, 1 a requirement similar to the statutory provision, W.Va.Code, 8-5-7(c). 2

It is not disputed that except for the failure to meet this property requirement, petitioner is fully qualified as a candidate for Council. She contends the property qualification violates her constitutional right of equal protection as it discriminates against those who do not have assessed property.

We are thus presented with a limited question of whether the State or a municipality may place a property restriction as a qualification for candidacy for the office of city council.

A closely related question involving a requirement that a councilman be a freeholder was before the Court in State ex rel. Thompson v. McAllister, 38 W.Va. 485, 18 S.E. 770 (1893). That case was decided primarily by construction of Article IV, Section 4 of the West Virginia Constitution. 3 The majority held that the constitutional provision that "No person, except citizens entitled to vote, shall be elected . . ." did not prohibit the Legislature from imposing additional qualifications on the right to hold office. It viewed the constitutional requirement as establishing a broad class of eligible persons from which the Legislature could further delineate, through additional requirements, those qualified to become candidates for office.

A vigorous dissent by Judge Brannon was predicated on the absence in the Constitution of any property qualification for voting 4 or holding office, and the enumeration of specific qualifications for voting and holding office in Article IV, Sections 1 and 4, compelled the conclusion that no further qualification could be implied. This construction was reinforced by the lack of any language in the Constitution giving the Legislature the right to impose additional qualifications.

McAllister has been cited in a number of election cases for the proposition that the Legislature may impose reasonable qualifications above the constitutional restrictions for candidates for public office.

In neither McAllister nor the cases following it has the equal protection argument been advanced. 5 However, the United States Supreme Court has applied the equal protection standard embodied in the Fourteenth Amendment to invalidate a number of state voting and candidate qualification restrictions.

In Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), Georgia's requirement that a candidate for a local board of education be a freeholder was held to violate the Equal Protection Clause. The Court observed that two tests are utilized to determine whether a state classification violates the equal protection guarantee.

The first is the "traditional" test, in which the Court determines whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state purpose, citing McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961), and Kotch v. Board of River Port Pilot Commissioners, 330 U.S. 552, 67 S.Ct. 910, 91 L.Ed. 1093 (1946). The alternative test requires the state to demonstrate a "compelling" interest in support of the challenged action or classification, citing Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), and Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

The Court held in Turner that under either test Georgia's freeholder requirement was unconstitutional.

This Court has in the past discussed the constitutional guarantee of equal protection found in Article III, Section 17 of the West Virginia Constitution. In Linger v. Jennings, 143 W.Va. 57, 99 S.E.2d 740 (1957), it was held that the equal protection guarantee required the furnishing of a free transcript to indigent defendants without counsel. In State ex rel. Payne v. Walden, W.Va., 190 S.E.2d 770 (1972), the State distress statute was held violative of equal protection. However, in neither Linger nor Payne was there any extensive discussion as to the test to be applied in utilizing West Virginia's equal protection guarantee.

This Court did consider and apply the Federal standard for equal protection under the Fourteenth Amendment to the United States Constitution in Cimino v. Board of Education of County of Marion, W.Va., 210 S.E.2d 485 (1974), in the following language:

"Whether a statute or governmental action violates the Equal Protection Clause is a determination made by the application of one of two constitutional tests. The more demanding test relates to statutes which impinge upon sensitive and fundamental rights and constitutional freedoms, such as religion and speech. In order to uphold such a statute, a reviewing court must find that a compelling state interest is served by the classification. Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768; Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600.

"In all other instances, the constitutionality of a statute, challenged under the Equal Protection Clause, is subject to the traditional standard requiring that the state law be shown to bear some rational relationship to legitimate state purposes. San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16. Under this test, the court must consider whether the classification is a rational one based on social, economic, historic or geographical factors; whether the classification bears a reasonable relationship to a proper governmental purpose; and whether all persons within the classes established are treated equally." (210 S.E.2d at 490)

We adopt these standards in applying the Equal Protection Clause of the West Virginia Constitution. Article III, Section 17. In order to test the disputed action in the present case, a determination must first be made as to whether the right to become a candidate for office is a fundamental right, requiring the more demanding compelling interest test. If not so found, then the less strict rational basis test is applicable.

This Court recognized in Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966), that the right to become a candidate for election to public office is a valuable and fundamental right. There it was held that while the Legislature could prescribe qualifications for office, such qualifications "must be reasonable and not in conflict with any constitutional provision." Supra, 151 W.Va. at 121, 150 S.E.2d at 597. In Brewer, no equal protection argument was advanced and the Court upheld W.Va.Code, 3-5-4, requiring the same qualifications for candidates in a primary election for county commissioner as was required in a general election by Article VIII, Section 23 of the West Virginia Constitution.

In State ex rel. Maloney v. McCartney, W.Va., 223 S.E. 607 (1976), both the majority and the minority recognized that the right to become a candidate for office is a fundamental right, entitled to constitutional protection under the Equal Protection Clause and federal First Amendment concepts of freedom of association and expression. 6 These federal constitutional rights are paralleled in Article III, Sections 7, 16 and 17 of the West Virginia Constitution. Other courts have also concluded that the right to run for office is a fundamental right. Mancuso v. Taft, 476 F.2d 187 (1st Cir. 1973); Thompson v. Mellon, 9 Cal.3d 96, 107 Cal.Rptr. 20, 507 P.2d 628 (1973); Gangemi v. Rosengard, 44 N.J. 166, 207 A.2d 665 (1965).

Once determined that the right to run for office is a fundamental right, the test is whether the challenge restriction serves a compelling state interest. In Maloney, supra, the Court concluded that limitations on tenure in the office of Governor serve a sound and salutary benefit on the body politic by breaking control of entrenched political machines, thereby fostering a more competitive political system. This was a sufficiently compelling state purpose to justify the constitutionality of the Governor's Succession Amendment. 7

We do not believe that a compelling state interest can be demonstrated in the property qualifications imposed in this case. The reasoning that motivated the Court in McAllister to uphold the freeholder requirement does not appear persuasive in today's society. 8 The ownership of property bears no fixed relationship to honesty, integrity and intelligence, which are qualities one expects in public officials. Even if we were to grant that property ownership enhances official morality, the requirement in the present case is so minimal as to be irrelevant for that purpose.

The requirement, having little positive benefit to...

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  • Peters v. Narick, No. 14776
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    ...the rational relationship test. The two-tiered federal approach was expressly adopted by this Court in State ex rel. Piccirillo v. The City of Follansbee, W.Va., 233 S.E.2d 419 (1977). Because we have not addressed the subject subsequent to the expansion of the federal approach to three tie......
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