Zielasko v. State of Ohio, 88-3800

• Decision Date: 03 May 1989
• Docket Number: No. 88-3800,88-3800
• Citation: 873 F.2d 957
• Parties: 49 Fair Empl.Prac.Cas. 1205, 50 Empl. Prac. Dec. P 38,991, 57 USLW 2664 Gus W. ZIELASKO and Nancy Bowman, Plaintiffs-Appellants, v. The STATE OF OHIO; Honorable Sherrod Brown, Ohio Secretary of State; Honorable Thomas Carr, Clerk of the Stark County Board of Elections; the Stark County Board of Elections, Defendants- Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 957

873 F.2d 957

49 Fair Empl.Prac.Cas. 1205,

50 Empl. Prac. Dec. P 38,991, 57 USLW 2664

Gus W. ZIELASKO and Nancy Bowman, Plaintiffs-Appellants, v. The STATE OF OHIO; Honorable Sherrod Brown, Ohio Secretary of State; Honorable Thomas Carr, Clerk of the Stark County Board of Elections; the Stark County Board of Elections Defendants- Appellees.

No. 88-3800.

United States Court of Appeals Sixth Circuit.

Argued Dec. 16, 1988.

Decided May 3, 1989.

Donald C. Steiner (argued), Canton, Ohio, for Gus W. Zielasko and Nancy Bowman.

Andrew I. Sutter, Asst. Atty. Gen. (argued), Columbus, Ohio, for Sherrod Brown and the State of Ohio.

Ronald E. Stocker, Deborah A. Dawson, Asst. Pros. Atty., Canton, Ohio, for Thomas Carr and the Stark County Bd. of Elections.

Before MARTIN and JONES, Circuit Judges, and FEIKENS, Senior District Judge. ^*

BOYCE F. MARTIN, Jr., Circuit Judge.

Gus W. Zielasko and Nancy Bowman appeal from an order of the United States District Court for the Northern District of Ohio dismissing this civil rights action, brought pursuant to 42 U.S.C. Sec. 1983, under Rule 12(b)(6) of the Federal Rules of Civil Procedure, 693 F.Supp. 577 (N.D.Ohio 1988). They seek declaratory relief stating that Article IV, section 6(C) of the Ohio Constitution violates the United States Constitution. We find no such constitutional violation and so affirm the district court.

In reviewing this action, we take the facts alleged in the complaint and considered and by the district court below as true. Associated General Contractors of California v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 902, 74 L.Ed.2d 723 (1983). Gus Zielasko is an incumbent municipal judge in Canton, Ohio. He is seventy-three years of age and wishes to seek re-election in 1989. Nancy Bowman is a registered voter in Canton who supports Zielasko's candidacy.

Article IV, section 6(C) of the Ohio Constitution provides in part that "[n]o person shall be elected ... to any judicial office if on or before the day when he shall assume the office and enter upon the discharge of its duties he shall obtain the age of seventy years." Zielasko and Bowman filed a complaint in district court on November 4, 1987, alleging a violation of their civil rights pursuant to 42 U.S.C. Sec. 1983. They sought a declaratory judgment to declare this provision of the Ohio Constitution unconstitutional.

On December 16, 1987 the Stark County Board of Elections and Thomas Carr, its clerk, answered the complaint. They denied parts of the complaint and asserted a number of affirmative defenses. The State of Ohio and Sherrod Brown, Ohio Secretary of State, answered the complaint and moved to dismiss on November 30, 1987, pursuant to Fed.R.Civ.Pro. 12(b)(1) and 12(b)(6). The plaintiffs responded to this motion on May 11, 1988. Two days later, plaintiffs filed an amended complaint. This contained additional facts, and it also requested a declaratory judgment as to the constitutionality of Article IV, section 6(C) of the Ohio Constitution. The amended complaint did not allege that Article IV, section 6(C) was an ex post facto law which denied Zielasko's rights guaranteed by the twenty-sixth amendment. Thus these claims were mooted and were not considered by the district court.

We believe the district court correctly held that it had jurisdiction over the subject matter of this case. The State of Ohio asserted that because no one had circulated or submitted nominating petitions for Zielasko's candidacy, there was no actual case or controversy in need of resolution. The district court noted that Article III of the United States Constitution provides that an actual case or controversy is a necessary condition for the invocation of federal jurisdiction. See O'Shea v. Littleton, 414 U.S. 488, 493, 94 S.Ct. 669, 674-75, 38 L.Ed.2d 674 (1974). Moreover, a person seeking federal jurisdiction must have "sustained or [be] immediately in danger of sustaining some direct injury," Massachusetts v. Mellon, 262 U.S. 447, 448, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923), an injury that is, "both 'real and immediate' not 'conjectural' or 'hypothetical.' " O'Shea v. Littleton, 414 U.S. at 494, 94 S.Ct. at 675 (citations omitted). There was such an injury in this case. Section 3513.04 of the Ohio Revised Code requires a candidate for party nomination to file a declaration of candidacy and pay a filing fee. Section 3513.05 requires that a petition for candidacy signed by electors be submitted with the candidate's declaration. Section 3513.07 describes the form of the declaration and the petition. These two documents are to be filed as one instrument. The form for the declaration of candidacy requires the candidate to state, among other things, that he or she is a qualified candidate for the office he or she is seeking. This declaration is made under the threat of criminal penalty for "election falsification." The qualifications for municipal court judges found in section 1901.06 of the Ohio Revised Code do not refer to age. The district court, however, correctly found that because the Ohio Constitution contains an age requirement for judicial office, age must be considered a "qualification" for such office. Accordingly, the court concluded that by signing a declaration of candidacy Zielasko would be subject to the real and immediate (not merely conjectural or hypothetical) harm of criminal penalty. The fear of some certain legal penalty may constitute an actual harm or injury sufficient to save a case from dismissal where dismissal is sought on the ground that no actual case or controversy exists. See Clements v. Fashing, 457 U.S. 957, 961-62, 102 S.Ct. 2836, 2842-43, 73 L.Ed.2d 508 (1982).

Because Zielasko would have filed a declaration of candidacy but for the fear of criminal penalty for election falsification, a justiciable controversy exists in this case. Bowman's case is predicated upon this controversy. Zielasko must sign his declaration of candidacy before Bowman may sign or circulate petitions. Her alleged injury lies in being precluded from advancing Zielasko's candidacy.

The district court also found that Ohio was not entitled to dismissal based on eleventh amendment immunity. The court noted that the eleventh amendment does not necessarily bar suits brought in federal court seeking prospective injunctive relief. Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Because Zielasko and Bowman seek to enjoin the future enforcement of a state constitutional provision they wished declared unconstitutional, the eleventh amendment does not apply.

Certain that Zielasko and Bowman were properly before the court, the district court considered their claim that Article IV, section 6(C) of the Ohio Constitution violated the equal protection clause of the fourteenth amendment. The court began by correctly noting that the threshold question in deciding an equal protection claim is to decide the appropriate level of scrutiny to apply to the restriction or classification at issue. In most cases distinctions and classifications "need only be drawn in such a manner as to bear some rational relationship to a legitimate state end." Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (1982). Departure from this rational relationship test is permitted "only when the challenged statute places burdens upon 'suspect classes' of persons or on a constitutional right that is deemed to be 'fundamental.' " Id. (citation omitted). In such an instance courts are to apply strict scrutiny, that is, " 'scrutiny' more vigorous than that which the traditional principles would require." Id. The district court correctly found that the rational relationship test was applicable to this case because age is not a "suspect" classification, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 2566-67, 49 L.Ed.2d 520 (1976) and because, contrary to Zielasko and Bowman's assertions, running for office is not a "fundamental right," Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972).

The district court also noted that this Court applied the rational basis level of scrutiny to a city charter provision providing mandatory retirement for firefighters at age sixty. Chapman v. City of Detroit, 808 F.2d 459 (6th Cir.1986). Of perhaps even greater significance is the fact that several other federal courts of appeal have applied a rational basis analysis to statutory and state constitutional provisions requiring judges to retire at a certain age. See Malmed v. Thornburgh, 621 F.2d 565, 570 (3rd Cir.1980); Trafelet v. Thompson, 594 F.2d 623, 630-31 (7th Cir.1979); Rubino v. Ghezzi, 512 F.2d 431, 433 (2nd Cir.), cert. denied, 423 U.S. 891, 96 S.Ct. 187, 46 L.Ed.2d 122 (1975).

If Zielasko and Bowman had only presented a simple equal protection challenge to section 6(C) the resolution of this case would have been a straight forward application of the traditional rational basis test. In addition to their equal protection claim, however, Zielasko and Bowman assert that section 6(C) raises a number of difficult questions concerning access to the ballot under the first and fourteenth amendments. They argue that where an equal protection claim is inextricably intertwined with ballot access issues, strict scrutiny is the appropriate level of review. The Supreme Court and this court have applied strict scrutiny to ballot access cases in the past. See Illinois Elections Board v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); Goldman-Frankie v. Austin, 727 F.2d 603 (6th Cir.1984).

The district court studiously noted that the Supreme Court has yet to decide what level of scrutiny is to be applied "when a candidate is barred by an age restriction which prevents a voter from electing him and the candidate and voter assert that their equal protection and first amendment rights have thus been...