Michigan Advisory Opinions August 30, 1979: AGO 5552 (August 30, 1979)

AGO 5552.

You have requested my opinion on the following question:

'Is a home rule city charter requirement specifying that eligibility to hold an appointive city office is dependent upon residency in the city for at least two years immediately preceding appontment violative of the equal protection clause, article I, section II of the Michigan Constitution of 1963?'

Const 1963, art 1, Sec. 2 declares, in part, that 'no person shall be denied the equal protection of the laws.' Michigan's constitutional guarantee of equal protection affords the same rights as the Fourteenth Amendment to the United States Constitution; Wolodzko v Wayne Circut Judge, 382 Mich 528; 170 NW2d 9 (1969); Green v Court Administrator, 44 Mich App 259; 205 NW2d 306 (1972), leave to app den 380 Mich 760 (1973). 1909 PA 279, the home rule cities act, Sec. 3, MCLA 117.3; MSA 5.2073, provides 'Each city charter shall provide: . . . (d) For the qualifications, duties and compensation of the city's officers.'

In Dunn, Governor of Tennessee v Blumstein, 405 US 330; 92 S Ct 995; 31 L Ed 2d 274 (1972), the Supreme Court struck down Tennesse's durational voter residency requirement of one year in the state and three months in the county as violative of the constitutional right of travel. The Court stated:

'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 that 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.' [Citations omitted] 405 US at 343.

The Court further observed:

'Fixing a constitutionally acceptable period is surely a matter of degree. It is sufficient to note here that 30 days appears to be an ample period of time for the State to complete whatever administrative tasks are necessary to prevent fraud--and a year, or three months, too much.' 405 US at 348.

In Marston v Lewis, 410 US 679; 93 S Ct 1211; 35 L Ed 2d 627 (1973), the Supreme Court, in a per curiam opinion, ruled that under Dunn, Governor of Tennessee v Blumstein, supra a 50-day durational voter residency and registration requirement was constitutional. (fn1)

In Green v McKeon, 468 Fed 883 (CA 6, 1972), the Court of Appeals affirmed the district court's holding as unconstitutional on equal protection grounds a City of Plymotuh, Michigan, charter provision requiring two years' residency as a condition of eligibility to hold elective office. (fn2)

The Court in Green ruled that the two-year durational residency charter requirement classified Plymouth residents on the basis of their recent travel into the city. On that basis, the two-year residency requirement was strictly construed, as it operated to penalize the exercise of the basic constitutional right to travel; Dunn, Governor of Tennessee v Blumstein, supra. The Court stated:

'The restriction is in no way 'tailored' to achieve the stated municipal goal. It permits a two year resident of Plymouth to hold picnic 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 candidates undoubtedly will bring this deficiency, if it be one, to the attention of the electorate in the course of campaigning.

'We emphasize, as did the Court in Blumstein, that the provision at issue is a durational residency requirement. Plymouth is not precluded from requiring its officials to be bona fide residents, as determined by appropriately defined and uniformly applied standards. However, the city may not require that candidates for city office must have been bona fide residents for two years prior to election day.' [Court's emphasis] 468 F2d at 885.

In Grano v Ortisi, 86 Mich App 482; 272 NW2d 693 (1978), (fn3) the Michigan Court of Appeals held unconstitutional on equal protection grounds two provisions of the City of Grosse Pointe Park Charter governing candidacy for the office of municipal judge. The two provisions mandated that a candidate for municipal judge must be a two-year resident of the city, and licensed to practice law in Michigan for five years prior to filing a nominating petition. The Court in Grano cited Dunn, Governor of Tennessee v Blumstein and Green v McKeon, supra, in holding the charter candidacy provisions unconstitutional on equal protection grounds as substantially affecting the right of free travel. The Court strictly scrutinized the charter provisions, and the City failed to demonstrate a compelling state interest in support of the provision; see Marston v Lewis, supra.

Decisions from other jurisdictions support the holding in Grano, supra, voiding durational residency requirements for local governmental office of federally-protected equal protection grounds: Thompson v Mellon, 9 Cal 3rd 96; 507 P2d 628 (1973) (two-year residency requirement for municipal office invalid); Smith v Evans, 42 Cal App 3rd 154; 116 Cal Rptr 684 (Cal App 1974) (one-year residency requirement for city council invalid); see Phelen v City of Buffalo, 54 App Div 2d 262; 388 NYS2d 469 (1976) (two-year residency requirement for city office violative of the equal protection and due process clauses of the federal and New York constitutions).

In Schweitzer v Plymouth City Clerk, 381 Mich 485; 164 NW2d 35 (1969), cert den, 397 US 906; 90 S Ct 896; 25 L Ed 2d 86 (1970), decided prior to Dunn, Governor of Tennessee v Blumstein, supra, the Michigan Supreme Court upheld a charter requirement that the holder of city office must have owned property located and assessed within the city for two years prior. The Court in Schweitzer declined to test the property ownership requirement against the equal protection standard, stating '[t]he application of the equal protection clause to qualifications for holding public office, as opposed to voting, is a step which the United States Supreme Court has not yet taken.' 381 Mich at 491.

The United States Supreme Court did take that step in Turner v Fouche, 396 US 346; 90 S Ct 532; 24 L Ed 2d 567 (1970) with respect to property ownership qualifications for holding public office, and took one step further in Dunn, Governor of Tennessee v Blumstein, supra, with respect to durational residency requirements for voting.

Thus, the application of eaual protection standards to requirements for holding public office and to durational residency requirements is clear, casting doubt on the precedential value of Schweitzer, supra.

Therefore, in light of Dunn, Governor of Tennessee v Blumstein, supra, and its progeny, and Grano v Ortisi, supra, it is my opinion that a city charter provision making eligibility to file as a candidate for or hold an elective or appointive city office dependent upon two years' residency in the city violates equal protection of the law.

Frank J. Kelley

Attorney General

1. Contrast with Jackson v Bowen, 420 F Supp 315 (S.D. Ind 1976) (statutory sixth-day residency requirement in township to vote in state and local elections invalid); Abbott v Carter, 356 F Supp 280 (N.D. Ga 1972) (durational residency requirement of 1 year in state, 6 months in county, and 90 days in city unconstitutional).

2. In Green, the Court held unconstitutional section 4.4 of thePlymouth Charter which provided: 'Except as otherwise provided in this charter, an elector of the city shall be eligible to hold elective or appointive office, if he shall have been a resident of the city for two years immediately prior to the date of his election or appointment to office. . . .' I note that this provision is similar to Roseville Charter, Sec. 4.2, to which you refer in your letter.

3. No appeal taken.