Michigan Advisory Opinions February 06, 1980: AGO 5647 (February 6, 1980)

AGO 5647.

You have requested my opinion upon the following question:

May the charter of a local unit of government provide that a convicted felon is ineligible to be a candidate for election to an office within the local unit of government and, if so, is such a provision constitutional?

Qualifications for city and village offices are authorized and required to be provided for by the charter provisions governing the respective city or village. See sections 321 and 381 of the Michigan election law, 1954 PA 116, (fn1) and section 3 of the home rule cities act, 1909 PA 279. (fn2) Charter provisions are subject to and may not conflict with or contravene the general law. (fn3)

OAG, 1975-1976, No 4956, p 364 (April 2, 1976) considered a charter provision for the qualifications for city officers in the context of equal protection. The opinion states:

'Hamtramck's charter was adopted under the powers granted to cities by the Home Rule Cities Act . . . which provides at Sec. 3 . . . that a charter must provide for the qualification of its officers. A limitation on election or appointment to office after recall may be a qualification for office. A city can incorporate into its charter any provisions limited to purely municipal government that it may deem proper so long as they do not run contrary to the constitution or to any general statute. . . .'

Your question refers to conviction of a felony as a disqualification to running for local office, as distinguished from the removal of a candidate or incumbent of a public office upon conviction of a felony while a candidate or incumbent. The latter circumstances are discussed in OAG, 1955, No 2393, p 708 (December 2, 1955). (fn4)

The disqualification of convicted felons from public office has generally been upheld where such provisions have been imposed. (fn5)

As noted in OAG, 1975-1976, No 4956, supra, from Bullock v Carter, 405 US 134; 92 S Ct 849; 31 L Ed 2nd 92 (1972), voter and candidate rights are intertwined. The compelling state interest test is the measure of equal protection whether classifications are made upon the right to vote, or upon the right to run for public office. See Stapleton v Clerk for City of Inkster, 311 F Supp 1187 (ED Mich, 1970), and Green v McKeon, 335 F Supp 630, 632 (ED Mich, 1971) aff'd 468 F2d 883 (CA 6, 1972):

'This case thus makes it quite clear that in cases restricting the right to vote the compelling interest standard is the proper yardstock [sic] for judicial scrutiny [citing Wilkins v Ann Arbor City Clerk, 385 Mich. 670, 189 N.W. 2d 423 (1971)]. We are of a view similar to that expressed by Chief Judge Freeman of this District in Stapleton v Clerk for the City of Inkster, . . . where he opined that

'. . . the reasons given for requiring the compelling interest standard in voting cases are equally applicable to cases challenging qualifications for public office. . . ."

See also Mogk v City of Detroit, 335 F Supp 698 (ED Mich, 1971).

In Richardson v Ramirez, 418 US 24; 94 S Ct 2655; 4 L Ed 2d 551 (1974), the United States Supreme Court held that denying convicted felons even the fundamental constitutional right to vote does not violate the equal protection clause of the Fourteenth Amendment to the United States Constitution, even when the convicted felons had completed their sentences and parole. (fn6) See also Shepherd v Trevino, 575 F2d 1110 (CA 5, 1978), cert den 47 LW 3497; ---- US ----; 99 S Ct 1047; 59 L Ed 2d 90 (January 23, 1979). The Richardson decision deals with the same constitutional claim, and its reasoning would apply with equal force to the disqualification of convicted felons from eligibility to run for public office.

It is, therefore, my opinion that a local charter may contain a provision barring a person convicted of a felony from eligibility to seek an office within the local government unit, and such a charter provision would not violate the Constitution.

Frank J. Kelley

Attorney General

1. MCLA 168.321; MSA 6.1321, MCLA 168.381; MSA 6.1381.

2. MCLA 117.3(d); MSA 5.2073(d).

3. Const 1963, art 7, Sec. 22; 1909 PA 279, MCLA 117.36; MSA 5.2116, and 1909 PA 278, MCLA 78.27; MSA 5.1537.

4. OAG, 1955, No. 2393 cites 1954 PA 116; Sec. 327; MCLA 168.327; MSA 6.1327, which requires the removal of an officer convicted of a felony after his election or appointment, and precludes election or appointment for a period of three years from the date of such removal; Sec. 938, MCLA 168.938; MSA 6.1938, which voids the election of candidates for public office upon conviction of a felony; and RS 1846, Ch 15, Sec. 1; MCLA 201.3; MSA 6.693, which vacates a public office upon the incumbent's conviction of any infamous crime or any offense involving a violation of the oath of office. Chapter XVII, Sec. 118 of the state penal code, 1931 PA 328; MCLA 750.118; MSA 28.313, requires that public officers convicted thereunder for bribery, etc., shall forfeit their office and be forever disqualified to hold any public office. Compare also Const 1963, art 4, Sec. 7, precluding election to the state legislature of any person convicted of a felony involving breach of public trust within the preceding twenty years, as was discussed in OAG, 1977-1978, No. 5295, p ___ (April 11, 1978).

5. See 3 McQuillin, Municipal Corporations (3rd Ed), section 12.62a, p 281; and 63 Am Jur 2d, Public Offices and Employees, sections 58 and 59, pp 664-666. Cases are also annotated in 39 ALR 3d 303; 71 ALR 2d 593; 52 ALR 2d 1314; 34 ALR 2d 155.

6. While the US Supreme Court has upheld the disenfranchisement of convicted felons from the right to vote, the restriction in Michigan is not as broad as in Richardson, supra. In Michigan, convicted felons are restricted from voting only while confined in prison. See Const 1963, art 2, Sec. 2; 1954 PA 116, Sec. 758b; MCLA 168.758b; MSA 6.1758(2), and OAG, 1975-1976, No. 5121, p 656 (October 26, 1976). See also O'Brien v Skinner, 414 US 524; 94 S Ct 740; 38 L Ed 2d 702 (1974), and Arlee v Wayne County Sheriff, 55 Mich App 340; 222 NW2d 233 (1974), both to the effect that persons confined in jail awaiting trial cannot be deprived of the right to vote by absentee ballot. See also sections 492a and 758 of the Michigan election law, supra, respectively MCLA 168.492a; MSA 6.1492(1), and MCLA 168.758; MSA 6.1758.