Oregon Advisory Opinions March 27, 1972: OAG 72-17 (March 27, 1972)

OAG 72-17.

We are informed that the attempted filings of three persons as candidates for the offices of mayor and councilmen of the City of Ashland have been rejected, on grounds that they were not "freeholders", i.e. owners of real property. The charter of the City of Ashland requires city officers to reside within the city, and in the case of the mayor and city councilmen, they must also be freeholders. We are asked whether this provision is constitutional.

It should be pointed out before any discussion of this issue that the office of the Attorney General does not have

the power to declare statutes or ordinances unconstitutional. 34 Op. Att'y Gen. 707 (1969); 31 Op. Att'y Gen. 153 (1963). However, the Attorney General "may express his opinion as to the unconstitutionality of a statute where it plainly and unquestionably appears on the face of the statute that it contravenes some constitutional provision." 31 Op. Att'y Gen. 309, 310 (1963). It is the opinion of this office that establishing a property-ownership requirement as a condition precedent to the holding of the office of mayor or city councilman clearly violates the Federal Constitution as interpreted in light of recent United States Supreme Court decisions.

A recent case is, in our opinion, dispositive of the issue. In Turner v. Fouche , 396 U.S. 346 (1970) [hereinafter cited as Turner ], the United States Supreme Court held that requiring school board members to own property violated the equal protection clause of the Fourteenth Amendment. The court noted that although the appellants did not have a right to be appointed to the school board, nevertheless

". . . the appellants and the members of their class do have a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications. The State may not deny to some the privilege of holding public office that it extends to others on the basis of distinctions that violate federal constitutional guarantees." 396 U.S. at 362, 363.

In declaring any statute unconstitutional on the basis of a denial of equal protection, it is, as a general rule, essential to determine the proper standard to be applied. The traditional test requires that there be a rational basis for the classification. Turner phrased it, "whether the challenged classification rests on grounds wholly irrelevent to the achievement of a valid state objective." 396 U.S. at 362. A test of more recent development is whether the state can show a "compelling interest" in support of its classification. Kramer v. Union Free School District No. 15 , 395 U.S. 621 (1969). The court in Turner , however, did not rule which test was the proper test to be applied in dealing with qualifications for public office; rather it followed the traditional standard of reasonableness, noting that this more lenient standard could not be met.

The most common reason given for the "freeholder" requirement is that property owners are less transient than renters and, therefore, will take a greater interest in community affairs. However, the United States Supreme Court rejected this argument in Turner . The court stated:

"Nor does the lack of ownership of realty establish a lack of attachment to the community and its educational values. However reasonable the assumption that those who own realty do possess such an attachment, Georgia may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold." 396 U.S. at 364.

It is unreasonable to think that because a person rents he would be any less interested than the person who owns property. What of a man whose home is in his wife's name, would his interest

in community affairs be any greater if it was in his own name? If a person owned only one square foot of property, would his interest be any greater than a person who has rented for a year?(fn1) Reason dictates that the answer to all these questions must be no. If this is so, then what purpose does the qualification serve?

In Turner , the court answered:

". . . it seems impossible to discern any interest the qualification can serve. It cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions, without regard to whether he is a parent with children in the local schools, a lessee who effectively pays the property taxes of his lessor as part of his rent, or a state and federal taxpayer contributing to the . . . [portion] of the Taliaferro County annual school budget derived from sources other than the board of education's own levy on real property." 396 U.S. at 363-364.

Other courts have expressly held that a property qualification for the holding of city office is invalid. In Stapleton v. Clerk for City of Inkster , 311 F. Supp. 1187 (E.D. Mich. 1970), the court went a step beyond Turner , holding that mere reasonableness of the requirement would not be sufficient, but that the city must meet the more difficult test of demonstrating "a compelling interest" to justify the requirement.

Another court held the requirement invalid on the basis that it operated as a qualification based on wealth. In Landis v.

Town of North Hempstead , 20 N.Y.2d 417, 231 N.E.2d 120, 122 (1967) the court stated:

"The ownership of land, however, as a prerequisite, . . . to holding elective town office constitutes an 'invidious discrimination' against nonlandowners, a sort of economic gerrymandering which runs afoul of the equal protection and due process clauses of both Federal and State Constitutions. . . . 'Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. . . .' " (citations omitted)

Still another argument may be advanced against such a qualification. A voter has a constitutionally protected right to vote for the candidate of his choice and to have his vote counted. Reynolds v. Sims , 377 U.S. 533 (1964). If a state or a town restricts the persons for whom a voter may vote, it necessarily affects the efficacy of his vote. The state or town may limit the voter's choice, but only upon a showing of a "compelling interest". Kramer v. Union Free School District No. 15 , 395 U.S. 621 (1969). However, as stated above, there is no "rational basis" nor "compelling interest" to support such a qualification.

In 33 Op. Att'y Gen. 186 (1967) we held that the legislature could not bar cities from imposing a property qualification for city officers. That opinion stated:

"It is our opinion that the test of the Oregon court expressed in State ex rel. Heinig v. Milwaukie et al. , [231 Or 473 (1962)] and City of Woodburn v. State Tax Commission , [243 Or 633 (1966)] both supra, would make the matter of determining qualifications of city officials primarily one of local concern rather than of state-wide

interest and that the legislature would be prohibited by Article II, § 2 of the Oregon Constitution, from denying a city the right to require that its officers be property owners.

"Therefore, to prohibit such a qualification for holding office in Oregon's cities would require a constitutional amendment." 33 Op. Att'y Gen. at 188. (emphasis supplied)

The opinion was correct in holding that the legislature has no power to prescribe the qualifications of city officers, or to prevent city charters from imposing reasonable qualifications. However, it did not consider the effect of the Fourteenth Amendment. Of course any provision of a city charter must comply with both the state and federal constitutions. The previous opinion is overruled, to the extent that it held that a city charter provision establishing a property requirement for city officers was valid.

We conclude that such a provision is clearly invalid, under the holdings of the above cases, as in violation of the Fourteenth Amendment to the United States Constitution.(fn2)