The City of Akron v. Eugene Leonard Bell ( 1981 )

ORDER

The City of Akron appeals from the decision of the District Court holding unconstitutional the requirement in Akron’s City Charter § 28(1) and Ohio Revised Code § 731.02, that a candidate for City council be a resident of Akron for one year. The further requirement that candidates representing a ward in the city reside for one year in the ward was also found unconstitutional. Council members in Akron are elected both from wards and city-wide.

Plaintiff-appellee has resided in the City of Akron for over one year. However, his residéncy in Ward 10 commenced February 6, 1981, less than one.year before the upcoming election on September 8, 1981. Appellee’s nominating petition was originally validated and approved by the Board of Elections. On July 6, 1981, a protest was filed with the Board of Elections on the ground that he had not been a resident of Ward 10 for the past year. The Board allowed the protest and refused to place appellee’s name on the primary ballot for the September election. Appellee was, of course, eligible to run for one of the at-large seats since he has resided in Akron for over one year.

The District Court declared the entire one-year durational residency requirements of both charter and statute unconstitutional although only the ward residency requirement was implicated. Appellee’s name was ordered placed on the primary ballot. The City of Akron requested and received an injunction from a judge of this Court pending decision of the case on its merits. The case was set before this panel for immediate disposition.

Section 28(1) of the Charter of Akron provides:

1. The Council shall consist of thirteen (13) members, ten (10) of whom shall be elected by wards and three (3) of whom shall be elected by the electors of the City at large. All Councilmen shall have resided in the City of Akron for at least one year next preceding their election, and each ward Councilman shall have resided in his ward for at least one year next preceding his election. A vacancy in the Council shall be caused by the change of residence of a Councilman-at-large from the City, or ward Councilman from his ward. One member of Council shall be elected from each ward.

Section 731.02 of the Ohio Revised Code provides:

Members of the legislative authority at large shall have resided in their respective cities, and members from wards shall have resided in their respective wards, for at least one year next preceding their election. Each member of the legislative authority shall be an elector of the city, shall not hold any other public office, except that of notary public or member of the state militia, and shall not be interested in any contract with the city, and no such member may hold employment with said city. A member who ceases to possess any of such qualifications, or removes from his ward, if elected from a ward, or from the city, if elected from the city at large, shall forthwith forfeit his office.

The District Court relied upon this Court’s decision in Green v. McKeon, 468 F.2d 883 (6th Cir. 1972). That case, decided in 1972, held unconstitutional a two-year residency requirement for eligibility for elective office of the Charter of the City of Plymouth, Michigan. The Court applied strict scrutiny because the provision “operate[d] to penalize the exercise of the basic constitutional right to travel.” Id. at 884. Finding a two-year requirement to be unsuited to the City’s goals because it was both underinclusive and overinclusive, the Court struck down the charter provision.

Two subsequent summary affirmances by the Supreme Court holding that seven year durational residency requirements are not violative of the equal protection clause require that we hold Green is no longer controlling precedent and that we reverse the District Court. In Sununu v. Stark, 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 434 (1975), aff’g 383 F.Supp. 1287 (3-judge panel, D.N.H.1974), the Court affirmed a decision which held that a seven year residency requirement for state senator was constitutional. And in Chimento v. Stark, 414 U.S. 802, 94 S.Ct. 125, 38 L.Ed.2d 39 (1973), aff’g 353 F.Supp. 1211 (3-judge panel, D.N.H. 1973), a similar seven year requirement for governor was upheld. While it is true that summary affirmances must be read with care, there can be no doubt that these recent cases hold that some durational residency requirements are constitutionally permissible. Such summary dispositions extend only to “the precise issues presented and necessarily decided by those actions,” Metromedia, Inc. v. City of San Diego,U.S. -, -, 101 S.Ct. 2882, 2888, 69 L.Ed.2d 800 (1981). That some durational residency requirements are constitutional was essential to disposition of these cases. Thus we are of the opinion that these recent Supreme Court affirmances control the outcome of the present controversy. In each case both infringement of the right to travel and equal protection violations were raised. Although it is not possible to determine on what basis the cases were affirmed it was necessary to reject both to affirm. Chimento and Sununu, supra, indicate that even seven years is a sufficiently tailored standard to be upheld by the Supreme Court.

We perceive no substantive difference between the governmental interests asserted in those cases and the interests claimed by the City of Akron, including the interests claimed on behalf of its wards, in the present controversy. While it is true that the office of ward councilman is less powerful than either governor or state senator, this is a difference of degree. The smaller governmental unit is equally entitled to protect its smaller self. The interests of the governmental instrumentality are identical in both cases. It may be that the means employed to effectuate those interests will differ depending on the importance of the elective position since the interests of the governmental unit in knowledgeable candidates and knowledgeable voters may be served by differing lengths of durational residency requirements.

Additionally, the post-Green decisions of the Supreme Court indicate that not every restriction on the right to travel automatically compels application of the strictest scrutiny.¹ Only those classifications which serve to “penalize” the exercise of that right trigger the compelling state interest test. Memorial Hospital v. Maricopa Co., 415 U.S. 250, 256, 94 S.Ct. 1076, 1081, 39 L.Ed.2d 306 (1973). As the Court stated in Sosna v. Iowa, 419 U.S. 393, 406, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1974), its most recent “travel” case, “none of those cases [Supreme Court travel cases] intimated that the States might never impose durational residency requirements, and such a proposition was in fact expressly disclaimed.” (Footnote omitted). Since in the instant case the benefit denied is not itself a fundamental right (such as voting) nor a basic necessity of life (such as welfare benefits for the poor), the compelling state interest test is inappropriate.

Restrictions on candidates, as opposed to voters, do not always demand compelling state interest analysis.

[T]he Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. . . . Rather, the Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose. The existence of such barriers does not of itself compel close scrutiny. In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters. (Emphasis supplied; citations omitted).

Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855, 31 L.Ed.2d 92 (1972).

Bullock held that laws affecting candidates must be “ ‘closely scrutinized’ and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.” Id. at 144, 92 S.Ct. at 856. Employing this lesser standard we hold that the one year durational residency requirement of the City of Akron is reasonably necessary to effectuate an important municipal interest. See Joseph v. City of Birmingham, 510 F.Supp. 1319 (E.D. Mich.1981).

Finally, even if we were to require the City of Akron to meet the compelling state interest test, we find that test satisfied in the present case. See Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976); Hadnott v. Amos, 320 F.Supp. 107 (M.D.Ala.1970), aff’d mem., 401 U.S. 968, 91 S.Ct. 1189, 28 L.Ed.2d 318 (1971); Joseph, supra.

The judgment of the District Court is reversed.

1 . Appellee’s alleged travel infringement centers on his recent move from one Akron ward to another. No interstate travel is involved in the present case. The right to travel is, therefore, minimally involved. Sununu, supra, at 1293. Furthermore, the Supreme Court has indicated that candidate restrictions are to be examined “in a realistic light” to determine “the extent and nature of their impact on voters.” Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 856, 31 L.Ed.2d 92 (1972). Appellee was eligible to run city-wide; those voters wishing to support him could have done so in that manner.