Motion to Dismiss — Meyers v. Roberts

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In THE IAN

Supreme Court of the United ites

October Term, 1976

No. 76-830

DAVID W. MEYERS and PAUL L. KEGEL,

Appellants,

vs.

KEN W. ROBERTS, COUNTY AUDITOR OF

NOBLES COUNTY, MINNESOTA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF MINNESOTA

APPELLEE’S MOTION TO AFFIRM

OR DISMISS

WARREN SPANNAUS

Attorney General

State of Minnesota

RICHARD B. ALLYN

Solicitor General

515 Transportation Building

St. Paul, Minnesota 55155

Telephone: (612) 296-2961

HARRIS I. DARLING

Nobles County Attorney

912 Third Avenue

Worthington, Minnesota 56187

Telephone: (507) 372-2974

Attorneys for Appellee

224-7631 — Review Publishing Co., 287 E. 6th St., St. Paul, Minn. 55101 — 224-7631

TABLE OF CONTENTS

PAGE

_ Appellee’s Motion To Affirm Or Dismiss 1

Opinions Below _. | 2

Jurisdiction _. : , 5 a 2

Question Presentdgd , 2

Constitutional Provisions Involved a 2

Z 3

Argument aie ig 9 3

I. The age requirement of the Minnesota Constitu-

tion, Article VII, Section 6, does not violate the

Equal Protection clause. 1 4

II. Article VII, Section 6, of the Minnesota Constitu-

tion does not violate the Twenty-sixth Amendment. 7

Conclusion PRA ay Da EN One TD 8

TABLE OF AUTHORITIES PAGE

PAGE Constitutional Provisions :

Cases: United States Constitution, Amendment XIV,

Adams v. Sikew, 511 F.2d 700 (5th Cir. 1975) 4 Section 1 2

Blassman v. Markworth, 359 F. Supp. 1 United States Constitution, Amendment XXVI,

(N.D. Ill. 1973) 4,7 Section 1 2

Bullock v. Carter, 405 U.S. 134, 92 8. Ct. 849, Minnesota Constitution, Article VII,

31 L. Ed. 2d 92 (1972) 4, 5 Section 6 2, 3, 4, 7

Dunn v. Blumstein, 405 U.S. 330, 92 8. Ct. 995,

31 L.Ed.2d 274 (1972) 4

Hicks v. Miranda, 422 U.S. 332, 95 S. Ct. 2281,

45 L.Ed.2d 223 (1975) 6

Human Rights Party v. Secretary of State for Mich-

igan, 370 F. Supp. 921 (E. D. Mich. 1973), aff'd.,

414 U.S. 1058 (1973) 4

Jude v. Erdahl, 296 Minn. 200, 207 N. W. 2d 715 (1973) 7

Kramer v. Union Free School District, 395 U.S. 621,

89 S. Ct. 1886, 23 L.Ed.2d 583 (1969) 4

Lubin v. Panish, 415 U.S. 709, 94 S. Ct. 1315,

39 L.Ed.2d 702 (1974) . 5

Massachusetts Board of Retirement v. Murgia,

— US. . S. Ct.

49 L. Ed. 2d 520 (1976) 6

Shapiro v. Thompson, 394 U.S. 618,

89 S. Ct. 1322, 22 L. Ed. 2d 600 (1968) 4

Spencer v. Board of Education, 39 App. Div. 2d 399,

334 N. V. S. 2d 783, af f d., 31 N. V. 2d 810,

339 N. V. S. 2d 461 (1972) 7

Wade v. Waller, 402 F. Supp. 922 (N. D. Miss. 1975)

Whitehead v. Westbrook, 423 U.S. 962 (1975) 6

—

ii iii

IN THE

Supreme Court of the United States

October Term, 1976

No. 76-830

DAVID W. MEYERS and PAUL L. KEGEL,

Appellants,

vs.

KEN W. ROBERTS, COUNTY AUDITOR OF

NOBLES COUNTY, MINNESOTA,

Appellee.

ON APPEAL FROM THE SUPREME COURT OF MINNESOTA

APPELLEE’S MOTION TO AFFIRM

OR DISMISS

Appellee moves the Court to dismiss this appeal or, alterna-

tively, to affirm the judgment of the Minnesota Supreme

Court in this matter on the grounds that the appeal does not

present a substantial federal question requiring further argu-

ment, and was correctly decided below.

OPINIONS BELOW

The opinion of the Minnesota Supreme Court in this case

is reported at 246 N.W.2d 186 and set out at pages la-13a of

Appellants’ Jurisdictional Statement. The unreported opinion

of the Nobles County Dis*rict Court is set out at pages 14a-

18a of Appellant’s Jurisdictional Statement.

JURISDICTION

The jurisdictional requirements are adequately set forth

in the Jurisdictional Statement.

QUESTION PRESENTED

1. Does Article VII, § 6 of the Minnesota Constitution vio-

late Amendment XIV, § 1, or Amendment XXVI, § 1 of the

United States Constitution?

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment XIV, § 1 of the United States Constitution pro-

vides :

. . . No state shall. .. deny to any person within its

jurisdiction the equal protection of the laws.

Amendment XXVI, § 1 of the United States Constitution

provides:

The right of citizens of the United States, who are

eighteen years of age or older, to vote shall not be denied

or abridged by the United States or by any State on ac-

count of age.

Article VII, § 6 of the Minnesota Constitution provides:

Every person who by the provisions of this article shall

San” —

? Sap

be entitled to vote at any election and is twenty-one years

of age shall be eligible to any office which now is, or here-

after shall be, elective by the people in the district where-

in he shall have resided thirty days previous to such elec-

tion, except as otherwise provided in this Constitution,

or the Constitution and law of the United States.

STATEMENT

Appellee agrees with the appellants’ rendition of the stipu-

lated facts of this case.

ARGUMENT

Article VII, §6 of the Minnesota Constitution requires of-

fice holders in Minnesota, with certain exceptions, to be eligi-

ble voters, 21 years of age or older, and to reside in the district

from which they are elected for 30 days. Appellant Meyers

was not eligible to hold the office of Nobles County Court

Commissioner under this provision because he was not 21

years old when he was elected or when he would have assumed

office. In this appeal, appellants contend that this age require-

ment violates both appellant Meyers’ right to hold office and

appellant Kegel’s right to vote under the Fourteenth and

Twenty-Sixth Amendments to the United States Constitution.

Appellee submits that the arguments advanced by appellants,

whether considered from the vantage point of the right to hold

office or the right to vote, are wholly without merit and that

the decision of the Minnesota Supreme Court in this case is

correct. This Court should therefore dismiss the appeal or, al-

ternatively, affirm the decision below.

I. THE AGE REQUIREMENT OF THE MINNESOTA

CONSTITUTION, ARTICLE VII, SECTION. 6, DOES NOT

VIOLATE THE EQUAL PROTECTION CLAUSE.

The preliminary step in any Equal Protection case is to de-

cide what standard the attacked provision should be judged

under. In cases affecting “fundamental interests”, the provi-

sion should be examined under the so-called “compelling state

interest” test. In other cases, the provision should be judged

under the “rational relationship” test. Shapiro v. Thompson,

394 U.S. 618 (1968) ; Dunn v. Blumstein, 405 U.S. 134 (1972).

This Court has clearly held that the right to run for public

office is not a fundamental right, and the strict scrutiny test

should therefore not apply to this aspect of the case. Bullock

v. Carter, 405 U.S. 134 (1972).?

In cases involving the right to cast a ballot a further delinea-

tion must be made in order to decide upon the appropriate

standard for review.

[I]f a challenged state statute grants the right to vote

to some bona fide residents of requisite age and citizen-

ship and denies the franchise to others, the Court must

determine whether the exclusions are necessary to pro-

mote a compelling state interest.

Kramer v. Union Free School District (emphasis added), 395

U.S. 621, at 627 (1969). If, on the other hand, the challenged

provision does not disenfranchise some voters, but only im-

1 See also: Adams v. Sikew, 511 F.2d 700 (5th Cir. 1975); Blassman

V. Markworth, 359 F. Supp. 1 (N.D. III. 1973); Wade v. Waller, 402

F. Supp. 922 (N. D. Miss. 1975); Human Rights Party v. Secretary of

State for Michigan, 370 F. Supp. 921 (E.D. Mich. 1973), aff'd. 414

U.S. 1058 (1973).

pedes their right to vote for a particular candidate or candi-

dates, it must only satisfy the rational relationship test. Lwbin

v. Panish, 415 U.S. 709 (1974); Bullock v. Carter, supra.

Here, there has been no restriction placed on appellant

Kegel’s right to vote. The only damage done to his franchise

is that the candidate he favors is ineligible to hold office.? The

case should therefore be judged under the rational relationship

standard.

The Minnesota Supreme Court found that a rational rela-

tionship did exist between the challenged constitutional provi-

sion and a legitimate state interest in this case.

Minnesota has a legitimate interest in assuring that

those who hold public office possess maturity, experience,

and competence. Virtually the only way to accomplish this

objective is to set a minimum age for holding office. It

would not be feasible to conduct a hearing on the maturi-

ty, experience, and competence of each aspirant to public

office, and such an individualized procedure might well

run afoul of other constitutional guarantees, Having con-

cluded that the establishment of a minimum age is neces-

sary to insure the fitness of those who hold office in Min-

nesota, it ollows that the attending discrimination be-

tween those candidates who are over the minimum age

and those aspirants to office who are younger than the

minimum age is reasonably necessary to the accomplish-

ment of legitimate state objectives.

2 A similar sort of restriction would exist if the candidate appellant

Kegel favored were dead, or had a criminal record, or lived outside

the election district.

(Pages 5a-6a of the Jurisdictional Statement.) Appellants do

not dispute this conclusion; instead, they argue that while

Article VII, § 6, may satisfy the rational relationship test,

it cannot satisfy a more narrow standard.* However, as

previously demonstrated, there has been no significant limi-

tation placed on the right to vote in this case, and the more

narrow standard of review demanded by appellants is there-

fore inapplicable.

Finally, this Court has recently recognized that the rational

relationship test applies to cases of age discrimination. See:

Massachusetts Board of Retirement v. Murgia, US. —,

49 L.Ed.2d 520 (1976) ; Whitehead v. Westbrook, 423 U.S. 962

(1975).“

3 Jurisdictional Statement, pp. 11-12.

4 Appellants try to distinguish Whitehead, which upheld an Arkan-

sas statute making 30 the minimum age for holding a city office,

on the basis of the phrasing of the questions presented. See Juris-

dictional Statement, p. 20, and 43 U.S.L.W. 3109 (Sup. Ct. Ed., Aug.

26, 1975). While the case is perhaps different as a matter of form,

as a matter of substance it is indistinguishable from this one, and

the Court's summary affirmance in Whitehead should dictate a

similar result here. Hicks v. Miranda, 422 U.S. 332 (1975).

II. ARTICLE VII, § 6, OF THE MINNESOTA CONSTI-

TUTION DOES NOT VIOLATE THE TWENTY-SIXTH

AMENDMENT.

The Twenty-Sixth Amendment guarantees the right to vote

to every United States citizen eighteen years of age and older

and not otherwise ineligible. Its terms plainly do not guarantee

those same persons the right to hold public office. Yet appel-

lants in this case contend that the amendment does do that on

the basis that its use of the term “‘age” refers to the age of can-

didates for office as well as the age of the voters themselves.

Appellants offer no significant support for their novel in-

terpretation of this amendment. As a matter of fact, what case

law there is on the amendment denies any correlation between

its protection of the right to vote and a right to hold public

office. Blassman v. Markworth, supra; Jude v. Erdahl, 296

Minn. 200, 207 N.W.2d 715 (1973); Spencer v. Board of Edu-

cation, 39 App. Div. 2d 399, 334 N.Y.S.2d 783, aff’d., 31

N.Y.2d 810, 339 N.Y.S.2d 461 (1972).

The Twenty-Sixth Amendment does express a recent na-

tional policy favoring political participation by 18-21 year

olds. However, it does not guarantee that participation

through the process of holding public office. Such a guarantee,

if it is to be made, should come through legislative action or

by the process of constitutional amendment, not through judi-

cial action.

CONCLUSION

The age requirement of the Minnesota Constitution for hold-

ing public office does not unconstitutionally impede the right

to vote or the right to hold public office. It is a rational means

of furthering a legitimate state objective—assuring that office

holders possess certain minimal qualifications. The decision

of the Minnesota Supreme Court on this subject was therefore

entirely correct and this Court should therefore affirm that

decision or, alternatively, dismiss this appeal for want of a

substantial federal question.

Respectfully submitted,