October 19, 2000
Re:
Qualifications for Public Office
You have requested an opinion from MTAS on what you should do since a candidate for
public office is in arrears for payment of taxes. You sent a copy of Section 4(b) of your charter
that states:
Furthermore, no one domiciled in the town shall be eligible to run for or hold the
office of mayor or alderman if at the time of qualification for such election said
candidate owes the town real estate taxes more than one (1) year in arrears.
While I agree with you about the ”plain meaning” of the language quoted, I cannot agree that you
should take any action on it, as the language may be unconstitutional.
The "right to run for office is seen as a fundamental right and restrictions upon it can be
constitutionally permissible only where they serve a compelling state interest". McQuillin,
Municipal Corporations, 3rd Ed., Vol. 3, ' 12.58, page 295. Whenever the courts consider the
right to be a fundamental right, then they apply the most stringent review of the restriction being
imposed, known as strict scrutiny. This means that the government must prove that the
restriction is absolutely necessary to further an extremely important purpose.
The first question to ask then, is what purpose is furthered by requiring a candidate to be
current in his or her payment of property taxes? Since there are other remedies available to
compel payment of the taxes, it is highly doubtful that any legitimate, much less compelling, state
interest is served by the requirement of being paid up for property tax. I cannot imagine any
reason for this requirement that could be put forth to justify the interference with the fundamental
right of running for office.
There is a long line of cases including the United States Supreme Court case of Turner
v. Fouche, 396 U.S. 346 (1970) and Quinn v. Millsap, 491 U.S. 95 (1989), which have decided
on several “requirements” for a candidate for public office. For example, the courts have found
there is no "compelling" purpose served by requiring a candidate to own property, and that such
a requirement violates the equal protection clause of the Fourteenth Amendment.
There are some qualifications for holding public office that are considered reasonable,
such as being a resident of the city or ward for a particular period of time. Obviously, one cannot
be familiar with or vested with the same degree of concern or interest in local government if they
are not a resident of that local government. Similarly, certain age requirements are upheld as
reasonably ensuring that persons with a certain level of maturity and experience are in positions
of leadership.
The requirement you have asked about would not withstand legal challenge and should
not be enforced.
Please let me know if you need additional information.
Sincerely,
Donna M. Leydorf
Legal Consultant