Brewster v. Johnson

541 S.W.2d 306, 260 Ark. 450, 1976 Ark. LEXIS 1820
CourtSupreme Court of Arkansas
DecidedOctober 4, 1976
Docket76-276
StatusPublished
Cited by8 cases

This text of 541 S.W.2d 306 (Brewster v. Johnson) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewster v. Johnson, 541 S.W.2d 306, 260 Ark. 450, 1976 Ark. LEXIS 1820 (Ark. 1976).

Opinion

Conley Byrd, Justice.

The trial court found as a fact that appellant Eddie L. Brewster had not been a resident of District 54 (being a part of Jefferson County) for one year next preceding the date of election as required by Article 5, § 4 of the Arkansas Constitution and directed the Secretary of State to omit appellant’s name from the official list of candidates to be certified to the Jefferson County Election Commission. For reversal appellant contends that the “durational requirements” of Article 5, § 4 of the Constitution of Arkansas are invalid under the Equal Protection Clause, abridge his fundamental right to travel, and infringe his fundamental right to vote as possessed by the electorate of the State. He also contends that the trial court erred in holding that he had not been an elector of District 54 for the required time.

The record shows that appellant was a student at the University of Arkansas at Pine Bluff from April 15, 1972 through the summer term of 1976. When he entered the University he listed his permanent mailing address as 608 Spruce Street, Augusta, Woodruff County, Arkansas, and he continued to do so through the Spring semester, registration which was held in January 1976. On May 31, 1976, while registering for the Summer semester he changed his permanent mailing address to 815 West Barraque Street, Apartment E., Pine Bluff, Arkansas. The same information appears in his own handwriting in his applications for financial aid in attending the University. It is also admitted that from May 30, 1972 through March 9, 1976 appellant was a registered voter and voted in Woodruff County in every election up through and including the March 9, 1976 election. Appellant first transferred his voter registration to Jefferson County on March 18, 1976. He has paid no taxes nor assessed any personal property taxes in Jefferson County until August 13, 1976. The petitions by which appellant seeks to run as an independent candidate for representative from District 54 were filed with the Secretary of State on April 6, 1976. It was stipulated that appellant would testify that he considered himself a resident since 1972.

In reviewing the findings of fact by the trial court on appeal we must affirm them if there is any substantial evidence to support such findings. On the record before us we cannot say that there is no substantial evidence to support the trial court’s finding that appellant was not a resident of District 54 for one year before the date of election.

For his contention that Article 5, § 4 contravenes the United States Constitution appellant principally relies upon Dunn v. Blumstein, 405 U.S. 330, 92 S. Ct. 995, 31 L. Ed. 2d 274 (1972), and the line of cases from California following Dunn v. Blumstein, supra, such as Thompson v. Mellon, 9 Cal. 3d 96, 107 Cal. Rptr. 20, 507 P. 2d 628 (1973) and Smith v. Evans, 42 Cal. App. 3d 154, 116 Cal. Rptr. 684 (1974).

Article 5, § 4 of the Arkansas Constitution provides:

“No person shall be a Senator or Representative who, at the time of his election, is not a citizen of the United States, nor any one who has not been for two years next preceding his election a resident of this State, and for one year next preceding his election a resident of the county or district whence he may be chosen. Senators shall be at least twenty-five years of age and Representatives at least twenty-one years of age.”

Requirements similar to those in the Arkansas Constitution, supra, can be found in the Constitutions of nearly every State, except Nevada. Only five states require less than a year. See table set out in Hayes v. Gill, 52 Hawaii 251, 473 P. 2d 872 (1970). The United States Constitution provides that “no person shall be a representative who shall not have .. . been seven years a citizen of the United States....” [Art. 1, § 2(2)] and a like provision of nine years is required of a Senator, Art. 1, § 3(3).

Dunn v. Blumstein, supra, involved durational residence laws for voter qualification. Before addressing itself to the merits of the durational residence law, Mr. Justice Marshall in writing for the majority of the court said:

“To decide whether a law violates the Equal Protection Clause, we look, in essence, to three things: the character of the classification in question; the individual interests affected by the classification; and the governmental interests asserted in support of the classification. . . .In considering laws challenged under the Equal Protection Clause, this Court has evolved more than one test, depending upon the interest affected or the classification involved. First, then, we must determine what standard of review is appropriate. In the present case, whether we look to the benefit withheld by the classification (the opportunity to vote) or the basis for the classification (recent interstate travel) we conclude that the State must show a substantial and compelling reason for imposing durational residence requirements.”

With respect to filing fee requirements for qualification of a candidate in a statutory party primary, Chief Justice Burger in speaking for the Court in Bullock v. Carter, 405 U.S. 134, 92 S. Ct. 849, 31 L. Ed. 2d 92 (1972), discussed the determination of the test to be applied in this language:

“The initial and direct impact of filing fees is felt by aspirants for office rather than voters, and the 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. Of course, not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review. McDonald v. Board of Election, 394 U.S. 802, 89 S. Ct. 1404, 22 L. Ed. 2d 739 (1969). ...”

The California Courts, Thompson v. Mellon, supra, have taken the position that in determining the validity of durational candidate qualifications to cities, the cities must show the same substantial and compelling reason for imposing durational residence requirements to candidate qualification that the United States Supreme Court applied to voter qualification. In applying that test to the durational qualifications, the court struck down a two year durational requirement for candidates for the office of city councilman. Justice Mosk, in a concurring opinion went farther by stating: . . indeed, all such durational residential requirements should be rejected because they can be justified solely on a paternalistic theory that the citizens of yesterday knew what is best for the governance of the citizens of today and tomorrow.” In a dissent Justice Burke stated his views of the test to be applied as follows:

“Initially, we must determine what standard governs in measuring the constitutionality of various restrictions imposed upon the right to run for public office.

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Bluebook (online)
541 S.W.2d 306, 260 Ark. 450, 1976 Ark. LEXIS 1820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewster-v-johnson-ark-1976.