concurring in the judgment.
I agree with Judge Ziegler that the requirement of the Charter of the City of Rehoboth Beach (City) that candidates for commissioners must be “non-delinquent taxables” of the City cannot be sustained against constitutional attack. However, I reach that decision by a somewhat different route from that traveled by Judge Ziegler.
The Charter provision in question reads:
Section 3.
(a) The government of The City and the exercise of all power conferred by this Charter, except as otherwise provided herein, shall be vested in The Commissioners of Rehoboth Beach. The Commissioners of Rehoboth Beach shall consist of seven (7) members, to be chosen as hereinafter provided. One of said Commissioners shall have the title of Mayor of The City of Rehoboth Beach, with duties hereinafter to be prescribed, and who shall also be President of The Commissioners of Rehoboth Beach. Each of the seven (7) Commissioners of Rehoboth Beach, at the time of the approval of his qualifications by The Commissioners as hereinafter provided or at the time of his appointment as the case may be, and throughout his term of office, shall have attained the age of twenty-one (21) years of age, be a non-delinquent taxable of The City and a freeholder of The City. Three (3) of the said Commissioners shall reside outside the corporate limits of The City and three (3) of said Commissioners shall be bona fide residents of The City. The Commissioner with the title of Mayor of The City of Rehoboth Beach shall also be a bona fide resident of The City. If any one of The Commissioners, shall, during his term of office, cease to be a freeholder of The City, he shall ipso facto vacate his office. If any one of the resident Commissioners or if The Commissioner with the title of Mayor of The City of Rehoboth Beach shall cease during his term of office to be a bona fide resident of the City of Rehoboth Beach, he shall ipso facto vacate his office. If any one of the nonresident Commissioners shall become a resident of The City by reason of moving within the corporate limits of The City or by annexation or otherwise, he shall, ipso facto, vacate his office. The Commissioners shall be the judges of the qualifications of their members. For all purposes of this Charter, a “freeholder” shall be deemed to include any person who holds fee simple title to real property in his own name, or who holds title to an undivided interest in real property or who holds title to real estate as a tenant by the entirety.
App. at A-118.
In 1981, the City excluded Deibler’s name from the ballot in an election of City *338Commissioners because he was not a “non-delinquent taxable,” since it was found that he owed $264 in property tax. Deibler's complaint challenges that action as unconstitutional under both the First Amendment and the Equal Protection Clause of the United States Constitution and seeks a declaratory judgment to that effect in addition to damages.
It is axiomatic that courts “do not review issues, especially constitutional issues, until they have to.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 154-55, 71 S.Ct. 624, 639-40, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring). It follows that if the “non-delinquency” requirement cannot withstand an Equal Protection challenge, it is not necessary for this court to engage in a consideration of Deibler’s First Amendment challenge. A First Amendment analysis is particularly tenuous in this case in light of the ambiguous nature of the record on certain relevant facts. If, in fact, Deibler were, as he presents himself in his brief, a representative of “part of an organization of business people, Rehoboth Concerned Taxpayers Association, that has been ‘striving for fairer treatment in the paying of taxes and mercantile licenses’ ”, and if this group “had put some of the money they owed the City in common escrow accounts,” Appellant’s brief at 8, as a “protest”, then the non-delinquent requirement might burden access to the political process “by those outside the ‘mainstream’ of political life.” See Clements v. Fashing, 457 U.S. 957, 964-65, 102 S.Ct. 2836, 2844-45, 73 L.Ed.2d 508 (1982) (plurality opinion); Anderson v. Celebrezze, 460 U.S. 780, 793-95, 103 S.Ct. 1564, 1572-73, 75 L.Ed.2d 547 (1983). In this case, however, we do not have any findings by the district court on the associational interests, if any, involved, because the First Amendment claim was not given as a basis for summary judgment. Instead, the district court focused entirely on plaintiff’s Equal Protection claim. In this posture, I see no reason for this court to address the First Amendment issue.
Moreover, the need to restrict constitutional analysis to that which is absolutely necessary also cautions us to resist deciding whether a fundamental right is implicated if the classification cannot withstand analysis even under the rational basis test of the Equal Protection Clause. The Supreme Court engaged in precisely such restraint in Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970), when it declined to decide whether Georgia had a “compelling” interest in support of its freeholder requirement for school-board membership because it concluded that “the Georgia freeholder requirement must fall even when measured by the traditional test for a denial of equal protection: whether the challenged classification rests on grounds wholly irrelevant to the achievement of a valid state objective.” Id. at 362, 90 S.Ct. at 541. The level of scrutiny to be applied to restrictions on the right of candidacy is a sufficiently unsettled area that I would hesitate to reject the possibility of some heightened scrutiny. Since I conclude that the non-delinquency requirement does not survive even the rational relation test, I see no need to reach any other inquiry.
Finally, unlike Judge Ziegler, I do not believe that Deibler’s status as a nonresident is irrelevant. On the contrary, I believe that the City’s efforts to distribute its commissioners among residents and nonresidents alike is a crucial element in our analysis of the permissibility of the non-delinquent taxpayer requirement.
I agree with the district court and Judge Weis, who dissents, that even though the Supreme Court has not issued a definitive holding on the issue, it would be constitutionally permissible to limit candidacy to those persons resident of the state or municipality. Cf. Holt Civic Club v. Tuscaloosa, 439 U.S. 60, 99 S.Ct. 383, 58 L.Ed.2d 292 (1978) (approving voter residency requirement). I disagree with their reasoning that because a community permits nonresidents to be candidates as a matter of legislative grace, it may burden the nonresident’s candidacy with restrictions that may be otherwise impermissible. The Supreme Court has categorically rejected the “bitter *339with the sweet” approach in the due process context. In Cleveland Board of Education v. Loudermill, — U.S. -, 105 S.Ct. 1487, 1493, 84 L.Ed.2d 494 (1985), it held that the legislature’s grant of a substantive right which it was not compelled to provide did not give the legislature the prerogative to impose unlimited conditions upon the exercise of the right. I believe that analogous reasoning would apply here. The City’s commendable effort to enfranchise nonresidents and to insure nonresidents’ participation in the leadership of the City does not ipso facto permit conditioning nonresident candidacy on tax non-delinquency.
“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.” Turner v. Fouche, 396 U.S. at 362-63, 90 S.Ct. at 541-42. Thus, we must inquire whether tax non-delinquency is a legitimate condition for candidacy in general, and, if not, whether there is something particular about nonresidents’ candidacy that justifies application of this condition only to them.
The district court did not suggest that the non-delinquency condition would be permissible when applied to all candidates. After concluding that “being current in the payment of one’s taxes is sufficiently underinclusive and overexclusive as a classification that it would not pass constitutional muster if strict scrutiny were the required test,” it held that the condition passed the rational relation test because the “non-delinquent distinction is being applied in the context of a class consisting solely of nonresident, real property owners.” App. at A-205. It is clear from the district court’s opinion that the key for it was the application of the non-delinquency condition only to nonresident property owners. Similarly, Judge Weis in his dissent limits his approval of the non-delinquency condition as one that may be imposed only on nonresidents. The City itself proffers no justification for non-delinquency as a generally applicable condition and, in fact, in oral argument advised the court that it is presently enforcing neither the freeholder requirement nor the non-delinquency requirement with respect to its resident commissioners.
The traditional candidacy requirements such as age and durational residence have been sustained on the basis of their relationship to the legitimate concerns of ensuring that public office holders are mature enough to deal with public affairs responsibly and effectively, see, e.g., Human Rights Party of Ann Arbor v. Secretary of State For Michigan, 370 F.Supp. 921, 924 (E.D.Mich.), aff'd mem., 414 U.S. 1058, 94 S.Ct. 563, 38 L.Ed.2d 465 (1973) (requirement that school board candidates be 18 years old), or ensuring the candidates’ familiarity with local affairs and exposure to long-term voter scrutiny, see, e.g., Sununu v. Stark, 383 F.Supp. 1287, 1290-91 (D.N.H.1974), aff'd mem., 420 U.S. 958, 95 S.Ct. 1346, 43 L.Ed.2d 435 (1975) (7 year residence requirement for state senatorial candidates).
However, the Supreme Court held a freeholder requirement for school-board membership to be irrational because, inter alia, “the lack of ownership of realty [does not] establish a lack of attachment to the community and its educational values.” Turner v. Fouche, 396 U.S. at 364, 90 S.Ct. at 542. The Court continued, “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.” Id. Applying similar analysis here, I agree with Judge Ziegler that the non-delinquency condition does not rationally relate to the two interests advanced by the City, concern for the community and public respect for city government. In determining qualifications for resident candidates, the City may not presume those qualities are necessarily wanting in all persons delinquent in their property taxes. Moreover, I am concerned that the reasons given may not themselves be legitimate government interests because they imply an inappropriate meddling in the quality of the candidate, an issue tradi*340tionally left to the electorate. Cf. Communist Party of Indiana v. Whitcomb, 414 U.S. 441, 94 S.Ct. 656, 38 L.Ed.2d 635 (1974) (statutory requirement that candidates abjure advocacy of the overthrow of the government by force or violence held to violate the First Amendment).
On the other hand, I believe that a community that opens participation in its political process to nonresidents can limit that participation to persons with some attachment to the community. This may present one of those rare “other circumstances” referred to in Turner v. Fouche “in which a property qualification for office-holding could survive constitutional scrutiny,” 396 U.S. at 364, 90 S.Ct. at 542, as long as the City provided a comparable opportunity to nonresident candidates without the economic means to be freeholders, such as one based on a record of consistent seasonal renting or employment. Cf. Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (state must provide alternative to filing fees for indigent candidates).
A residency requirement is legitimate because it shows an attachment to the community. A residency requirement for voters has been justified because it “may be necessary to preserve the basic conception of a political community,” Dunn v. Blumstein, 405 U.S. 330, 344, 92 S.Ct. 995, 1004, 31 L.Ed.2d 274 (1972), and the same rationale may be applied equally to candidates. It follows that a City that permits nonresident candidates may impose a condition that serves as a legitimate substitute for residency to show the genuineness of community attachment.
The difficulty with non-delinquency as a condition is that it does not serve as a legitimate substitute for residency. Using analysis similar to that applied by the Court in Turner v. Fouche, supra, even if we assume that nonresident freeholders who are not tax delinquent have an attachment to the community, we may not rationally presume such an attachment is wanting in those who are tax delinquent. The nexus between non-delinquency and attachment to the community is no stronger for nonresident candidates than it is for resident candidates.
For those reasons, I believe the district court erred in sustaining the constitutionality of the non-delinquency condition for nonresident candidates, and I join in the judgment reversing the grant of summary judgment to the City.