Lewis v. Gibbons

RONNIE L. WHITE,

Judge.

DISSENTING OPINION

I concur fully in the dissenting opinion authored by Judge Wolff. I write separately only to note two additional concerns I have with the principal opinion. First, the majority’s interpretation of the word “prior” is inadequate and unconvincing. Second, and more importantly, I have deep reservations about the majority’s lacklus*468ter treatment of Gibbons’ Equal Protection claim.1

While the majority states that “the purpose of the word ‘prior,’ read within the context of these statutes, includes within it the concept of immediacy, whether stated expressly or not,” the opinion curiously dodges a discussion as to the actual definition of the term “prior” and ignores the many examples where our legislature clearly chose to define other residency requirements with specific terms connoting immediacy. It is also noteworthy that the only precedent the majority cites in support of its interpretation of its implied meaning of the word “prior” are two employment law cases. Further, the failure of the parties in the three cited election-contest cases to raise the statutory-construction argument does not support the majority’s outcome-oriented decision.

The plain and ordinary meaning of the word “prior” is simply “preceding in time or order,” or “preceding temporarily, causally, or psychologically.”2 As Judge Wolff astutely noted, our legislature, on multiple occasions, has chosen to add the immediacy element to durational residency requirements. In this instance, our legislature did not add such an element, and it is not the province of this Court to rewrite the statute for duly elected representatives.

Another, perhaps more important concern, is the majority’s cursory conclusion that this case merits mere rational-basis review. It is true that candidacy is not always a fundamental right deserving heightened scrutiny. “Unfortunately, the right of a person to seek public office is one of the nebulous areas where strict scrutiny is sometimes applied and sometimes not.”3

Given that the “nebulous” nature of the level of analysis can lead to drastically different outcomes, the lack of careful treatment is curious. In this case, only two candidates seek an associate judgeship. The incumbent was not a resident of Knox County the year prior to becoming judge. The challenger was arguably (and in the opinion of all dissenters, unquestionably) a resident one year before he sought the judgeship. The two candidates — two separate classes — thus are treated differently under Missouri law.

In a challenge to a state election law, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments.4 The court then must:

identify and evaluate the precise interests put forth by the State as justifications for the burden imposed by its rule. *469In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights. Only after weighing all of these factors is the reviewing court in a position to decide whether a challenged provision is constitutional.5

The majority opinion is bereft of the careful analyses contemplated by the U.S. Supreme Court. Instead of determining the strength and validity of the State’s justifications for the statutes, the majority merely quotes Gibbons’ supposition that few governor’s appointees would accept an appointment to fill a vacancy. It is the opinion of this author that most qualified attorneys would accept the opportunity to be a judge, even knowing that opportunity would be short-lived. Nonetheless, by failing to determine and weigh the State’s justifications against the character and magnitude of the injury, the majority opinion ignores constitutional, precedential mandates.6 Even assuming, arguendo, that rational-basis analysis is applicable, the majority’s analysis of the Equal Protection claim is woefully deficient.

In sum, the principal opinion engages in statutory revision in plain opposition to this country’s core democratic principles, namely the right to participate in the elective process. By denying Gibbons his right to be on the ballot, the principal opinion allows Lewis to run unopposed. Because of the faulty interpretation of “prior” and because of the dangerous lack of consideration of constitutional principles, I dissent.

. A third potential problem is that it is questionable whether the claim was proper, given that Lewis -sued only Gibbons and not the authority responsible for placing his name on the ballot.

. American Heritage Dictionary 985 (2nd Col. Ed.1991); Webster’s Third International Dictionary 1804 (1961).

. Labor’s Educational and Political Club-Independent v. Danforth, 561 S.W.2d 339, 347 (Mo. banc 1977).

. Anderson v. Celebreeze, 406 U.S. 780, 789 (1983). See also e.g. Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); State ex rel. Coker-Garcia v. Blunt, 849 S.W.2d 81 (Mo.App.l993)(where case involves right of access to ballot, court reviews under "strict scrutiny"); Halbert v. Shelby County Election Comm’n, 31 S.W.3d 246, 249 (Tenn.2000)("The right to hold office is a valuable one and its exercise should not be declared prohibited or curtailed except by plain provisions of law.... Statutes imposing disqualifications are to be construed strictly, while those declaring qualifications are to receive a liberal construction. In consequence, ambiguities are to be resolved in favor of eligibility to office ...”).

. Id.

. In its intervening brief, the State treats the Equal Protection claim as a residency requirement against all candidates. In doing so, the State asserts the following interests in support of the statute: 1) it requires candidates to be familiar-with the local area; 2) it increases voter familiarity with candidates, 3) it discourages frivolous candidates. However, although these interests are asserted against all challenging candidates, they are not asserted against a judge appointed to fill a short vacancy who then chooses to run for retention. As noted supra, the Equal Protection analysis is necessary because some candidates are subjected to the residency requirement and some are not.