Statutory residency requirement to serve in elective office held constitutional
Matter of Walsh v Katz, 2011 NY Slip Op 04545, Court of Appeals
The relevant statute providing for the election of a town justice for Fisher's Island, Suffolk County, provides, in relevant part, for "… one town justice who shall reside upon Fisher's island in said town … such town justice residing upon Fisher's island shall, in addition to his duties as town justice, serve as a member of the Southold town board."
In July 2009, Daniel C. Ross, a resident of Southold but not a resident of Fisher's Island, filed a petition designating himself a candidate in the September 2009 primary election for the nomination of the Democratic Party as its candidate for the Fisher's Island town justice/town board member seat.
Arthur J. Walsh and Nina J. Schmid — residents of Fisher's Island — filed objections to Ross’s designating petition, alleging that it was invalid because Ross did not meet the residency requirement.
The Board of Elections denied the objections and upheld the designating petition whereupon Walsh and Schmid initiated a lawsuit seeking to prohibit the BOE from placing Ross's name on the ballot. Ross counterclaimed and, in effect, cross-petitioned to validate the designating petition, challenging, among other things, the constitutionality of the residency requirement.
Subsequently the Appellate Division upheld the constitutionality of the statute on equal protection grounds (66 AD3d 1052) holding that a rational basis standard was applicable, and that a rational basis exists to support the Legislature's determination that the fifth town justice/town board member for Southold should be a resident of Fisher's Island.*
Although Ross lost the November 2009 general election, the Court of Appeals said that this action presents a live controversy. Supreme Court converted and continued Ross's constitutional claims as a declaratory judgment action, and the Appellate Division decided the constitutional issues. Though no longer a candidate, Ross is a voter who claims that his right to vote is being unconstitutionally burdened.
The Court of Appeals affirmed the Appellate Division’s ruling, holding that the Fisher's Island residency requirement satisfies the rational basis test, explaining that in considering an equal protection challenge to a state election law a court must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."
The direct impact of the Fisher's Island residency requirement is not on one's right to vote, but on an individual's right to be a candidate for public office. The residency requirement here challenged did not require a candidate to be a resident of Fisher's Island prior to commencement of his or her term of office. In other words, said the court, “the winner of the town justice/town board position does not need to establish residency on Fisher's Island until the beginning of his/her term, and must only retain that residency for the duration of the term.”
Accordingly, any Town of Southold, Suffolk County resident who would otherwise be eligible to run for political office may run for the Fisher's Island seat.
The Court of Appeals also noted that the United States Supreme Court stated a “basic teaching of representative government … that elected officials represent all of those who elect them, and not merely those who are their neighbors," citing Dusch (387 US 112, Dallas County, Alabama v Reese (421 US 477) and Fortson v Dorsey, 379 US 433.
As the Fisher's Island seat is subject to a town-wide vote, the individual elected to fill the seat represents the entire town, not just the residents of Fishers Island. Accordingly, said the court, “Ross's contention that the residency requirement gives the people of Fishers Island a permanent advantage of greater representation is unavailing.”
* With respect to Supreme Court's ruling that the prevailing candidate need not abide by the residency requirement until 30 days after beginning his or her term of office, the Appellate Division modified Supreme Court's order by holding that, in this instance January 1, 2010, was the appropriate date by which a candidate had to meet the residency requirement.
The decision is posted on the Internet at: