The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5140

February 14, 1977

CIVIL RIGHTS:

Equal Protection Clause

HUSBAND AND WIFE:

Disabilities of one spouse attributed to another

ADMINISTRATIVE LAW AND PROCEDURE:

Rule attributing disability of one spouse to another

RACES AND RACING:

Rule attributing disability of one spouse to another

A Racing Commissioner rule which provides that the suspension or exclusion of either husband or wife shall apply to both husband and wife is invalid because it unduly infringes upon freedom of personal choice without a compelling state interest.

Mr. F. F. Fauri

Racing Commissioner

485 South Main

Plymouth, Michigan 48170

You have asked for my opinion as to the legality of Administrative Code 1961, AACS, R 431.32(b)(40) of the Harness Racing Rules of the Michigan Racing Commissioner which provides:

'Suspension or exclusion of either husband or wife shall apply in each instance to both husband and wife.'

Under the commissioner's rules licensed participants such as drivers, trainers, and owners, may have their licenses suspended or revoked for violation of rules. Administrative Code, 1961 AACS, R 431.32(b)(37).

The above-cited rule, however, requires the automatic suspension or exclusion of a spouse, not on the basis of the individual's conduct, but upon the conduct of the spouse. The unfairness and arbitrariness of the rule may be demonstrated by the fact that it would apply to a person who married another who was suspended or excluded from Michigan racing prior to the date of the marriage and, conversely, would permit the non-offending spouse to avoid the effect of the rule by obtaining a divorce.

This rule, which provides for the suspension and exclusion of a person from racing activities for a violation committed by his or her spouse, is unconstitutional under the 14th Amendment to the U.S. Constitution. Such a result unduly infringes upon the freedom of personal choice protected by the 14th Amendment without a compelling state interest in matters of marriage and family life. See Cleveland Board of Education v LaFleur, 414 US 632; 94 S Ct 791; 39 L Ed2d 52 (1974).

Frank J. Kelley

Attorney General

(1) See also McCarthy v Secretary of State, ---- F Supp ---- (WD, Mich, August 27, 1976).