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. 5512

July 10, 1979

ELECTIONS:

Residence of persons in mental institutions

MENTALLY DEFICIENT AND MENTALLY ILL PERSONS:

Residence of persons in mental institutions for the purpose of voting

CONSTITUTIONAL LAW:

Right of residents of a mental institution to determine residency for the purpose of voting

DEPARTMENT OF MENTAL HEALTH:

Right of residents of a facility operated by the Department of Mental Health to determine residency for the purpose of voting

A statute which prohibits a resident of a facility operated by the Department of Mental Health from exercising his or her right to change residency for the purpose of voting is unconstitutional.

Dr. Vernon Stehman, M.D.

Acting Director

Department of Mental Health

Lewis Cass Building

Lansing, Michigan

Your predecessor requested my opinion concerning the impact of Wilkens v Ann Arbor City Clerk, 385 Mich 670; 189 NW2d 423 (1971), upon 1977 PA 120, which amended MCLA 168.11(2); MSA 6.1011(2). The amended statute provides, in pertinent part:

'(2) An elector shall not be deemed to have gained or lost a residence by reason of being employed in the service of the United States or of this state, while engaged in the navigation of the waters of this state or of the United States or of the high seas, while a student at an institution of learning, while kept at any state facility or hospital at public expense, or while confined in a jail or prison. Honorably discharged members of the armed forces of the United States or of this state and who reside in the veterans' facility established by this state may acquire a residence where the facility is located. The residence of a person who is a patient receiving treatment at a hospital or other facility pursuant to Act No. 258 of the Public Acts of 1974, as amended, being sections 330.1001 to 330.2106 of the Michigan Compiled Laws, is the village, city, or township where the person resided immediately before admission to the hospital or other facility.'

The Michigan Constitution of 1963, art 2, Sec. 1, in combination with the 26th Amendment to the United States Constitution, allows every citizen to vote who is eighteen years of age, has resided in this state for six months, and meets the statutory requirements for local residency.

In Wilkens v Ann Arbor City Clerk, supra, students at the University of Michigan sought a writ of mandamus directed to the Ann Arbor City Clerk to register them to vote. At the time of the Wilkens decision, MCLA 168.11; MSA 6.1011, provided that:

'(b) No elector shall be deemed to have gained or lost a residence by reason of his being employed in the service of the United States or of this state, nor while engaged in the navigation of the waters of this state or of the United States or of the high seas, nor while a student at any institution of learning, nor while kept at any almshouse or other asylum at public expense, nor while confined in any public prison. Honorably discharged members of the armed forces of the United States or of this state and who reside in the veterans' facility established by this state may acquire a residence where the facility is located.

(Emphasis Added.)'

The Michigan Supreme Court held that this provision violated the due process clause of the Fourteenth Amendment of the United States Constitution, and art 1, Sec. 17 of the 1963 Michigan Constitution. The Court also considered and sustained an equal protection challenge to the statute and determined that there was no compelling state interest which would sustain the statute.

'Moreover, it is not mendatory that these plaintiffs demonstrate an absolute denial of the right to vote in order to require the state to show a compelling interest. Plaintiffs need only show that a burden has been placed on this precious right in order to avail themselves of the Equal Protection Clause. As Justice Frankfurter stated in Lane v Wilson (1939), 307 US 268, 275 (59 S Ct 872, 83 L Ed 1281):

"The Amendment [Fifteenth] nullifies sophisticated as well as simpleminded modes of discrimination. It hits onerous procedural requirements which effectively handicap exercise of the franchise by the colored race although the abstract right to vote may remain unrestricted as to race.'

'The Equal Protection Clause likewise guards against subtle restraints on the right to vote, as well as outright denial. The United States Supreme Court in recent voting cases has been concerned about the more devious burdens that have been imposed on this most basic of all constitutional rights. . . .' Wilkens, supra, at 684

After the issuance of the Wilkens opinion, my opinion was requested regarding the eligibility of persons detained in the Lapeer Home & Training School to register to vote. I was also asked if those people were to be counted as part of the population in determining representation of districts for purposes of county apportionment. Under the 1908 Constitution, it had been ruled that prior to discharge, a patient in a state mental hospital could not acquire domicile or residence different from that at time of committment, OAG, 1961-1962, No 3548, p 1 (January 5, 1961). However, in finding that the residents at the Lapeer Home & Training School were eligible to vote, I stated:

'However, while Section 11(b) provides that an elector does not gain or lose a residence 'while a student at any institution of learning, nor while kept at any almshouse or other asylum at public expense,' the Michigan Supreme Court has recently ruled in Wilkens v Ann Arbor City Clerk, 385 Mich 670 (1971), that this provision of the Michigan election law classifying students in a different category for residence purposes, in effect, disenfranchises them and therefore is overly broad and constitutionally prohibited. The reasoning of the Supreme Court with respect to students applies equally to residents at 'any almshouse or other asylum.' The Wilkens case, it will be noted, relied heavily upon the importance of the right to vote as a vital constitutional right and the court was unable to discern any compelling state interest in preventing persons from voting because they happen to reside in an institutional setting.

Therefore, under the present Constitution, patients in mental hospitals continue to have residence in the places from which each was committed for purposes of applying for an absentee ballot, if this be the wish of any such patient, or may register to vote locally in the place where hospitalized.'

I concluded that individuals in the Lapeer Home & Training School were eligible by law to vote if they met all other qualifications and that these persons should be included as residents for apportionment purposes.

Other jurisdictions have also considered the rights of those who are institutionalized to establish residency. In a suit against a former guardian, Coppedge v Clintion, 72 F2d 531, 533 (CA 10, 1934). Coppedge contended that the court was without jurisdiction because the requisite diversity of citizenship was lacking. He asserted that Clintion, being an incompetent domiciled in Oklahoma, might not change his domicile and citizenship to Arkansas. The court noted:

'Whether an incompetent may change his domicile depends on the extent to which his reason is impaired. A comparatively slight degree of understanding is required. [footnote, citing cases, omitted] It is sufficient that he understands the nature and effect of his act. [citing cases]'

1977 PA 120 attempts to deprive those in state facilities from exercising their rights to change residence. This restriction was not permitted in New York when individuals in a state facility met residency requirements. Voluntary residents of the Pilgrim State Psychiatry Center were permitted to vote because they had maintained their residence at the Center for many years and evidenced their intent to remain there within the foreseeable future. Fenn v Suffolk County Board of Electors, 59 AD 2d 709; 398 NYS 2d 448 (1977). In addition, in Stifel v Hopkins, 477 F2d 1116 (CA 6, 1973), it was noted that for purposes of federal diversity jurisdiction, individuals confined to a federal penal institution may show that they have become domiciled within the institution.

'Inmates of institutions other than prisons can show that they have become domiciled within institutional confines even if they have been compelled by circumstances beyond their control to become institutionalized. See, e.g., Sealey v United States, 7 F. Supp. 434, 437 (E.D. Va. 1934) (old-soldier's home); Sturgeon v Korte, 34 Ohio St. 525 (1879) (charitable hospital); Restatement (Second) of Conflict of Laws, supra, Sec. 17 comment e (paupers); cf. Coppedge v Clinton, 72 F.2d 531 (10th Cir. 1934) (mental incompetents).'

Stifel, supra, at 1123

In view of the foregoing, it is my conclusion that it would be unconstitutional to prohibit a resident of a facility operated by the Department of Mental Health from exercising his or her right to change residency for the purposes of voting.

Frank J. Kelley

Attorney General