STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5742

July 16, 1980

CONSTITUTIONAL LAW:

Equal protection of the laws

MACKINAC ISLAND STATE PARK COMMISSION:

Property ownership requirement for membership on board of commissioners

A person who has resided on Mackinac Island for at least 6 months prior to his appointment, being otherwise qualified, is eligible for appointment to the Mackinac Island State Park Commission as the resident commissioner regardless of his or her status as a property owner.

The Honorable Wilfred F. Doyle

Resident Commissioner

Mackinac Island State Park Commission

Mackinac Island, Michigan

You have requested my opinion on the following question:

1927 PA 355, MCLA 318.61 et seq; MSA 13.971, et seq, provides for the appointment of a board of commissioners who are charged with the management and control of the Mackinac Island State Park. In 1927 PA 355, supra, Sec. 2, the Legislature has empowered the governor to appoint seven commissioners who shall be citizens of, registered voters, and regularly domiciled in this state who shall constitute a board of commissioners known as the Mackinac Island State Park Commission. Of the seven commissioners to be appointed by the governor, the Legislature has required that:

While the Michigan Supreme Court has not defined the term 'property owner,' research reveals the case of Stapleton v Clerk for the City of Inkster, 311 F Supp 1187 (ED Mich, 1970), where a city charter required that a person seeking the public office of council member be a property owner for a period of two years. The Court construed the term 'property' to mean an interest in real property. It has also been held in Fidelity Trust Co v County of Wayne, 244 Mich 182; 221 NW 111 (1928), that while an estate for years was considered to be personal property at the common law, the Legislature has treated such estates as interests in real property and has brought them within the rules governing the conveyances of real property. Since the Legislature was aware that the State of Michigan owns considerable land in the City of Mackinac Island, it must have intended to include the ownership of long term leaseholds within the meaning of property owner.

Thus, it must be concluded that a person who owns any interest in a leasehold estate for years in real property is a property owner under 1927 PA 355, Sec. 2, supra, and, being otherwise qualified, is eligible for appointment as the resident commissioner of the Mackinac Island State Park Commission.

The Court, in Stapleton v Clerk of the City of Inkster, supra, not only held that a property owner was required to have an interest in real property to be eligible to run for public office but that such a requirement violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it invidiously discriminated by imposing a qualification based on wealth, however well intentioned. Landes v Town of North Hempstead, 20 NY2d 417; 231 NE2d 120 (1967).

Moreover, the United States Supreme Court has held in Turner v Fouche, 396 US 346; 90 SCt 532; 24 LEd2d 567 (1970) that a person has a right to be considered for appointment to public office without the burden of invidious discriminatory classifications. Requirement of ownership of an interest in real property in order to be appointed to a school board of education constituted an invidious discrimination in violation of the Fourteenth Amendment.

OAG, 1971-1972, No 4723, p 13 (March 24, 1971), held that the statutory requirement of ownership of property assessed for taxes as a condition of eligibility for the office of member of a board of education of a school district (1955 PA 269, Sec. 492) is unconstitutional as a violation of the Equal Protection of the Laws Clause of the Fourteenth Amendment to the Constitution of the United States.

Under these authorities, it is abundantly clear that the Legislature may not restrict eligibility for appointment to the office of Resident Commissioner of the Mackinac Island State Park Commission to a person who owns property and such provision violates the Equal Protection Clause of the Fourteenth amendment to the United States Constitution. However, in enacting 1927 PA 355, Sec. 2, supra, to provide for a Resident Commissioner the Legislature manifested intent to have a Resident Commissioner on the Commission so that the requirement of ownership of property is severable and the remainder of the statute may be preserved. OAG 1975-1976, No 4870, p 101 (June 13, 1975). Thus, only the phrase 'and a property owner in the City of Mackinac Island' is void.

It is, therefore, my opinion that a person who has resided on Mackinac Island for at least 6 months prior to his appointment, being otherwise qualified, is eligible for appointment to the Mackinac Island State Park Board of Commissioners as a resident commissioner, regardless of his or her ownership of property.

Frank J. Kelley