Knoll v. Davidson, S.F. 22904

• Decision Date: 15 August 1974
• Docket Number: S.F. 22904
• Citation: 116 Cal.Rptr. 97,525 P.2d 1273,12 Cal.3d 335
• Court: California Supreme Court
• Parties: , 525 P.2d 1273 Sandy KNOLL, Petitioner, v. Rene C. DAVIDSON, as Registrar of Voters, etc., Respondent. In Bank

Page 97

116 Cal.Rptr. 97

12 Cal.3d 335, 525 P.2d 1273

Sandy KNOLL, Petitioner, v. Rene C. DAVIDSON, as Registrar of Voters, etc., Respondent.

S.F. 22904.

Supreme Court of California,

In Bank.

Aug. 15, 1974.

As Modified Sept. 12, 1974.

Marjorie Gelb, Clifford C. Sweet, Vernon W. Salvador, William R. Petrocelli and John H. Erickson, Oakland, for petitioner.

Richard J. Moore, County Counsel, and James E. Jefferis, Asst. County Counsel, Oakland, for respondent.

SULLIVAN, Justice.

We deal here with vital and sensitive questions involving the rights of candidates for public office and the remedies invocable to preserve such rights in the course of the electoral process. We are called upon to examine the constitutionality of statutes prescribing the payment of fees for filing declarations of candidacy for county offices to be voted upon at a direct primary election. We are also presented with the question whether the alleged statutory requirement of prepayment of the prorated cost of the printing and handling of the candidates' statements of qualifications in the voter's pamphlet passes constitutional muster. Finally, we must determine the nature, scope and finality of the procedure designed to secure a judicial order correcting or preventing error or wrongful act in respect to an official primary election ballot.

As will appear, we conclude that, absent a reasonable alternative means of access to the ballot, the statutes here under consideration, which require the payment of a fee as a condition to the filing of a declaration of candidacy, violate the equal protection clause of the Fourteenth Amendment to the United States Constitution. We further hold that although prepayment of the prorated cost of publishing the candidate's statement of qualifications may not be constitutionally required, the statute in question constitutionally permits the candidate to be billed for such cost after the voter's pamphlet has been printed and distributed, Finally, we conclude that the procedure provided in the Elections Code for the correction or prevention of errors in the direct primary ballot is a form of relief in the nature of a writ of mandate which should proceed through our court system in the manner and with the results prescribed for the traditional writ of mandate. We issue an appropriate order effectuating these conclusions.

On February 14, 1972, Alphonso Zapata went to the office of Rene Davidson, the Registrar of Voters for Alameda County (Registrar) and requested an application for a declaration of candidacy for the Alameda County Board of Supervisors for the June 6, 1972, primary election. On February 15, 1972, Sandy Knoll went to the Registrar's office for the same purpose. Both Knoll and Zapata were informed by the Registrar that they were each required by the Elections Code to pay a fee of $295.76 before they could receive the necessary papers to become a candidate. Each of them in turn told the Registrar that he or she was unable to pay the filing fee and inquired if there was any way of becoming a candidate without paying the filing fee. The Registrar informed them in substance that payment of the fee was a prerequisite to running for elective office.

On February 18, 1972, Zapata and Knoll, on behalf of themselves and all other persons allegedly eligible and desiring to become candidates for elective office, but unable to pay the requisite filing fees, filed in this court a petition for a peremptory writ of mandate and for a declaratory judgment. They were joined in their petition by Partido La Raza Unida, Fairfax Community Volunteers and Joan Mangin, on behalf of themselves and all other registered voters, allegedly desiring to consider and vote for petitioners Zapata and Knoll as well as all other similarly situated prospective candidates. Petitioners prayed that this court: (1) issue a peremptory writ of mandate directing the Registrar (a) to accept Zapata and Knoll's applications for declarations of candidacy and to place their names on the ballot for the June 6, 1972, primary election without payment of the prescribed filing fees; and (b) to include Zapata and Knoll's statements of qualifications in the voter's pamphlet without prepayment of their prorata share of the printing and handling cost; and (2) 'issue its declaration' that the Elections Code sections prescribing candidate filing fees and prepayment of printing costs for statements of qualifications are unconstitutional.

We transferred the petition to the Court of Appeal, First Appellate District. On March 6, 1972, Division One of that court denied the petition without opinion on the ground that the relief prayed for could not be granted before March 10, 1972, the date established by law for filing declarations of candidacy.

On March 8, 1972, the same petitioners filed in the Court of Appeal a petition pursuant to Elections Code section 6403 incorporating by reference all the allegations of, and all the affidavits and memoranda accompanying, their earlier petition for writ of mandate, and seeking the same relief. On the same day the Court of Appeal issued an order to show cause directed to the Registrar and returnable the following day. On March 9, 1972, the Court of Appeal issued a conditional order, directing the Registrar to accept Zapata and Knoll's nomination papers and statements of qualifications, but reserving jurisdiction to determine whether their names should be placed on the ballot without paying the prescribed filing fee and whether their statements of qualifications should be included in the voter's pamphlet without the requisite prepayment of their prorata share of the cost.

On April 11, 1972, the Court of Appeal, by written opinion, ordered Knoll's ¹ name placed on the ballot without payment of the filing fee and her statement of qualifications, as modified, included in the voter's pamphlet without requiring prepayment of her pro rata share of the cost. The Court of Appeal opinion purported to be final forthwith and unreviewable upon appeal.

In view of this last holding, the Registrar sought review of the decision by filing in this court a petition for a writ of certiorari. We denied the petition but on our own motion ordered a hearing and transferred to this court the petition for relief under Elections Code section 6403 pursuant to article VI, section 12 of the California Constitution.

I

At the outset it is incumbent upon us to unravel the procedural tangle revealed by the foregoing chronology. As we explain Infra, we have concluded that Elections Code section 6403 creates a special proceeding providing relief in the nature of a writ of mandate, which should proceed through the courts according to the normal procedure for prerogative writs.

The present Elections Code section 6403 ² first emerged in the law of California in 1909 as section 27 of the Primary Nomination Law. Despite codification and renumbering of sections, ³ the statute has remained substantially unchanged. Except where clarity otherwise requires, we shall hereafter for convenience refer to the statute throughout as section 6403, even when our reference is to one of the predecessor versions.

Section 6403 authorizes an original proceeding, commenced by affidavit in the Supreme Court, a Court of Appeal or superior court of the proper county, against 'any person charged with any duty concerning the primary election' for an order that such person correct any error, desist from any wrongful acts, perform any duty, or show cause why he should not do so. It seems clear that section 6403 authorizes relief in the nature of mandate, ⁴ and specifically permits courts to compel primary election officials to perform their duties correctly. As we recently said in Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, 96 Cal.Rptr. 697, 699, 488 P.2d 1, 3, footnote 2, 'Mandamus is clearly the proper remedy for compelling an officer to conduct an election according to law.'

Procedurally section 6403 and the traditional writ of mandate are virtually identical. The former requires an application on affidavit which, if granted, results in the issuance of an order to show cause; the latter requires an application on verified petition which, if granted, results in the issuance of a writ (which is an order) either alternative or peremptory or an order to show cause in lieu of an alternative writ depending upon the level and practice of the particular court. (See 5 Witkin, Cal. Procedure (1971) pp. 3919, 3931--3932.) Except for the fact that section 6403 may deal principally with ministerial acts of election officials, it is virtually identical with mandate.

Indeed this court has in several cases characterized a proceeding brought under section 6403 as one for a writ of mandate. (Sinclair v. Jordan (1920) 183 Cal. 486, 191 P. 910; Bordwell v. Williams (1916) 173 Cal. 283, 286--287, 159 P. 869; see also Younger v. Jordan (1954) 42 Cal.2d 757, 269 P.2d 616; Felt v. Waughop (1924) 193 Cal. 498, 225 P. 862.) In Bordwell we issued a peremptory writ of mandate under section 6403 to compel the County Clerk of Orange County to remove from the ballot the name of a candidate who had withdrawn from the primary election. In Younger, involving a petition for writ of mandate or for an order under former section 2900 (now 6403), this court while characterizing the proceeding as one 'brought under section 2900 . . . to remove the name of another person from the ballot' (42 Cal.2d at p. 759, 269 P.2d at p. 617) applied rules governing mandate in holding that the other candidate was an indispensable party upon whom service of the petition was required.

However, the Courts of Appeal in two cases have drawn a sharp distinction between relief under section 6403 and relief under the prerogative writs. (Donnellan v. Hite (1956) 139 Cal.App.2d 43, 293 P.2d 159; Wallace v. Superior Court (1956) 141 Cal.App.2d 771, 298 P.2d 69.) In Donnellan the court held that relief under section 6403...