Bay Area Women's Coalition v. City and County of San Francisco

• Decision Date: 21 March 1978
• Citation: 144 Cal.Rptr. 591,78 Cal.App.3d 961
• Parties: BAY AREA WOMEN'S COALITION et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant. Civ. 41810.
• Court: California Court of Appeals Court of Appeals

Page 591

144 Cal.Rptr. 591

78 Cal.App.3d 961

BAY AREA WOMEN'S COALITION et al., Plaintiffs and Respondents, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

Civ. 41810.

Court of Appeal, First District, Division 4, California.

March 21, 1978.

Morton P. Cohen, San Francisco, for plaintiffs and respondents

Thomas M. O'Connor, City Atty., Burk E. Delventhal, Deputy City Atty., San Francisco, for defendant and appellant.

WILSON, ^* Associate Justice.

Defendant-appellant City and County of San Francisco (hereafter City) appeals from an order granting a preliminary injunction restraining enforcement of the five-year durational residency requirement provided in the city charter for persons appointed to boards and commissions of the City.

FACTS

Respondents, who are members of an association interested in the participation of women in public affairs, brought the instant suit against the City. Each respondent alleged in the complaint that she sought consideration for appointment to a San Francisco board or commission but has been precluded therefrom by administrative application of Section 8.100(a) of the charter. ¹ Each of the individual respondents is a taxpayer and resident of the City, but failed to qualify for consideration for appointive office because she had not met the five-year durational residency requirement. It was also alleged that respondents "have had intentions of traveling and residency elsewhere than in San Francisco in order to obtain work and education experience," but have had their intentions "chilled" and have been discouraged from applying due to the existence of Section 8.100.

Respondents also filed a declaration of the Mayor of San Francisco, George Moscone, which stated that the five-year residency requirement of Section 8.100(a) "operates to limit the potential of qualified candidates" for appointment to various boards and commissions and "constitutes an unnecessary and harmful restriction upon the appointment of important public officials."

The complaint sought a declaration that the subject durational residency requirement was unconstitutional, along with preliminary and permanent injunctions restraining the enforcement thereof. Accompanying the complaint was a motion for preliminary injunction which was opposed by the City.

On March 26, 1977, the superior court granted the motion and enjoined enforcement of the challenged provision, stating: "In making this determination and granting the preliminary injunction, the Court finds that under either the 'strict scrutiny' or 'rational basis' tests, Charter Section 8.100 requiring a five year duration residency is arbitrary and unreasonable."

DISCUSSION

Is city charter Section 8.100 unconstitutional as a denial of equal protection of the law?

Section 8.100(a) insofar as it is here applicable, ² sets up as a prerequisite for appointment to a board or commission of the City, the qualification that an individual must have been a City resident for a period of at least five years. The effect of this charter provision is to impose what is commonly referred to as a "durational residency" requirement, dividing residents into two classes, old residents and new residents. It discriminates against the latter to the extent of totally denying them candidacy for appointive office. The question presented here is whether such a classification denies new residents equal protection under law as guaranteed by the Fourteenth Amendment to the United States Constitution.

The primary step in our analysis is to determine under which standard of review the present classification must be judged. In considering laws challenged under the equal protection clause, the United States Supreme Court has applied either the "rational basis" test or the "strict scrutiny" (also referred to as the "compelling state interest") test, depending upon the interest affected or the classification involved. (Dunn v. Blumstein (1972) 405 U.S. 330, 335, 92 S.Ct. 995, 31 L.Ed.2d 274.) The latter test will be employed in cases involving "suspect classifications" or where the challenged legislation adversely affects "fundamental interests"; otherwise the former test will prevail. (Westbrook v. Mihaly (1970) 2 Cal.3d 765, 784-785, 87 Cal.Rptr. 839, 471 P.2d 487.)

It can be seen immediately that new residents do not comprise a " suspect class." Such a group must be one which has been "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment" as to justify extraordinary protection. (See San Antonio School District v. Rodriguez (1973) 411 U.S. 1, 28, 93 S.Ct. 1278, 36 L.Ed.2d 16.) No federal or state decision has ever viewed the status of new residency as included within this category.

In Zeilenga v. Nelson, supra, 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578, the California Supreme Court held that a county charter provision which imposed a five-year residency requirement on all candidates for board of supervisors to be unconstitutional as a denial of equal protection. In so doing, the court applied the "strict scrutiny" test because of the fundamental nature of the right to hold public office: " '(T)he right to hold public office, either by election or appointment, is one of the valuable rights of citizenship.' (Carter v. Commission on Qualifications of Judicial Appointments (1939) 14 Cal.2d 179, 182, 93 P.2d 140, 142.) It is a 'fundamental right' (Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 335, 38 Cal.Rptr. 625, 392 P.2d 385) which the First Amendment protects against infringement (Johnson v. State Civil Service Department (1968) 280 Minn. 61, 157 N.W.2d 747, 750; Minielly v. State (1966) 242 Or. 490, 411 P.2d 69, 73, 28 A.L.R.3d 705). There is 'a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.' (Turner v. Fouche (1970) 396 U.S. 346, 362, 90 S.Ct. 532, 541, (24 L.Ed.2d 567, 580).)" (4 Cal.3d at pp. 720-721, 94 Cal.Rptr. at p. 604, 602 P.2d at p. 578, emphasis added.)

However, the continued viability of the quoted language, insofar as it implies that the right to hold public office is a "fundamental" right under the United States Constitution, is open to some question. In Bullock v. Carter (1972) 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92, the United States Supreme Court declined to hold that the right to aspire to public office was fundamental in nature. Nevertheless, the court held that the Texas procedure for imposing substantial filing fees on candidates for primary nominations must be subjected to the "strict scrutiny" test, because of its impact on the rights of voters.

The court found that the size of the required filing fees ³ reflected their "patently exclusionary character," (id., at p. 143, 92 S.Ct. 849) thereby limiting voters in their choice, particularly less affluent voters whose favorites might not qualify. Strict scrutiny was required "(b)ecause the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate . . . ." (Id., at p. 144, 92 S.Ct. at p. 856.)

Subsequently, in Thompson v. Mellon (1973) 9 Cal.3d 96, 107 Cal.Rptr. 20, 507 P.2d 628, the California Supreme Court struck down a city charter provision prescribing a two-year durational residency requirement on candidates for public office. The court discussed Bullock at some length and concluded that its essential holding was "that restrictions upon candidacy for public office which excluded a significant group of potential candidates from the ballot must be 'closely scrutinized.' " (Thompson, supra, 9 Cal.3d at p. 100, 107 Cal.Rptr. at p. 23, 507 P.2d at p. 631.) This would be so irrespective of whether the restriction had particular impact on "minority economic or political groups." (Id., at p. 101, 107 Cal.Rptr. 20, 507 P.2d 628.)

Obviously, restrictions on eligibility for appointive office do not have the impact on the right to vote which characterizes restrictions on eligibility for elective office. Nor, in view of Adams v. Superior Court (1974) 12 Cal.3d 55, 115 Cal.Rptr. 247, 524 P.2d 375, can we take the position that all durational residency requirements, regardless of their impact, are to be subjected to the strict scrutiny test. In Adams the court upheld a one-year residency requirement for jury duty.

However, in Thompson, supra, 9 Cal.3d 96, 107 Cal.Rptr. 20, 507 P.2d 628, the California Supreme Court found an entirely new and independent basis for applying the strict scrutiny test in analyzing durational residency requirements namely, the penalizing effect that such restrictions have upon the fundamental right to travel. (9 Cal.3d at pp. 101-102, 107 Cal.Rptr. 20, 507 P.2d 628.)

In Dunn v. Blumstein, supra, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274, relied upon by Thompson, the United States Supreme Court made it clear that durational residence requirements directly impinge upon the personal right of travel, which has been recognized as a fundamental constitutional right. (Id., at pp. 338-339, 92 S.Ct. 995, see Shapiro v. Thompson (1969) 394 U.S. 618, 629-631, 89 S.Ct. 1322, 22 L.Ed.2d 600.) "Obviously, durational residence laws single out the class of bona fide state and county residents who have recently exercised this constitutionally protected right, and penalize such travelers directly." (405 U.S. at p. 338, 92 S.Ct. at p. 1001.) Accordingly, the California Supreme Court in Thompson pointed out that this classification is alone sufficient to require application of the strict scrutiny test. (9 Cal.3d at pp. 101-102, 107 Cal.Rptr. 20, 507 P.2d 628; see Green v. McKeon (6th Cir. 1972) 468 F.2d 883, 884-885.)

The City argues that the right to travel is not impaired by its durational residency requirement because a person's motive to travel "could hardly be affected" by Section 8.100(a), and that the present...