Coe v. Davidson

• Decision Date: 18 November 1974
• Citation: 43 Cal.App.3d 170,117 Cal.Rptr. 630
• Court: California Court of Appeals Court of Appeals
• Parties: Lee COE et al., Plaintiffs and Respondents, v. Rene C. DAVIDSON, Registrar of Voters of the County of Alameda, Defendant and Appellant. Civ. 31851.

Page 630

117 Cal.Rptr. 630

43 Cal.App.3d 170

Lee COE et al., Plaintiffs and Respondents, v. Rene C. DAVIDSON, Registrar of Voters of the County of Alameda, Defendant and Appellant.

Civ. 31851.

Court of Appeal, First District, Division 2, California.

Nov. 18, 1974.

Hearing Denied Jan. 15, 1975.

Richard J. Moore, County Counsel, Jacob Levitan, William E. Rundstrom, Deputy County Counsels, County of Alameda, Oakland, for defendant and appellant.

Joseph Morozumi, Oakland, Wayne Merrill Collins, San Francisco, for plaintiffs and respondents.

ROUSE, Associate Justice.

The Registrar of Voters of Alameda County (hereinafter 'Registrar') appeals from a judgment granting plaintiffs' petition for a writ of mandate requiring him to accept plaintiffs' declarations of candidacy for the Alameda County Central Committee with a loyalty oath purged therefrom.

The record shows that plaintiffs Coe and others were applicants for candidacy to the office of Alameda County Central Committee, Peace and Freedom Party, in the June 1972 primary election. Plaintiffs tendered declarations of candidacy, as required by law, to the Registrar, defendant Rene C. Davidson. The Registrar refused to accept plaintiffs' declarations of candidacy because he claimed that they were not substantially in the form prescribed by section 6491 of the Elections Code, in that the following oath had been stricken from the declaration: 'I solemnly swear (or affirm) that I am not engaged in one way or another in any attempt to overthrow the government by force or violence, and that I am not knowingly a member of any organization engaged in such an attempt.'

Plaintiffs sought a writ of mandate in the superior court to compel the Registrar to accept their declarations of candidacy with the oath stricken therefrom. That court found the following portion of the oath violative of the First and Fourteenth Amendments to the United States Constitution: 'and that I am not knowingly a member of any organization engaged in such an attempt.' The defendant offered to cure the constitutional defect in the oath by adding a specific intent clause to the membership provision. The court held that the defendant could not correct this part of the oath by such an addition because this would involve 'legislating' on the part of the court. The court also held that it could not engage in 'legislative surgery' by severing the unconstitutional portion of the oath from any remaining valid portion. The court then ordered that the peremptory writ of mandate issue and that the Registrar accept the declarations of candidacy 'as modified,' that is, with the entire oath omitted. The Registrar did accept such candidacy declarations for the June 1972 primary election, but appeals from the court's judgment and, more specifically, from the Court's refusal to add curative language to the oath as offered by the defendant or, in the alternative, to sever the unconstitutional portions from the rest of the oath.

Plaintiffs applied to this court for an order reinstating and enforcing the judgment of the superior court pending appeal, but the application was denied on March 8, 1974. The plaintiffs then applied to the California Supreme Court and were granted the requested order on March 29, 1974, requiring the Registrar to accept the candidacy declarations without the oath for the June 1974 primary. The Supreme Court then retransferred the case to this court.

This case appears to encompass issues of first impression with regard to the constitutionality of the loyalty oath required by section 6491 of the Elections Code. Although a similar but differently worded oath in the California Constitution ¹ was invalidated in Vogel v. County of Los Angeles (1967) 68 Cal.2d 18, 64 Cal.Rptr. 409, 434 P.2d 961, that case is not dispositive of the issues in the instant case because here the defendant is challenging the court's failure to take certain action after a finding of unconstitutionality.

There seems to be no question but that the second portion of the oath concerning knowing membership is constitutionally infirm. ² (See Keyishian v. Board of Regents (1967) 385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629; Elfbrandt v. Russell (1966) 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d 321; Vogel v. County of Los Angeles, Supra.) Also, the Registrar, throughout his brief and at trial, apparently conceded that this part of the oath is constitutionally defective.

The issues on appeal, then, are whether or not the trial court erred by refusing to add the defendant's suggested curative language or, in the alternative, severing the unconstitutional portions of the oath from the remainder thereof. The issue as to severability also impliedly requires a determination of the constitutionality of the first or remaining portion of the oath concerning the individual affiant's participation in activity directed at overthrowing the government by force or violence.

The basic issues of this case are not moot even though the election has already taken place. The question of whether the declarations of candidacy used by the Registrar should contain either an amended loyalty oath (adding a specific intent provision to the membership portion), or a severed oath (omitting the membership portion entirely and allowing the remainder to stand) will recur in future elections and therefore is a proper subject for appellate review. (See Rees v. Layton (1970) 6 Cal.App.3d 815, 86 Cal.Rptr. 268; Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719--720, 94 Cal.Rptr. 602, 484 P.2d 578.)

The defendant argues on appeal that the court erred in not allowing the addition of curative language to the second half of the oath in the declaration of candidacy. He contends that the term 'substantially' in the first sentence of section 6491 of the Elections Code (referring to the required form of the declaration) indicates the Legislature's intent to allow variations in the language or form of the declaration. However, section 6491 (formerly § 2601) was only amended in 1951 (Stats.1951, ch. 876, § 1, p. 2396) to add the oath to the required declaration of candidacy form. The original 1939 statute (Elec.Code § 2601 (Stats.1939, ch. 26, p. 127)) included the term 'substantially as follows' and no doubt referred to the general language and format of the rather innocuous questions to be answered on the candidate form.

Even if we conclude that the term refers to every item on the form, including the oath, the addition of curative language thereto may not actually be substantial compliance but rather a substantial departure from the suggested form. The Illinois Supreme Court has stated that the phrase 'in substantially the following form' did not require that the language be as exactly prescribed by the statute, but meant that in the main, it should contain all the essential requirements of the form prescribed. (The People v. Alton Railroad Co. (1942) 380 Ill. 380, 384, 43 N.E.2d 964, 966.) 'Substantial compliance,' as the phrase is used in the decisions, means actual compliance in respect to the substance essential to every reasonable objective of the statute. (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29, 22 Cal.Rptr. 657, 372 P.2d 649.)

Defendant argues that in any event and independent of the statutory language, the court should have added the proposed curative language. The addition of a 'specific intent' requirement to the membership part of the oath would have made that part of the oath constitutional under the Vogel holding (supra) and the cases cited therein. In Hirschman v. County of Los Angeles (1952) 39 Cal.2d 698, 702, 249 P.2d 287, 250 P.2d 145, our Supreme Court construed an oath requiring public employees to disclose membership in organizations advocating violent or forceful overthrow of the government as requiring only disclosure of organizations Known by employees to advocate the illegal aims. Although the statutory oath contained no knowledge requirement itself, it was a necessary and logical conclusion that the oath required disclosure of membership in only 'known' subversive organizations as an employee could not be expected to disclose membership in a group not known to be so proscribed. In Vogel, our Supreme Court said that 'There is nothing in the language of the second paragraph of the oath (see fn. 2, Supra) required by section 3 of article XX of the California Constitution which even hints that membership is not proscribed unless the member has a specific intent to further the unlawful aims of the organization . . ..' (68 Cal.2d p. 25, 64 Cal.Rptr. p. 413, 434 P.2d p. 966.) The court said that it would not rewrite the oath by construing language into it which was noticeably absent from the statute. (P. 25, 64 Cal.Rptr. 409, 434 P.2d 961.) 'For this reason, there can be no application here of the rule that if the terms of a statute are reasonably subject to a meaning consistent with the requirements of the Constitution the statute will be given that meaning rather than another in conflict with the Constitution.' (Vogel v. County of Los Angeles, Supra, p. 25, 64 Cal.Rptr. p. 414, 434 P.2d p. 967.) Thus we find that the trial court in the instant case was under no duty nor did it abuse any discretionary authority by failing to add either curative language to the oath or to construe it to say something that it obviously did not. We hold that it was not error for the trial court to refuse to add the proposed curative language.

The defendant also contends that the trial court erred in failing to sever the invalid portion of the oath from the remainder thereof and in not allowing any valid portions of the oath to remain in the declarations of candidacy.

Generally, unconstitutional provisions do not vitiate the whole act unless they enter so entirely into the scope and design of the law that it would be impossible to maintain it without such obnoxious provisions. (People v. Navarro (1972) 7 Cal.3d 248, 260, 102 Cal.Rptr. 137, 497...