Flood v. Riggs
| Decision Date | 21 April 1978 |
| Citation | 145 Cal.Rptr. 573,80 Cal.App.3d 138 |
| Parties | Carl FLOOD, Individually and on behalf of all others similarly situated, Plaintiff and Appellant, v. James A. RIGGS, Registrar of Voters of the County of Alameda, Individually and as representative of the class of all other County Clerks and Registrars of Voters in California, March Fong Eu, Secretary of State of California and Adult Authority of California, Defendants and Respondents. Civ. 40846. |
| Court | California Court of Appeals Court of Appeals |
Peter E. Sheehan, Clifford C. Sweet, Legal Aid Society of Alameda County, Oakland, Charles C. Marson, American Civil Liberties Union Foundation of Northern Cal., San Francisco, for plaintiff and appellant.
Richard J. Moore, County Counsel, James E. Jefferis, Asst. County Counsel, County of Alameda, by Adam S. Ferber, Deputy County Counsel, Oakland, for defendant and respondent County.
Evelle J. Younger, Atty. Gen., Clayton P. Roche, Deputy Atty. Gen., San Francisco, for defendants and respondents March Fong Eu, Secretary of State, State of California, and Adult Authority of California.
Appellant 1 sought a writ of mandamus directing respondent Riggs, Registrar of Voters of the County of Alameda, to register himself and "all ex-felons currently on parole" (excluding those convicted of Elections Code felonies) otherwise qualified to vote. Upon respondent Riggs' motion for compulsory joinder (Code Civ.Proc., § 389, subd. (a)), the trial court joined as parties respondents Secretary of State and Adult Authority of the State of California. The cause was submitted for decision on the pleadings and certain stipulated facts. On appeal from the judgment denying the petition, appellant challenges the validity of a uniform policy of "blanket disfranchisement of paroled ex-felons" 2 as implemented by respondents, contending such policy is neither constitutionally required nor authorized by the Elections Code. Upon analysis of the history and purpose of the relevant provisions of the California Constitution and Elections Code, we have concluded that a convicted felon is ineligible to exercise the voting franchise during the term of his parole under the self-executing provisions of article II, section 4, of the California Constitution; further, that the several implementing provisions of the Elections Code inconsistent with that constitutional mandate are invalid.
The underlying facts are not in dispute.
In March, 1976, appellant, a resident of the County of Alameda otherwise qualified to register as an elector, was refused permission by respondent Riggs to complete an affidavit of registration on the basis of his uncompleted parole 3 granted after serving a prison term of eight years in the State of Missouri following his felony conviction of armed robbery. In its findings of fact, unchallenged on appeal, the trial court determined that respondent Riggs acted pursuant to a policy denying the franchise "to all felons who have not completed their terms of parole" in accordance with a "uniform statewide policy" effectively set by the opinion of respondent Secretary of State, as chief elections officer of the state (see Elec.Code, § 55), that paroled felons are ineligible to vote by virtue of article II, section 3, of the California Constitution. (Secretary of State Opn. 76-SOS 3 (1976).)
The basic question presented is whether a paroled felon is disfranchised under article II, section 3, of the California Constitution, as amended in 1974 ), which reads as follows: "The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony."
The answer to this inquiry necessitates a review of the history of the relevant constitutional enactments and implementing legislation.
For well over a century the California Constitution had permanently disfranchised all persons "convicted of any infamous crime." (Art. II, § 5 (1849 Constitution)) adopted in 1879 as art. II, § 1, and amended to deny the right of suffrage also to persons "convicted of the embezzlement or misappropriation of public money . . . ." (1879 Constitution.) Since its first regular session, the Legislature has exercised its constitutional authority 4 to implement the voting disqualifications prescribed by the Constitution. (See Otsuka v. Hite (1966) 64 Cal.2d 596, 607-608, 51 Cal.Rptr. 284, 414 P.2d 412.) 5 Until 1966, the disqualifying language "infamous crime" was judicially interpreted to include conviction of any felony. (See Stephens v. Toomey (1959) 51 Cal.2d 864, 338 P.2d 182; Matter of Application of Westenberg (1914) 167 Cal. 309, 319, 139 P. 674; Truchon v. Toomey (1953) 116 Cal.App.2d 736, 254 P.2d 638.) Thus, on the eve of our Supreme Court's benchmark decision in Otsuka v. Hite, supra, all convicted felons were constitutionally disfranchised and the privilege of suffrage was further expressly denied by legislative enactments to those imprisoned or on parole. (See former Pen.Code, §§ 2600 and 3054.) 6
In Otsuka the court examined the validity and scope of the disqualifying language contained in former article II, section 1, of the Constitution. The court was there confronted with the issue whether persons convicted of a federal crime (Selective Service Act violations) and who had already served a term of imprisonment and were duly released, were convicted of an "infamous crime" within the disfranchisement language of former article II, section 1, of the Constitution. In determining that the constitutional prohibition, consistent with equal protection demands, was validly directed only to "conviction of crimes involving moral corruption and dishonesty . . . (constituting) a threat to the integrity of the elective process" (Otsuka v. Hite, supra, 64 Cal.2d at p. 599, 51 Cal.Rptr. at p. 286, 414 P.2d at p. 414), the majority opinion acknowledged that the state's interest in preserving the purity of the ballot box could demonstrate a compelling interest justifying an appropriate restriction on the fundamental right of suffrage. (See Otsuka, at pp. 602-603, 606, 51 Cal.Rptr. 284, 414 P.2d 412.) It concluded that by limiting the constitutional classification to crimes which in nature posed a threat to the elective process, such interpretation was "sufficiently narrow in scope to withstand challenge under the Fourteenth Amendment." (Otsuka, at p. 611, 51 Cal.Rptr. at p. 295, 414 P.2d at p. 423.) Significantly, the court recognized that California had properly denied the right of suffrage to imprisoned felons under the provisions of former Penal Code section 2600 (id. at p. 606, fn. 5, 51 Cal.Rptr. 284, 414 P.2d 412) and that the scope of constitutional disqualification extended to convictions sustained in other jurisdictions as well. (Id. at pp. 611-612, fn. 14, 51 Cal.Rptr. 284, 414 P.2d 412.)
However, efforts to implement the Otsuka standard by local election officials determining eligibility of convicted ex-felons to vote produced widely mixed results. 7
In an attempt to comply with the standard announced in Otsuka, the 1969-1970 Legislature enacted a series of amendments to the Elections Code 8 dealing with determination of voter eligibility of persons convicted of a felony. The amendments retained the authority of local election officials to determine initially whether the disclosed felony conviction was of a disqualifying nature, affording a process of judicial review of a determination of ineligibility. Despite such judicial and legislative narrowing of the class of fully discharged ex-felons subject to disqualification, statutory law continued to disfranchise those convicted of any felony while imprisoned or on parole in California. (See former Pen.Code, §§ 2600, 3054, fn. 6, ante.)
At the November 1972 general election, article II, section 1, was repealed and an essentially similar provision reenacted in newly-adopted article II, section 3, which then read in relevant part as follows: "The Legislature shall prohibit improper practices that affect elections and shall provide that no . . . person convicted of an infamous crime, nor person convicted of embezzlement or misappropriation of public money, shall exercise the privileges of an elector in this state." The language of the new section declaring that the Legislature "shall provide" was soon interpreted as having "no difference in substance" from the former section which itself denied the right of suffrage to those convicted of an infamous crime, and as merely recognizing the authority long exercised by the Legislature to implement the voting disqualifications of the Constitution. (Ramirez v. Brown (1973) 9 Cal.3d 199, 204-205, 107 Cal.Rptr. 137, 507 P.2d 1345 (rev'd. sub nom., Richardson v. Ramirez (1974) 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551) (discussed, infra).)
Against this setting our high court in Ramirez v. Brown, supra, 9 Cal.3d 199, 107 Cal.Rptr. 137, 507 P.2d 1345, 9 undertook a penetrating reexamination of the constitutional viability of the standard contained in former article II, section 1, of the California Constitution ) in light of evolving equal protection principles since its decision in Otsuka. In analyzing an array of state and federal precedents dealing with the exercise of the fundamental right of suffrage, the court explicitly recognized that the test of constitutional validity of state-imposed restrictions on such right rested not only on the traditional showing of a compelling state interest but also upon a demonstrated necessity to promote that interest through the least burdensome alternatives possible. (Ramirez, supra, at p. 207, 107 Cal.Rptr. 137, 507 P.2d 1345.) In reassessing the adequacy of its holding in Otsuka, the court reasoned that under...
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