Gage v. Allison

• Decision Date: 17 December 1971
• Citation: 99 Cal.Rptr. 95,22 Cal.App.3d 85
• Court: California Court of Appeals Court of Appeals
• Parties: Frederick A. GAGE, Plaintiff and Appellant, v. James S. ALLISON, Registrar of Voters, etc., Defendant and Respondent. Civ. 39365.

Page 95

99 Cal.Rptr. 95

22 Cal.App.3d 85

Frederick A. GAGE, Plaintiff and Appellant, v. James S. ALLISON, Registrar of Voters, etc., Defendant and Respondent.

Civ. 39365.

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

Dec. 17, 1971.

Hearing Denied Feb. 10, 1972.

R. Richard Fusilier, Hollywood, for plaintiff and appellant.

John D. Maharg, County Counsel (Los Angeles), Edward H. Gaylord, Division Chief, and Joe Ben Hudgens, Deputy County Counsel, for defendant and respondent.

KINGSLEY, Associate Justice.

This is an appeal from a declaratory judgment in favor of defendant Allison. ¹ For the reasons set forth below, we affirm the judgment.

The issue in the case is the right of plaintiff to become a candidate at an election to be held in June, 1972, for the office of supervisor of Los Angeles County from the Fifth Supervisorial District. The trial court determined that he was not so entitled; we agree.

For 17 years, plaintiff has resided at 10612 Kester Avenue, in the City of Los Angeles, County of Los Angeles. Prior to August 27, 1971, that residence was within the boundaries of the said Fifth District, and plaintiff was an unsuccessful candidate for supervisor from that district at the last election held therein. On August 27, 1971, Los Angeles County Ordinance No. 10322 became effective. That ordinance, adopted pursuant to the legal requirement for periodic redistricting of supervisorial districts, changed the boundaries of the Fifth District in such a manner as to place plaintiff's residence approximately one-tenth of a mile outside the Fifth District as re-defined and within the Third Supervisorial District.

Section 4 of Article II of the Los Angeles County Charter provides, in pertinent part: 'The County of Los Angeles shall have a Board of Supervisors consisting of five members, each of whom must be an elector of the district which he represents, must reside therein during his incumbency, must have been such elector for at least one year immediately preceding his election, and shall be elected by such district. . . .'

We regard the opinion in Lindsey v. Dominguez (1933) 217 Cal. 533, 20 P.2d 327, as settling, at least so far as this court is concerned, that a residency requirement for public office is valid. If later cases, in other fields, applying the so-called 'compelling state interest' and 'fundamental right' theories, require a different rule, it is the exclusive province of a higher court so to determine.

Plaintiff relies on Zeilenga v. Nelson (1971) 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578. But that case assumed the validity of a residence requirement; it held only that a requirement of a five-year residency was longer than any reasonable public policy required. We point out that, under Lindsey, plaintiff would be entitled to be a candidate for election in the Third District (in which he now resides), since he could count his residence at his present home toward to one-year requirement. While it may not be impossible that the county charter permits a person to be concurrently eligible to run for supervisor in two districts, ² we regard that as sufficiently unlikely that we would expect a more specific provision to that effect before we would so hold.

Plaintiff's complaint, and his opening brief here, discussed only the question of his right to file for supervisor in the newly defined Fifth District while continuing to keep his residence at his present home. In his closing brief, he raises an additional issue, involving his rights if he should hereafter change his residence to a place within the present Fifth District. As the county counsel points out, that issue was not before the trial court, and, therefore, is not properly before us on an appeal. However, since the matter is one of public interest, and one which plaintiff could raise in the trial court, ³ we undertake to comment thereon.

Plaintiff relies on a statement in his declaration filed in the court below in connection with the motion for judgment, that he would move into the present Fifth District if elected. We do not regard that promise as increasing his rights. We know of no procedure by which he could be compelled to carry out that promise if, after filing, running and being elected, he should change his mind. The result then, since as we hold above a residency requirement is valid, would be to create an immediate vacancy. The law does not contemplate that possibility.

Since there is a third possibility--namely that plaintiff might hereafter elect to move into the present Fifth District prior to filing--we comment thereon. ⁴ Plaintiff's theory is that Zeilenga invalidates any requirement that residency be for any prescribed period of time. As we point out above, Zeilenga does not so hold. To say that there is no compelling public interest in a five-year requirement is not to say that a one-year period is not a reasonable device to insure a reasonable relation between a public officer and his constituency. We are not prepared, at our judicial level, to extend Zeilenga beyond its immediate facts.

Plaintiff relies on section 25002 of the Government Code, which reads as follows:

'The term of office of any supervisor who has...