Green v. Layton

• Decision Date: 06 August 1975
• Citation: 538 P.2d 225,123 Cal.Rptr. 97,14 Cal.3d 922
• Court: California Supreme Court
• Parties: , 538 P.2d 225 Austin H. GREEN et al., Petitioners, v. Rex E. LAYTON, as City Clerk, etc., Respondent. L.A. 30415.

Page 97

123 Cal.Rptr. 97

14 Cal.3d 922, 538 P.2d 225

Austin H. GREEN et al., Petitioners, v. Rex E. LAYTON, as City Clerk, etc., Respondent.

L.A. 30415.

Supreme Court of California,

In Bank.

Aug. 6, 1975.

Burke, Williams & Sorensen, Colin Lennard and Brian A. Pierik, Los Angeles, for petitioners.

Burt Pines, City Atty., Robert Thomson and Claude E. Hilker, Asst. City Attys., and Jerome Montgomery, Deputy City Atty., for respondent.

MOSK, Justice.

In a number of recent decisions, the United States Supreme Court and this court had held that a statute which requires a candidate for public office to pay a filing fee as the exclusive means of securing a place on an election ballot violates the equal protection clause of the United States Constitution and that some reasonable alternative means of access to the ballot must be provided. (Lubin v. Panish (1974) 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702; Bullock v. Carter (1972) 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92; Knoll v. Davidson (1974) 12 Cal.3d 335, 345--349, 116 Cal.Rptr. 97, 525 P.2d 1273; Donovan v. Brown (1974) 11 Cal.3d 571, 115 Cal.Rptr. 41, 524 P.2d 137.) We consider in this proceeding the question whether section 35 of the Los Angeles Elections Code provides such a reasonable alternative.

A candidate for elective office in Los Angeles must file a declaration of intention to become a candidate and upon doing so he is provided with a petition for nomination which he must file at a later date, signed by a specified number of voters. Section 35 of the city's election code sets forth the requirements for the filing of such a declaration. The section provides two alternative methods a candidate may follow: he may either pay a $300 filing fee, or submit a petition containing 500 signatures in addition to the signatures which appear on the nominating petition. If he chooses the first of these alternatives he must pay at least one-half of the fee when he files his declaration, and may postpone payment of the remainder to the time he subsequently files the nominating petition. A candidate who selects the second means must declare in writing at the time he files his declaration that he chooses to submit an 'in lieu' petition rather than paying the fee. Our concern here is whether the requirement of section 35 that a candidate make an irrevocable choice between these two alternative methods of qualification at the time he files his declaration is a reasonable requirement. ¹

On January 6, 1975, petitioners Green and Feliz each filed at the office of respondent city clerk a declaration of intention to become a candidate for the city's board of education. At the same time, they signed a statement that they would submit an 'in lieu' petition instead of paying the filing fee. The statement, on a form apparently prepared by respondent, provides that the candidate, in choosing this method to qualify for the ballot 'understands' that he 'may not change his mind and pay all or any portion of the filing fee at a later date.' Petitioners were compelled to sign the statement as a condition of obtaining the 'in lieu' petition for circulation. On January 25, petitioners submitted their nominating petitions to respondent for filing, but respondent refused acceptance because their 'in lieu' petitions contained an insufficient number of signatures. There is some conflict as to whether petitioners tendered payment of the full $300 filing fee at that time, but respondent admits that such an offer would have been refused as untimely even if it had been made. ²

Thereupon, petitioners sought a writ of mandate from this court to compel respondent to accept their nominating petitions for filing and to place their names on the election ballot. They alleged that the requirement of section 35 that a candidate make an irrevocable choice at the time of filing his declaration between the alternatives of paying a filing fee or submitting additional signatures on an 'in lieu' petition denies them equal protection of the law because it is arbitrary and discriminatory and bears no reasonable relationship to the objective of limiting the size of the ballot.

The printing of the sample ballots was scheduled to commence a few days after the petition for the writ was filed, and petitioners also sought an order delaying the printing of the ballots until their names could be placed thereon. Although we did not accede to this request, we issued an alternative writ directing respondent to either delay the printing of the sample ballots or to show cause why he had not done so.

We face at the outset the question whether this proceeding is moot because the relief sought by petitioners is no longer available. The ballots have long since been printed without their names, and the election in which they sought to participate has already taken place. We have often held that an issue does not become moot merely because it is of no further immediate interest to the party who has raised it. If a matter is of general public interest and is likely to recur in the future, a resolution of the issue is appropriate. (See e.g., Knoll v. Davidson, supra, 12 Cal.3d 335, 344, 116 Cal.Rptr. 97, 525 P.2d 1273; Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719--720, 94 Cal.Rptr. 602, 484 P.2d 578; Board of Education v. Watson (1966) 63 Cal.2d 829, 832, 48 Cal.Rptr. 481, 409 P.2d 481.) The constitutionality of section 35 of the Los Angeles Elections Code obviously meets this test.

In Lubin v. Panish, supra, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702, the United States Supreme Court declared unconstitutional provisions of the California Elections Code which required all candidates for public office to pay a filing fee in order to obtain a place on the ballot. The court recognized that the reason for the filing fee requirement is to limit the size of the ballot and to compel candidates to pay some of the administrative costs of the election process, and it characterized a state's interest in keeping the ballot within manageable, understandable limits as of the 'highest order' (Id. at p. 715, 94 S.Ct. 1315). It held, however, that filing fees do not in and of themselves test the genuineness of a candidacy or the extent of voter support, and that the absence of any alternative means of gaining access to the ballot rendered the California statutes unconstitutional. One alternative method suggested by the high court to test the 'seriousness' of a candidacy was to require an office seeker to persuade a substantial number of voters to sign a petition in his behalf.

Subsequently, in Knoll v. Davidson, supra, 12 Cal.3d 335, 116 Cal.Rptr. 97, 525 P.2d 1273, which involved the same sections of the Elections Code as the United States Supreme Court considered in Lubin we stated, 'It is not our province to dictate what statutory system the Legislature should enact as a replacement but we emphasize that nothing that we have said herein should be deemed to preclude it from establishing a system which includes the requirement of a filing fee, so long as such system also includes a reasonable alternative means of access to the ballot, available to all candidates indigent and non-indigent alike.' (12 Cal.3d at p. 349, 116 Cal.Rptr. at p. 106, 525 P.2d at p. 1282.)

Petitioners do not challenge the reasonableness of the requirement that candidates who choose not to pay the fee obtain...