Ramirez v. Brown

Decision Date30 March 1973
Docket NumberS.F. 22916
Citation107 Cal.Rptr. 137,9 Cal.3d 199,507 P.2d 1345
CourtCalifornia Supreme Court
Parties, 507 P.2d 1345 Abran RAMIREZ et al., Petitioners, v. Edmund G. BROWN, Jr., as Secretary of State, etc., et al., Respondents. In Bank

Burton D. Fretz, Charlotte M. Fischman, Santa Maria, Martin R. Glick, San Francisco, Philip J. Jimenez, Santa Maria, David Kirkpatrick, Salinas, Gene Livingston, Jr., Donald C. Green, Modesto, for petitioners.

Evelle J. Younger, Atty. Gen., Iver E. Skjeie, Asst. Atty. Gen., Charles P. Just and George J. Roth, Deputy Attys. Gen., William H. Stoffers, County Counsel (Monterey), Duncan M. James, Dist. Atty., (Mendocino), and William De Garmo, for respondents.

Philip L. Goar and Fred Okrand, Los Angeles, as amici curiae on behalf of petitioners.

MOSK, Justice.

This is a proceeding for writ of mandate brought by three ex-felons to compel respondent election officials to register them as voters. The case calls into question once again the constitutionality of provisions of California law excluding from the franchise all persons who have been convicted of an 'infamous crime.' We addressed ourselves to this problem seven years ago in Otsuka v. Hite (1966) 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412. Petitioners now ask us to consider the matter further in the light of significant intervening developments in the law of equal protection. As will appear, we conclude that under present standards disfranchisement by reason of conviction of crime is no longer constitutionally permissible.

Petitioner Ramirez is a 43-year-old farmworker, married, with five children. Twenty-one years ago he was convicted in Texas of a felony entitled 'robbery by assault.' He avers that the offense arose out of an argument in a restaurant, and that at the trial he was without counsel and pleaded guilty on the advise of the judge. After serving only three months in jail he was released on parole. His parole successfully terminated 11 years ago.

In February 1972 petitioner applied to register to vote in San Luis Obispo County. He was refused registration by respondent San Luis Obispo County Clerk on the sole ground that he had been convicted of a felony and had spent some time in incarceration.

Petitioner Lee, a resident of Salinas, is 54 years old, married, with four children. Eighteen years ago he was convicted of the felony of possession of heroin. After serving two years in prison he was released on parole. His parole successfully terminated 14 years ago.

In March 1972 petitioner applied to register to vote in Monterey County. He was refused registration by respondent Monterey County Clerk on the sole ground that he had been convicted of a felony and had not obtained a pardon from the Governor.

Petitioner Gill is a 45-year-old winery worker, married, with four children. He was convicted in 1952 and 1967 of second degree burglary, and in 1957 of forgery. He avers that his offenses arose out of efforts to obtain money to support a narcotics addiction. On each conviction he served some time in prison, followed by a successful parole.

In April 1972 petitioner applied to register to vote in Stanislaus County. He was refused registration by respondent Stanislaus County Clerk on the sole ground of his prior felony convictions. 1

Petitioners invoke the original jurisdiction of this court, and seek relief by writ of mandate. For the reasons stated in Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, 96 Cal.Rptr. 697, 488 P.2d 1, footnotes 1 and 2, the case falls within the limited category in which we deem it proper to exercise original jurisdiction, and the prayer is for the appropriate remedy. (Accord Young v. Gnoss (1972) 7 Cal.3d 18, 21, 101 Cal.Rptr. 533, 496 P.2d 445; Wenke v. Hitchcock (1972) 6 Cal.3d 746, 750--751, 100 Cal.Rptr. 290, 493 P.2d 1154.)

Our alternative writ of mandate directed that respondents 'register to vote all ex-felons whose term(s) of incarceration and parole have expired and who upon application demonstrate that they are otherwise fully qualified to vote,' or show cause why this should not be done. The clerks of San Luis Obispo, Monterey and Stanislaus counties decided not to contest the issue and advised the court they will hereafter register all such ex-felons who apply, presumably including the present petitioners. It does not follow, however, that this proceeding should be dismissed as moot. The acquiescence of the three named county clerks is in no way binding on election officials of the 55 other counties of California in which the petitioners might choose to reside. Moreover, it is undisputed that in many of those other counties there are ex-felons among the resident population who have been or would be refused registration on the precise ground here challenged. 2 The case thus poses a question which is of broad public interest, is likely to recur, and should receive uniform resolution throughout the state. In such circumstances we deem it appropriate to exercise our inherent discretion to resolve the issue, 'even though an event occurring during its pendency would normally render the matter moot.' (In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 37, 473 P.2d 737, 741; accord, Liberty Mutual Ins. Co. v. Fales (1973) 8 Cal.3d 712, 715--716, 106 Cal.Rptr. 21, 505 P.2d 213, and cases cited; see also Roe v. Wade (1973) 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147.) This rule is particularly applicable to challenges to the validity of election laws. (See, e.g., Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719--720, 94 Cal.Rptr. 602, 484 P.2d 578; see also Goosby v. Osser (1973) 409 U.S. 512, 93 S.Ct. 854, 35 L.Ed.2d 36.)

One further preliminary point requires discussion. At the time petitioners were refused registration, respondents' constitutional authority was former article II, section 1, of the California Constitution, which provided in part that 'no alien ineligible to citizenship, no idiot, no insane person, no person convicted of any infamous crime, no person hereafter convicted of the embezzlement or misappropriation of public money, and no person who shall not be able to read the Constitution in the English language and write his or Her name, shall ever exercise the privileges of an elector in this State. . . .' By the passage of Proposition 7 at the November 7, 1972, general election the people repealed this language and substituted therefor the following new article II, section 3: 'The Legislature shall prohibit improper practices that affect elections and shall provide that no severely mentally deficient person, insane person, 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.' We consider the effect, if any, of this amendment.

It is first apparent that whereas the former section itself prohibited all persons convicted of an 'infamous crime' from voting, the new section declares that 'The Legislature shall provide' for that result. We apprehend no difference in substance. As we explained in Otsuka (64 Cal.2d at pp. 607--608, 51 Cal.Rptr. 284, 414 P.2d 412), since its first session the Legislature has often undertaken to implement the voting disqualifications of the Constitution, and the present Elections Code contains a number of statutes bearing on the exclusion of ex-felons from the franchise. 3 Petitioners candidly concede that the passage of Proposition 7 cannot reasonably be construed as an implied repeal of all such provisions, wiping the statute books clean for future legislation on the same subject. Repeals by implication are not favored (Warne v. Harkness (1963) 60 Cal.2d 579, 587--588, 35 Cal.Rptr. 601, 387 P.2d 377), and at no time in the progress of Proposition 7 through the Legislature or during its presentation to the voters was there the slightest indication it was intended to have so drastic a result. It follows that the addition of the words, 'The Legislature shall provide,' must be interpreted merely as an express recognition of the legislative authority which has in fact been exercised since the earliest days of our state government. And in so specifying, new article II conforms its language with that of article XX, section 11, which has provided since its adoption in 1879 that 'Laws shall be made' to exclude from voting persons convicted of bribery, perjury, forgery, malfeasance in office, 'or other high crimes.' (See also Const. of 1849, art. XI, § 18.)

The second relevant change in wording brought about by the adoption of new article II, section 3, is the deletion of the word 'ever' from the provision of former article II, section 1, that no person convicted of an infamous crime 'shall ever exercise the privileges of an elector in this State.' Again we perceive no change in legal effect. Even under the prior language a person denied the right to vote by reason of conviction of crime did not in actuality remain 'forever' disfranchised: as we pointed out in Otsuka (at p. 604 of 64 Cal.2d, at p. 290 of 51 Cal.Rptr., at p. 418 of 414 P.2d), the Legislature has expressly provided for restoration of the right to vote to such persons 'either by court order after completion of probation (Pen.Code, § 1203.4) or, if a prison term was served, by executive pardon after completion of rehabilitation proceedings (Pen.Code, §§ 4852.01--4852.17).' And no such legislation was necessary, of course, to restore the right to vote to a previously insane person who recovered his sanity, or to a former illiterate who achieved literacy. Accordingly, the sole possible meaning of the word 'ever' as used in former article II, section 1, was that 'at no time in the future' would a person under constitutional disqualification from voting be allowed to vote. Thus the word was merely emphatic surplusage, and with its deletion the Constitution reverted in this respect to the simpler language of the first such provision in California law. 4

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