Smith v. Evans

• Decision Date: 30 September 1974
• Citation: 42 Cal.App.3d 154,116 Cal.Rptr. 684
• Court: California Court of Appeals Court of Appeals
• Parties: Susan Mason SMITH and Tom Lundy, Plaintiffs and Appellants, v. Barbara EVANS, City Clerk, City of Chico, County of Butte, State of California, Defendant and Respondent. Civ. 14015.

Page 684

116 Cal.Rptr. 684

42 Cal.App.3d 154

Susan Mason SMITH and Tom Lundy, Plaintiffs and Appellants, v. Barbara EVANS, City Clerk, City of Chico, County of Butte, State of California, Defendant and Respondent.

Civ. 14015.

Court of Appeal, Third District, California.

Sept. 30, 1974.

M. Brooks Houghton, Chico, for plaintiffs and appellants.

Grayson Price, Chico, for defendant and respondent.

FRIEDMAN, Associate Justice.

This appeal involves the constitutionality of a city charter provision establishing a one-year residence requirement for city council candidates. ¹

The petitioners, Susan Smith and Tom Lundy, commenced a superior court mandate proceeding against the Chico city clerk. Both alleged that they had requested nomination papers to qualify as city council candidates at the municipal election to be held April 3, 1973. The clerk had refused their requests because they could not fulfill the city charter's demand for one year's residence preceding January 25, 1973, the closing date for nominations. Susan Smith had become a Chico city resident in June 1972, about seven months before close of the nomination period. Tom Lundy had also moved into the city in June 1972. Before then, each had lived just outside the city boundaries. The superior court entered a judgment denying relief and this appeal followed.

Although the election is past, the one-year residence requirement of the Chico city charter persists. Its constitutionality affects future elections in Chico and other political entities having similar residence provisions. One-year candidate residence requirements appear in statutes regulating candidacy in nonchartered counties and cities. ² They doubtless characterize a number of county and city charters, as well as laws governing special districts. Under the circumstances, a judicial decision is appropriate. (Ramirez v. Brown (1973) 9 Cal.3d 199, 203, 107 Cal.Rptr. 137, 507 P.2d 1345.)

I

In Zeilenga v. Nelson (1971), 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578, Camara v. Mellon (1971), 4 Cal.3d 714, 94 Cal.Rptr. 601, 484 [42 Cal.App.3d 157] P.2d 577, and Thompson v. Mellon (1973), 9 Cal.3d 96, 107 Cal.Rptr. 20, 507 P.2d 628, the California Supreme Court invalidated residence duration requirements of five, three and two years, respectively, for county or city candidates. These residence requirements, according to these decisions, treat some persons differently than others, infringing the fundamental rights to seek office and to travel; the equal protection clause of the Fourteenth Amendment requires 'strict scrutiny' of such a classification, which may be sustained only if necessary to achieve 'a compelling governmental interest;' the residence requirements failed to promote candidates' familiarity with community conditions and issues; they discriminated against newcomers without fulfilling a compelling governmental interest; hence they denied equal protection of the laws.

The absence of a majority opinion in Thompson v. Mellon, supra, 9 Cal.3d 96 107 Cal.Rptr. 20, 507 P.2d 628, causes lack of firm decisional guidance. The leading opinion (by Sullivan, J., with Tobriner, J., concurring) nullifies a two-year residence requirement and suggest that a charter or statute may constitutionally require no more than 30 days' residence before the candidate files his nominating papers. An opinion signed by Wright, C.J., and Molinari, J., concurs in the judgment of invalidity without suggesting what would be a constitutionally permissible demand. A concurring opinion by Mosk, J., concludes that any person eligible to vote at the election should be eligible for candidacy at that election. A dissenting opinion (signed by Burke, J., and McComb, J.) would have sustained the two-year provision as a valid exercise of home rule. Five of the seven participating justices joined in nullifying the two-year residence provision, but less than a majority joined in expressions reflecting adversely upon a one-year residence requirement. The latter expressions thus have no precedential force. (North v. Superior Court (1972) 8 Cal.3d 301, 307--308, 104 Cal.Rptr. 833, 502 P.2d 1305.) We seek additional enlightenment in related federal and California decisions.

In Gage v. Allison (1971), 22 Cal.App.3d 85, 99 Cal.Rptr. 95, the Court of Appeal, Second District, Division Four, rejected an equal protection attack upon a Los Angeles county charter provision requiring supervisorial candidates to have one year's 'elector' status within the supervisorial district. The State Supreme Court denied a petition for hearing in Gage v. Allison. According to the opinion, the Court of Appeal believed itself bound by Lindsey v. Dominguez (1933), 217 Cal. 533, 20 P.2d 327, which had sustained a two-year residence requirement for city council candidates. The latter, however, was not reliable authority. Earlier, the State Supreme Court had denigrated Lindsey, observing that it 'was decided long before the 'compelling interest' test was applied to the franchise . . ..' (Zeilenga v. Nelson, supra, 4 Cal.3d at p. 723, fn. 3, 94 Cal.Rptr. at p. 606, 484 P.2d at p. 582.) Later, in Wenke v. Hitchcock (1972), 6 Cal.3d 746, 755, 100 Cal.Rptr. 290, 493 P.2d 1154, and Thompson v. Mellon, supra, 9 Cal.3d at page 106, footnote 6, 107 Cal.Rptr. 20, 507 P.2d 628, the Supreme Court overruled Lindsey, virtually obliterating the Ratio decidendi of Gage v. Allison and devitalizing its own denial of a hearing in that case. Because it relied on the now overruled Lindsey decision, we do not view Gage v. Allison as persuasive authority. ³

Decisions involving constitutionality of voter (as distinguished from candidate) residence laws are significant, because the rights to vote and to seek office are closely related attributes of citizenship. The federal and California Supreme Courts have invalidated state laws denying the vote to recent arrivals, declaring that the equal protection guaranty exposed such laws to 'strict scrutiny' by the courts, which would invalidate them unless they fulfilled a 'compelling governmental interest.' Thus the federal Supreme Court nullified Texas' requirement of one year's state and three months' county residence (Dunn v. Blumstein (1972) 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274) and held that Georgia's 50-day residence statute 'approaches the outer constitutional limits in this area.' (Burns v. Fortson (1973) 410 U.S. 686, 687, 93 S.Ct. 1209, 1210, 35 L.Ed.2d 633.) Similarly, the California courts have rejected this state's demand for voter residence of one year in the state, 90 days in the county and 54 days in the precinct, holding that a voters' durational residence requirement of more than 30 days was impermissible. (Young v. Gnoss (1974) 7 Cal.3d 18, 27--28, 101 Cal.Rptr. 533, 496 P.2d 445; Keane v. Mihaly (1970) 11 Cal.App.3d 1037, 90 Cal.Rptr. 263.)

A somewhat variant test of equal protection has been applied to reject state laws imposing heavy filing fees on election candidates. The filing fee cases are featured by a significant semantic shift. Although continuing adherence to the customary 'strict scrutiny' rhetoric, the latter decisions no longer insist upon a 'compelling governmental interest;' instead, they call upon the state to show that its restriction is 'reasonably necessary' to achieve a legitimate public interest. (Bullock v. Carter (1972) 405 U.S. 134, 144, 92 S.Ct. 849, 31 L.Ed.2d 92; Lubin v. Panish (1974) 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702, 709--710; Knoll v. Davidson (1974) 12 Cal.3d 335, 345--347, 116 Cal.Rptr. 97.)

Finally, in measuring candidate qualification laws against the equal protection guaranty, the federal Supreme Court has utilized a third verbal formula, one which bids 'consider(ation of) the facts and circumstances behind the law, the interest which the State claims to be protecting, and the interest of those who are disadvantaged by the classification.' (Storer v. Brown (1974) 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 36 L.Ed.2d 714, 723--724.)

II

For present purposes, it is not vital to know whether the right to seek office is as 'fundamental' as the right to vote. At the minimum, the former is an important and valued attribute of citizenship in an open society. '(L) egitimate State interest . . . must be achieved by a means that does not unfairly or unnecessarily burden . . . an individual candidate's . . . important interest in the continued availability of political opportunity. The interests involved are not merely those of parties or individual candidates; the voters can assert their preferences only through candidates or parties or both and it is this broad interest that must be weighed in the balance. The right of a party or an individual to a place on a ballot is entitled to protection and is intertwined with the rights of voters.' (Lubin v. Panish, supra, 415 U.S. at p. 716, 94 S.Ct. at p. 1320, 39 L.Ed.2d at p. 708.)

It is unnecessary to decide here whether the relatively stringent 'compelling interest' test or the relatively mild 'reasonable necessity' test is appropriate. Even by the measure of the latter, the one-year durational residence requirement for local candidates fails. Its preference for settled inhabitants and its denial of political opportunity to new inhabitants is restrictive beyond its reasonable necessity for achieving legitimate public ends.

III

In weighing the public ends served by election laws which prefer one class of citizens over another, the voter qualification cases (e.g., Dunn v. Blumstein) and the candidate qualification decisions (e.g., Thompson v. Mellon) place two separate factors on the scale: first, the requirement's value as a functional adjunct of the election machinery; second, its value in promoting intelligent participation in the election process. The equal protection analysis suggested by Storer v. Brown, supra, 415 U.S. at page 730, 94 S.Ct. at page 1279, 39 L.Ed.2d at page 724, invites consideration of a third...