Thompson v. Mellon, S.F. 22984

• Decision Date: 16 March 1973
• Docket Number: S.F. 22984
• Citation: 9 Cal.3d 96,507 P.2d 628,107 Cal.Rptr. 20
• Court: California Supreme Court
• Parties: , 507 P.2d 628, 65 A.L.R.3d 1029 James C. THOMPSON, Petitioner, v. Angele MELLON, as City Clerk, etc., Respondent. In Bank

Page 20

107 Cal.Rptr. 20

9 Cal.3d 96, 507 P.2d 628, 65 A.L.R.3d 1029

James C. THOMPSON, Petitioner, v. Angele MELLON, as City Clerk, etc., Respondent.

S.F. 22984.

Supreme Court of California,

In Bank.

March 16, 1973.

Wyckoff, Miller & Comstock and Robert B. Yonts, Jr., San Francisco, for petitioner.

Rodney R. Atchison, City Atty., for respondent.

SULLIVAN, Justice.

This proceeding for a writ of mandate challenges the constitutionality of a provision of the Charter of the City of Santa Cruz which prescribes a two-year durational residence requirement for candidates for the office of city councilman. We have concluded that this provision violates the equal protection clause of the Fourteenth Amendment to the United States Constitution.

The petition alleges in substance the following facts. Petitioner James C. Thompson has resided in Santa Cruz County since 1966, has practiced law in the City of Santa Cruz since September 1966, but has resided in in the City of Santa Cruz (City) only since Septmember 23, 1972. Respondent Angele Mellon, the city clerk, refused to file, despite their timely presentation, petitioner's nominating papers for his candidacy for the office of city councilman in the election scheduled for April 10, 1973, because petitioner had not been a resident of the City for the two years next preceding his nomination as required by section 602 of the City charter. ¹ Invoking our original jurisdiction, petitioner seeks a writ of mandate commanding respondent city clerk to file his nomination papers and to place his name on the ballot prepared for the election to be held on April 10, 1973, if he meets all requirements other than the two-year durational residence requirement of the City charter.

The city clerk in her return to the alternative writ admits that an election for the office of city councilman is scheduled for April 10, 1973, and that she refused to file nominating papers for petitioner's candidacy allegedly on the ground that he did not qualify under the provisions of section 602 of the City charter but denies the remaining allegations of the petition which in the main assert that petitioner is otherwise qualified as a candidate.

Preliminarily, we briefly observe that since this case involves substantial issues of great public importance involving the right to be a candidate for public office which must be resolved promptly, we deem it proper to exercise original jurisdiction. (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 750--751, 100 Cal.Rptr. 290, 493 P.2d 1154; Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, fn. 1, 96 Cal.Rptr. 697, 488 P.2d 1.) Mandate is the proper remedy. (Wenke v. Hitchcock, Supra, 6 Cal.3d 746, 751, 100 Cal.Rptr. 290, 493 P.2d 1154; Jolicoeur v. Mihaly, Supra, 5 Cal.3d 565, 570, fn. 2, 96 Cal.Rptr. 697, 488 P.2d 1.)

We turn to the merits. Petitioner contends that the two-year durational residence requirement unconstitutionally restricts his fundamental right to seek public office because it is not necessary to achieve a compelling governmental interest. He relies upon Camara v. Mellon (1971) 4 Cal.3d 714, 94 Cal.Rptr. 601, 484 P.2d 587 and Zeilenga v. Nelson (1971) 4 Cal.3d 716, 94 Cal.Rptr. 602, 484 P.2d 578.

In Camara this court held that the Three-year durational residence then required by the Santa Cruz City Charter for candidates for city councilman violated the equal protection clause of the Fourteenth Amendment for the reasons 'to be further elucidated' in Zeilenga. Subsequently, in Zeilenga we held that the five-year durational residence requirement imposed by the Butte County Charter for candidates for the county board of supervisors violated the equal protection clause of the Fourteenth Amendment. We there said: '(W)e are not convinced that the five-year provision constitutes "the least restrictive method of achieving the desired purpose" (citation), namely a reasonable knowledge by a proposed candidate of the general requirements of his county.' (Zeilenga v. Nelson, Supra, 4 Cal.3d at p. 723, 94 Cal.Rptr. at p. 606, 484 P.2d at p. 582.)

We concluded in Zeilenga that the right to hold office was a fundamental right and that restrictions upon its exercise must, therefore, be strictly scrutinized. ² Indeed, we declared in effect that the right to be a candidate for public office was inextricably intertwined with the right to vote and equally as fundamental. We said: "(T)he right to vote would be empty indeed if it did not include the right of choice for whom to vote. . . . But it does mean that in judging the validity of a restraint upon eligibility for elective office, we must be mindful that the restraint is upon the right to vote as well. . . . Far from being unrestricted, the power to prescribe qualifications for elective office is sharply limited by the constitutional guaranty of a right to vote. . . ." (Zeilenga v. Nelson, Supra, 4 Cal.3d at p 721, 94 Cal.Rptr. at p. 605, 484 P.2d at p. 581, quoting Gangemi v. Rosengard (N.J.) 44 N.J. 166, 207 A.2d 665, 667); . . . (T)he right to run for public office is as fundamental a right as is the right to vote . . ..' (Zeilenga v. Nelson, Supra, 4 Cal.3d at p. 723, 94 Cal.Rptr. at p. 606, 484 P.2d at p. 582.)

It is noteworthy, however, that after our decision in Zeilenga, the United States Supreme Court in Bullock v. Carter (1972) 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92, apparently deemed it unnecessary to declare that the right to run for public office was in itself a fundamental right requiring the 'strict scrutiny' test. Rather, the high court examined the interrelation between the restrictive effect of candidates' filing fees on the candidates' right to run for office and the voters' right to vote for candidates of their choice and remarked: 'The initial and direct impact of filing fees is fely by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. (Fn. omitted.) However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. . . . (t)he Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from (which) voters might choose. The existence of such barriers does not of itself compel close scrutiny. . . . In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.' (405 U.S. at pp. 142--143, 92 S.Ct. at p. 855.) Following such examination, the court determined that the exclusion of candidates from the ballot who could not afford to pay the filing fees, thereby tending 'to deny some voters the opportunity to vote for a candidate of their choosing' had a 'real and appreciable impact on the exercise of the franchise.' (Id. at p. 144, 92 S.Ct. at p. 856.) The high court then concluded that the Texas filing fee system 'must be 'closely scrutinized' and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.' (Id. at p. 144, 92 S.Ct. at p. 856.) Thus, Bullock held that restrictions upon candidacy for public office which excluded a significant group of potential candidates from the ballot must be 'closely scrutinized.'

The overwhelming weight of recent authority, both before and after Bullock has held that durational residence requirements as a precondition to candidacy for public office have such a substantial impact on the right to vote as to invoke the 'strict scrutiny' test. ³ Typical of the Pre-Bullock cases in Mogk v. City of Detroit, Supra, D.C., 335 F.Supp. 698, 700--701: 'The Supreme Court has, in election cases, dealt most often with voters' rights rather than the rights of persons to become candidates for public office, but it seems to us that they are, in the main, inextricably intertwined. Reynolds, supra, (377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506) and Williams, supra, (393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24) ⁴ hold that a citizen has a right to vote effectively and, by logical extension, that means that the is to be given a wide latitude in his choice of public officials.' The court then applied the 'strict scrutiny' test and declared a three-year residence requirement for membership on the city revision charter commission unconstitutional.

Two post-Bullock cases clearly demonstrate why durational residence requirements as a precondition to candidacy for public office must be tested by the 'strict scrutiny' test. 'The right to hold or run for public office has not as yet been expressly declared by the Supreme Court to have the same status (as the right to vote). (Fn. omitted.) After so noting, however, the court in Bullock proceeded to note the interrelation between restrictions on the right to candidacy and restrictions on the right to vote: . . . Unlike the Texas filing fee system and the laws concerning candidacy considered by the Supreme Court in other cases, (fn. omitted) the burden of Section 3--300 (five-year residency requirement to run for mayor) does not fall more heavily on minority economic or political groups. This distinction, while significant, does not render the Bullock case inapplicable, however. As I read that case the grounds asserted for utilizing the 'compelling interest' test were alternative. Accordingly, where the law in question poses an absolute barrier to the candidacy of a not insubstantial segment of the community and, to that degree, limits the voters in their choice of candidates, the more strict standard of review must be applied. (Citations.)' (Wellford v. Battaglia, Supra, 343 F.Supp. at pp. 146--147; accord: Manson v. Edwards, Supra, 345 F.Supp. 719, 721--724, where the court applied the 'strict scrutiny' test to a provision of the Charter of the City of Detroit requiring all candidates for...