Wenke v. Hitchcock

Decision Date02 March 1972
Citation100 Cal.Rptr. 290,493 P.2d 1154,6 Cal.3d 746
CourtCalifornia Supreme Court
Parties, 493 P.2d 1154 William F. WENKE, Petitioner, v. David G. HITCHCOCK, as Registrar of Voters, etc., Respondent. L.A. 29970. In Bank

William F. Wenke, Santa Ana, in pro. per., Wenke, Kemble & Burge, Gary L. Taylor and John R. Schilling, Santa Ana, for petitioner.

Adrian Kuyper, County Counsel and Victor T. Bellerue, Deputy County Counsel, for respondent.

Edmond G. Brown, Jr., as amicus curiae.

SULLIVAN, Justice.

Petitioner seeks a writ of mandate directing respondent David G. Hitchcock, as registrar of voters, to issue to petitioner, and to accept from petitioner for filing, nomination papers for the office of Supervisor of the First Supervisorial District of Orange County. For reasons set forth Infra, we have concluded that petitioner is qualified to be a candidate for such office and that, therefore, the writ should issue.

We set forth the undisputed facts. Petitioner is, and at all material times has been, an adult citizen and resident of Orange County. For approximately 18 years prior to November 15, 1971, he was a resident and elector of the First Supervisorial District during the last seven years of that period his residence was located at 1015 Rivieria Drive, City of Santa Ana, within the boundaries of the district.

During October 1971, and for several months prior thereto, the Board of Supervisors of Orange County (Board) studied various plans for adjusting the boundaries of the supervisorial districts in that county so as to make them equal in population. (See Gov.Code, §§ 25001, 25001.1.) 1 At that time, an election was planned for 1972 for the office of Supervisor of the First Supervisorial District because of the expiration of the incumbent's regular term of office. None was planned however for the office of Supervisor of the Fourth Supervisorial District. On October 27, 1971, the Board adopted a redistricting ordinance which, among other things, removed 3,000 persons from the First District and placed them in the Fourth District.

At the time the redistricting ordinance was adopted, it was generally known in the community that petitioner, whose residence was within the area to be removed from the First District to the Fourth District, intended to be a candidate from the First District. However, since the elections in the various districts are staggered, there will be no election for supervisor in the Fourth District until 1974.

On November 5, 1971, the County Counsel of Orange County issued an opinion clarifying the rights of potential candidates under the redistricting ordinance. In pertinent part, the opinion stated: First, that the ordinance would become effective 30 days from the date of final passage, i.e., on November 26, 1971; and, second, that a candidate for supervisor must have been a resident of the supervisorial district in which he runs for at least one year preceding the primary election, whether he is elected at the primary or general election. 2 The opinion continued: 'If a potential candidate has resided within a given numbered district and his place of residence after November 26, 1971 would no longer be within that numbered district, he may, before that date, change his place of residence to another location which has been and will be within the numbered district, as the boundaries will be after November 26, 1971, and preserve the continuity of the necessary year's residence within that district.'

On November 15, 1971, apparently relying on this opinion, petitioner moved his residence and family three blocks to 2106 North Baker Street, City of Santa Ana, a location which had been within, and, under the redistricting ordinance, continued to remain within, the First District. On February 11, 1972, however, the county counsel issued a new opinion reversing its prior position as to a candidate's right to remain within a given district by changing his residence before the effective date of the new ordinance. This reversal of position was based on the case of Lindsey v. Dominguez (1933) 217 Cal. 533, 20 P.2d 327. The new opinion of the county counsel interpreted Lindsey as holding in respect to Los Angeles councilmanic elections that a candidate could not move and preserve his continuity of residence in the district. Concluding that Lindsey cast considerable doubt on his first opinion but still believing that the case was not totally persuasive, the county counsel understandably modified his first opinion to conform to Lindsey by stating: '(T)hat a candidate must have been an elector for one year prior to June 6, 1972, In the territory which now comprises the district in which the election is being conducted.' (Original italics.)

On February 14, 1972, petitioner attempted to file with respondent his completed Candidates Information Statement together with the required filing fee and requested his nomination papers. Respondent, however, acting in accordance with the county counsel's second opinion, refused to issue them. Petitioner alleges that his last day for filing nomination papers is March 10, 1972. Invoking our original jurisdiction, he seeks a writ of mandate directing the registrar of voters to issue nomination papers and accept them for filing.

This court has 'original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition.' (Cal.Const., art. VI, § 10; See Cal. Rules of Court, rule 56(a).) As we said recently in Jolicoeur v. Mihaly (1971) 5 Cal.3d 565, 570, fn. 1, 96 Cal.Rptr. 697, 699, 488 P.2d 1, 3: 'We exercise such jurisdiction only in cases in which 'the issues presented are of great public importance and must be resolved promptly.' (Citation.) Cases affecting the right to vote and the method of conducting elections are obviously of great public importance. Moreover, the necessity of adjudicating the controversy before the election renders it moot usually warrants our bypassing normal procedures of trial and appeal. Thus we have exercised our original jurisdiction where electors sought to qualify an initiative for the ballot (citations), where a proposed local election would have violated the city charter (citation), and where an individual sought certification by the city clerk as a candidate for office. (Citation.)'

Resolution of the present controversy is urgent. Petitioner's nomination papers which the registrar has refused to provide must be filed by March 10, 1972, less than a month after these proceedings were initiated. Because of the long-standing opinion in the Lindsey case which appears to be unfavorable to petitioner, lower courts are unlikely to grant relief. If the issues are to be resolved on time, we must exercise such jurisdiction.

We are also satisfied that mandamus is a proper remedy. (See Code Civ.Proc., §§ 1085--1086.) 'Voting registrars are public officers with the ministerial duty of permitting qualified voters to register. Mandamus is clearly the proper remedy for compelling an officer to conduct an election according to law. (Citations.) Mandamus is also appropriate for challenging the constitutionality or validity of statutes or official acts. (Citations.)' (Jolicoeur v. Mihaly, Supra, 5 Cal.3d 565, 570, fn. 2, 96 Cal.Rptr. 697, 699, 488 P.2d 1, 3.)

We turn to the merits. Petitioner contends: (1) that respondent's refusal to issue nomination papers was improper under existing law because Lindsey v. Dominguez, Supra, 217 Cal. 533, 20 P.2d 327, is factually distinguishable; (2) that even if Lindsey is applicable, it should be overruled; and (3) that respondent's refusal violates petitioner's rights under the First and Fourteenth Amendments to the United States Constitution since petitioner's exclusion as a candidate is not made necessary by a compelling governmental interest.

We must begin with the statutory requirement, which the parties concede is applicable, that to qualify for election as a member of the board of supervisors a candidate 'shall have been an elector Of the district which he represents for at least one year immediately preceding his election . . .' (Gov.Code, § 25041, italics added; see fn. 2, Ante.) The parties also concede that in the present controversy the crucial words are those italicized above.

Petitioner relies heavily on an opinion of the Attorney General (31 Ops.Cal.Atty.Gen. 88 (1958)) which according to petitioner passed upon the identical question now confronting us. 3 Although not of controlling authority, the opinions of the Attorney General have been accorded great respect by the courts. (Smith v. Anderson (1967) 67 Cal.2d 635, 641, 63 Cal.Rptr. 391, 433 P.2d 183; Carter v. Commission on Qualifications, etc. (1939) 14 Cal.2d 179, 185, 93 P.2d 140.) Nevertheless, we do not find the above opinion persuasive on the issue before us since it does not mention the Lindsey case and did not consider the question there presented in the context of the case at bench. 4 We feel that petitioner's reliance on the above opinion is over-optimistic, if not fully misplaced.

We proceed to petitioner's argument that Lindsey v. Dominguez, Supra, 217 Cal. 533, 20 P.2d 327, is inapplicable and therefore presents no obstacle to petitioner's relief. At issue in Lindsey was a provision of the Charter of the City of Los Angeles which stated that to be eligible to nomination or election as a member of the city counsel, a person, among other requirements, "must have been a resident of the district from which he is nominated or elected for at least two years next preceding his nomination or election." (Id. at pp. 534--535, 20 P.2d at p. 327.) One Arnold, a candidate on the ballot for councilman, had resided within the boundaries of councilmanic District Ten for seven years. In December 1932, he moved his residence to another location within the same district. In January 1933, the boundaries of District Ten were altered so as to exclude his former residence and make it part of...

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