Zeilenga v. Nelson

• Decision Date: 03 May 1971
• Citation: 4 Cal.3d 716,94 Cal.Rptr. 602,484 P.2d 578
• Court: California Supreme Court
• Parties: , 484 P.2d 578 Jack H. ZEILENGA, Jr., et al., Plaintiffs and Appellants, v. Clark A. NELSON, as County Clerk, etc., Defendant and Respondent. Sac. 7881.

Page 602

94 Cal.Rptr. 602

4 Cal.3d 716, 484 P.2d 578

Jack H. ZEILENGA, Jr., et al., Plaintiffs and Appellants, v. Clark A. NELSON, as County Clerk, etc., Defendant and Respondent.

Sac. 7881.

Supreme Court of California In Bank.

May 3, 1971.

Blackmon, Isenberg & Moulds and Phillip L. Isenberg, Sacramento, for plaintiffs and appellants.

Paul N. Halvonik and Charles C. Marson, San Francisco, as amici curiae on behalf of plaintiffs and appellants.

Deniel V. Blackstock, County Counsel, and Neil H. McCabe, Deputy County Counsel, for defendant and respondent.

Thomas M. O'Connor, City Atty., City and County of San Francisco, and Burk E. Delventhal, Deputy City Atty., as amici curiae on behalf of defendant and respondent.

PETERS, Justice.

In this proceeding to determine the constitutionality of durational residency requirements imposed by the Butte County Charter for candidates for the county board of supervisors, plaintiffs (hereafter referred to for convenience as petitioners) appealed from a judgment of the trial court upholding the constitutionality of the charter provision and denying the relief requested.

After decision by the Court of Appeal, Third District, 12 Cal.App.3d 775, 90 Cal.Rptr. 916, we granted a hearing in this court because the decision of the Court of Appeal appeared to conflict with this court's holding in Sheehan v. Scott (1905) 145 Cal. 684, 79 P. 350. We have concluded that Sheehan should be overruled and that the opinion of the Court of Appeal prepared by Justice Bray ^* and concurred in by Presiding Justice Pierce and Justice Regan, as modified, correctly treats and disposes of the constitutional question presented. We adopt such opinion with certain deletions and additions as and for the opinion of this court. Such opinion is as follows: ^** ( ) Petitioner Zeilenga has resided in Butte County since August 1968. On February 24, 1970, respondent Clerk A. Nelson, county clerk of that county, refused to issue nomination papers to Zeilenga for the office of supervisor of the Third Supervisorial District (to be elected June 2, 1970) solely on the ground that, as required by the county charter hereinafter discussed, he had not been a resident of the county for the previous five years; he had been such resident for only approximately one and one-half years. Petitioners other than Zeilenga are registered voters of the Third Supervisorial District of the county who certified that they would sign his nomination papers for that office and would vote for him if given the opportunity.

Petitioners filed in the Butte County Superior Court a petition for writ of mandate to compel County Clerk Nelson to certify petitioner Zeilenga as a candidate for supervisor of the Third District. After a hearing, the petition was denied. This appeal followed. ( )

By the time the superior court proceeding had terminated and this appeal had been perfected, there was not time before the June 2 election took place for this court to pass upon the problem involved in the appeal. In a sense the problem is moot because obviously the court may not require the county clerk to certify Zeilenga as a candidate at an election which has already taken place. However, the basic issue--namely, Is the county charter provision, hereinafter discussed, constitutional?--is one which deprives any Butte County resident who has not lived in Butte County five years of the right to run for county supervisor. This issue is a vital one for the people of Butte County, and is one of general public interest and should be determined before the next election for county supervisor. ¹

Likewise, the issue does not become moot merely because the question is of no further immediate interest to the person who raised it. (See Board of Education v. Watson (1966) 63 Cal.2d 829, 832, 48 Cal.Rptr. 481, 409 P.2d 481.) As said in Rees v. Layton (1970) 6 Cal.App.3d 815, 819, 86 Cal.Rptr. 268 (hg. den.), concerning the validity of a certain section of the Elections Code of the City of Los Angeles, 'Since the election has been held, these cases are now moot. However, since the questions raised thereby will arise at future * * * elections, the basis issues are not moot and an opinion thereon is proper.'

In an additional sense the matter is not moot since the charter provision, if valid, will prevent petitioner Zeilenga from being a candidate for the office of supervisor either by election or appointment, should there become a vacancy, until August 1973, as he will not have resided in Butte County for the necessary five years before that date. ( )

Article II, section 2, of the Butte County Charter provides in relevant part: 'The County of Butte shall have a Board of Supervisors, consisting of five members, each of whom must be an elector of the supervisorial district which he represents, must reside therein during his incumbency, Must have been a resident of the county for five years immediately preceding his election, and shall be elected by the electors of the district which he is to represent. * * *' (Stats.1917, ch. 15, at p. 1793.) (Italics ours.) ( )

( ) Section 275 of the Government Code (does not) control over the charter provision setting forth the qualifications for the office of supervisor. That section states, 'Unless otherwise specifically provided, every elector is eligible to the office for which he is an elector, * * *' (Italics ours.) As herein shown, so far as residence qualification is concerned, it Is 'otherwise specifically provided' in the Butte County Charter, and section 275 does not automatically qualify a person for office. To interpret that it does would fly in the face of the many different residency requirements for public office found elsewhere and even in the face of section 25041 of the Government Code. (See Jones v. De Shields (1921) 187 Cal. 331, 336, 202 P. 137.) ( )

This brings us then to the question of whether section 2 of article II of the Butte County Charter is unreasonably discriminatory and violates the Fourteenth Amendment of the United States Constitution as a denial of equal protection.

'(T)he right to hold public office, either by election or appointment, is one of the valuable rights of citizenship.' (Carter v. Commission on Qualifications of Judicial Appointments (1939) 14 Cal.2d 179, 182, 93 P.2d 140, 142.) It is a 'fundamental right' (Fort v. Civil Service Commission (1964) 61 Cal.2d 331, 335, 38 Cal.Rptr. 625, 392 P.2d 385) which the First Amendment protects against infringement (Johnson v. State Civil Service Department (1968) 280 Minn. 61, 157 N.W.2d 747, 750; Minielly v. State (1966) 242 Or. 490, 411 P.2d 69, 73, 28 A.L.R.3d 705). There is 'a federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.' (Turner v. Fouche (1970) 396 U.S. 346, 362, 90 S.Ct. 532, 541, 24 L.Ed.2d 567.) To justify any impairment of First Amendment rights, there must be present a compelling governmental interest (Huntley v. Public Utilities Com. (1968) 69 Cal.2d 67, 74, 69 Cal.Rptr. 605, 442 P.2d 685.)

In Landes v. Town of North Hempstead (1967) 20 N.Y.2d 417, 284 N.Y.S.2d 441, 442, 231 N.E.2d 120, 121), the court said: 'Although 'the Legislature may prescribe qualifications for office * * * it has been settled law from the earliest period in the history of our state that it cannot enact arbitrary exclusions from office.' * * * Qualifications for office must have a rational basis, such as age, integrity, training or, perhaps, residence. * * * If a classification is employed in prescribing qualifications, it must be nondiscriminatory and 'based on a real and substantial difference having reasonable relation' to the object sought to be accomplished by the legislation. * * * ' (Italics ours.)

And in Gangemi v. Rosengard (1965) 44 N.J. 166, 207 A.2d 665, 667, the court said: '(T)he right to vote would be empty indeed if it did not include the right of choice for whom to vote. * * * This does not mean there must be perfect equality between the two. * * * 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. A prescribed qualification for office must relate to the needs of officeholding as such or the special needs of the particular office involved, with the voters free to judge the personal or individual fitness of the candidates who have those basic qualifications. The line separating the basic needs of office from the individual fitness of a candidate, perhaps more easily felt than described, is vital, and the fundamental value involved is best served if the judiciary insists that the reason for the inroad upon the right to vote be Real, and clear, and compelling.' (Italics ours.)

A classification created for legislative purposes must be reasonable and not arbitrary. (11 Cal.Jur.2d, Constitutional Law, § 275, p. 722.) The 'compelling interest' test applies if the result of the classification affects a 'fundamental right.' (Shapiro v. Thompson (1969) 394 U.S. 618, 658, 89 S.Ct. 1322, 22 L.Ed.2d 600, 629.) The cases hereinbefore cited establish that the right to hold public office is a fundamental right. ( )

The problem upon which the parties to this proceeding split is whether, under modern methods of communication and traveling about the county, it reasonably requires five years for a citizen to be prepared to stand for the office of supervisor.

No compelling interest has been shown why a citizen coming into California should be required to wait five years before becoming eligible to the office of county supervisor. The difficulty of making such a showing seems self-evident when one realizes that as to general law counties the residence requirement is only one...