Zeilenga v. Nelson

Decision Date06 November 1970
Citation90 Cal.Rptr. 916,12 Cal.App.3d 775
CourtCalifornia Court of Appeals Court of Appeals
PartiesJack H. ZEILENGA, Jr., Michael A. Pincus, Francis E. Burk, Michael D. Logue, Carl E. Hein, Richard N. Gould, and Polly Ann Farrell, Petitioners and Appellants. v. Clark A. NELSON, County Clerk, County of Butte, Respondent. Civ. 12661.

Blackmon, Isenberg & Moulds, by Phillip Isenberg, Sacramento, for petitioners-appellants.

Dan V. Blackstock, County Counsel, Oroville, for respondent.

BRAY, Associate Justice (Assigned).

Petitioners appeal from a superior court judgment denying their petition for writ of mandate to compel the County Clerk of Butte County to certify petitioner Zeilenga as a candidate for the office of Butte County Supervisor at the primary election held June 2, 1970.

QUESTIONS PRESENTED

1. What is the effect of the circumstance that the June 2 election has already taken place?

2. When enacted, did the five-year residence requirement specified by the Butte County Charter as a qualification for county supervisor violate the California Constitution?

3. Does the aforesaid charter requirement violate the Fourteenth Amendment to the United States Constitution?

RECORD

Petitioner Zeilenga has resided in Butte County since August 1968. On February 24, 1970, respondent Clark 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.

1. Although The Election Has Passed, This Court May Consider The Problem Involved

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 his 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, etc. 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, 270 (hr. 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 basic 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.

2. The County Charter And The California Constitution.

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.)

This section of the charter was framed under the authority of then section 7 1/2 of article XI of the state Constitution, which provided in pertinent part as follows: 'Any county may frame a charter for its own government consistent with and subject to the Constitution * * * and relating to matters authorized by provisions of the Constitution * * *. [When approved by the county electors and state Legislature,] such charter shall become the charter of such county shall become the organic law relative to the matters therein provided * * * and shall supersede all laws inconsistent with such charter relative to the matters provided in such charter * * *.'

The section further stated: 'It shall be competent, in all charters, framed under the authority given by this section to provide * * * [f]or boards of supervisors and for the constitution, regulation and government thereof, for the times at which and the terms for which the members of said board shall be elected, for the number of members, not less than three, that shall constitute such boards, for their compensation and for their election, either by the electors of the counties at large or by districts; provided that in any event said board shall consist of one member for each district, who must be a qualified elector thereof * * *.' 2 (Italics ours.)

Section 3, subdivision (a), of the new article XI of the state Constitution adopted June 2, 1970, provides in part: 'For its own government, a county * * * may adopt a charter * * *.' Section 4 thereof provides: 'County charters shall provide for: (a) A governing body of 5 or more members, elected (1) by district or, (2) at large, or (3) at large, with a requirement that they reside in a district. * * *' (Italic ours.)

The only practical differences between the old and the new articles XI are (1) the new requires a minimum of five supervisors as against the old requirement of only three, and (2) the old required that each member should be a qualified elector of his district, whereas the new article requires a member of the board to reside in a district only if the county charter provides for the third type of governing body, namely, supervisors elected 'at large, with a requirement that they reside in a district.'

The question to be determined is whether the state Constitution, at the time the Butte County Charter was adopted, provided. such a residence qualification for county supervisors as deprived Butte County, which adopted the charter, and the Legislature, which approved it, of the power to provide in the charter additional residence requirements.

"[W]here the constitution prescribes the qualifications for state office, the legislature can neither add to, nor detract from, the qualifications so prescribed." (Wallace v. Superior Court (1956) 141 Cal.App.2d 771, 776, 298 P.2d 69, 72, quoting from 81 C.J.S. States § 67, p. 998; the Wallace case also quotes statements to the same effect from 3 McQuillin on Municipal Corporations (3d ed.) § 12.58, p. 234, and 47 A.L.R. 481.)

An examination of former section 7 1/2, article XI, of the state Constitution shows that it merely provided a minimal residence qualification for county supervisors. The section granted a county the power to frame a charter in which it was competent to provide for boards of supervisors and for their constitution and their election, provided that 'in any event' one member for each district was required to be a qualified elector of the district. The 'in any event' language, coupled with the power given to constitute the board and to provide for the election of its members, clearly shows that the Constitution was providing only a minimal residence qualification and not the only and exclusive residence qualification.

The situation is entirely different from that in Wallace v. Superior Court, supra, 141 Cal.App.2d 771, 298 P.2d 69, where the Constitution (art.VI, § 23) provided solely that no person could be eligible to the office of judge a superior court unless he had been admitted to practice before the California Supreme Court. The reviewing court held that the Constitution by its language had provided the exclusive qualification for the office and that the Legislature had no power to adopt section 69500 of the Government Code, which required a judge of the superior court to have certain residence requirements.

As section 7 1/2 did not prescribe an exclusive qualification for the office of county supervisor, and since the section provided that county charters could provide for the constitution of boards of supervisors and for their election, the qualification provisions of the Butte County Charter, when enacted, did not violate the California Constitution.

The 1970 change in the constitutional provisions concerning boards of supervisors of course does not affect the validity of the Butte County Charter adopted in 1917.

Section 25041 of the Government Code provides that each member of the board of supervisors 'shall have been an elector of the district which he represents for at least one year immediately preceding his election, * * *.' This section applies only to general counties and not too counties whose charters validly prescribe qualifications for county supervisors. As to the latter counties, the Legislature has...

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2 cases
  • Zeilenga v. Nelson
    • United States
    • United States State Supreme Court (California)
    • May 3, 1971
    ...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. ......
  • Lawrence v. Cleveland
    • United States
    • California Court of Appeals
    • November 25, 1970
    ...a vital issue for the people of Sacramento, is one of general public interest, and should be determined. (See Zeilenga v. Nelson (Nov. 6, 1970), Cal.App., 90 Cal.Rptr. 916 (3 Civil 2. The City Charter And The California Constitution. Article IV, section 20, of the Sacramento City Charter pr......

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