Opinion
Hearing Ordered on Court's Own Motion Jan. 21, 1971.
Hearing Granted Jan. 21, 1971.
Appeal Dismissed March 8, 1971.
Opinions on pages 127 to 138 omitted
HEARINGS GRANTED [*]
Opinion was later dismissed the cause as moot.
[91 Cal.Rptr. 864] Blackmon, Isenberg & Moulds, Sacramento, for petitioners-appellants.
Jackson, McMurtry & Liebert, Sacramento, of counsel, for respondent.
BRAY, Associate Justice (Assigned).
Petitioners appeal from a superior court judgment denying their petition for writ of mandate to compel the Sacramento City Clerk to certify petitioner Lawrence as a candidate for the office of Sacramento City Councilman at the municipal election held November 4, 1969.
QUESTIONS PRESENTED
1. What is the effect of the circumstance that the November 1969 election has already taken place?
2. Is the five-year residence requirement specified by the Sacramento City Charter as a qualification for city councilman violative of the California Constitution?
3. Does the aforesaid charter requirement violate the Fourteenth Amendment to the United States Constitution?
RECORD
Petitioner Lawrence has resided in the City of Sacramento since September 1965. On September 11, 1969, he presented to respondent Cleveland, Sacramento City Clerk, nomination papers for the office of city councilman to be elected at the November 1969 election. Solely on the ground that Lawrence would not have resided in Sacramento for the period of five years preceding the date of the election, as required by the city charter, respondent refused to certify him as a candidate. Petitioners other than Lawrence are registered voters of the City of Sacramento who signed Lawrence's nomination papers and who intended to vote for him if given the opportunity.
Petitioners filed in the Sacramento Superior Court a petition for writ of mandate to compel respondent City Clerk to accept the nomination papers and certify Lawrence as a candidate for the office of city councilman. After a hearing, the petition was denied. Notice of appeal was filed on November 5, 1969, the day after the election.
1. Although The Election Has Passed, This Court May Consider The Issues Raised By The Appeal.
Even though this appeal was taken subsequent to the election for which Lawrence sought certification, the appeal need not be dismissed as moot. Nonresolution of the basic issue--namely, Is the city charter provision, hereinafter discussed, constitutional?--deprives any Sacramento resident who has not lived in Sacramento five years of the opportunity to run for city councilman.
[91 Cal.Rptr. 865] At a special municipal election consolidated with the statewide general election held November 3, 1970, the Sacramento city electors voted in favor of amending the charter by substituting a one-year city residence requirement for the present five-year provision. The charter amendment has yet to be approved by the Legislature; it is not in issue on this appeal. Even assuming that such legislative approval will ultimately be given, the present five-year requirement operates in the interim to prevent the filling of councilmanic vacancies by the election or appointment of persons who have resided in the city less than five years.
The constitutionality of the five-year provision therefore remains 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 12661).)
2. The City Charter And The California Constitution.
Article IV, section 20, of the Sacramento City Charter provides in material part, 'Members of the Council shall be electors of the municipality and residents of the city for a period of not less than five consecutive years immediately preceding the date of the election. * * *' (Stats. 1921, p. 1930; amended by Stats. 1st Ex. Sess. 1946, p. 257; Stats. 1959, p. 5361.) (Emphasis added.)
This section of the charter was framed under the authority of former article XI, section 8, of the California Constitution, which stated in pertinent part, 'Any city * * * containing a population of more than 3,500 inhabitants * * * may frame a charter for its own government, consistent with and subject to this Constitution * * * .' Former article XI, section 8 1/2, subparagraph 4, of the state Constitution provided that charters framed under section 8 could specify 'the manner in which, the method by which, the times at which, and the terms for which the several * * * municipal officers and employees whose compensation is paid by such city * * * shall be elected or appointed, * * * and for the number of deputies, clerks and other employees that each shall have, and for the compensation, method of appointment, qualifications, tenure of office and removal of such deputies, clerks and other employees. * * *' (Emphasis added.) Section 8 1/2 was silent as to whether city charters could prescribe the qualifications of councilmen.
At the statewide election held June 2, 1970, the state Constitution was amended by repealing all of article XI and adopting a new article XI. Practically speaking, the new article makes no difference as applied to our problem. Section 13 of new article XI states, in effect, that provisions relating to matters affecting the distribution of powers between the Legislature and the cities shall be construed as making no substantive change. Section 5, subparagraph (b), of new article XI, substantially restates the provisions of former section 8 1/2, subparagraph 4, quoted in text above. The new article XI, like the old, is silent on residence qualifications for city councilmen.
However, '[t]he * * * matters expressly authorized by § 8 1/2 cover only a very small part of the powers that may be set forth in a city charter.' (Adams v. Wolff (1948) 84 Cal.App.2d 435, 442-443, 190 P.2d 665, 670.) Pursuant to the 'home rule' provisions of the state Constitution (former art. XI, § 6), the Sacramento City Charter provides (in art. II, § 2, thereof) that the City 'shall have the right and power to make and enforce all laws and regulations in respect to municipal affairs * * * .' (Stats. 1921, p. 1922.) A charter adopted under the 'home rule' provisions of the [91 Cal.Rptr. 866] Constitution is only a limitation on municipal power, not a restrictive grant of power. (Adams v. Wolff, supra, pp. 440, 443, 190 P.2d 665.)
'Home rule' authorization similar to that appearing in former section 6 was added to former section 8 of article XI in 1922, the year after the Sacramento City Charter was approved. Section 5, subparagaph (a), of new article XI adopted at the June 1970 election, substantially restates former sections 6 and 8 in this respect.
Petitioners contend that the qualification of city councilmen is not a municipal affair but one of statewide concern, and, therefore, that Government Code section 36502 controls over the qualification provision in the city charter (assuming the five-year requirement to have no infirmity under the Fourteenth Amendment). Section 36502 in part states that 'A person is not eligible to hold office as councilman * * * unless he is at the time of assuming such office an elector of the city, and has resided in the city for the year preceding his election.' (Emphasis ours.)
Petitioners' contention in this respect is without merit. There being no limitation in the state Constitution of the right of the Legislature to establish qualifications for city officers, the Legislature had such power in 1921; by its approval of the charter (Stats. 1921, pp. 1919, 2004), it gave the five-year provision the effect of a law which had been passed by bill. The charter requirements for city councilman, having been established by the legislative authority of the state, are therefore valid as against preemption by Government Code section 36502. (See Sheehan v. Scott (1905) 145 Cal. 684, 687-688, 79 P. 350 (San Francisco charter required tax collector to be an elector five years); cf., Mackey v. Thiel (1968) 262 Cal.App.2d 362, 365, 68 Cal.Rptr. 717 (conduct of municipal elections is a municipal affair).)
3. The City Charter And The Fourteenth Amendment.
The ratio decidendi of our recently filed opinion in Zeilenga v. Nelson, supra, Cal.App., 90 Cal.Rptr. 916 and the authorities relied upon by us in that case, are dispositive of the federal constitutional questions presented by this appeal.
Consequently, we hold that the five-year residence requirement for the office of city councilman, which is specified in section 20 of article IV of the Sacramento City Charter, is excessive and arbitrary and violates the Fourteenth Amendment to the United States Constitution. The five-year provision, which is not justified by any compelling governmental interest, denies equal protection of the laws to persons who must reside in the City of Sacramento this unreasonable length of time before being eligible to the city council. It does not, however, violate a potential candidate's constitutional right to travel. (See Zeilenga v. Nelson, supra, Cal.App., 90 Cal.Rptr. 916.)
The five-year qualification being unconstitutional, the charter is left without any residence requirements for councilman until such time (if any) as the Legislature approves the amendment ratified by the Sacramento voters this past November 3d, or pending the adoption of other residence provisions by further charter amendment or, perhaps, by city ordinance. As hereinbefore shown, section 36502 of the Government Code is the general law dealing with councilmanic residence qualifications. Petitioners do not challenge its constitutionality. Since the state Constitution does not forbid the Legislature 'to legislate with respect to the local municipal affairs of a home rule municipality' (Bishop v. City of San Jose (1969) 1 Cal.3d 56, 62, 81 Cal.Rptr. 465, 468, 460 P.2d 137, 140), and since section 36502 can pose no 'conflict between the regulations of state and of local governments' (ibid.) in a case where the local regulation violates the Fourteenth Amendment, section 36502 governs here. Hence the residence requirement for Sacramento City Councilman currently is, as stated in that section, that he have 'resided in the city for the year preceding his election.'
The Sacramento City Clerk is directed to henceforth disregard the residence requirement of candidates for the office of councilman set forth in article IV, section 20, of the Sacramento City Charter as amended prior to 1970, and to require compliance with section 36502 of the Government Code.
[91 Cal.Rptr. 867] Inasmuch as the issues raised by the petition for writ of mandate have become moot as regards the requested certification for the November 1969 election, that election having been held, the judgment is affirmed. Petitioners will recover costs herein.
PIERCE, P. J., and REGAN, J., concur.
[*] The Supreme Court, having granted a hearing in Lawrence v. Cleveland deleted pages 127-133 thereafter on March 8, 1971 dismissed the cause as moot.