Blackmon, Isenberg & Moulds, by Phillip Isenberg, Sacramento, for petitioners-appellants. Dan V. Blackstock, County Counsel, Oroville, for respondent.
Jack 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.
Clark A. NELSON, County Clerk, County of Butte, Respondent.
Nov. 6, 1970.
For Opinion on Hearing, see 94 Cal.Rptr. 602, 484 P.2d 578.
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.
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?
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 approved the charter provisions relating to qualifications for the office of supervisor.
In Pearson v. County of Los Angeles (1957) 49 Cal.2d 523, 319 P.2d 624, the court was confronted with the contention that sections 1028 and 1770 of the Government Code, dealing with removal of county and state peace officers, controlled over a section of the Los Angeles County Charter dealing with the same subject. The court held, however, that then section 7 1/2 of article XI authorized charter provisions which dealt with the same subject and specified that such charter provisions controlled over general laws on the same subject. The court then said, at page 536, 319 P,2d at page 632: 'If sections 1028 and 1770 of the Government Code are held to control valid charter provisions relative to removal of peace officers, then any other general law relating to removal of public employes would also control over charter provision, and a similar result would logically follow as to charter provisions and general laws relating to appointment of such officers and employes. Such a construction would render nugatory the constitutional provisions empowering local governments to control the manner of appointment and removal of their officers and employes. It thus follows that in so far as general qualification statutes attempt to regulate appointment and removal of local officials, they are subordinate to provisions of freeholders' charters.' (See also 44 Ops.Atty.Gen. 159, 160.)
The same reasoning applies to general laws and charter provisions for qualifications of county supervisors. The Butte County Charter was framed under the authority of former section 7 1/2, article XI, of the state Constitution, as was the Los Angeles County Charter.
Nor does section 275 of the Government Code control over the charter provisions 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 Joues v. De Shields (1921) 187 Cal. 331, 336, 202 P.137.)
In Sheehan v. Scott (1905) 145 Cal. 684, 79 P. 350, the charter of the City and County of San Francisco contained a residence qualification of five years for the office of tax collector. The person elected had not lived in San Francisco the required length of time. In a proceeding brought to remove him from office, it was contended that the residence qualification was unconstitutional for the reason that the state Constitutions nowhere provided a residential qualification for city or county offices, and that, therefore, it was not competent for the Legislature to approve a charter containing a residence qualification. The court pointed out that the authority to provide a municipal government for a city is referable to the lawmaking power of the state; that the enactment of a charter for a municipality is a legislative act; and that the people of the state, through the Constitutions, have given a city (the same is true of a county) the right to frame a charter for its own government, which, if approved by the Legislature, becomes the organic act of such city and supersedes all laws, inconsistent therewith (p. 688, 79 P. 350). The court then held that the charter provisions for residence qualifications of city officials was not unconstitutional, but valid. The holding that charter provisions approved by the Legislature become the organic act supersede all laws inconsistent therewith applies to any possible conflict between the charter provisions with which we are dealing and section 25041 of the Government Code. (See Jones v. De Shields, supra, 187 Cal.at p. 336, 202 P.137.)
3. The County Charter And The Fourteenth Amendment.
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, etc. (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). There is 'a federal constitutional right to be considered for public service 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 Util. Comm. (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, at page 443, 231 N.E.2d 120, at page 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 nondiscrimnatory 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, at page 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 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.) The cases hereinbefore cited establish that the right to hold public office is a fundamental right.
It is conceded by petitioners that some period of residence as a requirement for eligibility to public office is necessary. As stated in Sheehan v. Scott, supra, 145 Cal. at page 687, 79 P. at page 351, 'That it is of public advantage that an officer shall be acquainted with the duties of his office needs no argument, and it is equally evident that the interests of a community will be better understood and subserved by one who has been identified with that community for a reasonable period of time than by a stranger, or by one whose introduction therein has been of recent date.' Particularly is this so of a supervisor who is called upon to legislate for the interests of a county which may have diversified commercial and other concerns, different geographical conditions within its borders, requiring different solutions, with concentration in various portions of the county of persons of different economic, racial, and other backgrounds.
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 year (Gov.Code, § 25041) and that, of the charter counties, apparently only Butte and San Francisco have the five-year requirement. Hence, it appears to this court that the five-year residence requirement of the Butte County Charter is excessive and arbitrary and violates the Fourteenth Amendment to the United States Constitution. It denies equal protection of the laws to citizens who are required to reside in Butte County this unreasonable length of time before eligible to the county board of supervisors.
Perhaps in the and buggy days the five-year requirement could have been reasonable, but in these days of modern public transportation, the automobile, newspapers, radio, television, and the rapid dissemination of news throughout all parts of the county, the requirement is unreasonable. 3 It excludes certain citizens from public of fice by a classification which is unnecessary to promote a compelling governmental interest. It is a built-in device to prevent competition against the county's oldtimers for the office of supervisor. Nowhere is it shown that a candidate for the office of supervisor cannot acquire competent knowledge of the county's conditions in much less than five years to qualify him for the office, at least sufficiently to submit to the voters for their choice his knowledge thereof. Respondent has failed to show any compelling interest which justifies imposing such a heavy burden as the five-year restraining period on a resident who desires to stand for election as a supervisor. (Cf., Keane v. Mihaly (Oct. 7, 1970) Cal.App., 90 Cal.Rptr. 263; Thomas v. Mims (S.D.Ala. Sept. 3, 1970) 317 F. Supp. 179; Blumstein v. Ellington (M.D. Tenn. Aug. 31, 1970) (Civ. No. 5815); Burg v. Canniffe (D. Mass. July 8, 1970) 315 F. Supp. 380.)
In Westbrook v. Mihaly (1970) 2 Cal.3d 765, 87 Cal.Rptr. 839, 471 P.2d 487, where the court struck down the constitutional provision requiring that general obligation bonds be approved by a two-thirds majority of the voters, the court pointed out that 'in cases involving 'suspect classifications' or touching on 'fundamental interests,' the [United States Supreme Court] * * * has adopted an attitude of active and critical analysis, subjecting the classification to strict scrutiny. [Citations.] Under the strict standard applied in such cases, the state bears the burden of establishing not only that it has a compelling interest which justifies the law but that the distinctions drawn by the law are necessary to further its purpose.' (Pp. 784-785, 87 Cal.Rptr. pp. 852-853, 471 P.2d pp. 500-501.) (Original italics.) The court further stated that the United States Supreme Court has included voting in the category of rights deemed 'fundamental' and '[a]ccordingly, state laws which permit or require differential treatment of those attempting to exercise this right have been 'carefully and meticulously scrutinized' (Reynolds v. Sims, supra, 377 U.S. 533, 562, 84 S.Ct. 1362, [12 L.Ed.2d 506, 527]) in order to determine whether the burdens imposed are 'necessary to promote a compelling state interest.'' (P. 785, 87 Cal.Rptr. p. 853, 471 P.2d p. 501.) (See also Cipriano v. City of Houma (1969) 395 U.S. 701, 89,S.Ct. 1897, 23 L.Ed.2d 647; Kramer v. Union Free School Dist. No. 15 (1969) 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583; Castro v. State of California (1970) 2 Cal.3d 223, 85 Cal.Rptr. 20, 466 P.2d 244; Otsuka v. Hite (1966) 64 Cal.2d 596, 51 Cal.Rptr. 284, 414 P.2d 412; Sei Fujii v. State of California (1952) 38 Cal.2d 718, 730-731, 242 P.2d 617.)
Since the right to run for public office is as fundamental a right as is the right to vote, we have carefully scrutinized the residence restriction in the Butte County Charter. Having done so, we are not convinced that the five-year provision constitutes "the least restrictive method of achieving the desired purpose" (Westbrook v. Mihaly, supra, 2 Cal.3d at p. 785, 87 Cal.Rptr. at p. 853, 471 P.2d at p. 501), namely, a reasonable knowledge by a proposed candidate of the general requirements of his county.
Broadly speaking, whether qualifications for office shall be required, as well as their character and extent, are matters of legislative policy. (Sheehan v. Scott, supra, 145 Cal. at p. 687, 79 P. 350.) However, in view of the fact that any residence requirement is a limitation to that extent upon a citizen's right to run for office and upon other citizens' right to vote for him, the qualifications adopted must be reasonable, and as we have said, a five-year limitation under modern conditions is not reasonable.
We are unwilling to hold, however, that (as petitioners urge) the five-year qualifying period violates a potential candidate's constitutional right to travel. As before stated, there must necessarily be a reasonable period for one contemplating seeking the office of supervisor to acquire sufficient knowledge of the conditions in the county to qualify him, as a practical matter, for such office. Hence, if the right to travel is involved in the matter of residence requirement, then it would be impossible to provide such requirement no matter how reasonable it might be. Even a one-day classification would constitute an interference with the right to travel. It is not reasonable for a nonresident to feel that his right to run for office compels a determination that he cannot be required to wait a reasonable time of residency before doing so. This is not a situation similar to those in Shapiro v. Thompson, supra, 394 U.S. 618, 89 S.Ct. 1322, where the court held that no state can require a period of residency as a prerequisite to welfare relief, on the ground, among others, that such requirement interfered with a person's constitutional right to travel.
As we have already mentioned, it is conceded by petitioners that a reasonable residence requirement would be constitutional. Until the Butte County Charter is amended accordingly, the County Clerk may not require five years' residence as a condition for filing for the office of supervisor.
The five-year provision being unconstitutional, the charter is left without any residence requirements for county supervisor. As hereinbefore shown, section 25041 of the Government Code is the general law applying where a county charter has not validly provided a residence qualification. Petitioners do not challenge its constitutionality. Section 25041 governs here, and the residence requirement for Butte County Supervisor is as therein stated, i.e., 'each member shall have been an elector of the district which he represents for at least one year immediately preceding his election * * *.'
The County Clerk of Butte County is directed in future elections to disregard the residence requirement of candidates for the county board of supervisors set forth in article II, section 2, of the Butte County Charter, and to require compliance with section 25041 of the Government Code.
Inasmuch as the issues raised by the petition for writ of mandate to compel the County Clerk to certify petitioner Zeilenga as a candidate have become moot, the election having been held, the judgment is affirmed. Petitioners will recover costs herein.
PIERCE, P. J., and REGAN, J., concur. --------------- 1 The time between the filing of candidates' nomination papers and the election is so short that it would be difficult to get a ruling from ail the courts which might be involved, if a test is required in the future. 2 At the June 1970 election, article XI was repealed and a new article XI adopted. 3 Sheehan v. Scott, supra, 145 Cal.684, 79 P. 350, held that a five-year residence qualification prescribed in the San Francisco Charter for the office of tax collector was not unreasonable. It was decided in the horse and buggy days (1905). Moreover, no question of unconstitutionality under the Fourteenth Amendment was raised.