Thompson v. Mellon

MOSK, J.

I concur in the judgment.

While I approve the majority opinion in general, I would more elaborately address what I believe to be the underlying problem, and would rely on state constitutional grounds to reach the result.

For several years this court has been groping for an acceptable formula in the murky waters of durational residence requirements for political candidacy (Zeilenga v. Nelson (1971) 4 Cal.3d 716 [94 Cal.Rptr. 602, 484 P.2d 578], and Camara v. Mellon (1971) 4 Cal.3d 714 [94 Cal.Rptr. 601, 484 P.2d 577]). Political entities, navigating in our wake, have made similar attempts. That all such formulae, however rationalized, will founder when challenged in judicial proceedings seems preordained. And, indeed, all such durational residential requirements should be rejected because they can be justified solely on a paternalistic theory that the citizens of yesterday know what is best for the governance of the citizens of today and tomorrow. This is at variance with enlightened principles of democracy and self-government.

There are three available alternatives. First, we can approve every residence requirement adopted by political entities on a theory that self-imposed restrictions upon local government are inviolate. Thus if a self-perpetuating community “establishment” determines that two years’ residence—or three, or five, or ten years—is necessary before candidates can acquire knowledge of the problems of the community, the judiciary must reject a challenge brought by a “newcomer” who may have been in the community one—or two, four or nine years—regardless of his actual knowledge of governmental problems. Our court unanimously rejected *108this theory when we struck down a five-year requirement in Zeilenga and a majority agreed in invalidating a three-year period in Camara.

The second alternative is to selectively approve or disapprove durational requirements as they are presented to us case by casé. Up to now this has been our approach, but I suggest it has proved long on expenditure of judicial resources and short on wisdom. When the three-year period adopted by Santa Cruz was rejected in Camara the administration there proposed a two-year period. Since that now becomes invalid, as the majority notes, the city, if undeterred, may conceive a new proposal of something less than two years. Vagueness of permissible limits only assures future litigation.

More significant in this problem, however, has been the absence of objective criteria. Five years was invalidated in Zeilenga because the members of this court subjectively determined that the period was too long. For the same reason a majority found three years improper in Camara, over the dissent of three justices who would have approved that requirement. Here the dissent would approve a two-year rule. In the same manner recently a three-judge federal court in Walker v. Yucht (D.Del. 1972) 352 F.Supp. 85, divided on what the judges deemed “reasonable” durational residency requirements. Since there are no visible signposts, all these individual conclusions were apparently reached via a visceral route.

The third alternative, now substantially adopted by the majority, would reestablish the predictability which is the hallmark of a responsible judicial system, and at the same time assure maximum participation in the electoral process. Logic dictates a result which equates the right to vote with the right to seek public office. Any citizen qualified to vote in a jurisdiction should be entitled to seek public office in that jurisdiction, assuming in appropriate instances he possesses the required professional qualifications (e.g., only a member of the bar may seek the office of district attorney). If he has the knowledge essential to vote intelligently, in general he will have the knowledge to serve his community in elective office. However, if his fellow citizens believe he lacks the capability to serve, their remedy is to reject his candidacy at the ballot box.

We cannot be so naive as to believe absence of durational residence requirements will automatically catapult uninformed candidates into public office. Inevitably time in the jurisdiction will be a significant issue in local political campaigns. The “life-long resident” of a community will tout his superior familiarity with the problems of the area. The recent settler will assuredly be faced with the charge he is an interloper or carpetbagger. In *109most instances the candidate well tutored in community problems will be better known by the electorate and will prevail. But if the voters exercise their franchise to reject the life-long resident, and prefer to be represented by the newcomer, restraints imposed by a past citizenry, presumably to prevent future folly, should not be permitted to thwart such democratically determined result.

Where I part with the majority opinion is in its total reliance upon Dunn v. Blumstein (1972) 405 U.S. 330 [31 L.Ed.2d 274, 92 S.Ct. 995]. We faithfully followed Dunn in Young v. Gnoss (1972) 7 Cal.3d 18 [101 Cal.Rptr. 533, 496 P.2d 445], since a similar factual issue was involved, and thus grounded that state decision on federal constitutional grounds. While Dunn is analytically helpful here, I prefer to invoke article I, section 21, of the California Constitution, which provides that no “citizen, or class of citizens be granted privileges or immunities which, upon the same terms, shall not be granted to all citizens.” This section of our state Constitution, binding upon counties and cities, including charter cities (Acton v. Henderson (1957) 150 Cal.App.2d 1, 18 [309 P.2d 481]), has long been applied to invalidate discriminatory legislation involving the right to seek political office (Murphy v. Curry (1902) 137 Cal. 479 [70 P. 461]; Britton v. Board of Commrs. (1900) 129 Cal. 337 [61 P. 1115]; Eaton v. Brown (1892) 96 Cal. 371 [31 P. 250]), and seems particularly appropriate in this case, where those who have resided in the community for more than two years are granted privileges denied to citizens who have resided therein a lesser period.

I also disagree with the majority’s dictum on the date from which the qualification to seek office should be measured. Dunn and Young declared the critibal point on the right to vote to be the date of election. Here, without any citation of authority, the majority purport to create a new requirement: one must be qualified at the time of filing nominating papers or other declaration of candidacy.

The United States Constitution requires senators to be 30 years of age and they must when elected be an inhabitant of their state (art. I, § 3, cl. 3). Obviously they need not be inhabitants when they merely declare for office. In actual practice the qualifications during candidacy have been irrelevant. For example, in modern times two senators were 29 when elected and only reached the constitutionally required age prior to taking their oath of office. (Senator Rush Holt, West Virginia, elected in 1934, and Senator Joseph Biden, Jr., Delaware, elected in 1972.) The crucial times being the election or assumption of office- for United States Senators, either date would seem to suffice for city councilmen in Santa Cruz.

*110The majority refer to the “hallowed belief in the wisdom and power of the electorate.” I have consistently maintained that in the final analysis the only solution to qualifications problems is to repose faith in the electoral process. One of the first members of the United States Supreme Court, Justice James Iredell, saw the issue remarkably well in Fries Case (D.Pa. 1799) 9 Fed.Cas. No. 5126; “All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure, is without remedy.”