JAMES C. THOMPSON, Petitioner, v. ANGELE MELLON, as City Clerk, etc., Respondent, 9 Cal. 3d 96

Opinion SULLIVAN, J. This proceeding for a writ of mandate challenges the constitutionality of a provision of the Charter of the City of Santa Cruz which prescribes a two-year durational residence requirement for candidates for the office of city councilman. We have concluded that this provision violates the equal protection clause of the Fourteenth Amendment to the United States Constitution. The petition alleges in substance the following facts. Petitioner James C.

Thompson has resided in Santa Cruz County since 1966, has practiced law in the City of Santa Cruz since September 1966, but has resided, in the City of Santa Cruz (City) only since September 23, 1972. Respondent Angele Mellon, the city clerk, refused to file, despite their timely presentation, petitioner’s nominating papers for his candidacy for the office of city councilman in the election scheduled for April 10, 1973, because petitioner had not been a resident of the City for the two years next preceding his nomination as required by

section 602 of the City charter. Invoking our original jurisdiction, petitioner seeks a writ of mandate commanding respondent city clerk to file his nomination papers and to place his name on the ballot prepared for the election to be held on April 10, 1973, if he meets all requirements other than the two-year durational residence requirement of the City charter. The city clerk in her return to the alternative writ admits that an election for the office of city councilman is scheduled for April 10, 1973, and that she refused to file nominating papers for petitioner’s candidacy allegedly on the ground that he did not qualify under the provisions of

section 602 of the City charter but denies the remaining allegations of the petition which in the main assert that petitioner is otherwise qualified as a candidate. Preliminarily, we briefly observe that since this case involves substantial issues of great public importance involving the right to be a candidate for public office which must be resolved promptly, we deem it proper to exercise original jurisdiction. (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 750-751 [100 Cal.Rptr. 290, 493 P.2d 1154]; Jolicoeur v.

Mihaly (1971) 5 Cal.3d 565, 570, fn. 1 [96 Cal.Rptr. 697, 488 P.2d 1].) Mandate is the proper remedy. (Wenke v. Hitchcock, supra, 6 Cal.3d 746, 751; Jolicoeur v. Mihaly, supra, 5 Cal.3d 565, 570, fn. 2.) We turn to the merits. Petitioner contends that the two-year durational residence requirement unconstitutionally restricts his fundamental right to seek public office because it is not necessary to achieve a compelling governmental interest. He relies upon Camara v. Mellon (1971) 4 Cal. 3d 714 [94 Cal.Rptr. 601, 484 P.2d 577] and Zeilenga v. Nelson (1971) 4 Cal.3d 716 [94 Cal.Rptr. 602, 484 P.2d 578].

In Camara this court held that the three-year durational residence then required by the Santa Cruz City Charter for candidates for city councilman violated the equal protection clause of the Fourteenth Amendment for the reasons “to be further elucidated” in Zeilenga. Subsequently, in Zeilenga we held that the five-year durational residence requirement imposed by the Butte County Charter for candidates for the county board of supervisors violated the equal protection clause of the Fourteenth Amendment.

We there said: “[W]e are not convinced that the five-year provision constitutes ‘ “the least restrictive method of achieving the desired purpose” ’ [citation], namely a reasonable knowledge by a proposed candidate of the general requirements of his county.” (Zeilenga v. Nelson, supra, 4 Cal.3d at p. 723.) We concluded in Zeilenga that the right to hold office was a fundamental right and that restrictions upon its exercise must, therefore, be strictly scrutinized.

Indeed, \ye declared in effect that the right to be a candidate for public office was inextricably intertwined with the right to vote and equally as fundamental. We said,: “ ‘[T]he right to vote would be empty indeed if it did not include the right of choice for whom to vote. . . . 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. . . .’ ” (Zeilenga V. Nelson, supra, 4 Cal.3d at p. 721, quoting Gangemi v. Rosengard (1965) 44 N.J. 166 [207 A.2d 665, 667]); “[T]he right to run for public office is as fundamental a right as is the right to vote, . . .” (Zeilenga v. Nelson, supra, 4 Cal.3d at p. 723.) It is noteworthy, however, that after our decision in Zeilenga, the United States Supreme Court in Bullock v.

Carter (1972) 405 U.S. 134 [31 L.Ed.2d 92, 92 S.Ct. 849], apparently deemed it unnecessary to declare that the right to run for public office was in itself a fundamental right requiring the “strict scrutiny” test.

Rather, the high court examined the interrelation between the restrictive effect of candidates’ filing fees on the candidates’ right to ran for office and the voters’ right to vote for candidates of their choice and remarked: “The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to candidacy as to invoke a rigorous standard of review. [Fn. omitted.] However, the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters. . . . [t]he Texas system creates barriers to candidate access to the primary ballot, thereby tending to limit the field of candidates from which voters might choose.

The existence of such barriers does not of itself compel close scrutiny. ...

In approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on voters.” (405 U.S. at pp. 142-143 [31 L.Ed.2d at pp. 99-100].) Following such examination, the court determined that the exclusion of candidates from the ballot who could not afford to pay the filing fees, thereby tending “to deny some voters the opportunity to vote for a candidate of their choosing” had a “real and appreciable impact on the exercise of the franchise, . . .” (Id. at p. 144 [31 L.Ed.2d at p. 100].) The high court then concluded that the Texas filing fee system “must be ‘closely scrutinized’ and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.” (Id. at p. 144 [31 L.Ed.2d at p. 100].) Thus, Bullock held that restrictions upon candidacy for public office which excluded a significant group of potential candidates from the ballot must be “closely scrutinized.” The overwhelming weight of recent authority, both before and after Bullock has held that durational residence requirements as a precondition to candidacy for public office have such a substantial impact on the right to vote as to invoke the “strict scrutiny” test.

Typical of the pre-Bullock cases is Mogk v. City of Detroit, supra, 335 F.Supp. 698, 700-701: “The Supreme Court has, in election cases, dealt most often with voters’ rights rather than the rights of persons to become candidates for public office, but it seems to us that they are, in the main, inextricably intertwined.

Reynolds, supra, and Williams, supra,[ ] hold that a citizen has a right to vote effectively and, by logical extension, that means that he is to be given a wide latitude in his choice of public officials.” The court then applied the “strict scrutiny” test and declared a three-year residence requirement for membership on the city revision charter commission unconstitutional.

Two post -Bullock cases clearly demonstrate why durational residence requirements as a precondition to candidacy for public office must be tested by the “strict scrutiny” test. “The right to hold or run for public office has not as yet been expressly declared by the Supreme Court to have the same status [as the right to vote]. [Fn. omitted.] After so noting, however, the court in Bullock proceeded to note the interrelation between restrictions on the right to candidacy and restrictions on the right to vote: . . .

Unlike the Texas filing fee system and the laws concerning candidacy considered by the Supreme Court in other cases, [fn. omitted] the burden of

Section 3-300 [five-year residency requirement to run for mayor] does not fall more heavily on minority economic or political groups. This distinction, while significant, does not render the Bullock case inapplicable, however. As I read that case the grounds asserted for utilizing the ‘compelling interest’ test were alternative. Accordingly, where the law in question poses an absolute barrier to the candidacy of a not insubstantial segment of the community and, to that degree, limits the voters in their choice of candidates, the more strict standard of review must be applied. [Citations.]” (Wellford v.

Battaglia, supra, 343 F.Supp. at pp. 146-147; accord: Manson v. Edwards, supra, 345 F.Supp. 719, 721-724, where the court applied the “strict scrutiny” test to a provision of the Charter of the City of Detroit requiring all candidates for city council to be at least 25 years of age.) Some courts have applied the “strict scrutiny” test to durational residence requirements to run for office on an entirely different theory, namely the right to travel.

The Sixth Circuit in declaring unconstitutional a city charter provision which required two years’ residence in the city as a condition of eligibility to hold elective office, said: “The durational residency requirement at issue classifies Plymouth residents on the basis of recent travel. That classification alone requires that the requirement be strictly scrutinized because it operates to penalize the exercise of the basic constitutional right to travel. Dunn v. Blumstein, 405 U.S. 330, 338, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972).

It is not material that the classification denies new residents something that is not a constitutional right, i.e., the right to become a candidate for public office. [Citations.]” (Green v. McKeon (6th Cir. 1972) 468 F.2d 883, 884-885.) The court in Wellford based its application of the “strict scrutiny” test alternatively on the right to travel: “Moreover, application of the compelling interest test is required in this case for a wholly independent reason. . . . The right to travel referred to by the court in the Dunn case is a right to intrastate as well as interstate migration. [Fn. omitted.] King v.

New Rochelle Municipal Housing Authority, 442 F.2d 646 (2nd Cir. 1971). Moreover, the motive behind a challenged law and its actual effect on the right to travel are not relevant considerations in determining the appropriate standard of review. If the statute places a penalty on migration, it does not matter whether the legislature intended to deter travel or whether the penalty in fact has that effect. Dunn v. Blumstein, supra, 405 U.S. at pp. 339-341, 92 S.Ct. 995. [¶]

Section 3-300 classifies bona fide residence on the basis of recent travel, penalizing those persons and only those persons who have recently exercised their constitutional right of migration. For this reason alone it must meet the compelling interest test.” (Wellford v.

Battaglia, supra, 343 F.Supp. at pp. 147-148.) Thus, it is abundantly clear that durational residence requirements imposed as a precondition to candidacy for public office must be tested by the “strict scrutiny” test, either because as held by this court in Zeilenga the right to be a candidate for public office is a fundamental right in itself or because as held in the cases discussed above, such restrictions on the right to be a candidate impinge on other fundamental rights, namely the right to vote and the right to travel.

Mindful of the foregoing decisions, we now turn our attention to the application of the “strict scrutiny” test to the two-year durational residence requirement imposed by the Santa Cruz City Charter. The crucial question which we face is this: Has the City met its burden of establishing that this durational residence requirement conditioning the right to run for public office promotes a compelling governmental interest and that such requirement is necessary to further such interest?

In Zeilenga this court recognized that the state has a legitimate interest in requiring “a reasonable knowledge by a proposed candidate of the general requirements” (4 Cal.3d at p. 723) of the public entity in which he seeks public office, but held that a five-year residence requirement was not necessary to achieve this purpose. In Camara we held that a three-year residence requirement for prospective candidates for the office of councilman in the City of Santa Cruz was not necessary to achieve a compelling state interest. Subsequent to these decisions by this court, the United States Supreme Court in Dunn v.

Blumstein, supra, 405 U.S. 330, subjected a durational residence requirement of one year in the state and 90 days in the county as a prerequisite to the right to vote to the “strict scrutiny” test and concluded that it violated the equal protection clause of the Fourteenth Amendment.

In Dunn, the high court exhaustively scrutinized durational residence requirements in order to determine whether they were necessary to further the state interest of having “knowledgeable voters.” Because these two fundamental rights—the right to vote and the right to be a candidate for public office—are interrelated and exert a reciprocal impact cm each other and because the state interest in having knowledgeable voters and the state interest in having knowledgeable candidates coalesce, we think the Dunn court’s reasoning is uniquely compelling in the case at bench.

We, therefore, set it forth at some length. “The argument that durational residence requirements further the goal of having ‘knowledgeable voters’ appears to involve three separate claims. The first is that such requirements ‘afford some surety that the voter has, in fact, become a member of the community.’ But here the State appears to confuse a bona fide residence requirement with a durational residence requirement. As already noted, a State does have an interest in limiting the franchise to bona fide members of the community.

But this does not justify or explain the exclusion from the franchise of persons, not because their bona fide residence is questioned, but because they are recent rather than long-time residents. “The second branch of the ‘knowledgeable voters’ justification is that durational residence requirements assure that the voter ‘has a common interest in all matters pertaining to [the community’s] government . . . .’ By this, presumably, the State means that it may require a period of residence sufficiently lengthy to impress upon its voters the local viewpoint.

This is precisely the sort of argument this Court has repeatedly rejected. . . . “Similarly here, Tennessee’s hopes for voters with a ‘common interest in all matters pertaining to [the community’s] government’ is impermissible. [Fn. omitted.] To paraphrase what we said elsewhere, ‘All too often, lack of a [“common interest”] might mean no more than a different interest.’ Evans v.

Cornman, 398 U.S., at 423. ‘[Differences of opinion’ may not be the basis for excluding any group or person from the franchise. . . . “Finally, the State urges that a long-time resident is ‘more likely to exercise his right [to vote] more intelligently.’ To the extent that this is different from the previous argument, the State is apparently asserting an interest in limiting the franchise to voters who are knowledgeable about the issues.

In this case, Tennessee argues that people who have been in the State less than a year and the county less than three months are likely to be unaware of the issues involved in the congressional, state, and local elections, and therefore can be barred from the franchise.” (Dunn v. Blumstein, supra, 405 U.S. at pp. 354-356 [31 L.Ed.2d at pp. 291-292].) Referring to its opinion in Kramer v.

Union School District (1969) 395 U.S. 621 [23 L.Ed.2d 583, 89 S.Ct. 1886] in which upon application of the “strict scrutiny” test the court had struck down as violative of the equal protection clause a state law limiting the vote in school district elections to parents of school children and to property owners, the Dunn court continued: “Similarly, the durational residence requirements in this case founder because of their crudeness as a device for achieving the articulated state goal of assuring the knowledgeable exercise of the franchise.

The classifications created by durational residence requirements obviously permit any long-time resident to vote regardless of his knowledge of the issues —and obviously many long-time residents do not have any. On the other hand, the classifications bar from the franchise many other, admittedly new, residents who have become at least minimally, and often fully, informed about the issues. Indeed, recent migrants who take the time to register and vote shortly after moving are likely to be those citizens, such as appellee, who make it a point to be informed and knowledgeable about the issues.

Given modem communications, and given the clear indication that campaign spending and voter education occur largely during the month before an election [fn. omitted], the State cannot seriously maintain that it is ‘necessary’ to reside for a year in the State and three months in the county in order to be knowledgeable about congressional, state, or even purely local elections.

There is simply nothing in the record to support the conclusive presumption that residents who have lived in the State for less than a year and their county for less than three months are uninformed about elections. . . . “It may well be tme that new residents as a group know less about state and local issues than older residents; and it is surely tme that durational residence requirements will exclude some people from voting who are totally uninformed about election matters.

But as devices to limit the franchise to knowledgeable residents, the conclusive presumptions of durational residence requirements are much too cmde. They exclude too many people who should not, and need not, be excluded. They represent a requirement of knowledge unfairly imposed on only some citizens. We are aware that classifications are always imprecise. By requiring classifications to be tailored to their purpose, we do not secretly require the impossible.

Here, there is simply too attenuated a relationship between the state interest in an informed electorate and the fixed requirement that voters must have been residents in the State for a year and the county for three months. Given the exacting standard of precision we require of statutes affecting constitutional rights, we cannot say that durational residence requirements are necessary to further a compelling state interest.” (Dunn v. Blumstein, supra, 405 U.S. at pp. 357-360 [31 L.Ed.2d at pp. 293-294].) In Young v.

Gnoss (1972) 7 Cal.3d 18, 27 [101 Cal.Rptr. 533, 496 P.2d 445], this court applied Dunn to durational residence requirements conditioning the right to vote in California and concluded that Dunn prohibited all durational residence requirements in excess of 30 days.

Respondent has not suggested and our attention has not been directed to any persuasive argument distinguishing, on the one hand, the reasoning of the court in Dunn concerning the relationship between durational residence requirements and the state interest in knowledgeable voters, and on the other, the relationship between durational residence requirements and the state interest in knowledgeable candidates. The imprecise nature of a durational residence requirement which includes uninformed old time resident candidates but excludes well informed new resident candidates is clear.

It is simply too crude and imprecise an instrument to effectuate this state interest. Under Dunn old time residents cannot reserve for themselves the right to vote in local elections by resorting to the technique of durational residence requirements. Neither can they limit the new residents’ right to vote for candidates of their choosing by barring the latter from running for public office.

Perhaps there may be some communities which in their desire to preserve the status quo, will attempt to impose political silence on the newcomer until he has accommodated himself to the local “scene.” But new arrivals shed none of their fundamental rights by exercising their right to travel and may not be arbitrarily excluded from either a voice or a role in the affairs of their newly selected home.

In these times of political and social ferment, intensified by an extraordinarily movable population, the status quo of the community, if worthy of preservation, must justify its continued acceptance through the free exercise of the ballot box. In the case at bench, the City has failed to demonstrate that the election process is inadequate to weed out incompetent, unknowledgeable candidates, insensitive to, and unaware of, the best needs of the community.

The hallowed belief in the wisdom and power of the electorate must not be sold short and may not be circumscribed by artificial residence barriers fencing in the right to vote or the right to be a candidate for public office. We therefore arrive at these conclusions. Durational residence requirements for candidates for public office touch upon a fundamental interest and, therefore, must be strictly scrutinized. Having subjected to such scrutiny the two-year durational residence requirement prescribed by

section 602 of the Santa Cruz City Charter, we cannot say that it is necessary to further a compelling governmental interest. We are not convinced that this provision constitutes “ ‘the least restrictive method of achieving the desired purpose’ ” of having knowledgeable candidates. We conclude that the provision denies to petitioner and other prospective candidates, falling within its reach, the equal protection of the laws. Although this disposes of the precise issue raised before us, we apprehend that it may not lay the problem to rest. After we struck down in Camara the City’s three-ye&v durational residence requirement found in former

section 602, the City merely modified the

section to substitute a two-year requirement. We now feel similarly constrained to find that requirement unconstitutional. It would seem likely that the City may respond by further changing

section 602 so as to prescribe a requirement of less than two years, indeed possibly slightly less than two years. Under the circumstances we feel under an obligation to express our views as to the constitutional limits of such requirements so that legislative bodies may be guided accordingly. Applying to this constitutional problem the rationale of Dunn v. Blumstein, supra, and of our own decision in Young v.

Gnoss, supra, we are of the opinion that where, as in the instant case, a public entity conditions the right to be a candidate for public office on residence therein, the entity may constitutionally require that the prospective candidate be a resident at the time' he files his nominating papers or equivalent declaration of candidacy and for a period of not more than 30 days next preceding such date of filing. We are of the view that any durational residence requirement in excess of the foregoing is violative of the equal protection of the laws.

We observe that in Dunn and Young which dealt with durational residence requirements for the exercise of the right to vote, the critical date was the date of the election. In situations like the instant one, however, dealing with such requirements for the exercise of the right to be a candidate for public office, the critical date is the date of filing nominating papers or other declaration of candidacy since there is an obvious governmental interest in requiring the candidates to be residents throughout the entire election process.

Let a peremptory write of mandate issue directing respondent city clerk to file petitioner’s nomination papers and to place his name upon the ballot for the municipal election of April 10, 1973, if he complies with all other requirements for becoming a candidate for City Councilman of the City of Santa Cruz. This order is final forthwith. Tobriner, J., concurred.

Section 602 provides: “No person shall be eligible to be nominated for or to hold office as a member of the Council unless he is a registered qualified voter of this city, and shall have been for at least two (2) years next preceding his nomination or appointment, a resident of the City of Santa Cruz or of territory annexed thereto.” We quoted from our opinion in Westbrook v.

Mihaly (1970) 2 Cal.3d 765, 785 [87 Cal.Rptr. 839, 471 P.2d 487], vacated on other grounds (1971) 403 U.S. 915 [29 L.Ed.2d 692, 91 S.Ct. 2224], where we had declared 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.) (Original italics; fns. omitted.) Manson V.

Edwards (E.D.Mich. 1972) 345 F.Supp. 719, 721-724; Wellford v. Battaglia (D.Del. 1972) 343 F.Supp. 143, 145-148; McKinney v. Kaminsky (M.D. Ala. 1972) 340 F.Supp. 289, 294-295; Mogk v. City of Detroit (E.D.Mich. 1971) 335 F.Supp. 698, 700-701; Bolanowski v. Raich (E.D.Mich. 1971) 330 F.Supp. 724, 726-730; Gangemi v. Rosengard (1965) 44 N.J. 166 [207 A.2d 665]. But see Walker v. Yucht (D.Del. 1972) 352 F.Supp. 85 (three-judge court) where the court refused to apply the “strict scrutiny” test to a three-year durational residence requirement upon candidacy for the state general assembly; Draper v.

Phelps (W.D.Okla. 1972) 351 F.Supp. 677 (three-judge court) where the court refused to apply the “strict scrutiny” test to a six-month durational residence requirement upon candidacy for the state Legislature; and State ex. rel. Gralike V. Walsh (Mo. 1972) 483 S.W.2d 70, and where the court refused to apply the “strict scrutiny” test to a one-year durational residence requirement upon candidacy for the state senate. Reynolds v. Sims (1964) 377 U.S. 533 [12 L.Ed.2d 506, 84 S.Ct. 1362]; Williams v. Rhodes (1968) 393 U.S. 23 [21 L.Ed.2d 24, 89 S.Ct. 5]. Westbrook v. Mihaly, supra, 2 Cal.3d at page 785. In Lindsey v.

Dominguez (1933) 217 Cal. 533 [20 P.2d 327], this court upheld a two-year residence requirement for the office of city councilman, but did not reach the constitutional issue now before us. In Wenke v. Hitchcock, supra, 6 Cal.3d 746, we partially overruled Lindsey. To the extent that Lindsey is inconsistent with our ruling here, that case is overruled. For example, in the present case, the municipal election is to be held on April 10, 1973, and the nominating papers must be filed no later than February 1, 1973.

Thus a charter requirement of the City that all prospective candidates be residents for at least 30 days next preceding the filing of nominating papers could permissibly have the effect of prescribing durational residence for a period of at least 98 days prior to the coming election. This paragraph confirms our order in identical language filed on February 23, 1973.