Superior Court of California
County of Sacramento
720 Ninth Street
Timothy M. Frawley, Judge
Frank Temmerman, Clerk
Hearing: Wednesday, March 10, 2010, 9:00 a.m.
HEIDI FULLER
v.
DEBRA BOWEN, et al.
TOM BERRYHILL / Case Number: 34-2010-80000452
Proceedings: / Petition for Writ of Mandate and/or Prohibition
Filed By: / Alex Aretakis, Caswell Bell & Hillison, LLP, Attorneys for Petitioner
On March 10, 2010, at 9:00 a.m., the above-entitled matter came on for hearing with counsel present as indicated on the record. The matter was argued and submitted. Having taken the matter under submission, the Court denied the petition. The Court's written ruling is set forth below.
RULING AFTER HEARING
Both Petitioner Heidi Fuller ("Fuller") and Real Party in Interest Tom Berryhill ("Berryhill") are candidates for the Republican nomination to the 14th District of the California State Senate.
Fuller seeks, through this writ proceeding, to challenge Berryhill's candidacy and compel the Secretary of State to reject his declaration of candidacy and remove his name from the ballot on the grounds that Berryhill is ineligible to be a State Senator for the 14th Senate District due to his failure to fulfill the durational residency requirements of article IV, section 2(c) of the California Constitution.
Berryhill contends the petition should be dismissed because, under article IV, section 5(a) of the California Constitution, courts do not have jurisdiction to judge the qualifications of the members of the Legislature. Berryhill contends that the California Constitution confers exclusive jurisdiction on the Legislature to judge the qualifications of its members.
If this Court has jurisdiction to decide this issue, Berryhill contends the petition should be denied because California's durational residency requirement violates the equal protection clause of the Fourteenth Amendment to the Constitution of the United States and is, therefore, void.
Request for Judicial Notice and Evidentiary Objections
Berryhill's Request for Judicial Notice is granted. Berryhill's evidentiary objections are sustained.
Jurisdiction to Judge Qualifications
The Court is not persuaded that article IV, section 5(a) of the California Constitution deprives this Court of jurisdiction to inquire into Berryhill's qualifications.
The language of the California Constitution provides that "[e]ach house shall judge the qualifications and elections of its Members . . . ." (Cal. Const. art. IV, § 5(a).)
It is reasonably clear this section applies to seated members of the Legislature, such that courts have no jurisdiction to inquire into the qualifications of sitting members. Likewise, the Court has little difficultly concluding the section applies to persons presenting themselves for membership after a duly held general election. Less clear is how this section applies to challenges raised before a general election has been held, and particularly to challenges raised before a primary election.
Several California courts have held that the California Constitution deprives courts of jurisdiction to inquire into the qualifications of a candidate-nominee after a primary election. (In re McGee (1951) 36 Cal.2d 592; Allen v. Lelande (1912) 164 Cal. 56.) But no California court has issued an opinion on whether courts have jurisdiction to judge the qualifications of one who seeks to be a candidate at a primary election.
Courts in other states have concluded that similar provisions are not broad enough to prevent the determination by courts of whether one who seeks to be a candidate at a primary election possesses the requisite qualifications. (See Comber v. Ashe (Tenn. 1974) 514 S.W.2d 730; State ex rel. Gralike v. Walsh (Mo. 1972) 483 S.W.2d 70; State ex rel. McGrath v. Erickson (Minn. 1938) 203 Minn. 390.) This Court agrees.
Further, the Court cannot accept Respondent's argument that the Legislature was intended to be the sole and exclusive judge of any issues related to the qualifications of its members, including, as presented here, an issue whether a state constitutional requirement is valid under the equal protection clause of the U.S. Constitution.
Accordingly, the Court concludes that it has jurisdiction to decide this matter.
Validity of Durational Residence Requirement
The constitutional validity of the durational residency requirement set forth in article IV, section 2 of the California Constitution has never been determined in any published court opinion. Nevertheless, relying on published judicial decisions, the California Secretary of State formally decided in a written opinion in 1976 that the Constitution's one-year residence requirement violates the equal protection clause of the Fourteenth Amendment. Based on the California Supreme Court's published decisions, the Court is compelled to agree.
As the parties correctly point out, courts of other jurisdictions have taken widely varying positions on whether durational residency requirements for candidates are constitutionally deficient. The variation in these decisions is largely a result of the historical "two-tier" approach to determining equal protection claims.
Under the traditional two-tier approach, if there is no fundamental right or suspect classification at issue, classifications survive constitutional scrutiny so long as they bear a rational relationship to a legitimate state interest. However, when a fundamental right or suspect classification is at issue, the more rigorous "strict scrutiny" test applies, and the state is required to demonstrate that the restriction is necessary to accomplish a legitimate and compelling governmental interest.
The strict scrutiny test imposes a heavy burden. It is a rare case in which the strict scrutiny test is applied and held by a court to have been satisfied. Thus, the mere application of this strict scrutiny test generally condemns the challenged state action.
Courts of other jurisdictions diverge on whether the strict scrutiny or rational basis test should apply to equal protection challenges to durational residency requirements for elective office. The issue appears to be decided on a case-by-case basis.
In California, the uncertainty has been reduced by two California Supreme Court decisions determining that because durational residency requirements infringe upon fundamental interests, strict scrutiny is required. (See Johnson v. Hamilton (1975) 15 Cal.3d 461, 472; Thompson v. Mellon (1973) 9 Cal.3d 96, 106.) The Supreme Court reasoned that where "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." (Id.) Thus, the Court has concluded, any durational residency requirement for candidates for local office in excess of 30 days will violate the equal protection clause of the Fourteenth Amendment. (Id.)
Although no published California decision has determined the constitutionality of durational residency requirements for statewide office, this Court can conceive of no legitimate reason to treat candidates for statewide office differently than candidates for local office in regard to durational residency requirements. Accordingly, the decisions in Thompson and Johnson strongly suggest that the
strict scrutiny test should apply.
The California Supreme Court's decisions in Thompson and Johnson were based, in part, on its determination that the right to hold office is a fundamental right and that restrictions upon its exercise must, therefore, be strictly scrutinized. Petitioner Fuller contends that this was error.
Relying on Clements v. Fashing (1982) 457 U.S. 957, Fuller argues the U.S. Supreme Court has never recognized the right to run for office as a fundamental right, and has concluded that barriers to a candidate's access to the ballot does not, by itself, compel close scrutiny. (Id. at p.964; but see Legislature v. Eu (1991) 54 Cal.3d 492, 517 [describing incumbent's right to run for public office as an "important" right].) Fuller contends that the California Supreme Court's rulings must be revisited in light of Clements.
However, Fuller overlooks that the California Supreme Court applied the strict scrutiny test not only because it considered the right to be a candidate for public office a fundamental right in itself, but also because the restrictions impinged on other fundamental rights, namely the right to vote and the right to travel. (Thompson v. Mellon, supra, at p.102; Johnson v. Hamilton, supra, at p.468.)
Moreover, in Johnson, the California Supreme Court explicitly discussed the U.S. Supreme Court's decision in Bullock v. Carter, in which the high court observed, "the [U.S. Supreme] Court has not heretofore attached . . . fundamental status to candidacy as to invoke a rigorous standard of review," and that "not every limitation or incidental burden on the exercise of voting rights is subject to a stringent standard of review." (Johnson v. Hamilton, supra, at p.466 [quoting Bullock v. Carter (1972) 405 U.S. 134, 143].) It is apparent from this discussion that the California Supreme Court determined strict scrutiny was required whether or not the U.S. Supreme Court has recognized the right to run for office as a fundamental right.
Also, it is significant that the U.S. Supreme Court has never directly considered the validity of durational residence requirements for candidates for public office, and the determination of equal protection claims in Clements was merely a plurality opinion and not a majority opinion of the Court. (Clements v. Fashing, supra, at p.959; see also Del Mar Water, Light & Power Co. v. Eshleman (1914) 167 Cal. 666, 682 [denying rehearing].)
For all of these reasons, the decisions in Johnson and Thompson suggest strict scrutiny should apply, even if the right to be a candidate is not a fundamental right protected by the Fourteenth Amendment.
Although the Court concludes that Petitioner's equal protection claim requires application of the strict scrutiny test, the Court is not unsympathetic to Petitioner Fuller's position.
If this were a clean slate, this Court well might conclude that the effect of a one-year durational residency requirement does not warrant the strict standard of review. After all, the impact on the right to vote is indirect; it is not the absolute right to vote which is implicated, but the right to vote for a particular candidate. Similarly, the impacts on Berryhill's right to run for office and right to travel are limited. The residency requirement does not preclude Berryhill from running for Senate or from traveling intrastate; it simply requires him to have been a resident of the particular district in which he runs for at least one year.
Nevertheless, as our California Supreme Court has decided, the relationship between the right to run for office and the right to vote/right to travel cannot be ignored.
The California Supreme Court has concluded that the impact of durational residency requirements for candidates on fundamental rights to vote and travel and on the important (if not fundamental) right to be a candidate for public office, is significant enough to demand application of the strict scrutiny test. (Johnson v. Hamilton (1975) 15 Cal.3d 461, 466.)
Balancing the State's interests in durational residence requirements for candidates against the rights impaired by the residence requirement, the California Supreme Court has concluded that durational residence requirements for candidates in excess of thirty days are unconstitutional. Although the California Supreme Court cases are not binding on this Court, they are instructive and highly persuasive. The Court follows them here.
Accordingly, the Court concludes that the one-year durational residency requirement for statewide office set forth in section 2, article IV of the California Constitution is not necessary to accomplish a legitimate and compelling governmental interest and, therefore, violates the equal protection clause of the Fourteenth Amendment.
THEREFORE, the petition shall be, and hereby is, DENIED.
Counsel for Real Party in Interest Berryhill is directed to prepare a formal judgment consistent with this ruling; submit it to opposing counsel for approval as to form; and thereafter submit it to the Court for signature and entry of judgment. Respondent and Real Party in Interest shall be entitled to recover their costs (or costs that would have been paid but for Government Code section 6103) upon appropriate application.
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