holding that similar former provision in California Constitution precluded enactment of statute establishing local residency requirements for superior court judges
How later courts described this case
- holding that similar former provision in California Constitution precluded enactment of statute establishing local residency requirements for superior court judges
- defined by ability to pay
Written by the judges who cited it.
The opinion
BURKE, J.
I dissent to part II of the majority opinion on two grounds. First, as Justice Mosk points out in his concurring opinion, the issue explored in part II is now wholly moot. The Legislature has enacted provisions (see fn. 11, ante, p. 349, of the “majority” 1 opinion) designed to afford indigent candidates an alternative means of access to the ballot. These provisions, which are presently in effect, make it unnecessary to discuss the constitutionality of the former, repealed system whereby all candidates for public office were required to pay a fee for the privilege of appearing on the ballot. As the majority point out, petitioner Knoll long ago obtained the relief she sought and only the importance of the constitutionality issue would justify our speaking to that issue. That issue is now moot and, accordingly, I believe we are not warranted to explore the issue in our opinion.
Nevertheless, since the majority choose to address the issue, I am impelled to point out what I believe is a major shortcoming in their analysis. *354 The majority assert that the former filing fee system was “null and void” in its entirety, even as to candidates who could afford the required fees. (See Donovan v. Brown, 11 Cal.3d 571, 573 [ 115 Cal.Rptr. 41 , 524 P.2d 137 ].) Yet analysis of the leading cases by the United States Supreme Court makes it clear that California’s system was only partially invalid. Both Bullock v. Carter, 405 U.S. 134 [ 31 L.Ed.2d 92 , 92 S.Ct. 849 ], and Lubin v. Panish, 415 U.S. 709 [ 39 L.Ed.2d 702 , 94 S.Ct. 1315 ], struck down filing fee systems for the sole and express reason that such systems improperly deprived indigents of their right to run for public office. As stated in Lubin (p. 718 [39 L.Ed.2d p. 710]), “we hold that in the absence of reasonable alternative means of ballot access, a State may not, consistent with constitutional standards, require from an indigent candidate filing fees he cannot pay.”
Thus, as applied to candidates who can afford the filing fees, the fee provisions at issue unquestionably pass constitutional scrutiny; the fee system was invalid only as applied to indigent candidates. Yet, under the majority’s reasoning, even the richest candidate was excused from paying these fees. This approach seems wholly unjustified by the cases referred to above.
In any event, it should be emphasized that the majority’s holding on this issue relates solely to a fee system no longer operable in this' state. By reason of the new legislation referred to above, indigent candidates (and others) now have an alternative means of appearing on the ballot, by filing a nominating petition containing the requisite number of signatures. Since payment of a filing fee no longer represents the sole means of access to the ballot, it would appear that the objections raised in Bullock and Lubin are satisfied and the fee provisions held invalid by the majority may now operate as intended.
McComb, J., concurred.
On September 12, 1974, the opinion was modified to read as printed above.
I use the term “majority” opinion guardedly, for of the six justices sitting in this case, only three concur on the merits of part II of the opinion.