Respondents Briefm — Lubin v. Panish

— : T —

. Supreae Ceurt, U. &

! LIBRARY, “8 } FILED

| SUPREME Court, US. | ju 31 1973

/

IN THE

Supreme Court of the GQnited States

October Term, 1972

No. 71-6852

DONALD PAUL LUBIN, individually

and on behalf of all others similarly

situated,

Petitioner,

vs.

LEONARD PANISH, Registrar-Re-

corder of the County of Los Angeles,

Respondent.

BRIEF FOR RESPONDENT

| JOHN H. LARSON,

County Counsel

County of Los Angeles

EDWARD H. GAYLORD,

Division Chief

648 Hall of Administration

500 West Temple Street

Los Angeles, California 90012

Telephone (1)213-97-41857

‘Attorneys for Respondent

WESTERN PRINTING COMPANY, WHITTIER—-OXBOW @-1722

et q PR A ELON SE ORTIPRE!

v ai Rit RATT AEN RN 5 NERS EPEAT SET EIS MS OCONEE as

a

TOPICAL INDEX

Statement of the Case

Summary of Argument

I. The Fee Required by the California Elections

Code Is A Reasonable Fee, the Requirement

of Payment of Which Serves A Compelling

State Interest As A Valid Test of the Good

Faith of the Would-Be-Candidate and His

Supporters

A. The Payment of A Filing Fee by A Candi-

date and His Supports Shows Good Faith

Anticipation of A Reasonable Possibility

of Nomination or Election

1, The State Has A Legitimate Interest in

Regulating the Number of Candidates

on the Ballot

2. If A Candidate Has Substantial Sup-

- port Sufficient Funds Will Be Contri-

buted To Pay A Reasonable Filing Fee.

3. Neither the State Nor the County

Should Pay Campaign Expenses

4. Since the Requirement of A Filing Fee

Serves a Compelling State Interest, in-

sofar As It May Bar A Frivolous Can-

didate from the Ballot It Does Not Dis-

criminate Against the Poor

II.

Index

| Page

B. The Filing Fee Is Reasonable In Amount... 17

C. There Is No Other Practical Test of the

Good Faith of A Candidate 19

D. The Elections Code Does Not Deny the

Right of A Voter to Have His Vote

_ Counted . 20

E. Petitioner’s Cases Are Not Persuasive ..... 22

. If the Constitution of the United States Re-

quires An Alternative to Paying A Filing Fee,

Candidates In California Have Such An AI-

ternative 24

A. If Election Code § 18602 Requiring Pay-

ment of A Fee Before Write-in Votes Are

Counted Renders Requirement of A Filing

Fee To Go on Ballot Unconstitutional It

Is § 18602 Not § 6554 (Which Requires A

Filing Fee To Have Name Printed on Bal-

lot) Which Is Unconstitutional 24

B. A Write-in Vote Is A Valid Alternate .... 28

. Elections Code § 6555 (Candidate Nomi-

nated by Write-In Must Pay Filing Fee)

Is Valid 31

D. Elections Code § 6555 Is Severable 33

Q

The Filing Fee Requirement Does Not Impair

the Right of Free Speech 35

Index

A. The Filing Fee Requirement Does Not Im-

pair the Right to Campaign 35

B. A Candidate Who Has No Chance To Be

Elected Is Not Entitled To A Place on the

Ballot To Build Up Support in Future

Elections

37

Conclusion 40

TABLE OF CASES AND AUTHORITIES CITED

Cases

Adderley v. Florida (1966) 385 U.S. 39, 47 _..... 38

Adkins v. Du Pont de Nemours Co., 335 U.S. 331

(1948) 12

Barreiro v. State Bar (1970) 2 Cal. 3d 912, 925, 88

Cal. Rptr. 192, 471 P. 2d 992, 1000 9

Batement v. Colgan (1896) 111 Cal. 580, 587, 44 P.

238, 240 32

Beneficial Loan Soc. Ltd. v. Haight (1932) 215 Cal.

506, 514, 11 P. 2d 857, 860. 33

Blatz Brewing Co. v. Collins (1945) 69 Cal.App.2d

639, 650, 160 P.2d 37, 43 17

Blumenthal v. Board of Medical Examiners (1962)

57 Cal.2d 228, 238, 18 Cal. Rptr. 501, 506, 368

P.2d 101, 106 34

Bodner. v Gray (Fla. 1961) 129 So.2d 419, 420, 89

A.L.R.2d 860, 863 19

nS TES aE carn

iv Index

Broadrick v. State of Oklahoma (No. 71-1639, June

25, 1973) 41 Law Week 5111 10

Bullock v. Carter (1972) 405 U.S. 134.3, 5, 17, 18, 35

Champlain Rfg. Co. v. Commission (1932) 286 U.S.

210, 234 33

Chote v. Brown (U.S.D.C.N.D. Cal. 1972) 342 F.

Supp. 1353 22

City of Los Angeles v. Lelande (1909) 11 Cal. App.

302, 307, 104 P. 717, 719 27

Crooks v. Peoples Finance ete. Co. (1930) III Cal.

App. Supp. 769, 775 33

Curtis v. Board of Supervisors (1972) 7 Cal.3d 942,

964, 104 Cal. Rptr. 297, 312, 501 P. 2d 537... 34

Danskin v. San Diego Unified School District

(1946) 28 Cal.2d 536, 555, 171 P 2d 885, 897 _.. 26

Diffenderfer v. Porter Homer (D.C.S.D. Fla. No.

68-455, Cir. E.C.) 18

Dillon v. Fiorina (U.S.D.C.N.M. 1972) 340 F.

Supp. 729 4

Diamond v. Allison (1973) 8 Cal. 3d 736, 737, 106

Cal. Rptr. 13, 14, 505 P. 2d 205 10

Dresser v. City of Torrance (1956) 140 Cal.App.2d

42, 48, 294 P.2d 962, 966 17

Douglas v. California, 372 U.S. 353 (1963) 13, 16

Eberle v. Michigan (1914) 232 U.S. 700, 705 .. 26

38

Ellis v. Dixon (1955) 349 U.S. 458, 459 __.

Escobedo v. State of California (1950) 35 Cal. 2d

870, 879, 222 P. 2d 1, 6. 15, 16

Ex parte Fedderwitz, 6 Cal. Unrep. 562, 572 _... 32

Index

Ferguson v. Keays (1970) 4 Cal. 3d 649, 94 Cal.

Rptr. 398, 484 P. 2d 70 16, 19

Fowler v. Adams (D.S.M.D. Fla. 1970) 315 F.

Supp. 592 18

Frost v. Corporation Commission (1929) 278 U.S.

515, 526 26

Gant v. Oklahoma City (1933) 289 U.S. 98, 102 _. 14

Great Northern Ry Co. v. United States (1942) 315

U.S. 262, 267 32

Haag v. State of California (U.S.D.C.C.D. Cal.

Aug. 2, 1970, No. 70-426-R) 2 28

Harper v Vance (U.8.D.C.N.D. Ala. S.D. 1972)

342 F Supp 136, 140 £5, 23

Harper v. Virginia Board of Elections (1966) 383

U.S. 663 7

Hooker Application of (1955) 208 Misc. 188, 143

N.Y.S. 2d 750, 755 38

Jenness v. Little (U.S.D.C.N.D. Ga. 1969) 306 F.

Supp. 925, 929 23

Keech v Joplin (1909) 157 Cal. 1, 9, 106 P. 222,

226 27

Kelso v. Cook (1916) 184 Ind. 173, 202, 110 N.E.

987, 997, Ann. Cas. 1918E 68, 78 35, 37

Matthews v. Little (1970) 397 U.S. 94 23

McDonough Power Equipment Co, v. Superior

Court (1972) 8 Cal.3d 527, 534, 105 Cal.Rptr.

330, 335, 503 P.2d 1338, 1343 32

McGahey v. Virginia (1890) 135 U.S. 662, 701 _. 18

Merced Falls Gas and Electric Company v. Turner

(1906) 2 Cal.App. 720, 725, 84 P. 239, 241 .. 4

Pa

Mexican-American Political Association v. Brown "

(1973) 8 Cal. 3d 733, 734, 106 Cal. Rptr. 12, 13,

505 P. 2d 204 9, 10

Miller v. Childs (1915) 28 Cal. App. 478, 152 P. 972. 30

Miller v. Union Bank and Trust Company (1936)

7 Cal. 2d 31, 36, 59 P. 2d 1024 1027 27

Mitchell v. Van Pelt (1954) 58 N.M. 69, 265 P.2d -

679, 680, 42 A.L.R. 2d 1211, 1215 __. 22

Montaldo v. Hires Bottling Co. (1943) 59 Cal.App.

2d 642, 649, 139 P.2d 666, 670 17

Orr v. Superior Court (Cal. App. 1968) 73 Cal.

Rptr. 830, 835 16

Payne v. The City of San Francisco (1853) 3 Cal.

122, 128 32

People v. Campbell (1930) 110 Cal.App.Supp. 783,

786, 291 P. 161, 162 33

Pope v. Haimowitz (U.S. 1971) 404 U.S. 806... 18

Reitz v. Mealey (1941) 314 U.S. 33, 38 26

Roberts v. Cleveland (1944) 48 N.M. 226, 149 P.

2d 120, 153 A.L.R. 635 28

Roylance v. San Luis Hotel Company ied 74

Cal. 273, 279, 20 P. 573, 579 17

Samuels v. Hite (1950) 35 Cal.2d 115, 216 P2d

879 21, 36

San Antonio Independent School District v. Rod-

riguez (1973) 410 U.S. 13, 2

Schweitzer v. Clerk for City of Plymouth (1969)

381 Mich. 484, 164 N.W. 2d 35 23

Serfano v. Priest (1971) 5 Cal. 3d 584, 96 Cal._Rptr.

601, 487 P. 2d 1241 23

Index

Skyline Materials, Inc. v. City of Belmont (1961)

198 Cal. App. 2d 449, 459, 18 Cal. Rptr. 95, 101. 27

Spillers v. Slaughter (U.S.C.M.D. Fla. 1971) 325

F. Supp. 550 18

State ex rel. Apodaca v. Fiorina (1972) 83 N.M.

663, 495 P.2d 1379, 1381 , 4,6, 17

State ex rel. O’Sullivan v. Swanson (1934) 127 Neb.

806, 257 N.W. 255 3 29

Steiner v. Mihaly, No. S.F. 22965 30

Tate v. Short, 401 U.S. 395 (1970) 13

Tiger v. Western Investment Co. (1910) 221 U.S.

286, 309 7 32

Tilton v. Richardson (1971) 403 U.S. 672, 684. 33

Truax v. Corrigan (1921) 257 U.S. 312, 341 26

Turner v. Fouche (1970) 396 U.S. 346 22

United States v. Jackson (1968) 390 U.S. 570, 585_ 33

United States v. Texas, 252 F. Supp. 234, 384 U.S.

155 21

United States Civil Service Commission v. National

Association of Letter Carriers, AFL-CIO (1973)

41 Law Week 5122, 5129 gids, ¥

Varcoe v. Lee, 180 Cal. 338, 345 181 P. 223 9

Waters-Pierce Oil Company v. State of Texas

(1900) 177 U.S. 28, 47 26

Watson v. Division of Motor Vehicles (1931) 212

Cal. 279, 298 P. 481 14, 15

Wear v. State of Kansas (1917) 245 U.S. 154, 158. 10

West Tennessee A.C.L.U. v. City of Memphis (1971)

323 F.Supp. 234 39

Wetherington v. Adams (U.S.D.C.N.D. Fla. 1970)

309 F. Supp. 318, 321 6, 18, 28

Williams v. Illinois, 399 U.S. 235 (1970) 13

Code of Civil Procedures,

Section 2015.5 5

Elections Code,

Section 6554 40

Section 6555 24, 31, 32, 33, 34, 35

Section 18600 Division 10 24, 27

Section 18601 24

Section 18602 24

Section 18603 24, 25, 30

IN THE

Supreme Court of the Gnited States

October Term, 1972

No. 71-6852

DONALD PAUL LUBIN, individually

and on behalf of all others similarly

situated,

Petttioner,

vs.

LEONARD PANISH, Registrar-Re-

corder of the County of Los Angeles,

Respondent.

BRIEF FOR RESPONDENT

STATEMENT OF THE CASE

We are satisfied with petitioner’s statement of facts

at pages 6-8 of his brief.

SUMMARY OF ARGUMENT

There is a compelling state interest in limiting the

number of names printed on the ballot. The imposi-

tion of a reasonable filing fee (and the filing fees in

California are reasonable) is a valid method to so limit

the number of names. In the case of the impecunious

candidate, the filing fee does not test his pocket book

ay Ys

but rather the extent of his support. Even if an impe-

cunious candidate runs as a representative of the poor,

as suggested by petitioner, if he has sufficient integ-

rity, ability, diplomacy, and tact to enable him effec-

tively to represent them, he will attract supporters

among whom will be those who can and will make suf-

ficient contributions to pay his filing fee and campaign

expenses. If he does not have such support his name

should not appear on the ballot.

Petitioner claims that the provision that no votes

will be counted for any write-in candidate unless he

files a declaration that he is a write-in candidate and

pays the same filing fee as that required to obtain a

place on the ballot, eliminates any alternative. This

provision is reasonable so that non-serious write-in

votes for those not candidates, e.g., Al Capone, John

the 23d, Mickey Mouse, Superman, need not be counted,

but if the lack of alternative renders the requirement

of payment of a filing fee invalid, since the write-in

provisions were first added in 1968, they, and not the

filing fee for a place on the ballot, are unconstitutional,

which leaves the impecunious candidate with an alter-

nate means of running for office.

The prohibition of impairment of the right of free

speech does not require a public body to supply the

facilities to a person to publicize his views. Therefore

there is no constitutional right to a place on the bal-

lot as a means of self advertisement.

THE FEE REQUIRED BY THE CALIFORNIA ELEC.

TIONS CODE IS A REASONABLE FEE, THE RE-

QUIREMENT OF PAYMENT OF WHICH SERVES

A COMPELLING STATE INTEREST AS A VALID

TEST OF THE GOOD FAITH OF THE WOULD-

BE-CANDIDATE AND HIS SUPPORTERS.

A. The Payment of a Filing Fee by a Candidate and

his Supporters Shows Good Faith Anticipation of

a Reasonable Possibility of Nomination or Elec-

tion

1. The State has a Legitimate Interest in Regu-

lating the Number of Candidates on the Ballot.

It is clear after reading the petitioner’s brief that

we do not agree on exactly what was decided in Bullock

v. Carter (1972) 405 U.S. 134.’ We approach with some

hesitancy an attempt to tell the members of this Court

what they meant when they either authored or concur-

red in such a recent opinion. We do rely upon the state-

ment at page 1452

“The Court has recognized that a State has a

legitimate interest in regulating the number of

candidates on the ballot. * * * In so doing, the

State understandably and properly seeks to pre-

vent the clogging of its elective machinery, avoid

voter confusion, and assure that the winner is the

choice of a majority * * *.”’

192 S.Ct. 849, $1, L.Bd.2d 92. .

292 S.Ct. at 857, 31 L.Ed.2d at 100-101.

per ee

This was quoted by State ex rel. Apodaca v. Fiorina

(1972) 83 N.M. 663, 495 P.2d 1379, 1381 (Review now

pending in this Court Nos. 71-1511, 71-1512). That

court noted that Dillon v. Fiorina (U.S.D.C. N.M.

1972) 340 F.Supp. 729 invalidated the New Mexico

filing fee and that thereafter (495 P.2d 1381):

«** * * For the office of United States Senator,

twenty-eight candidates filed for the Democratic

nomination and twelve for the Republican. Of

these, three Democrats and one Republican paid

filing fees.’’

The purpose of the ballot is to determine who is

the choice of the voters for nomination or election.

There is no room on the ballot for one who, although

actually desirious of the office for which he files knows

that he does not have even a remote chance for nom-

ination or election. No matter how desirous of the of-

fice he may be if he knows he has no chance to be

either nominated or elected his candidacy is not in

good faith.

We have been shown a letter from a high school

principal in which he says that, as a class project,

all of his students who are eligible to do so are going’

to run for public office.* The election machinery is not

2. If a Candidate has Substantial Support Suf-

ficient Funds will be Contributed to Pay a

Reasonable Filing Fee.

In Bullock v. Carter, supra, at page 143* this Court

says:

‘‘Unlike a filing fee requirement that most

candidates could be expected to fulfill from their

own resources or at least through modest contri-

butions * * *.’’ (emphasis added.)

Relying upon this case, in Harper v. Vance

(U.S.D.C. N.D. Ala. 8.D. 1972) 342 F. Supp. 136, 140,

cited by petitioner at page 11, the court said in a foot-

note:

“4. A finding of inability depends not only on

a lack of personal, resources, but also on a lack of

funds contributed by suppo Re,

We find no allegation in petitioner’s petition to the

Supreme Court of California (App. pp. 2-8) or his

accompanying. declaration’ (App. pp. 9-10) that his

—£—

sponsors are unable to contribute enough to pay the

modest filing fee.

We submit there is compelling logic in the opinion

in State ex rel. Apodaca v. Fiorina. supra (1972) 83

N.M. 663, 495 P.2d 1379, 1384 (review by this Court

requested, Nos. 71-1511, 71-1512) where the court said:

_“Thus viewed in its true light vis-a-vis the

candidate of modest means, the filing fee require-

ment is not designed, nor does it have the effect

of, precluding his entree to the ballot, provided he

is a serious candidate. In the case of the impecu-

nious candidate, the filing fee does not test his

. pocket book, but rather, the extent of his support.

If he does not have the requisite support, he does

hot gain entree to the ballot and no harm is done

because he had no occasion to be there. Yet, if he

is a serious candidate, the filing fee is no impedi-

ment.

‘*We find as a matter of fact that in New Mex-

ico the serious candidate precluded from entree to

the ballot by lack of funds does not exist.’’

We also submit as persuasive the statement in

Wetherington v. Adams (U.S.D.C. N.D. Fla. 1970)

309 F.Supp. 318, 321:

««* * © Tn order to assure serious political can-

didates it is reasonable to require a reasonable fil-

ing fee. A serious candidate for public office has

traditionally attracted money for his candidacy.

The inability to pay a reasonable filing fee might

indicate a lack of potential political support for

a person’s candidacy.”’

At pages 9, 16, 21, 26, and 28 petitioner cites Harper

v. Virginia Board of Elections (1966) 383 U.S. 663

| holding invalid the requirement of payment of a poll

| tax as a prerequisite to voting. As a rule a voter, as

| distinguished from a candidate, cannot rely on friends

{ or supporters to pay the poll tax for him. Besides, as

| stated in Footnote 1 on page 664:°

‘«* * * Section 20 provides that a person must

‘personally’ pay all state poll taxes for the three

years preceding the year in which he applies for

| registration. * * *’? (emphasis added.)

At page 20 petitioner says:

“Tf a candidate cannot pay the filing fees in

California, he cannot even be issued nomination

papers on which to gather the signatures of his

supporters. Although he may have the support of

a large number of poor voters, he cannot appear

on the ballot unless they are able to raise the

amount of the filing fee for him. Obviously, any

fees fall more heavily on the poor community.”’

Again, at page 22, petitioner continues:

| ‘** * * Candidates who would be most sympa-

thetic to the needs of poor persons would probably

come from the poor community and might have

difficulty paying the filing fee. Their inability to

do so would eliminate them as choices for poor

voters resulting in a deprivation of the opportun-

ity for meaningful representation.” |

®86 S.Ct. 1079, 1080, 16 L.Ed.2d 169, 171.

anna

In other words, petitioner pictures a poor candidate

the supporters of whom are also uniformally so poor

that none of them can make even modest contributions

to the payment of a filing fee and campaign expenses.

It may be that one candidate may have a larger per-

centage of poor people among his supporters than does

another candidate. Even if, however, the candidate’s

only platform is aid to the indigent and needy, his sup-

porters will not necessarily be confined to that class.

Many persons in comfortable circumstances, even weal-

thy persons, are aware of, and sympathetic with, the

plight of those less fortunate. They will support the

candidate if they have confidence in his integrity and

ability. The petitioner in the case at bench has received

the services of excellent attorneys worth many times

the filing fee. This, as well as many other instances,

does illustrate that persons by no means poor will do-

nate both time and money to sponsor projects which

they believe are for the benefit of the poor. Cynical

as we are tempted to be at times it must be recognized

that many voters will vote for propositions which are

of no benefit to them. For example, the continuous ex-

tension of the franchise has been accomplished by those

already possessing the right to vote. The Fifteenth

Amendment was accomplished largely by the votes of

Caucasians, the Nineteenth by the votes of men, the

Twenty-sixth by the votes of those already over twenty-

one years of age.

A person because he is poor may, for that reason,

be motivated to take the part of others in the same un-

a tg

wwii

fortunate condition, although this is not always neces-

sarily so. (When he receives the first installment of his

salary as supervisor he no longer is poor.) Motivation,

however, is not enough. In order to be effective in his

efforts to ameliorate the plight of the poor, he must :

have, in addition to the qualifications required by law,

a high degree of integrity, ability, diplomacy, and tact.

If he has such qualifications he will attract supporters

among whom will be many both able and willing to

make sufficient contributions both to pay the modest

filing fee and to effectively campaign.

If the petitioner in the case at bench had a large

number of supporters none of whom could contribute

he should have so alleged. We find no such allegation

either in the petition itself (App. pp. 2-8) or in the

statement under penalty of perjury attached thereto.

(App. pp. 9-10).” It is not a matter of which either

this Court or the Supreme Court of California can

take judicial notice.

«* * * Tf there is any doubt whatever either as

to the fact itself or as to its being a matter of com-

mon knowledge, evidence should be required. (Var-

coe v. Lee, 180 Cal. 338, 345 [181 P. 223].)”’

Barreiro v. State Bar (1970) 2 Cal.3d 912, 925,

88 Cal.Rptr. 192, 471 P.2d 992, 1000.

The court refused to take judicial notice that being

first on a list of candidates on the ballot was an ad-

vantage in both Mexican-American Political Associa-

7See footnote 5 supra.

ie

tion v. Brown (1973) 8 Cal.3d 733, 734, 106 Cal.Rptr.

12, 13, 505 P.2d 204; and Diamond v. Allison (1973)

8 Cal.3d 736, 737, 106 Cal.Rptr. 13, 14, 505 P.2d 205.

We cite these cases since judicial notice is a matter

of state law. Wear v. State of Kansas (1917) 245 U.S.

154, 158.°

The champions of the poor are not confined to the

poor, themselves. It would seem, therefore, well nigh

impossible that a would-be-candidate would have ex-

tensive backing but backing consisting entirely of peo-

ple so poor that they could not contribute. If that pe-

culiar situation should ever arise it will then be time

enough to decide whether the California Elections Code

deprives such a would-be-candidate and his supporters

of any constitutional rights. In Broadrick v. State of

Oklahoma (No. 71-1639, June 25, 1973) 41 Law Week

5111 this Court upheld an Oklahoma statute which,

among other provisions, prohibited a state employee

from being a candidate for paid public office. At page

9 Slip Opinion, at page 5114, 41 Law Week this Court

noted that the appellants:

«<* * * maintain that the statute is overbroad

and purports to reach protected, as well as un-

protected conduct, and must therefore be stricken

down on its face and held to be incapable of any

constitutional application. We do not believe that

the overbreadth doctrine may appropriately be

invoked in this manner here.

838 S.Ct. 55, 56, 62 L.Ed. 214, 218.

“Embedded in the traditional rules governing

constitutional adjudication is the principle that a

person to whom a statute may constitutionally be

applied will not be heard to challenge the statute

on the ground that it may conceivably be applied

unconstitutionally to others in other situations not

before the Co Sere

As we said before there is no allegation either in

the petition (App. pp. 2-8) or in the accompanying

statement under penalty of perjury (App. p. 9-10)°

that the petitioner is supported by a large number of

persons all of whom are too poor to contribute towards

the modest filing fee. For aught that appears, peti-

tioner had no support whatever and, had his name

been on the ballot he would have received but a handful

of votes. The petitioner is in no position to attack the

application of the Elections Code to that peculiar sit-

uation which does not apply to him.

3. Neither the State nor the County should Pay

Campaign Expenses.

At page 18 petitioner says:

“*The costs of campaigning for elective public

office are notoriously high, and indeed prohibitive

for many prospective candidates otherwise quali-

fied and having substantial popular support. For

a poor candidate and his supporters proposing to

finance a campaign on a low budget, the require-

ment of a $701.60 filing fee may make the differ-

See footnote 5 supra.

ae | a

ence between a candidacy which is viable and one

which has no chance at all.”’

In other words no filing fee should ke charged so

that that small sum can be added to the campaign

chest. The cost of campaigning being as notoriously

high as petitioner states, the use of $701.60 for a filing

fee should make no difference at all. When we said

at the end of our Points and Authorities in the State

Supreme Court (App. p. 37) quoted by petitioner at

page 21:

«** * * we do not concede, of course, that a poor

person is necessarily unable to obtain the filing

fee.’’

We did not ignore:

«‘* * * the spirit of Adkins v. Du Pont de Ne-

mours Co., 335 U.S. 331 (1948), in which the Court

ruled that a person need not be totally destitute

to file in Forma Pauperis. * * *”’

This Court did say at page 339:”

«# * * We think an affidavit is sufficient which

states that one cannot because of his poverty ‘pay

or give security for costs * * * and still be able

to provide’ himself and dependents ‘with the ne-

cessities of life.’ To say that no persons are entitled

to the statute’s benefits until they have sworn to

contribute to payment of costs, the last dollar they

have or can get, and thus make themselves and

their dependents wholly destitute, would be to con-

2069 S.Ct. 85, 89, 93 L.Ed. 43, 49.

~~

strue the statute in a way that would throw its

beneficiaries into the category of public charges.

The public would not be profited if relieved of

paying costs of a particular litigation only to have

imposed on it the expense of supporting the per-

son thereby made an object of public support.

* @ @99

Petitioner need not render himself an indigent and

dependent upon county indigent relief but campaign

expenses are not necessities of life. That some candi-

dates have more campaign funds than do others does

‘not result in an unconstitutional discrimination. As

this Court said in San Antonio Independent School

District v. Rodriguez (1978) 410 U.S. —.. Slip Opin-

ion at page 17:"

“<* * * in Douglas v. California, 372 U.S. 353,

(1963), a decision establishing an indigent defen-

dant’s rights to court appointed counsel on direct

appeal, the Court dealt only with defendants who

could not pay for counsel from their own resources

and who had no other way of gaining representa-

tion. Douglas provides no relief for those on whom

the burdens of paying for a criminal defense are

relatively speaking, great but not insurmountable.

Nor does it deal with relative differences in the

quality of counsel acquired by the less wealthy.

““Williams v. Tinois, 399 U.S. 235 (1970), and

Tate v. Short, 401 U.S. 395 (1970), struck down

criminal penalties that subjected indigents to in-

carceration simply because of their inability to

1193 S. Ct. 1278, 1290, 36 L.Ed.2d 16, 36.

pay a fine. Again, the disadvantaged class was

composed only of persons who were totally unable

to pay the demanded sum. Those cases do not

touch on the question whether equal protection

is denied to persons with relatively less money on

whom designated fines impose heavier burdens.

The Court has not held that fines must be struc-

tured to reflect each person’s ability to pay in

order to avoid disproportionate burdens. Sentenc-

ing judges may, and often do, consider the de-

fendant’s ability to pay, but in such circumstances

they are guided by sound judicial discretion ra-

ther than by constitutional mandate.”’

4. Since the Requirement of a Filing Fee serves

a Compelling State Interest, insofar as it may

bar a Frivolous Candidate from the Ballot it

does not Discriminate against the Poor.

We assume that petitioner’s argument is based on

the premise ‘that the requirement of a filing fee does

not serve any compelling state interest. We also as-

sume that petitioner concedes that if it be shown that

it does serve such a purpose then it is valid even if it

makes impossible the candidacy of a person having

neither funds of his own nor supporters. In Gant v.

Oklahoma City (1933) 289 U.S. 98, 102” this court

held valid requiring a license and posting of a bond

in order to drill an oil well in the city even as to one

who could not obtain a bond. The theory on which

this decision was based is well stated in Watson v.

Seana

1253 S.Ct. 530, 532, 77 L.Ed. 1058, 1062.

Division of Motor Vehicles (1931) 212 Cal. 279, 298

P. 481. In that case the court held valid Section 73(g)

of the former California Vehicle Act which provided

that fifteen days after a judgment against a motorist

for damages on account of personal injury or for dam-

ages to property in excess of one hundred dollars be-

came final, if the judgment had not been paid the mo-

torist’s driver’s license would be suspended until it

was paid. It was contended that this was a discrimina-

tion against the poor and unconstitutional on the

ground that, under its terms, a person’s license to

operate a motor vehicle was made dependent upon

his ability to pay and discharge judgments rather than

upon his ability to operate such vehicle. The court held

to the contrary, saying, at page 284:*

‘ «¢# * * The fallacy in this argument lies in the

failure to distinguish between equality of oppor-

tunity and ability to take advantage of the oppor-

tunity which is offered to all. The equality of the

Constitution is the equality of right and not of

enjoyment. @ # #9?

This is quoted with approval by Escobedo v. State

of California (1950) 35 Cal.2d 870, 878, 222 P.2d 1, 6,

the court adding:

«¢# * * Those who cannot afford to possess auto-

mobiles are as little able to enjoy the opportunity

of driving on the public highways as those who

cannot afford insurance or security.”’

18298 P. at p. 483.

_

At page 16 the petitioner cites Ferguson v. Keays

(1970) 4 Cal.3d 649, 94 Cal. Rptr. 398, 484 P.2d 70

where, because of poverty, the $50.00 fee for filing a

record on appeal was waived. The distinction between

that case and the case at bench is explained in Orr v.

Superior Court (Cal.App. 1968) 73 Cal. Rptr. 830, 835

in which the court after quoting from Escobedo, supra,

said:

“** * * The denial of counsel on appeal to an

indigent defendant in a criminal proceeding may

draw an ‘unconstitutional line . . . between rich

and poor’ (see Douglas v. California (1963) 372

U.S. 353, 357 [9 L.Ed. 2d 811, 814, 83 S.Ct. 814]),

because the pecuniary ability to secure counsel is

not rationally related to the right or privilege to

have the conviction reviewed. There is, however,

a rational relationship between the pecuniary abil-

ity to respond in damages and the operation of a

motor vehicle. * * *’’

The State Supreme Court granted a hearing on

February 5, 1969 and came to the same ultimate con-

clusion as did the Court of Appeal that the petition

for writ of prohibition be denied. 71 Cal.2d 220, 77

Cal.Rptr. 816, 454 P.2d 712." The opinion of the Court

of Appeal is not precedent therefore, but we quote it

for the reasoning therein contained.”

B. The Filing Fee is Reasonable in Amount.

In Bullock v. Carter, supra (1972) 405 U.S. 134,

143,” this Court said:

**Unlike a filing fee requirement which most

candidates could be expected to fulfill from their

own resources or at least through modest contri-

butions, the very size of the fees imposed under

the Texas system gives it a patently exclusionary

character. * * *”’

The California filing fees are set by statute, not

by political parties as was the case in Texas. In the

ease at bench the filing fee is but two per cent of the

first year’s salary. As noted by State ex rel. Apodaca

v. Fiorina, supra (1972) 83 N.M. 663, 495 P.2d 1379,

1384 (Review by this Court requested, Nos. 71-1511,

71-1512) :

‘ce * * The modest six per cent does not leap

from the page as does the 99.7 percent Texas fee

for one office recounted in Bull :

15Without in any wenn anys operating ther ey Ae ac pes

courts

cedent where the State mene xeok saw Ny

have cited such opinions for the contained there-

Say smn dips s Races (1887) 1 Ga 2 279, 20 P. 573,

579; v. wf kenge (1956) 140 42, athe Ral

966; Blatz Brewing Co. v. gee ye BASS 639, 650,160 P

sae v. Hires Bottling Co. (1943) 59 642, 649, 139

1692 S.Ct. 849, 856, 31 L.Ed.2d 92, 100.

Sha.

In Bullock, supra at page 149" this Court has com-

pared a fee imposed on a candidate with a license fee.

A license fee so large as to in effect prohibit a legiti-

mate business has been held confiscatory and uncon-

stitutional, McGahey v. Virginia (1890) 135 U.S. 662,

701," but we have found no case holding a reasonable

license fee to be invalid as applied to some one having

no money to pay it.

Requirements in the State of Florida that a can-

didate pay a fee of five per cent of the annual salary

have been held to be reasonable in a number of cases.

Spillers v. Slaughter (U.S.D.C.M.D. Fla. 1971) 325

F.Supp. 550 in which at page 553 the court held that

there was a compelling state interest requiring the fee.

(Under the title Pope v. Haimowitz (U.S. 1971) 404

U.S. 806,” this Court vacated the judgment and re-

manded the case to the District Court with directions

to dismiss as moot.)

Wetherington v. Adams, supra (D.C.N.D. Fla.

1970) 309 F.Supp. 318;

Fowler v. Adams (D.S.M.D. Fla. 1970) 315 F.

Supp. 592 at 594;

Diffenderfer v. Porter Homer (D.C.S.D. Fla.

No. 68-455, Cir.E.C.), unreported but cited by

Spillers v. Slaughter, supra;

1792 S.Ct. 849, 859, $1 L.Ed.2d 92, 103.

3810 S.Ct. 972, 984, 34 L.Ed. 304, 316.

1992 S.Ct. 55, 30 L.Ed.2d 37.

A filing fee of $875 was held reasonable for a

candidate for justice of the State Supreme Court in

Bodner v. Gray (Fila. 1961) 129 So.2d 419, 420, 89

A.L.R.2d 860, 863 (and note annotation at page 864.)

C. There is no other Practical Test of the Good

Faith of a Candidate.

‘ At page 14 petitioner says:

“In Ferguson v. Keays, 4 C.3d 649, 94 Cal.

Rptr. 398, 484 P.2d 70 (1970), the California Su-

preme Court approved in principle the waiver of

the $50 fee for filing a record on appeal despite

the argument that filing fees defray the costs of

courts and discourage unnecessary litigation.’’

The following portion of the opinion in that case,

4 Cal.3d at 658, 94 Cal. Rptr. at 403, 484 P.2d at 75

illustrates the difference between determining the good

faith of an appellant and the good faith of a candidate:

“*Thus, there is ample precedent for requiring,

as a condition to the grant of in forma pauperis

relief, that each applicant establish to the court’s

satisfaction that he is in fact indigent and that his

/ claim or defense is not wholly frivolous. With re-

spect to applications for such relief at the appel-

late level, we believe that the applicant should, at

a minimum, submit (1) the certificate of his coun-

sel, declaring that he is familiar with the facts

underlying the action or appeal, that in his opin-

ion his client’s contentions have merit, and that the

—20—

action or appeal is brought in good faith and not

for purposes of delay or harassment, and (2) the

declaration of the applicant, executed under pen-

alty of perjury, stating that he is unable to pay

the requisite filing fee without depriving himself

or his dependents of the necessaries of life, and

briefly setting forth the facts which disclose his

indigence.”’

Petitioner has suggested no other way in which the

good faith of a candidate can be tested. He might be

required to submit an affidavit that he has supporters

and, at least, a remote chance of success, but any can-

didate could file such an affidavit without fear of pros-

ecution for perjury since the affidavit would be largely

an opinion the falsity of which would be impossible to

prove.

D. The Elections Code does not Deny the Right of

a Voter to have his Vote Counted.

At page 23 petitioner says:

“If poor people cannot run candidates from

within their own community for lack of resources,

then the right to vote and the constitutional guar-

antees of respresentation are meaningless. * * *’’

If petitioner should convince this Court that the

Election Code unconstitutionally denies the right to

be a candidate then whether or not it also denies the

rights of the voters need not be. decided. It is only if

it is determined that no rights of the candidate is in-

fringed that this contention becomes material. In Sam-

uels v. Hite (1950) 35 Cal.2d 115, 216 P.2d 879 the

court directed that the name of a candidate for office

of judge of a justice court be removed from the ballot

because he was not eligible for that office. Obviously

no one has a constitutional right to have his vote

counted for a candidate who is ineligible for the of-

fice he seeks.” By analogy, no one has a constitutional

right to have his vote counted for one who fails to

qualify as a candidate.

At page 21 petitioner says:

‘*‘ Assume that the candidate could collect $1.00

from each of 702 persons in his community to meet

the filing fee requirement for Board of Supervis-

ors in Los Angeles County. But then to the extent

that these 702 voters have been required to contri-

bute funds in order to have their vote recorded for

the candidate of their choice, they have been re-

quired to pay an indirect poll tax. Such a tax has

been proscribed in United States v. Texas, 252 F.

Supp. 234, 384 U.S. 155, supra * * *.”

This argument proves too much. Assume that a

group of voters urge a voter to be a candidate. Assume,

also, either that the office does not require a filing

fee or that the proposed candidate has ample funds

of his own with which to pay the filing fee. The candi-

22

‘“‘T am unwilling to be a candidate unless you

will contribute sufficient funds for an effective

campaign.”

In that situation can it be said that those urging

his candidacy must pay what amounts to a poll tax in

order to vote for him? In that case the candidate says

he cannot afford to run unless he has financial sup-

port. It is the same if the eandidate cannot pay his

filing fee from his own funds. He refuses to be a can-

didate unless his supporters give him financial aid.

E. Petitioner’s Cases Are Not Persuasive.

We, already, have cited and distinguished some the

eases cited by the petitioner.

At pages 7 and 18 petitioner cites Chote v. Brown

(U.8.D.C.N.D. Cal. 1972) 342 F.Supp. 1353 (remanded

93 S.Ct. 1732, 36 L.Ed.2d 420). We submit that the

dissenting opinion is far more persuasive than that

of the majority.”

At pages 8, 11, and 27 petitioner cites Turner v.

Fouche (1970) 396 U.S. 346 in which this Court held

invalid a requirement that a member of the school

board must be a property owner. This Court however,

also said, at page 364:”

“«“* * * Without excluding the possibility that

21In Mitchell v. Van Pelt (1954) 58 N.M. 69, 265 P.2d 679, 42 ALR.

2d 1211, 1215 the court said: ae

“#88 when

the problem is one of first impression in our own

Court in determining the better of two lines of authority.”

2290 S.Ct. 532, 542, 24 L.Ed.2d 567, 581.

other circumstances might present themselves in

which property qualification for office-holding

could survive constitutional scrutiny * * *”

About five weeks after this decision, this Court de-

nied certiorari (397 U.S. 906) in Schweitzer v. Clerk

for City of Plymouth (1969) 381 Mich. 484, 164 N.W.

2d 35 at 39 which held that ownership of real property

was a valid qualification for holding a city office.

In both Harper v. Vance, supra (U.8.D.C.N.D. Ala.

S.D. 1972) 342 F.Supp. 136 at 143 cited by petitioner

at page 11 and Jeness v. Little (U.S.D.C.N.D. Ga. 1969)

306 F.Supp. 925, 929 (Appeal dismissed as moot, sub

nominee Matthews v. Little (1970) 397 U.S. 94)* cited

at pages 10 and 11 it seems to be assumed that no filing

fee whatever may be charged directly contrary to this

Court’s decision in Bullock, supra.

At page 14 petitioner relies upon Serrano v. Priest

(1971) 5 Cal.3d 584, 96 Cal.Rptr. 601, 487 P.2d 1241.

This case was cited eight times by San Antonio Inde-

pendent School District v. Rodriguez, supra (1973)

410 U.S. _ at _.. Slip Opinion pp. 11, 14, 18, 23, 25,

38, 51-52, and 63** and, at least insofar as any question

under the Constitution of the United States was con-

cerned, impliedly was overruled.

2390 S.Ct. 896, 25 L.Ed.2d 86.

2490 S.Ct. 820, 25 L.Ed.2d 81.

2593 S.Ct. 1278, 1287, 1289, at 1293, 1294, 1301, 1308, 1309, 36

L.Ed.2d 16, 32, 34, 37, 39, 40, 48, 56, 57

=

0

IF THE CONSTITUTION OF THE UNITED STATES

REQUIRES AN ALTERNATIVE TO PAYING A FI-

LING FEE, CANDIDATES IN CALIFORNIA HAVE

SUCH AN ALTERNATIVE.

A. If Elections Code § 18602 Requiring Payment

of a Fee before Write-in Votes are Counted ren-

ders Requirement of a Filing Fee to go on Bal-

lot Unconstitutional it is § 18602 not § 6554

(which requires a filing fee to have Name printed

on Ballot) which is Unconstitutional.

Chapter 8.5 (beginning with Section 18600) of Di-

vision 10 of the Elections Code provides for the count-

ing of write-in votes. It requires that a person desir-

ing to be a write-in candidate file a statement to that

effect with the registrar-recorder at least eight days

prior to the election. Section 18603 reads:

“£18603. No name written upon a ballot in any

state, county, city, city and county, or district elec-

tion shall be counted for an office or nomination

unless

“‘(a) A declaration has been filed pursuant to

Sections 18601 and 18602 declaring a write-in can-

didacy for that particular person for that partic-

ular office or nomination and

“*(b) The fee required by Section 6555 is paid

when the declaration of write-in candidacy is filed

pursuant to Section 18602.’’

eS eT, WE eee Serer

These provisions are reasonable and make it un-

necessary to count votes for persons (or for comic

strip characters such as Mickey Mouse) who are not

candidates at all. We are informed that voters have

written in names of John the 23d, John Doe, Joe Doe,

Joe Blow, Dick Tracy, Mortimer Snud [Snerd], Khru-

shchev, Al Capone, Annie Oakley as well as real per-

sons who received one or two votes each.

Petitioner at pages 13 and 17 stresses that because

of the provisions of subdivision (b) of Section 18603

of the Elections Code there is no alternative to paying

the filing fees.

Let us assume (without conceding) that the re-

quirement of a filing fee to have a candidate’s name

printed on the ballot is invalid (at least as applied to

a candidate where neither he nor his supporters can

pay it) unless there is some alternative such as candi-

dacy by write-in.

Chapter 8.5 (beginning with Section 18600) was

first added to Division 10 of the Elections Code by

California Statutes 1968, chapter 79, page 236 which

took effect as an urgency measure on May 9, 1968 so

as to be in effect for the June 4, 1968 primary. Prior

thereto all write-in votes were counted although no fee

had been paid. We shall show infra p. 28 that the

opportunity to nominate or elect a candidate by write-

in is a valid alternate. Therefore, prior to May 9, 1968

the requirement of payment of a fee to have a candi-

date’s name printed on the ballot was valid.

—4—

Where unconstitutionality results from a statutory

amendment it is the amendment which is invalid and

not the original portions of the statute.

Frost v. Corporation Commission (1929) 278

U.S. 515, 526;7*

Truaxz v. Corrigan (1921) 257 U.S. 312, 341;”

Eberle v. Michigan (1914) 232 U.S. 700, 705.”

As said by this Court in Waters-Pierce Oil Com-

pany v. State of Texas (1900) 177 U.S. 28, 47:”

s# * * Tt is either constitutional or unconstitu-

tional. If it is constitutional the plaintiff in error

has no legal cause to complain of it. If unconsti-

tutional, it does not effect the act of 1889, and that,

as we have seen, imposes a valid condition upon the

plaintiff in error * * *.”’

This Court said in Reitz v. Mealey (1941) 314 US.

33, 38-39”

‘** * * under the law of New York, a statute

in itself constitutional is not affected by an un-

constitutional amendment ;—the amendment drop-

Ping out and the original act remaining in force

2 @ @99

The Courts in California are in accord.

Danskin v. San Diego Unified School District

(1946) 28 Cal.2d 536, 555, 171 P.2d 885, 897;

2 S.Ct. 124, 182-133, 66 L.Ed oe, 267, 27 A.L.R. $75, 390.

803, 805.

657, 665.

een ae

Miller v. Union Bank and Trust Company.

(1936) 7 Cal.2d 31, 36, 59 P.2d 1024, 1027

(Certiorari denied 299 U.S. 612)

Keech v. Joplin (1909) 157 Cal. 1, 9, 106 P.

222, 226;

Skyline Materials, Inc. v. City of Belmont

(1961) 198 Cal.App.2d 449, 459, 18 Cal. Rptr.

95, 101;

City of Los Angeles v. Lelande (1909) 11 Cal.

App. 302, 307, 104 P. 717, 719.

If it be assumed that an alternate not requiring a

fee, is necessary then it is either Chapter 79 of the

California Statutes of 1968 which added Chapter 8.5

to Division 10 of the Elections Code or subdivision

(b) of Section 18603 (a part of Chapter 8.5) which is

unconstitutional leaving the remainder of the Elections

Code insofar as fees are concerned as it read prior to

1968.

Section 14 of Senate Bill No. 1236 as amended in

the California Senate on June 15, 1973 will, if enacted

as so amended, amend Section 18603 of the Elections

Code to eliminate paragraph (b) thereof and thereby

eliminate the requirement of any fee for a write-in

candidate. If this bill is enacted so as to make this

amendment, we shall inform the Court by supplemen-

tary brief.

$157 S.Ct. 314, 81 L.Ed. 451.

Oh

B. A Write-in Vote is a Valid Alternate.

In Wetherington v. Adams, supra (U.S.D.C.N.D.

‘Fla. 1970) 309 F.Supp. 318, 320 the court said:

‘‘* * * Additionally, the filing fee precondition

does not constitute a total denial to persons de-

sirous of candidacy of having votes cast for them

and counted; they can run as write-in candidates

by following the non-cost procedures of Fla. Stat.

§ 99. * * » gg *

At page 322 the court continued:

«e * * There may be some disadvantages to a

write-in candidacy but it does provide a means

whereby any citizen, regardless of his political sup-

port or his individual wealth, can present himself

to the voters for their consideration.’’

In the unreported case of Haag v. State of Califor-

ma (U.8.D.C.C.D. Cal. Aug. 2. 1970, No. 70-426-R) the

court said:

“*2. A write-in candidacy is as constitutionally

acceptable a method of running for public office

as appearing on the printed election ballot.’’

In Roberts v. Cleveland (1944) 48 N.M. 226, 149

P.2d 120, 153 A.L.R. 635 a section in the New Mexico

election laws providing that no person shall become a

candidate for nomination for any office who has

changed his party affiliation within twelve months

prior to the issuance of the Governor’s proclamation

was attacked on the claim that it attempted to add to

—29—

the qualifications of persons who are qualified to hold

the office of Representative in Congress of the United

States. In rejecting this contention the court said (149

P.2d at 122, 153 A.L.R. at 638):

“* * * The right to be a candidate at the gen-

eral election by the ‘write in’ method is provided

for. He may be such a candidate, independently of

all parties * * *,’’

The distinction between being a candidate and hav-

ing one’s name printed on the ballot was also explained

in State ex. rel. O’Sullivan v. Swanson (1934) 127 Neb.

806, 257 N.W. 255. A Nebraska statute provided that

a candidate defeated in the primary could not have

his name printed on the ballot at the general election

as an independent candidate. The court construed this

prohibition as applying to any office not only the office

for which the candidate was defeated in the primary.

In holding that this statute prohibited one defeated in

the primary for nomination for Governor from having

his name on the ballot at the general election as a can-

didate for the United States Senate, the court said, at

pages 255 and 256:

‘¢*# * * The issue here is whether the relator is

entitled to have his name printed on the ballot as

a candidate nominated by petition, regardless of

the Driscoll decision because the office relator

seeks is a federal office rather than a state office.

The question is not whether he may be a candidate, —

but whether he may be nominated by petition and

Be

have his name printed on the ballot at the state’s

expense. He may be a candidate and if electors

write his name on the ballot in sufficient numbers

he will be elected.”’

So far as we can find neither of these last two cases

has been overruled or disapproved. We submit that the

reasoning in each is persuasive and should be followed.

Candidates have been elected by write-in. For ex-

ample in Miller v. Childs (1915) 28 Cal.App. 478, 152

P. 972 a candidate at the primary for the office of

Superior Court judge received a majority of all votes

cast and, under the Direct Primary Law, as it then

read, was the only candidate whose name appeared on

the ballot for the general election. J. L. Childs, the

candidate (or a candidate)” defeated in the primary

for that same office conducted a write-in campaign

and was elected.

Also, it cannot be said that because of the existence

on the statute books of Section 18608 of the Elections

Code it would be impossible to conduct a write-in cam-

paign. In Steiner v. Mihaly, No. 8.F. 22965 on October

18, 1972 the Supreme Court of California made the

following interim order:

“It is hereby ordered that respondents Em-

mery Mihaly * * * Edmund G. Brown, Jr., Sec-

retary of State of California, accept without re-

quiring the payment of the fee prescribed by Sec-

__tions 6555 and 18608, subdivision (b) of the Elec-

a ache ET Cad fe acer PS pat a

— 31—

tions Code, the declaration of write-in candidacy

of petitioner Herbert Steiner for the office of

Member of the House of Representatives of the

United States from the Fifth Congregressional

District of California, at the general election to

be held November 7, 1972, if said declaration is

offered to said respondent Registrar of Voters in

proper form and within the time prescribed by

law, and that said respondents count and record

all votes cast for such petitioner in such election,

reserving to this court jurisdiction to determine

whether such filing fee prescribed by the afore-

said sections of the Elections Code is lawfully re-

quired.”’

C. Elections Code § 6555 (Candidate nominated by

Write-In must Pay Filing Fee) is Valid.

In his Points and Authorities filed in the State

Supreme Court (App. p. 15) the petitioner said:

«* * * Even before write-in votes will be

counted, the filing fees must be paid under Elec-

tions Code Section 6555.”’

The section does not so provide. It reads:

**6555. When a person for whom a declaration

of candidacy has not been filed is nominated for an

office by having his name written on the ballot, he

shall pay the same filing fee that would have been

required if his declaration had been filed. If he

does not pay that fee his name shall not be printed

on the ballot at the ensuing general election.’’

—32—

The section clearly specifies that it is only after a

candidate has been nominated that he must pay the

filing fee. The enactment of Section 18603 of the

Elections Code in 1968 specifically requiring the pay-

ment of a fee by a write-in candidate before write-in

votes will be counted is a legislative construction of

Section 6555 that that section does not do so.

*e * * subsequent legislation may be considered

to assist in the interpretation of prior legislation

upon the same subject. * * *’’

Tiger v. Western Investment Co. (1910) 221

U.S. 286, 309;*

Great Northern Ry Co. v. United States (1942)

315 U.S. 262, 277.™

This is the law in California.

McDonough Power Equipment Co. v. Superior

Court (1972) 8 Cal. 3d 527, 534, 105 Cal.Rptr.

330, 335, 503 P.2d 1338, 1343, footnote 5;

Bateman v. Colgan (1896) 111 Cal. 580, 587,

44 P. 238, 240;

Payne v. The City of San Francisco (1853) 3

Cal. 122, 128,

*** * * even an unconstitutional part of a statu

may be examined for the purpose of ascertaining

the seope and effect of the valid parts thereof. (Ea

parte Fedderwitz, 6 Cal.Unrep. 562, 572 [62 Pac.

935, 940] ; 36 Cyc. 1131, 1132.) ”

—s3—

Crooks v. People Finance etc. Co. (1930) 111 Cal.

App.Supp. 769, 775, 292 P. 1065;

Beneficial Loan Soc. Ltd. v. Haight (1932) 215

Cal. 506, 514, 11 P.2d 857, 860.

Accord, People v. Campbell (1930) 110 Cal.App.

Supp. 783, 786, 291 P. 161, 162.

If a candidate receives sufficient votes to be nom-

inated for a nonpartisan office, there should be no dif-

ficulty in obtaining from supporters the filing fee.

D. Elections Code § 6555 is Severable.

If there is any question as to the validity of Sec-

tion 6555 of the Elections Code it is clearly severable.

As this Court said in United States Civil Service Com-

mission v. National Association of Letter Carriers,

AFL-CIO (1973) 41 Law Week 5122, 5129, Slip Opin-

ion p. 22.

““* * © As we see it, our task is not to destroy

the Act if we can, but to construe it, if consistent

with the will of Congress, so as to comport with

constitutional limitations. * * *”’

In both Tilton v. Richardson (1971) 403 U.S. 672,

684," and United States v. Jackson (1968) 390 U.S:

570, 585" this Court quotes, as follows, from Champlain

Rfg. Co. v. Commission (1932) 286 U.S. 210, 2342"

859}

8. o—- 802 (rehearing denied, 404 US.

874, 92 8.On 25,30 L-Bd bd 120 ry ’

beg8 S.Ct. 1209, 1218, 20 138, 149

8152 S.Ct. 559, 565, 76 L.Ed.2d 1062, 1078, 86 ALR. 403, 413.

th.

_ “* ** The unconstitutionality of a part of an

Act does not necessarily defeat * * * the validity

of its remaining provisions. Unless it is evident

that the legislature would not have enacted those

provisions which are within its power, indepen-

dently of that which is not, the invalid part may

be dropped if what is left is fully operative as a

law. ® @ #97

Section 6555 could be eliminated entirely from the

Elections Code and what would be left would be:

«* * * fully operative as a law. * * *”’

Section 48 of that code reads:

“48. If any provision of this code or the appli-

cation thereof to any person or circumstance is

held invalid, the remainder of the code and the

application of such provision to other persons or

circumstances shall not be affected thereby.”

After quoting a similar provision in the Business

and Professions Code the court said in Blumenthal v.

Board of Medical Examiners (1962) 57 Cal.2d 228,

238, 18 Cal.Rptr. 601, 506, 368 P.2d 101, 106:

“«* * * The test of severability is whether the

invalid parts of the statute can be severed from

otherwise valid parts without destroying the

statutory scheme, or the utility of the remaining

provisions. @ @ #99. .

This is quoted and followed by Curtis v. Board of

Supervisors (1972) 7 Cal.3d 942, 964, 104 Cal.Rptr.

297, 312, 501 P.2d 537.

—35—

Section 6555 meets this test. Its elimination would

not affect the remainder of the Elections Code in any

way.

In Kelso v. Cook (1916) 184 Ind. 173, 202, 110 N.E.

987, 997, Ann.Cas. 1918E 68, 78 from which petitioner

quotes at page 27 of his brief the court held severable

from the direct primary law a provision requiring fees

for printing names of candidates on the ballot.

THE FILING FEE REQUIREMENT DOES NOT IM-

PAIR THE RIGHT OF FREE SPEECH.

A. The Filing Fee Requirement does not Impair

the Right to Campaign.

Petitioner contends that the Election Code denies

the right of free speech and assembly. In a situation

such as Bullock v. Carter, supra where the election

laws deny a constitutional right to be a candidate and,

indirectly, a constitutional right to have one’s vote

counted for the candidate of one’s choice, a decision

to that effect is all that one desiring to be a candidate

needs and, whether or not the election laws also deny

the right of free speech and assembly need not be de-

termined.

We submit, therefore, that whether or not Mr. Lubin

has been denied the right of free speech or public

assembly is material only if it is decided that no right

—s6—

to be a candidate or to have a vote counted otherwise

has been impaired. At page 26 petitioner says:

“Campaigns for any political office consist of

rallies, campaign speeches by the candidates and

his staff, destribution of leaflets. All are First

Amendment activities—speech, publication, assem-

bly. The opportunity to campaign is an opportun-

ity to secure public attention to one’s views and to

engage other candidates in debate of vital issues.’’

This is an ingenious argument but it proves too

much. In Samuels v. Hite, supra (1950) 35 Cal.2d 115,

216 P.2d 879 the court held that the name of a candi-

date for office of judge of a justice court must be re-

moved from the ballot because he did not have the re-

quired qualifications. Petitioner would say that the

right of free speech of his supporters had been im-

paired because no urging of voters to vote for him

would be effective. Petitioner’s argument extended to

its logical conclusion goes even further. The right to

urge people to vote for a candidate is impaired if that

candidate cannot take office. Therefore to require a

judge or district attorney to be admitted to practice

law or a health officer to be admitted to practice med-

icine impairs the right of free speech and assembly.

This Court said, in United States Civil Servicd

Commission v. National Association of Letter Car-

riers, AFL-CIO, supra (1973) 41 Law Week 5122, 5124,

Slip Opinion p. 7. ;

““We unhesitantly reaffirm the Mitchell hold-

—3t—

ing * * *. An Act of Congress * * * would in our

view unquestionably be valid * * * if, in plain and

understandable language, the statute forbade ac-

‘tivities such as * * * becoming a partisan candi-

date for, or campaigning for, an elective public

office * * *. Our judgment is that neither the

First Amendment nor any other provision of the

Constitution invalidates a law barring this kind of

partisan political conduct by federal employees.”

B. A Candidate Who has No Chance to Be Elected

’ is not Entitled to a Place on the Ballot to Build

up Support in Future Elections.

At page 27 the petitioner quotes from Kelso v. Cook,

supra (1916) 184 Ind. 173, 202, 110 N.E. 987, 996,

Ann.Cas. 1918E 68, 78 in which the court held the

Indiana primary law valid but held invalid the pro-

vision requiring a filing fee equal to one per cent of

the first year’s salary on the ground that it was dis-

criminatory as to minor political parties. We submit

that the reasoning of the court is most unconvincing.

Besides, the decision seems to be based upon provisions

of the Indiana State Constitution as appears from that

portion of the opinion immediately following that

quoted by petitioner:

**It may be as contended, that in some jurisdic-

tions, provisions quite similar to this have been up-

held by the courts, but it is believed that in such

cases, there are constitutional provisions differ-

ing from ours. * * *”

—3R

The right of a new political party to be on the

ballot is not the same as that of a private individual.

If petitioner is not a serious candidate his right of

free speech does not require that he be permitted a

place on the ballot to advertise himself and make his

name known to the public. Government may not pro-

hibit or cast obstacles in the way of the exercise of

free speech but it is under no affirmative duty to pro-

vide facilities for its exercise. For example, while Cal-

ifornia has permitted its public school buildings to be

used in the evening for non-school meetings such as, for

example, political discussions it is not required to do

so. As this Court has said in Ellis v. Dizon (1955) 349

U.S. 458, 459:*.

“Petitioner concedes that a State may with-

hold its facilities altogether from use by nonscho-

lastic groups. * * *”’

The right of free speech does not permit the use

of publicly owned property which is not open to the

public. Adderley v. Florida (1966) 385 U.S. 39, 47."

The court said in Application of Hooker (1955) 208

Mise. 188, 143 N.Y.S.2d 750, 755:

“*While there are constitutional rights of free

speech and freedom of assembly, there is no con-

stitutional privilege to exercise these rights in a

fire house auditorium. There is no constitutional

8875 S.Ct. 850, 85 99 L.Ed. 1231, 1234 (rehearing denied 350 U.S. 855,

“76 S.Ct. 37, 100 L_Ed. °

87 S.Ct. 242, 247, 17 LEd.2d 149, 156 (rehearing denied 385 USS.

1020, 87 S.Ct. 698, 17 L.Ed.2d 559).

—3g—

obligation to let the premises out to petitioner. The

action of the respondents in refusing a permit to

the petitioner was not directed against the right

of free speech or the right of freedom of assembly,

but was concerned solely with the use of a portion

of premises entrusted to their exclusive control.”

In West Tennessee A.C.L.U. v. City of Memphis

(1971) 323 F.Supp. 234 at 237 the court said:

*‘The Court also is of the opinion there is no

inherent constitutional right to compel public of-

ficials to open municipal buildings to the public

for use as an office even im the exercise of free

speech and assembly. * * *’’ (emphasis added.)

In 454 F.2d 1162 this case was reversed on the

ground that the District Court also had decided that

the granting of office space to another organization

was beyond the power of the city and that that was a

matter of state law to be decided by the state courts!

The A.C.L.U. petitioned for a writ of certiorari which

this Court denied. 409 U.S. 879.” Nothing in the opin-

ion of the Court of Appeal or the denial of ceritorari

cast any doubt on the validity of what we have quoted

from the opinion of the District Court.

#93 S.Ct. 133, 34 L_Ed.2d 133.

——

CONCLUSION

It is respectfully submitted that for the reasons

herein stated Section 6554 of the Elections Code should

be held constitutional and the judgment of the Supreme

Ceurt of California affirmed.

Respeetfully submitted,

JOHN H. LARSON,

County Counsel

EDWARD H. GAYLORD,

648 Hall of Administration

500 West Temple Street

Los Angeles, California 90012

Attorneys for Respondent

DET SO et SI