On March 11, California Superior Court Judge Timothy M. Frawley issued this 6-page opinion in Fuller v Bowen, 34-2010-80000452. He explains why he ruled from the bench yesterday that Tom Berryhill should be on this year’s Republican primary ballot for State Senate, 14th district.
This is a very thoughtful and useful opinion. Judge Frawley agrees that he has jurisdiction to decide the issue of whether someone should be on the ballot as a candidate for the legislature, even though the candidate has not been a resident of the district for a year and even though the state Constitution says such candidates are not eligible. Attorneys for the candidate had tried to argue that the court didn’t have jurisdiction to decide the case, that only the legislature can judge the qualifications of its members.
According to this decision, the strict scrutiny test still apples to whether anyone has a right, under the U.S. Constitution, to be a candidate. The decision acknowledges that the U.S. Supreme Court said in Clements v Fashing, in 1982, that there is no federal constitutional right to be a candidate. But he said that decision was just a plurality decision. Justice Rehnquist’s decision only commanded four votes, Justice Brennan’s dissent commanded four votes, and the Justice John Paul Stevens wrote his own opinion. Clements v Fashing was a harmful decision, and it is good to see a lower court finding that it is not binding. Thanks to Erin Peth for the link to the decision.
Using the federal model, it appears the California court is certainly correct–the court has the power to invalidate an “additional” qualification (such as a durational residence requirement). That does not appear controversial. The harder part is the merits-question; i.e., whether a durational requirement is valid. Under federal law, a good argument can be made that it is. See, e.g., Chimento v. Stark (1973) upholding New Hampshire’s seven-year residence requirement for gubernatorial candidates); Kanapaux v. Ellisor (1974) (affirming five-year residence requirement for South Carolina candidates for governor); Sununu v. Stark (1975) (sustaining seven-year residence requirement for New Hampshire state senator). Thankfully, the California Constitution is more protective, and that is what the court here relied upon.
Once again a demonstration that judges can find defensible grounds to vindicate implicit ‘fundamental’ rights by peeking discretely with ‘strict scrutiny’ at the head of an ‘equal protection’ pin to see if the angels are dancing with the devil of ‘compelling state interest’.
If the devil isn’t seen dancing, the angels can free-style. Hallelujah!
In what sense is the California Constitution more protective?
Previous decisions by California Supreme Court with regard to durational residency requirements have relied on the 14th Amendment, as does the current decision.
When the California Supreme Court last addressed the issue of durational residency (this was a case of 2-year durational residency for the city council in Santa Cruz), they were aware of both Kanapaux v. Ellisor, and Sununu v. Stark.
They said that those cases did not apply because:
(1) They were concerning state constitutional requirements with respect to state or legislative office; (2) The US Supreme Court’s summary affirmance was not necessarily dispositive of the court’s position with respect to the constitutional issues raised.
What do you mean by “‘additional’ qualification”? In addition to what?
The party hack Supremes claim that durational stuff somehow violates interstate commerce travel stuff.
Each State happens to be a sovereign NATION-STATE.
See the last paragraph of the 4 July 1776 DOI, the 1777 Articles of Confederation and especially Art. VII of the 1787 Constitution — all way too difficult for the party hack Supremes to understand.
i.e. the U.S.A. government is a super-national government — the States giving such government very limited powers — that involve inter-Nation-State / inter-foreign-nation stuff.