Martinez v. Newton

LEO MARTINEZ, Petitioner, v. JANE NEWTON, as City Clerk, etc., et al., Respondents

In Bank. (Opinion by The Court.)

COUNSEL

Richard Eiden and Eiden, Engle & Solomon for Petitioner.

A. Barry Cappello, City Attorney, Evelle J. Younger, Attorney General, Iver E. Skjeie, Assistant Attorney General, and Henry G. Ullerich, Deputy Attorney General, for Respondents.

OPINION

THE COURT.

Petitioner Leo Martinez, in an original proceeding before this court, seeks a writ of mandate to compel respondent Jane Newton, City Clerk of the City of Santa Barbara, to file his nomination papers and place his name on the ballot as a candidate for the Santa Barbara City Council in the election to take place on April 17, 1973. Petitioner has been a state resident since July 15, 1942, and a qualified elector of the City of Santa Barbara for more than one year.

Respondent contends that she does not have a duty to accept petitioner's nomination papers because petitioner has not complied with section 501 of the Santa Barbara City Charter, which provides:

"No person shall be eligible to hold office as a member of City Council unless he is and shall have been a resident and qualified elector of the City for at least four years next preceding the date of his election or appointment."

[1] It is settled that a four-year residence requirement for the office of city council violates the equal protection clause of the Fourteenth Amendment to the federal Constitution. (Zeilenga v. Nelson (1971) 4 Cal. 3d 716 [94 Cal. Rptr. 602, 484 P.2d 578]; Camara v. Mellon (1971) 4 Cal. 3d 714 [94 Cal. Rptr. 601, 484 P.2d 577].)

Petitioner also attacks sections 10202 and 10210 of the Elections Code which provide for placing the incumbent's name first on the ballot. For the reasons stated in Mexican-American Political Association v. Brown (1973) ante, page 733 [106 Cal. Rptr. 12, 505 P.2d 204], we do not deem it appropriate to consider this issue in this original mandate proceeding. [8 Cal. 3d 758]

[2] Respondent City Clerk of the City of Santa Barbara is hereby directed, if petitioner complies with all requirements other than section 501 of the charter for becoming a candidate for city councilman of the City of Santa Barbara on or before February 8, 1973, to place petitioner's name upon the ballot prepared for the municipal election of April 17, 1973. This order is final forthwith.