OTSUKA v. HITE

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District Court of Appeal, Second District, Division 1, California.

Katsuki James OTSUKA and John Hunley Abbott, Plaintiffs and Appellants, v. Benjamin S. HITE, Registrar of Voters of the County of Los Angeles, Defendant and Respondent.

Civ. 28465.

Decided: May 03, 1965

A. L. Wirin, Fred Okrand, Los Angeles, and Richard W. Petherbridge for plaintiffs and appellants. Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for defendant and respondent.

This is an action pursuant to section 350 of the Elections Code to compel defendant, Registrar of Voters, to register plaintiffs as qualified electors in Los Angeles County. This section provides that a qualified elector may proceed by action to compel his registration. The matter was submitted on plaintiffs' complaint, defendant's answer, and a stipulation setting forth the testimony which would be deemed to have been given by plaintiffs upon the trial. The court found that each plaintiff had been convicted previously of violating the Selective Service Act of 1940, and concluded that neither plaintiff is a qualified elector under the provisions of section 1 of article II of the California Constitution. Plaintiffs Otsuka and Abbott appeal from the judgment.

Appellants contend that the court erred in its ‘Conclusions of Law’ in that they have not been convicted of an ‘infamous crime’ as that phrase is used in said section 1 of article II. They contend further that if they have been convicted of such a crime, the court erred in its conclusions in that: (1) said section 1 imposes punishment in addition to that prescribed by Congress in the Selective Service Act, and the section is ‘void as an intrusion into an area’ which has been preempted by Congress; (2) said section 1 imposes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the federal Constitution; and (3) section 1 denies them equal protection of the laws and due process of law in violation of the Fourteenth Amendment to the federal Constitution.

Appellants concede that the evidence supports the findings, which are in substance as follows: Plaintiff Otsuka is a citizen of the United States, over the age of 21 years, able to read and write English, and has been a resident of the State of California for more than one year, of the county of Los Angeles for more than 90 days, and of the election precinct in which he resides for more than 54 days, prior to September 1, 1962. Prior to June 7, 1945, he was given a classification of 1–A–O pursuant to the former Selective Training and Service Act of 1940, as a conscientious objector to be called to perform noncombat military duty in the armed services of the United States. He pleaded guilty in the District Court of the United States (in New York) to violation of said act in that he failed and refused to report for induction, and on June 7, 1945, he was found guilty of such violation and committed to a penitentiary for a term of 3 years.1 In violating the provisions of said act, he acted pursuant to his personal conscientious opposition to participation in war in any form. On September 1, 1962, he applied to defendant for registration as a voter (elector),2 and defendant refused and does now refuse to register him. The sole reason for said refusal is that plaintiff was found guilty of violation of said act and was committed to a penitentiary.

The findings as to plaintiff Abbott were in substance as follows: He is a citizen of the United States, over the age of 21 years, able to read and write English, and has been a resident of the State of California for more than one year, of the county of Los Angeles for more than 90 days, and of the election precinct in which he resides for more than 54 days, prior to September 1, 1962. Prior to November 8, 1943, he was classified 4–E as a conscientious objector pursuant to the aforementioned act, and assigned to a civilian public service camp where he was required to work exclusively on nonmilitary projects. He pleaded guilty in the District Court of the United States (in California) to violation of said act in that he failed to remain in said camp, and he was convicted of said violation and committed to a penitentiary for a term of 2 years.3 In violating the provisions of said act, he acted pursuant to his personal conscientious opposition to participation in war in any form. On September 1, 1962, he applied to defendant for registration as a voter (elector), and defendant refused and does now refuse to register him. The sole reason for said refusal is that he was found guilty of violation of said act, and was committed to a penitentiary.

The ‘Conclusions of Law’ were in substance that each plaintiff was convicted of a felony which was an infamous crime under said section 1 of article II, and is thereby ineligible to vote in California; and section 1 is constitutional and does not violate the constitutional rights of either plaintiff.

Appellants' first contention is to the effect that they have not been convicted of an ‘infamous crime’ as that phrase is used in said section 1 of article II.

Said section provides: ‘Every * * * citizen of the United States * * * of the age of 21 years, who shall have been a resident of the State one year next preceding the day of the election, and of the county * * * 90 days, and in the election precinct 54 days, shall be entitled to vote at all elections * * * provided * * * no alien ineligible to citizenship, no idiot, no insane person, no person convicted of any infamous crime, * * * and no person who shall not be able to read the Constitution in the English language and write his or her name, shall ever exercise the privileges of an elector in this State * * *.’4

It has been held that ‘all felonies are infamous crimes.’ (Truchon v. Toomey, 116 Cal.App.2d 736, 737–738, 254 P.2d 638, 36 A.L.R.2d 1230; see Stephens v. Toomey, 51 Cal.2d 864, 338 P.2d 182; 17 Cal.jur.2d, Elections, § 14, p. 263.) In the present case, the plaintiffs were convicted of violating the Selective Service Act and were sentenced to imprisonment in a penitentiary,—plaintiff Otsuka for a term of three years, and plaintiff Abbott for two years. Section 1 of title 18 of the United States Code provides, in part: ‘(1) Any offense punishable by * * * imprisonment for a term exceeding one year is a felony. * * *’ It has been held also that a federal crime punishable by imprisonment for more than one year in a penitentiary is an infamous crime (In re Claasen, 140 U.S. 200, 205, 11 S.Ct. 735; 35 L.Ed. 409), and that conviction of a felony under federal law disqualifies a voter under a state constitutional provision disqualifying persons who have been convicted of a felony. (See State ex rel. Barrett v. Sartorious, 351 Mo. 1237, 175 S.W.2d 787, 149 A.L.R. 1067, 1075.) Appellants were convicted of an infamous crime as that phrase is used in said section 1 of article II.

Appellants contend that said section 1 of the California Constitution imposes punishment in addition to that prescribed by Congress in the Selective Service Act, and that the section is ‘void as an intrusion into an area’ which has been preempted by Congress.

In Lassiter v. Northampton County Bd. of Elections, 360 U.S. 45, 50–51, 79 S.Ct. 985, 989–990, 3 L.Ed.2d 1072, it is said: ‘The States have long been held to have broad powers to determine the conditions under which the right of suffrage may be exercised [citations], absent of course the discrimination which the Constitution condemns. * * * So while the right of suffrage is established and guaranteed by the Constitution [citations] it is subject to the imposition of state standards which are not discriminatory and which do not contravene any restriction that Congress * * * has imposed. * * * We do not suggest that any standards which a State Desires to adopt may be required of voters. But there is wide scope for exercise of its jurisdiction. Residence requirements, age, previous criminal record (Davis v. Beason, 133 U.S. 333, 345–347, 10 S.Ct. 299, 301–302, 33 L.Ed. 637 [641–642 see infra]) are obvious examples indicating factors which a State may take into consideration in determining the qualifications of voters.5 (Italics added.) The ability to read and write likewise has some relation to standards designed to promote intelligent use of the ballot.’ It is to be noted that section 1 of article II predicates eligibility as a qualified voter on factors such as age, residence, and absence of conviction of an infamous crime,—which factors are referred to in the Lassiter case as obvious examples of factors which a state may take into consideration in determining the qualifications of voters.

In Trop v. Dulles, 356 U.S. 86, pp. 96–97, 78 S.Ct. 590, pp. 595–596, 2 L.Ed.2d 630, cited by appellants, it is said: ‘In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute. If the statute imposes a disability for the purposes of punishment * * * it has been considered penal. But a statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose [citations in footnote, including Davis v. Beason, supra, and Murphy v. Ramsey, infra]. * * * The point may be illustrated by the situation of the ordinary felon. A person who commits a bank robbery, for instance, loses his right to liberty and often his right to vote. If, in the exercise of the power to pretect banks, both sanctions were imposed for the purpose of punishing bank robbers, the statutes authorizing both disabilities would be penal. But because the purpose of the latter statute is to designate a reasonable ground of eligibility for voting, this law is sustained as a nonpenal exercise of the power to regulate the franchise [citations in footnote—Davis v. Beason, and Murphy v. Ramsey].’

In Murphy v. Ramsey, 114 U.S. 15, 5 S.Ct. 747, 29 L.ed. 47 and Davis v. Beason, 133 U.S. 333, 10 S.Ct. 299, 33 L.Ed. 637, it was held that a state could require as a qualification for voter eligibility, that persons guilty of felonious activity (practicing bigamy and polygamy pursuant to their religious beliefs) be disqualified from voting. Appellants imply that the Murphy and the Davis cases are out of step with a modern trend to rehabilitate criminals. As above indicated, these cases were cited as authority for the point in question in Trop v. Dulles, supra, and Lassiter v. Northampton County Bd. of Elections, supra, which were decided in 1960. (The Lassiter case was cited in Carrington v. Rash, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675, decided March 1, 1965.)

Appellants also cite Huber v. Reily, 53 Pa. 112 (decided in 1866), in support of their contention that section 1 of article II imposes additional punishment. In the Huber case, a federal statute provided that a deserter from military service forfeited his rights as a citizen. Plaintiff therein tendered his ballot to the defendant election judge who refused to accept it on the ground that plaintiff was a deserter. Plaintiff claimed that the federal statute was unconstitutional because it was ex post facto legislation, was an attempt by Congress to regulate suffrage within the states, and imposed penalties upon plaintiff without a trial and conviction by due process of law. The court therein decided that the statute was not ex post facto legislation or the regulation of suffrage, and it also decided that the action of the election judge, in refusing to accept the ballot, deprived plaintiff of due process of law in that plaintiff had not been afforded a trial to determine whether or not he was guilty of the crime of desertion. It thus appears that the Huber case is distinguishable from the present case in that the decision in the Huber case was based upon the fact that plaintiff had not been convicted of the alleged crime, whereas in the present case both plaintiffs were convicted and sentenced in the United States District Court. Section 1 of article II of the California Constitution does not impose an additonal or any penalty for the crimes of which the appellants were convicted. Said section prescribes qualifications for voting, and it is not an intrusion into an area which has been preempted by Congress.

Appellants also contend that said section 1 imposes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the federal Constitution. In view of the above conclusion that section 1 does not impose any penalty, it necessarily follows, of course, that the section does not impose cruel or unusual punishment.

Appellants contend further that section 1 deprives them of equal protection of the laws and due process of law in violation of the Fourteenth Amendment to the federal Constitution. They argue to the effect that the provision in the section that ‘no person convicted of any infamous crime * * * shall ever exercise the privileges of an elector’ is a classification that is unreasonably broad in scope. ‘In many jurisdictions there are constitutional and statutory provisions for disenfranchisement of persons convicted of crimes * * *.’ (29 C.J.S. Elections § 33, p. 58; see 18 Am.Jur., Elections, § 80, p. 230.) As above stated, the United States Supreme Court has said in effect that prior conviction of a felony is a factor which may be considered by a state in classifying persons as ineligible to vote. (See Lassiter v. Northampton County Bd. of Elections, supra, 360 U.S. p. 51, 79 S.Ct. 985; Trop v. Dulles, supra, 356 U.S. pp. 96–97, 78 S.Ct. 590; Gray v. Sanders, supra, 372 U.S. p. 380, 83 S.Ct. 801.) Disqualification on that basis has also been held applicable to persons who have engaged in felonious activity (bigamy and polygamy) although such activity was motivated by their religious belief. (See Davis v. Beason, supra, and Murphy v. Ramsey, supra; cf. In re Brooks, 57 Wash.2d 66, 355 P.2d 840, certiorari denied, 365 U.S. 813, 81 S.Ct. 694, 5 L.Ed.2d 692 where plaintiff, a conscientious objector who refused to report for induction and was convicted of violating the Selective Service Act, was denied the privilege of practicing law solely on the ground of such conviction.) Appellants argue that section 1 is too broad with reference to ‘time,’ since (according to appellants) it operates to preclude them from ‘ever’ becoming eligible to vote. In many states (including California, see 19 Ops.Cal.Atty.Gen. 211; Truchon v. Toomey, supra, 116 Cal.App.2d 744–745, 254 P.2d 638; 17 Cal.Jur.2d, Elections, § 15, p. 264), the right to vote (after disqualification for a felony conviction) may be restored by a pardon or other act of executive clemency. (See 29 C.J.S. Elections § 33, subd. c, pp. 59–60; 18 Am.Jur., Elections, § 81, p. 230; and Arnett v. Stumbo, 287 Ky. 433, 153 S.W.2d 889, 135 A.L.R. 1488 [restoration of right to vote and hold office by act of state governor although the person had not been pardoned for the federal crime upon which the disqualification was based].) This contention relative to asserted broadness of the section is not sustainable.

Appellants are asking, in effect, that this court rule that section 1 of article II of the California Constitution is unconstitutional in that it is in violation of the United States Constitution. The said section is constitutional.

The judgment is affirmed.

FOOTNOTES

1.  Plaintiff Otsuka alleged in the complaint that he fully complied with all the terms and conditions of said commitment, and the defendant did not deny the allegations.

2.  Section 20 of the Elections Code defines ‘elector’ as any person who qualifies under section 1 of article II of the Constitution. Section 21 of the same code defines ‘voter’ as any elector who is registered under the provisions of the code.

3.  Plaintiff Abbott alleged that he fully complied with all of the terms of his commitment, and the defendant did not deny the allegations.

4.  Section 11 of article XX provides that laws shall be made to exclude from the right of suffrage persons convicted of high crimes. The legislature has enacted laws relating to the qualifications and registration of voters (Elections Code, § 100 et seq.). Section 100 provides that every person who qualifies under the provisions of section 1 of article II and who complies with the registration provisions of the code is entitled to vote. Sections 383, subdiv. (d), and 389 provide for cancellation of registration in the case of conviction of an infamous crime. The herein action is pursuant to section 350 which, as above indicated, authorizes an action by any qualified elector to compel registration.

5.  ‘Except as the states may be restricted by provisions of the federal constitution and the federal laws enacted in pursuance thereof, they have supreme and exclusive power to regulate the right of suffrage and to determine the class of inhabitants who may vote. Each state may define the right in its own constitution or empower its legislature to do so.’ (29 C.J.S. Elections § 4, p. 24.) ‘The manifest purpose of such restrictions is to preserve the purity of elections. The presumption is that one rendered infamous by conviction of felony or other offense indicative of moral turpitude is unfit to exercise the privilege of suffrage. The exclusion must for this reason be regarded as a mere disqualification imposed for protection, and not for punishment, as the withholding of a privilege, and not as the denial of a personal right. * * *’ (18 Am.Jur., Elections, § 80, p. 230.) In Gray v. Sanders, 372 U.S. 368, pp. 379–380, 83 S.Ct. 801, pp. 808–809, 9 L.Ed.2d 821, decided after the Lassiter case, it is said: ‘States can within limits specify the qualifications of voters in both state and federal elections; the Constitution indeed makes voters' qualifications rest on state law even in federal elections. * * * Minors, felons, and other classes may be excluded.’ (Italics added.)

WOOD, Presiding Justice.

FOURT and LILLIE, JJ., concur.