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District Court of Appeal, First District, Division 2, California.

William J. KINNEAR, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, Defendant and Appellant.

Civ. 21036.

Decided: November 12, 1963

Thomas M. O'Connor, City Atty., of the City and County of San Francisco, R. J. Reynolds, Deputy City Atty., San Francisco, for appellant. James D. Hadfield, Leo Fried, San Francisco, for respondent.

This appeal involves the effect and validity of section 5 of the Charter of the City and County of San Francisco, which provides for the automatic forfeiture of the office of any appointive city or county employee who becomes a candidate for election. The case is one of first impression in this state. The city appeals from a judgment holding that section 5 conflicts with the general law and public policy of this state, and the California Constitution, as well as the Constitution of the United States, and ordering the reinstatement of the respondent, William J. Kinnear.

The facts are agreed: On September 16, 1959, about 10:00 a. m., respondent Kinnear, a Class D–2 bailiff or deputy sheriff and a permanent civil service employee of the City and County of San Francisco, filed his declaration of candidacy for election to the office of Sheriff of San Francisco. This fact was immediately transmitted to the civil service commission. The very same day, George J. Grubb, the General Manager of Personnel of the Civil Service Commission, mailed a registered letter to Kinnear, notifying him that the commission had verified the fact of his candidacy and informed hime he had forfeited his position under section 5 of the charter. Prior to noon of the same day, a copy of the letter was delivered to the sheriff, who immediately notified Kinnear that his employment was automatically severed. Kinnear acquiesced and immediately left his duties and has not returned since nor attempted to do so.

On September 21, 1959, Kinnear made a written application to the San Francisco Employees' Retirement System, stating that his service had been terminated and thereafter filed a completed form letter requesting a withdrawal of his accumulated contribution. Warrants in the amounts of $4145.98 and $720 were delivered to Kinnear and cashed. Kinnear made no claim asserting any equitable or legal right to be continued in his employment until the filing of the complaint herein on September 16, 1960, by which he sought the restoration of his position and the recovery of unpaid wages to the date of said restoration, less a stipulated credit for earnings received in September, 1961. The complaint initially raised the issue of whether Kinnear was entitled to a hearing under section 154 of the charter. The city contended that such a hearing was not required. The trial court agreed with the city's interpretation of section 154, but raised the matter of constitutionality. The matter was finally submitted to the trial court on the question of constitutionality alone. The trial court found the facts as stated above and entered its judgment in favor of Kinnear.

The sole question presented is the validity and constitutionality of section 5 of the Charter of the City and County of San Francisco, which reads as follows: ‘Any appointive officer or employee of the city and county who shall become a candidate for election by the people to any public office shall automatically forfeit such city and county office or position.’

The first contention on appeal is that the trial court erred in finding that the respondent was a county officer and, therefore, not subject to a local law which conflicts with the general state laws governing county officers. There is no merit in this contention. Section 24000 of the Government Code clearly states that the sheriff, like the district attorney, is a county officer who is required to act in matters of state and county concern (Galli v. Brown, 110 Cal.App.2d 764, 243 P.2d 920). The respondent, as a deputy sheriff, takes the place of the principal in the discharge of duties pertaining to the office (Gov.Code §§ 24000, 24102, 24103; Sarter v. Siskiyou County, 42 Cal.App. 530, 183 P. 852). Like his principal, he is an officer of the superior court (Gov.Code §§ 26603, 26611; First Nat. Bank of Marysville v. McCoy, 112 Cal.App. 665, 297 P. 571). A deputy under a public officer and the person holding the office are, in contemplation of law and in an official sense, one and the same person (Sarter v. Siskiyou County, supra, 42 Cal.App. p. 536, 183 P. p. 854). ‘Not only is the state itself interested in county officers * * * but the people of any particular county of the state are interested * * * in county officers, such as sheriffs, recorders, clerks, etc., in other counties. The functions of such officers are general, not municipal.’ (Crowley v. Freud, 132 Cal. 440, 64 P. 696).

The San Francisco charter does not in and of itself provide for the complete and controlling system of government for the City and County of San Francisco (Kahn v. Sutro, 114 Cal. 316, 46 P. 87, 33 L.R.A. 620; Crowley v. Freud, supra; Nicholl v. Koster, 157 Cal. 416, 108 P. 302; Rand v. Collins, 214 Cal. 168, 4 P.2d 529; San Francisco v. Collins, 216 Cal. 187, 13 P.2d 912). The plenary power granted to the city by section 8 1/2 of article XI of the state Constitution1 is subject to the restrictions of section 5 thereof, which provides that the Legislature shall prescribe the duties of the county officers (Nicholl v. Koster, supra, 157 Cal. p. 421, 108 P. p. 304). A charter may not limit the general law governing the performance of county functions (San Francisco v. Collins, supra).

The city argues that section 5 of its charter relates to a solely municipal affair. The courts have held that the important question is whether the matter under consideration is of statewide and general concern. In Pacific Tel. & Tel. Co. v. City & County of S. F., 51 Cal.2d 766, 336 P.2d 514, the court, in discussing the history of the constitutional provision granting autonomy to charter cities with respect to municipal affairs, says the following: ‘As to matters which are of state concern, however, freeholders' charter cities remained subject to and controlled by general state laws regardless of the provisions of their charters.’ (P. 769 of 51 Cal.2d, p. 516 of 336 P.2d; italics added; citing Cal.Const., art. XI, § 6 and cases; see also Murdy v. City of Los Angeles, 201 Cal.App.2d 468, 471, 20 Cal.Rptr. 69). In Professional Fire Fighters, Inc. v. City of Los Angeles, 60 A.C. 227, 229, 32 Cal.Rptr. 830, 384 P.2d 158, where there was a conflict between the general law and a charter enactment of the City of Los Angeles, our Supreme Court held 60 A.C. at pages 243–244, 32 Cal.Rptr. at page 840, 384 P.2d at page 168: ‘On the contrary, there are innumerable authorities holding that general law prevails over local enactments of a chartered city, even in regard to matters which would otherwise be deemed to be strictly municipal affairs, where the subject matter of the general law is of statewide concern. Such cases are not to be confused with those which turn on the principle of state preemption of the field, although the two doctrines overlap. All hold the home rule doctrine of article XI of the Constitution to be inapplicable in regard to matters of statewide concern.’ We conclude that the functions of county officers are of general statewide concern and turn to the applicable provisions of general law to determine if section 5 of the San Francisco charter is in conflict therewith.

Sections 274 and 275 of the Government Code provide: Section 274. ‘An elector has no rights or duties beyond those of a citizen not an elector, except the right and duty of holding office and voting.’ [Emphasis ours.] Section 275. ‘Unless otherwise specifically provided, every elector is eligible to the office for which he is an elector, and no person is eligible who is not such an elector.’ These sections declare that the right and duty of all citizens, including county and other government employees to be eligible for and hold office, should not be abridged, except by specific legislative provisions. This conclusion is further strengthened by a reading of sections 19730 through 19734 of the Government Code, imposing certain restrictions on the political activities of state officers and employees, but significantly omitting any prohibition against running for office. The public policy of the state is to afford strong protection to the right to seek and hold public office. The Attorney General of the state has advised that a Humboldt County ordinance requiring an employee to take leave of absence while running for any public office was unreasonably sweeping in scope and unauthorized by state law (36 Ops.Cal.Atty.Gen. 261).

While the Legislature has enabled counties to provide limitations on other political activities of county employees, it has not specifically provided any restrictions on the right of county employees to run for office. The County Civil Service Enabling Law (Gov.Code §§ 31100–31115) is a general and uniform law for the establishment of a civil service system in a county. In section 31109, the Legislature has set forth the terms of an ordinance which may be adopted containing certain limitations on political activities of county employees. The ordinance, if adopted, however, must contain the following provision: ‘This ordinance does not prevent any such officer or employee from becoming, or continuing to be, a member of a political club or organization, from attending political meetings, or from seeking or accepting election or appointment to public office.’

Although not determinative of this case, some insight into state policy may be gained by considering legislative provisions relating to private employment. Section 1101 of the Labor Code provides that no employer shall make, adopt, or enforce any rule, regulation or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. In upholding the validity of section 1101 against attacks on its constitutionality on various grounds by an employer, our Supreme Court pointed out that the determination of the policy underlying the statute and whether such a statute was necessary to protect a fundamental right were matters solely for the Legislature (Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 486, 171 P.2d 21, 166 A.L.R. 701). Section 1101 of the Labor Code is one more indication of a general statewide policy against unreasonable local burdens and restrictions upon such fundamental rights of citizenship as the one here involved.

We are of the opinion that in its grant of power to San Francisco, the state did not surrender with respect to county officers and their deputies its general law and policy that the right to be eligible for and to hold public office should not be abridged (Professional Fire Fighters, Inc. v. City of Los Angeles, supra).

The appellant argues with the trial court's conclusion that the ordinance in question was unconstitutional and was an unwarranted interference with one of the basic rights of citizenship. We agree with the trial court. A substantial block of citizens are public employees. A government pledged to insure the enjoyment of life and liberty to all (Cal.Const., art. I, § 1) cannot be constrained to deny them the fundamental right of political activity. Political rights consist in the power to participate directly or indirectly in the establishment or management of government. Article I, section 2 of the state Constitution sets forth the basic political rights of citizens of this state. The elective franchise and the right to hold public office either by election or appointment are among the principal political rights of the citizen (People v. Washington, 36 Cal. 658; Carter v. Commission on Qualifications, etc., 14 Cal.2d 179, 93 P.2d 140).

Section 3 of article I of the state Constitution provides that California is an inseparable part of the American Union and that the United States Constitution is the supreme law of the land. Aside from the rights expressly guaranteed by the state and federal Constitutions, there are rights of national citizenship which are not spelled out in the First and Fourteenth Amendments but are implied by the republican character of our system of government. Among these are the right to petition Congress for redress;2 the right to enter any state in the Union;3 the right to assemble;4 and discuss national laws and to supply information to other citizens with respect to such laws.5 Since the state reflects our republican form of government (In re Pfahler, 150 Cal. 71, 88 P. 270, 11 L.R.A.,N.S., 1092), the right to engage in political activity, including running for office, is likewise an inherent right of state citizenship, a fundamental requisite of the democratic process. Because of its importance to the body politic, as well as to the individual, it occupies the same position as the ‘preferred rights' of the First Amendment of the Constitution of the United States and article I of the state Constitution (Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430). A right to seek public office is akin to the right to hold it as well as to the First Amendment right to petition the government since actually seeking and gaining an office may be a most effective way to redress grievances (8 U.C.L.A. L.Rev. 729). L.Rev. 729).

This state has rejected the broad approach that tends to politically sterilize public employees for selective measures aimed at particular evils. The right to run for office is a privilege of citizenship that should not be denied to public employees unless their particular activity is harmful. Whether an employee in a particular instance has engaged in a harmful activity must be determined by a consideration of the facts and circumstances bearing on that situation after hearing provided for by law. The privilege of working for the government—local, state and federal—is entitled to protection from unreasonable legislative interference (Terry v. Civil Service Commission, 108 Cal.App.2d 861, 870, 240 P.2d 691). This is not to say that there may not be reasonable limitations upon this privilege, such as prohibiting partisan political activity6 or controlling particular channels of political contribution.7 However, section 5 fails to measure up to any sound test of reasonableness because it restricts appointive officers from running for any public office. Such a blanket prohibition is too drastic and sweeping. An employee may want to run for office and not campaign, or to run for a non-partisan or uncontested office at a local, state or federal level. He may want to run for the local school board. Such an activity could be carried out entirely outside working hours and would not necessarily interfere with his official duties and yet allow him to participate in the solution of public questions that affect his home and family. The facts and circumstances of each particular situation must be considered. For example, a requirement that a teacher take a temporary leave of absence in order to become a candidate for public office has been upheld (East Chicago v. Sigler, 219 Ind. 9, 36 N.E.2d 760, 762).

In the particular circumstances of this case, an ordinance prohibiting a person from running against his own department head might be justified on the basis that heated campaigns frequently cause continued ill-feeling and conflict between the participants which might be inimical to effective public service. Although our democracy rests on the assumption that good government is to be achieved not by the restriction but by the extension of participation, restrictions are acceptable if commensurate with benefits to the civil service system (Ex parte Curtis, supra). However, the sweeping approach of section 5 in its present form preventing public employees from running for any office without forfeiture of their employment eliminates issues of broad citizen concern from their consideration. It serves to limit their attention to the material conditions of their job, and discourages civic responsibility. It prevents the emergence of a vital and creative citizenship among the ever-expanding ranks of public employees.

Furthermore, section 5 excludes elective officials. Thus, in San Francisco elected officials may run for other public offices without forfeiting their office, while appointive officers and employees may not. This classification is unreasonable. If the basic purpose of the enactment is to protect the county from an officer who may not be able (because of the pressure of candidacy) to devote adequate attention and time to his job, to keep qualified public servants for a full term, and to keep the public service free from politics, should not these salutary objectives be equally applicable to elected officials? A law is special within the prohibitions of the state Constitution when it is not founded on a natural, intrinsic, or constitutional distinction which reasonably justifies difference in treatment (Lelande v. Lowery, 26 Cal.2d 224 at 232, 157 P.2d 639 at 645, 175 A.L.R. 1109).

We conclude that the harsh forfeiture provisions of section 5 are contrary to the spirit and the letter of the state and federal Constitutions and result in an unreasonable abridgment of one of the most valuable rights of citizenship.

We turn briefly to the city's contention that the trial court erred in its findings on laches and estoppel and damages. The city argues that because of his acquiescence in the dismissal and voluntary withdrawal of retirement funds, and the one year intervening between the dismissal in September, 1959, and the filing of this action, the respondent is barred by laches and estoppel. We agree with the court below that in voluntarily accepting dismissal and withdrawing his accumulated contributions, respondent acted under the belief that section 5 was self-executing. The trial court found that this was not an unreasonable assumption and that, under the circumstances, a delay of one year did not militate against any cause of action the respondent had for an illegal discharge from employment. It is well settled that laches and estoppel are matters of fact for the determination of the trial court in the first instance and its conclusion will not be set aside by an appellate court if such determination finds substantial support in the evidence (Pacific Gas & Electric Co. v. State Bd. of Equal., 134 Cal.App.2d 149, 285 P.2d 305; Kimberlin v. Los Angeles City High School Dist., 115 Cal.App.2d 459, 252 P.2d 344). There is no question that the stipulated facts here support the findings and conclusions of the trial court.

Finally, the appellant city argues that the respondent is not entitled to differential salary damages. The amount of the loss was stipulated. Respondent did not voluntarily abandon his office as the city contends, but left after the city informed him that his employment was terminated. Neither Chambers v. City of Sunnyvale, 56 Cal.App.2d 438, 132 P.2d 849; nor Donovan v. Board of Police Comm'rs., 32 Cal.App. 392, 163 P. 69, cited by the city, are relevant, as in each of those cases, the discharge was caused by the wrongful act of the employee. The right to receive salary is an incident to the title to the office, and not the exercise of its duties (Hallinan v. Mellon, 218 A.C.A. 360, 32 Cal.Rptr. 446).

The city, citing San Bernardino Fire & Police Protective League v. City of San Bernardino, 199 Cal.App.2d 401, 18 Cal.Rptr. 757, further argues that the respondent is not entitled to differential salary damages because he has failed to allege and prove the existence of a fund from which he may be paid. In that case, the city employees by a writ of mandamus sought to enforce an interpretation of the charter which would grant them a different scale of compensation, after they had all been paid under another scale. Thus, they were seeking additional compensation which would necessitate an additional appropriation. Respondent, however, seeks damages for the loss of pay which he would have received if he had not been wrongfully discharged. He is in the same position as any litigant seeking redress for damage resulting from the wrongful act of the city.

The legal effect of the voluntary withdrawal by respondent of his accumulated retirement contributions on his future retirement rights is not before the court.

The judgment is affirmed.


1.  The Charter of the City and County of San Francisco was enacted pursuant to the provisions of sections 8 and 8 1/2 of article XI of the state Constitution. Section 8, subdivision (j) provides that the municipality ‘may make and enforce all laws and regulations in respect to municipal affairs, * * * and in respect to other matters they shall be subject to general laws.’ Section 8 1/2 does not define the duties of county officers or their deputies but is restricted to their method of selection, recall or removal, qualifications, compensation, tenure of office, etc.

2.  United States v. Cruikshank, et al., 92 U.S. 542, 23 L.Ed. 588.

3.  Edwards v. California, 314 U.S. 160, 62 S.Ct. 164, 86 L.Ed. 119.

4.  Bates v. Little Rock, 361 U.S. 516, 522, 523, 80 S.Ct. 412, 4 L.Ed.2d 480.

5.  Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460; Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423.

6.  United Public Workers of America (C.I.O.) v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Heidtman v. City of Shaker Heights, Ohio App., 119 N.E.2d 644; State ex inf. McKittrick ex rel. Ham v. Kirby, 349 Mo. 988, 163 S.W.2d 990; State ex rel. Baldwin v. Strain, 152 Neb. 763, 42 N.W.2d 796.

7.  Stowe v. Ryan, 135 Or. 371, 296 P. 857; Duffy v. Cooke, 239 Pa. 427, 86 A. 1076; McAuliffe v. New Bedford, 155 Mass. 216, 29 N.E. 517; Ex parte Curtis, 106 U.S. 371, 1 S.Ct. 381, 27 L.Ed. 232; United States v. Wurzbach, 280 U.S. 396, 50 S.Ct. 167, 74 L.Ed. 508; Commonwealth v. McCarthy, 281 Mass. 253, 183 N.E. 495, 85 A.L.R. 1141; People v. Murray, 307 Ill. 349, 138 N.E. 649.

TAYLOR, Justice.

SHOEMAKER, P. J., and AGEE, J., concur.

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