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THE NOONER for March 28, 2013

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Good morning, the field is a bit less crowded in the SD16 special election today, as Fran Florez dropped out yesterday following the overwhelming movement of Sacramento Democrats in support of Kern supe Leticia Perez. Friday is the filing deadline for the May 21 election, which will move to a runoff if a candidate doesn't receive 50%. 

John Estrada, former congressional candidate who has bounced around parties may run as an NPP, and farmer Andy Vidak may be the only Republican in the race.

The Twitterverse was inquiring how Leticia Perez can move by Friday's filing deadline and not run afoul of the 1-year residency requirement provided for in Article IV, Section 2(c) of the California Constitution, which provides:

(c) A person is ineligible to be a member of the Legislature unless the person is an elector and has been a resident of the legislative district for one year, and a citizen of the United States and a resident of California for 3 years, immediately preceding the election, and service of the full term of office to which the person is seeking to be elected would not exceed the maximum years of service permitted by subdivision (a) of this section.

Over the years, courts have divided whether durational residency requirements for candidates run afoul of the equal protection clause of the Fourteenth Amendment. In particular, courts have differed over the level of scrutiny (rational basis or strict scrutiny) applicable in the cases, and the United States Supreme Court has never addressed it. Notably, in the 1970s, the California Supreme Court generally invalidated local durational residency requirements using strict scrutiny. The U.S. Supreme Court accepted durational residency requirements in Sununu v. Stark in 1975.

To my knowledge, the issue last came to California's Third District Court of Appeal in Fuller v. Bowen (203 Cal. App. 4th 1476), in which Heidi Fuller challenged Tom Berryhill's placement on the ballot and subsequent election when he switched from SD12 to SD14 for the 2010 election. The superior court used strict scrutiny to find the one-year residency requirement unconstitutional. On appeal, however, the Third DCA opined that the court did not have jurisdiction, as the state constitution provides the Legislature the authority to determine qualifications of its members. (Art. IV, Sec. 5)

In June 2012, the California Supreme Court denied Fuller's appeal of the Third DCA's ruling.

Thus, for now, as long as the Legislature continues to allow members to be sworn in, the one-year durational residency requirement does not apply.

Please note that the one-year issue is different from the domicile issue being pursued in Los Angeles County in re: Richard Alarcon and Rod Wright. That is not a durational question, but a domicile question when a candidate or officeholder has multiple residences/places they receive newspapers. And, since completing a voter registration form is an affadavit, this is an issue for local district attorneys, rather than the "qualification of members" rationale used in the Fuller v. Bowen case. Obviously, in Los Angeles, the district attorney is using a higher standard than in Orange and Sacramento, where similar allegations have been made about Democrat and Republican members.

As always, consult with an election law attorney before relying on statements made in a political newsletter. You get what you pay for. 

Jerry Brown yesterday named Evan Westrup as his new press secretary. 

LA MAYOR: While Wendy Greuel suggests she is the outsider,  Eric Garcetti scores the endorsement of primary challenger Jan Perry. Meanwhile, Magic Johnson is expected to endorse Greuel today.

UNLIKELY: Bill Whalen suggests nuking the offices of lieutenant governor, superintendent of public instruction and either treasurer or controller.

$$$: 12 top-paid county bosses in California [Matt Clark @ UTSD]

$$$: California’s New Taxes Are Paying for Pensions [David Crane @ Bloomberg]

STUDENTSFIRST: Michelle Rhee's school reform group hires former Speaker Fabian Nunez to coordinate her legislative and political strategy. [Laurel Rosenhall @ SacBee]

 

Google Street View goes to areas of Japan vacated following the tsunami-triggered nuclear disaster.

  

**CLASSIFIEDS**

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