Kinnear v. City & County of San Francisco

California Supreme Court May 28, 1964 No. S. F. 21218Published

Before: Gibson

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Holding. The court held that the San Francisco Charter provision requiring automatic forfeiture of public employment upon becoming a candidate for public office is unconstitutional for overbreadth. Consequently, the plaintiff was entitled to reinstatement and a money judgment for back pay.

Issues

Whether the San Francisco Charter provision requiring automatic forfeiture of employment for candidacy is unconstitutional.
Whether the plaintiff's one-year delay in filing suit was barred by laches or estoppel.
Whether a money judgment for back pay is improper absent a showing of available funds.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 5 of the charter must fall in its entirety regardless of whether a provision could be constitutionally drawn to deal with the particular factual situation in this case”

“San Francisco has not, as it must in order to prevail, shown a compelling need to restrict the fundamental right involved on such a sweeping scale.”

“such a showing is not a prerequisite to a judgment which, like the one here, is a money judgment against the city and does not command any particular official to make payment.”

GIBSON, C. J.

Plaintiff, who held a permanent civil service position as a deputy in the sheriff’s department of the City and County of San Francisco, filed on September 16, 1959, a declaration of candidacy for election to the office of Sheriff of San Francisco, and he was notified on the same day by the Civil Service Commission that as a result of his filing for the office of sheriff his position was automatically forfeited under section 5 of the San Francisco Charter. A few days later he withdrew his accumulated contributions to the retirement fund, and this action was filed one year after his dismissal.

Section 5 of the charter provides: “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 trial court concluded that section 5 is unconstitutional, ordered that plaintiff be restored to his position, and awarded him damages in an amount representing the difference between the compensation he would have received if not dismissed and his earnings from other employment after dismissal.

We find untenable defendant’s contention that plaintiff is barred from relief by laches or estoppel. In accordance with defendant’s representation to plaintiff that the forfeiture of his position was automatic under section 5 of the charter, the trial court found that plaintiff believed and was entitled to believe that the section was self-executing. Plaintiff’s belief was shared by the framers of the charter, the people who adopted it, and the officials of defendant who enforced it, and under all the circumstances we cannot properly hold that the trial court erred in finding that the delay of one year in bringing the action was not unreasonable.

A determination as to whether section 5 of the charter is an unconstitutional abridgment of a fundamental right is

[343]

governed by the principles discussed in

Fort

Civil Service Commission of the County of Alameda, ante,

Kinnear v. City & County of San Francisco

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GIBSON, C. J.

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