Munoz v. City of San Diego

Opinion

AULT, J. This action was filed by plaintiff as an elector of San Diego to obtain a declaration that the portion of the.city charter which fixes the salary of councilmen at $5,000 per annum (portion of art. Ill, § 12) is unconstitutional under the Fourteenth Amendment of the United States Constitution and under article I, sections 21 and 24 of the California Constitution. Plaintiff’s theory is that this salary has become so inadequate as the result of inflation that it now economically discriminates against electors who have families to support, in effect imposes a property qualification for holding that public office, and thus limits the voters’ choice of candidates. Plaintiff appeals from the judgment dismissing the action after a demurrer was sustained to the second amended complaint without leave to amend.

To support his claim of economic discrimination, plaintiff alleged the [3]following facts, among others: city councilmen are required to devote full time to the discharge of their duties and cannot reasonably supplement their salaries by outside employment; the majority of San Diego residents live in family households and are economically dependent upon the head of the household; over 82 percent of San Diego families have incomes in excess of $5,000; a San Diego family of four requires a minimum of $7,166 per year to meet their reasonable needs; one retiring councilman, prior to his resignation, qualified for several poverty aid programs; of the eight councilmen presently in office, six have independent sources of income and the remaining two are unmarried. By reason of these facts, a majority of heads of family households in San Diego are economically precluded from running for city councilman, or from serving if elected, and all electors in the City of San Diego are denied a choice of candidates for the office, in violation of the equal protection clause (Fourteenth Amendment of the United States Constitution; Cal. Const., art. I, § 21) and in violation of the prohibition against requiring property qualifications for holding public office (Cal. Const., art. I, § 24).

Appealing from the judgment of dismissal, plaintiff contends the facts alleged establish economic discrimination which violates the equal protection clause (Fourteenth Amendment of the United States Constitution; Cal. Const., art. I, § 21) and the prohibition against requiring a property qualification for holding public office (Cal. Const, art. J, § 24). “There is a ‘federal constitutional right to be considered for public service without the burden of invidiously discriminatory disqualifications.’ ” (Zeilenga v. Nelson, 4 Cal.3d 716, 720-721 [94 Cal.Rptr. 602, 484 P.2d 578].) Plaintiff concedes the charter provision setting the salary of a councilman at $5,000 is not discriminatory on its face or in its intent, but argues the provision has become discriminatory as the value of the dollar has declined. He can cite no authority to support his contention that such economic discrimination renders the charter provision for compensation unconstitutional, but quotes the following language from Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 669 [16 L.Ed.2d 169, 174, 86 S.Ct. 1079, 1083]: “In determining what lines are unconstitutionally discriminatory, we have never been confined to historic notions of equality .... Notions of what constitutes equal treatment for purposes of the Equal Protection Clause do change.”