Wednesday, November 22, 2006
C.A. Orders New Election for Mendocino County District Attorney
By TINA BAY, Staff Writer
The statutory requirement that a special election be called for a countywide nonpartisan office where either the challenger or incumbent in a two-person race has died applies not only to primaries but all elections, the First District Court of Appeal ruled yesterday.
Issuing a writ of mandate sought by interim Mendocino County District Attorney Keith Faulder, Div. Four invalidated the Nov. 7 Mendocino County district attorney . election on account of incumbent Norman L. Vroman’s Sept. 21 death, and ordered that a special election be held for the post. The court had previously allowed the election to go forward, but barred release of the results pending a ruling on Faulder’s petition.
Vroman ran second in the three-way June primary and was running against frontrunner Meredith J. Lintott in the general election.
Faulder—who was assistant district attorney until appointed acting district attorney by the Board of Supervisors shortly after Vroman’s death—filed a petition in the California Supreme Court on Oct. 17 seeking to cancel the Nov. 7 general election for the post. A “simple and mechanical” application of Election Code Sec. 8026 required a special election to be called, Faulder argued.
The high court transferred the matter to the Court of Appeal, which allowed the election to proceed but ordered that the results be sealed.
Sec. 8026 provides that an election for a nonpartisan, non-judicial statewide, countywide, or citywide office be cancelled if an incumbent is a candidate in a two-person race, and either the incumbent or challenger dies 68 days prior to the election.
It further requires the appropriate governing body, in this case the board of supervisors, to call a special election within 14 days of the candidate’s death. The special election, open to new candidates, must be held no later than 88 days after it is called.
The county and Lintott contended the term “election” encompasses only primary, not general, elections, and argued that applying Sec. 8026 to general elections would create an irreconcilable conflict with Sec. 15402, which does not call for a special election in the event of a candidate’s death.
Under Sec. 15402, votes cast for the deceased candidate must be counted and if that candidate receives a majority of the votes, he or she is considered elected and the office to which he or she is elected is considered vacant at the beginning of the term. The vacancy is then filled “in the same manner as if the candidate had died subsequent to taking office for that term.”
Writing for the Court of Appeal, Presiding Justice Ignazio J. Ruvolo said Sec. 8026’s legislative history clearly evinces the intent to encompass both primary and general elections, he said.
Moreover, he explained, Sec. 8026 is a special statute dealing with a particular situation and takes precedence over the broader rule of Sec. 15402.
“[W]hile section 15402 generally provides that elections shall proceed despite the death of one of the candidates, section 8026 carves out an exception for a very limited class of races: those involving the death of a candidate in a two-candidate contest for a nonpartisan, nonjudicial office, where one of the candidates in an incumbent,” Ruvolo wrote.
The justice also dismissed contentions by the county and Lintott that applying Sec. 8026 to general elections would result in costs, delay and inefficiency.
“These appeals to policy considerations are, at bottom, entreaties to take action that would take us outside the judicial function,” he said.
“The obvious purpose of this legislation was to provide the voters with a chance to have a real choice among qualified candidates when they may have been deprived of it by the death of a candidate shortly before the election and to allow qualified persons, who aspire to the position left vacant by the death of a candidate, but who were reluctant to run against an incumbent, a chance to place their candidacy before the voters,” the jurist wrote.
Justices Timothy A. Reardon and Maria P. Rivera concurred in the decision.
Lintott told the MetNews the ruling was a “shock.”
“It’s going to have great implications statewide because the different county elections offices recognize the problems associated with the practicality of doing what is being proposed,” she said, citing expense and delay. “There are a lot of implications about this statute that I don’t think the legislatures that enacted it ever fathomed would happen.”
“All the county’s elections departments in our state have interpreted this section to only apply to primaries,” she added.
She said her attorneys would confer with county counsel to decide whether to appeal the ruling within the 10-day timeframe allotted to them.
A similar event occurred in Los Angeles County in 1998, when then-Sheriff Sherman Block died just days prior to a runoff election in which he and Lee Baca, who had retired from the Sheriff’s Department earlier that year, were the candidates. The election proceeded without judicial intervention and Baca, who remains sheriff, won.
Faulder said he was not surprised by the decision.
“We had done our homework and researched the case and firmly believe that we were right in our interpretation of section 8026 of the Election Code,” he said. “I believe that the appellate court did the right thing.”
Faulder said he did not take the action as a potential candidate for district attorney, although he will run if there is a special election.
“As the appointed district attorney, I had a duty to uphold the law and follow the law, and when I found out the County wasn’t following the Election Code law, I pointed it out,” he said. “I did it because I thought it was the right thing to do.”
He added that although he did not want to run against Vroman, whose leadership he highly esteemed, he would run in the special election because he felt Lintott lacked the experience required to lead the office.
The case is Faulder v. Lintott, 06 S.O.S. 5638.
Copyright 2006, Metropolitan News Company