IN A SERIES OF ARTICLES ON LAW AFFECTING JUDICIAL ELECTIONS IN CALIFORNIA
Roger M. Grace
"Timing is everything,"
it’s said. Timing has, indeed, proved a crucial factor in judicial elections.
For example, if
a Superior Court incumbent who is up for election retires or dies even
moments after a candidate for the office files nominating papers, the
election will take place that June, as scheduled. But if the death or
resignation takes place before a candidate files such papers and the
governor hurriedly makes an appointment, it’s then too late to file
for the office — and the election will occur in two years.
only applies to Superior Court races. In this scenario, if the incumbent
is a Municipal Court judge, the election will be postponed to November
if the judge leaves office any time between the last day for filing
declarations of candidacy and the June primary. The winner of a plurality
of the votes will be elected.
What sense there
is in an entirely separate scheme for the timing of elections to the
two trial courts is not apparent.
the various election provisions, there is a marked tendency on the part
of courts to show how creative they can be.
is confined to Superior Court elections.
The timing of Superior
Court elections is governed by Art. VI, §16(c) of the state Constitution:
Constitution, Art. VI, §16
of judges of superior courts are 6 years beginning the Monday
after January 1 following their election. A vacancy shall be
filled by election to a full term at the next general election
after the January 1 following the vacancy, but the Governor
shall appoint a person to fill the vacancy temporarily until
the elected judge's term begins.
Under this scheme,
every person elected to the Superior Court has a six-year term. Prior
law was different. The state Constitution, as revised in 1879, provided
in Art. VI, §6 that an appointee would fill a vacancy until the
next election, but that the person elected would merely fill out the
unexpired term of the previous elected judge. This period could be only
a couple of months (if the predecessor’s term ended in the January following
the November election).
Voters in November,
1926 adopted the present scheme: a vacancy would be filled by the governor
until the election of a judge to a full six-year term. The "short term"
was thus abolished. The provision then comprised Art. VI, §8, and
it provided that the vacancy would be filled by voters in the "next
succeeding general state election after the first day of April" following
the creation of the vacancy.
the clear dictates of that statute, the California Supreme Court in
1934, in Bearden v. Collins, 220 Cal. 759, held, by a 4-3 vote,
that the office of a judge who died on April 19, 1934 would be placed
on the Aug. 28, 1934 primary ballot.While itshould
not have been difficult to grasp that April 28, 1934 occurred later
than April 1, 1934, and that the election would, according to the dictates
of the constitutional provision, have been premature at any time prior
to 1936, the majority fretted over the prospect that the governor would
not make an appointment to the office and that it would remain vacant
until January, 1937, if the provision were not interpreted as requiring
an election that year. Other untenable reasoning was offered to justify
the court’s deviation from the constitutional scheme.
The dissent, penned
by Justice John Shenk, lectured:
"When the Constitution,
as to the facts presented, speaks plainly and with no uncertainty, the
court should obey. Every canon of jurisprudence is to that effect. In
such case there is no opportunity for construction."
The majority in
that case were not the last group of jurists to engage in a judicial
re-writing of the constitutional provision on the timing of Superior
Court elections, as will be seen below.
overruled in French v. Jordan (1946) 28 Cal.2d 765, at 770, discussed
below. Shenk now wrote for the majority. Two justices opined that Bearden
was correctly decided.
Voters in 1948
amended the section to provide, as at present, that "[a] A vacancy shall
be filled by election to a full term at the next general election after
the January 1 following the vacancy," rather than April 1. (Emphasis
added.) Justice Stanley Mosk explained the reason for the change in
Barber v. Blue (1966) 65 Cal.2d 185, fn. 3:
A 1948 amendment
advanced the determinative date to the first day of January. The
argument to the voters reaffirmed the policy favoring a complete
elective process. It stated, ‘The date of April 1 was selected because
there would be time to circulate election papers and prepare for
the direct primary election on the last Tuesday of August....The
date of the direct primary has been moved back to the first Tuesday
in June and April 1 is far too late to permit candidates to file
for the primary.
(Barber v. Blue
is not summarized below because it concerned language inserted by
voters in 1952, but removed by voters in 1966.)
In the event voters
in the June primary approve SCA 4, a proposed constitutional amendment,
Art. VI, §16(c) will read as follows:
"Terms of judges
of superior courts are 6 years beginning the Monday after January 1
following their election. A vacancy shall be filled by election to a
full term at the next general election after the second January
1 following the vacancy, but the Governor shall appoint a person to
fill the vacancy temporarily until the elected judge's term begins."
Thus, if an incumbent
whose term expired in 2000 left office in 1998, the election for a successor
would take place in 2000; if that incumbent left office in 1999, the
election would take place in 2002.
Voters on June 2, 1998, approved SCA 4 (Proposition 220), which became effective the
v. Jordan (1946) 28 Cal.2d 765
HOLDING: Where a candidate is elected to the Superior Court in the primary
election but dies prior to the general election, the office will
not appear on the ballot in that general election, but will be
on the ballot two years hence.
Los Angeles Superior
Court Judge John Beardsley on June 4, 1946 beat off an election challenge.
He died six days later. The secretary of state and the Los Angeles County
registrar recorder proposed putting Beardsley’s office on the November
general election ballot so that a candidate might be elected through write-in
efforts. The California Supreme Court, acting on a writ application, blocked
The court held
[A]s to the
selection of a successor to take office upon the expiration of the
incumbent's term, the elective processes have already spent their
force….[A candidate] was elected, and there is no election for that
office to go before the people in November.
The opinion then added
language that would be relied upon in the later opinion of Anderson
v. Phillips(1975) 13 Cal.3d 733, which split the court. No
new term came into being in January, it said, explaining:
It is argued
that the death of the incumbent following his reelection left a
vacancy in each of two terms, that is, a present vacancy in the
occupied term expiring in January, 1947, and a vacancy in futuro
in the term to which he was elected for the six years commencing
in January, 1947. Actually any "term" for which Judge Beardsley
had been elected ceased to exist when he died. The vacancy in the
office is a continuing one which lasts until a new six-year term
shall commence in January, 1949, for a person elected at the 1948
The matter is now
covered by statute. Elections Code§ 8140 provides, in relevant
"Where a candidate
has been elected to a nonpartisan office at the primary election, that
office shall not appear on the ballot at the ensuing general election,
notwithstanding the death, resignation, or other disqualification of
the candidate at a time subsequent to the primary election."
v. Hamm (1970) 3 Cal.3d 264
HOLDING: Where a person appointed to fill a Superior Court vacancy in a
non-election year dies or otherwise leaves office in the succeeding
election year prior to the primary, the election will not be postponed
for two years, but will proceed that year.
A Ventura Superior
Court judge resigned in 1969 and his vacancy was filled by the appointment
in December of that year of one Philip J. West. The following year, West
filed his papers for election; filing against him was a municipal court
judge, Robert L. Shaw. Prior to the June 2 primary, West died. Gov. Ronald
Reagan proceeded to appoint Donald A. Pollack to the vacancy.
Pollack then instituted
mandate proceedings in the California Supreme Court to bar the filling
of his office at the June 2 election. The high court
did not block the election, but did promptly address itself, in an opinion
filed Oct. 15, as to whether Shaw, who had won the election, fn.
1 or the incumbent Pollack would hold the office for
the next two years.
that the vacancy occurred when West died in 1970; that "the January
1 following the vacancy" would be Jan. 1, 1971; and the "next general
election" after that would be in 1972.
The Supreme Court
disagreed. It said in a "By the Court" opinion (at 272-73):
occurs in a superior court office when an elected incumbent dies.
Pursuant to article VI, section 16, subdivision (c), the Governor's
appointee shall "fill the vacancy temporarily until the elected
judge's term begins." This language suggests that the vacancy continues
to exist until the commencement of the elected judge's term although
it may be temporarily filled. Therefore, if an appointee leaves
the office it is the original vacancy to which the Governor may
appoint another temporary incumbent. No new vacancy is created by
the departure of an appointee. Were we to adopt petitioner's construction
of article VI, section 16, subdivision (c), and hold that a new
vacancy occurs each time an appointee vacates the office, it would
be possible, through the device of appropriately timed resignations,
to preclude any election to an office. This would be contrary to
the intent of the constitutional provision that a superior court
term be six years, a provision which contemplates that an opportunity
to pass on the qualifications of superior court judges will be available
to the electorate no less often than every six years."
From this it may discerned
that if West had been an elected incumbent, his death would
have triggered a postponement of the election for two years, under
Art. VI, §16(c). However, under the 1980 case of Stanton v. Panish,
discussed infra, thatwould not necessarily be so; under
that case, once a candidate has filed nominating papers for a judicial
office, the death (or retirement or resignation) of the incumbent will
not delay the election, whether the incumbent is elected or appointed.
v. Phillips (1975) 13 Cal.3d 733
HOLDING: Where an appointed Superior Court temporary incumbent is in office
at the time an elected judge is scheduled to take office, but
the elected judge has died or otherwise does not take office,
no vacancy is deemed to have occurred and the temporary incumbent
judge shall continue in office until a duly elected successor
takes assumes the post.
Lewis F. Sherman was
unopposed in a 1974 bid for an open seat on the Alameda Superior Court
His term was to commence on Jan. 6, 1975. The incumbent, Judge Redmond
Staats, retired on Sept. 14, 1974, and then-Gov. Ronald Reagan appointed
Sherman to the vacancy. Sherman took office two days later — but retired
on Oct. 31, 1974, and died three weeks after that.
On Jan. 3, 1975,
Reagan appointed Carl West Anderson, then a deputy district attorney,
to the post. He was sworn in the following day. Two days after that,
the presiding judge stopped assigning cases to Anderson on the theory
that his term had expired one day after he took the oath of office.
was based on an interpretation of Art. VI, §16(c).
Was West appointed
to a two-day term?
He was, according
to the presiding judge, who was the respondent in a writ proceeding
before the California Supreme Court, and according to the new governor,
Edmund Brown Jr., who intervened in that proceeding. Anderson was merely
filling out the balance of the term that ended on Jan. 5, they argued,
and could not have been appointed to fill the term to which Sherman
had been elected because no vacancy could exist until Jan. 6 arrived.
A six-justice majority
(four Republicans, two Democrats), held in a "By the Court" opinion
that the appointment by the outgoing Republican governor was effective
to confer a judgeship on West until a successor was elected in 1976.
Justice Stanley Mosk (a Democrat) dissented.
The court held
VI, section 16, subdivision (c), makes no distinction between vacancies
arising before or after a scheduled election, but expressly provides
that the person appointed by the Governor shall "fill the vacancy
temporarily until the elected judge's term begins," and the term
cannot begin until the person elected qualifies and assumes the
office, it is apparent that the appointee may continue to fill the
vacancy until such time as the vacancy is terminated by the assumption
of office by an elected judge. If no one is elected; if the
person elected dies before assuming office; or if the successful
candidate is an incumbent who resigns, retires, or vacates the office
by taking an incompatible oath, the vacancy which accrued during
the former term continues until a new election is held and the newly
elected judge assumes the office. The new term does not come into
existence until that time. (French v. Jordan, supra, 28 Cal.2d
765, 770.) It follows that an appointee filling the vacancy may
continue to hold office until the new term comes into existence,
since the Constitution provides that "the Governor shall appoint
a person to fill the vacancy temporarily until the elected judge's
Sherman's death precluded the term for which he was elected from
coming into existence the vacancy continues and petitioner is
entitled to fill it.
(Italics in the original.)
two separate and distinct terms with which we are here concerned.
The first is the term of Judge Staats, which began in January 1969
and was required to terminate on January 5, 1975. There is no event
which could possibly extend his constitutionally created six-year
term beyond six years. The term was not extended beyond the constitutional
limit by Judge Staats' resignation, by Judge Sherman's appointment,
by Judge Sherman's resignation, by Judge Sherman's death or by this
petitioner's appointment. The term could not be extended beyond
six years if a new appointment were purportedly made every day up
to and including January 5.
term involved was that for which the electorate made a democratic
choice at the polls in June 1974, the actual term to begin on
January 6, 1975. Nothing that occurred prior to January 6 could
abolish, alter, or impose any burden whatever on the institution
of the new term.
Sherman, duly elected by the people of his county in June, died
and was thus unable to take his oath of office on January 6 for
the new term, a vacancy occurred in that new term. That
vacancy exists today and can now be filled temporarily by the
Governor until "the next general election after the January 1
following the vacancy." That will be the general election of 1976.
(Italics in the original.)
Mosk added (at
The majority cite
only one case which gives them any comfort, French v. Jordan (1946)
28 Cal.2d 765. The language in French is pure dictum, unnecessary
to the opinion, since the issue there was whether the judgeship involved
should be included on a November ballot after the election forces
were already spent in the June primary. And if it is not dictum, the
language in the opinion conflicts with the current constitutional
The effect of the decision was to validate an outgoing governor’s
appointment to a judicial vacancy that did not come into being
until after that governor left office — which Mosk aptly labelled
(at 741) "remarkable legal legerdemain."
retirement in Sept. 14, 1974 did not create the Jan. 6, 1975
vacancy. It was created by virtue of his term coming to an end
at that time. His decision not to run resulted in an open seat,
and Sherman was elected to that seat. There was no longer a
Jan. 6, 1975 vacancy. In being appointed to fill out Staat’s
unexpired term, Sherman was, under the reasoning of Pollack
v. Hamm, supra, merely a temporary appointee, whose departure
from office created no new "vacancy" so as to cause a postponement
of the election for two years. A vacancy did not occur until
Jan. 6, 1995 when the person elected to the post did not take
office. It was up to the governor then in office to fill the
in Anderson noted that the state Constitution provides
that a governor shall "fill the vacancy temporarily until the
elected judge's term begins." Reagan filled the vacancy temporarily
— however, two days later, the elected judge’s term began. The
key word is "term." While judicial service did not commence,
a term necessarily did because the previous term had
used with respect to a public office, the word ‘term’ signifies
a fixed and definite term of office." Lungren v. Davis
(1991) 234 Cal.App.3d 806, 823.
sets forth a "fixed and definite term of office" for Superior
Court judges: "Terms of judges of superior courts are 6 years
beginning the Monday after January 1 following their election."
While it was an impossibility for the elected judge, Sherman,
to begin judicial service when his term began, it remains
that at the stroke of midnight on Jan. 6, 1975 the previous
term had come to an end, and a new term had commenced. Had Sherman
been alive and taken the oath later that day, his service
within his term of office also would have commenced.
interpretation would have been correct had the constitutional
provision empowered a governor to "fill the vacancy temporarily
until the elected judge takes office." But it doesn’t
say that. The judicial re-drafting of Art. VI, §16(c) was
a clear usurpation by the majority of the prerogative of the
Legislature and the people to formulate constitutional provisions.
provision had been drafted to permit the filling of a
vacancy "until the elected judge takes office," it would
have been preferable from a policy standpoint. Otherwise, a
governor could appoint a person to fill a vacancy arising after
a primary election, and then, assuming that governor remained
in office, reappoint that same person, or not, after the first
Monday in January depending on whether the judge’s rulings had
proved to the governor’s liking.
consideration was alluded to by Mosk in Caldwell v. Bruning
(1966) 64 Cal.2d 111, discussed in tomorrow’s article. There,
as in Anderson, a judge was elected to a six-year term
commencing the first Monday following Jan. 1, but left office
before the term commenced, and the governor filled the vacancy.
That vacancy, however, was on a Municipal Court, and, as to
appointees to that court, a statute, Government Code §71180,
provides that "The appointee shall hold office for the remainder
of the unexpired term of his predecessor and until his successor
is elected and qualifies." (Emphasis added.) In holding
that the appointee retained the post following the first Monday
following Jan. 1, Mosk remarked (at 116): "This interpretation
is consistent with the general policy that once appointed, judges
may not be involuntarily removed from office by the Governor,
for if a second appointment were authorized, the Governor could
appoint some other person at the expiration of the term and,
in effect, remove the original appointee."
affront to judicial independence should be avoided. The majority
in Anderson did avoid it, albeit through impermissibly
re-drafting an unambiguous provision to reach that result.
independence is always compromised, of course, by the need of
judges seeking advancement to please the governor in order to
attain elevation. Whatever psychological pressure is created
by knowledge that "the governor is watching" is unavoidable
in a system where the governor happens to be the appointing
authority. Here, however, the governor unnecessarily thrust
himself into litigation as an intervenor where he need not have
intervened. While awareness by the justices was certain that
the governor would have preferred that writ relief not be afforded
the Reagan appointee, Brown’s presence as a participant in the
proceeding had to have intensified multifold a mindfulness of
how that governor wanted that case resolved. This lack of sensitivity
on the part of Brown to the need for judicial independence was
particularly inappropriate in light of the upcoming vacancy
in the office of chief justice and his awareness — it was common
knowledge — that Mosk coveted that post. Indeed, Mosk’s dissent
in the case might well have been viewed as politically motivated
had it not been that this particular jurist is known for his
section which was not alluded to by either the majority or the
dissenter, but which appears apposite, is Government Code §1776,
as otherwise provided in the Constitution, when a person
is appointed by the Governor…to fill a vacancy in any
office...the appointee holds office only for the
balance of the unexpired term as provided by the law creating
enacted in 1943, appears never to have been discussed in a published
opinion. (It is based on §1003a of the old Political Code,
which was construed in People v Edleman (1907) 152 C
317, and People v Nickel (1909) 9 CA 783, but concerned
aspects of the provision not pertinent to the present discussion.)
The statute, which is in no respect contrary to the constitutional
provision in issue, should have been applied in Anderson,
and would have dictated a result contrary to that reached by
was elected to the Superior Court in 1976 without opposition,
and in 1984 was appointed by Gov. George Deukmejian as presiding
justice of Div. Four of the First District Court of Appeal,
a post at which he still serves.)
v. Cory (1975) 13 Cal.3d 743
HOLDING: Same as Anderson v. Phillips, supra.
James B. Scott was
elected on June 4, 1974 to a new term as Santa Clara Superior Court judge.
He resigned from the Superior Court on Dec, 13, 1974, when he was elevated
to the First District Court of Appeal. Then-Gov. Ronald Reagan on Jan.
2, 1994 named Marilyn Pestarino Zecher to the Superior Court vacancy.
The state and county declined to pay her salary, and she sought a writ
of mandate in the California Supreme Court to require that she be paid.
Relying on its
decision that day in Anderson v. Phillips, supra, the high court
granted the writ. Justice Stanley Mosk dissented.
He observed (at
It is easy
to illustrate how untenable is the majority conclusion. Consider,
for example, three hypothetical circumstances.
court Judge A is reelected in June for a six-year term to begin
in January. Having labored without a vacation for years, he decides
to take a half-year sabbatical, for travel and study abroad, before
assuming his new term. Conscious of his court's caseload, however,
he resigns in order to permit an appointment for the six-month
balance of his expiring term. When Judge A returns in January,
refreshed and prepared to embark upon his new full term, the majority
would bar him in favor of the temporary replacement.
court Judge B is also reelected in June for a six-year term to
begin the following January. Shortly after the election he becomes
seriously ill and retires, and the Governor fills the vacancy.
A few months thereafter Judge B fully recovers and on January
6, 1975, takes his oath for the new term to which he had been
elected. The majority would bar him from serving.
court Judge C is reelected in November for a term beginning the
following January. After election he is importuned by the outgoing
Governor to assist in cataloguing the papers of his administration.
He agrees to do so, but because of his court's backlog, he resigns
so that a temporary judge may be appointed to carry on the judicial
work for the final two months of his expiring term. After the
gubernatorial transition is completed and on the day the new Governor
is sworn in Judge C takes his oath for the new full term to which
the voters of his county elected him. The majority would bar him
Anderson nor Zecher dealt with the situation of an incumbent
having been elected to a new term, having left office, and then seeking
to take the oath of office for a new term. However, Mosk’s assumption
as to how the majority would rule if confronted with that fact situation
does appear warranted by language in Anderson.
v. Eu (1976) 18 Cal.3d 322
HOLDING: Where a new judgeship comes into existence in an election year,
the election to the office will take place in two years.
two additional Superior Court judgeships in Sacramento County became effective
Jan. 1, 1976. Two Municipal Court judges each filed declarations of intention
to run for one of those seats, but each was denied nominating papers by
the county registrar on the ground that the offices could not be filled
by election until January of 1978. The California Supreme Court issued
an alternative writ prior to the election, but did not resolve the matter
until after the election. On Nov. 23, 1976, it denied a peremptory writ
in an opinion by Justice Stanley Mosk for a unanimous court.
Mosk said at 326,
in applying Art. VI, §16(C): "[I]f the vacancy arises at any time
in an election year, the office will not be placed on the ballot until
the next election year, i.e., two years later." The jurist found that
a vacancy occurred in an election year, i.e., on Jan. 1. "[A]
vacancy is simply a state of being empty, unoccupied, or unfilled, without
regard to when or how the condition arose," he said (at 327). Mosk pointed
out that in 1925, the California Supreme Court in Wallace v. Payne,
197 Cal. 539, held that a "vacancy" in a judicial office includes an
unfilled newly created seat.
declared, the election must be held in 1978.
v. Panish (1980) 28 Cal.3d 107
HOLDING: If a Superior Court incumbent leaves office after a candidate
(other than the incumbent) has filed nominating papers for the
office, the vacancy will not result in a postponement of the election
for two years.
Los Angeles Superior
Court Judge Roy O. Brown was up for reelection in 1980. He announced he
wasn’t running, and would retire June 21. Five contestants ran for his
post. The two high scorers in the primary, then-Alhambra Municipal Court
Judge John Stanton and then-Los Angeles Municipal Court Judge Malcolm
Mackey, appeared to be headed for a run-off. But Registrar Recorder Leonard
Panish proceeded to cancel the November run-off after Brown retired on
June 22. Panish acted on the basis of Art. VI, §16(c) of the state
Constitution which requires that a Superior Court vacancy be filled "by
election to a full term at the next general election after the January
1 following the vacancy,..."
Supreme Court, by a 4-3 vote, eschewed a literal reading of Art. VI,
§16(c) and held that it was not necessary to wait until 1982 to
fill the vacancy by election. The majority, in its per curium opinion,
reasoned (at 111):
does not compel cancellation of a scheduled election. It does no
more than provide the means by which a vacancy is to be filled if
the election cannot proceed, thereby authorizing the appointment
of a judge to fill the vacancy until the elected judge takes office.
The opinion continued
of section 16(c) demonstrates that when a vacancy occurs in the
last year of the term of an incumbent superior court judge at a
time when the full elective process can be conducted,
an election for the office shall be held except in those cases in
which the vacancy arises and an appointee assumes the office prior
to the qualification fn. 2
of one or more persons as candidates for that office.
The court went on
to comment (at 115):
of section 16(c) at once gives the greatest possible effect to section
16, subdivision (b), and avoids the absurd and unfair result which
would follow if the section were interpreted to compel cancellation
of scheduled elections. Were respondents' interpretation adopted,
a retiring incumbent dissatisfied with the candidates for, or the
outcome of, a contest for the office could cause an election to
be cancelled by an appropriately timed resignation. Even in cases
such as this where no such motivation impelled the retirement of
the incumbent, the potential unfairness is manifest to those candidates
who have expended the considerable time and resources necessary
in a contested election. We cannot accept such an interpretation
as being either consistent with the intent of the voters who adopted
section 16(c) or compelled by its language or history.
Chief Justice Rose
Bird and Justice Matthew O. Tobriner each filed a dissent.
attempt to justify their novel reading of the provision by suggesting
that a principal objective of section 16(c) is to require an election
whenever the electoral process can feasibly be carried out. If that
were the objective of the section, it would logically follow that
an election should be held even when a vacancy occurs before the
electoral process begins. The majority concede, however, that under
such circumstances section 16(c) mandates a postponement of the
election, in order to assure that the appointee has an adequate
time to make a record before he must stand for election. Because
the provision draws no distinction between those vacancies which
occur before the electoral process begins and those vacancies which
occur thereafter, the same rationale which justifies the postponement
of an election in the former situation similarly calls for a postponement
in the latter circumstance.
The majority applied
its decision in Stanton in granting a writ that same day in the
companion case of Chatterton v. Eu (1980) 28 Cal.3d 123, again
over the dissents of Bird and Tobriner.
does not purport to overrule Pollack, supra, in which it
was held that the election-year exit from office of an appointed judge
will not result in the postponement of the election. Accordingly, when
Stanton says at 113 that the departure of the incumbent and appointment
of a successor before a candidate has qualified from office will
result in postponement of the election, it must be assumed that this
is limited to the departure of an elected incumbent.
(Stanton won the
1980 election, and Mackey gained election in 1988.)
This was a case that pitted logic against reason.
position appeared to be grounded on unassailable logic. A vacancy
occurred on June 22, 1980. The Constitution requires that a
vacancy be filled at the next general election after the January
1 following the vacancy,..." The Jan. 1 following the vacancy
was Jan. 1, 1981, and the next election would be held in 1982.
the area of judicial elections, unassailable logic may oftentimes
profitably be assailed. This is so given the tendency of judges
passing on judicial-election cases to take a special interest
in shaping the rules, perhaps considering their latitude uncommonly
broad since the controversies affect directly those in their
own domain and those who seek entrance to it. This territorial-preservation
instinct tends to suppress customary deference to dictates of
the Legislature or the people.
be doubted, however, that the court’s judicial legislation did
produce a reasonable result. It simply was not the result dictated
by the wording of the constitutional provision.
appear ironic, if not suspicious, that Bird and Tobriner, both
staunch liberals and judicial activists appointed by Democratic
governors, would become instant converts to the cause of strict
constructionism where, if their view had prevailed, a liberal
Democratic governor, Jerry Brown, would have chosen Judge Brown’s
ex rel. Superior Court v. Robinson (1987) 190 Cal.App.3d
HOLDING: A Superior Court incumbent who is unopposed for election but resigns
prior to the primary election is not elected to a new term beginning
the following January.
Mark Robinson was
appointed to the Orange Superior Court in 1983. He filed his declaration
of candidacy and his nominating papers in 1984, and no one ran against
him. Pursuant to §25304, his name did not appear on the ballot because
he had no opponent. Robinson resigned from office on May 20, 1984. In
January, 1985, he came to the courthouse to assume duties, proclaiming
that he had been elected to a new term, and had only resigned from his
previous term. He was assigned no duties, and a year later, Gov. George
Deukmejian appointed his successor.
on §25304 (now §8203) which says, in part: "If, in conformity
with this section, the name of the incumbent does not appear either
on the primary ballot or general election ballot, the county clerk or
registrar of voters, on the day of the general election, shall declare
the incumbent re-elected."
As an unopposed
incumbent, Robinson argued, he was reelected. The Third District Court
of Appeal disagreed, affirming a trial court judgment. Writing for the
court, Justice Hugh Evans pointed out that Robinson had resigned prior
to the election, so that, as of the time of that election, he was not
an incumbent, thereby removing himself from the purview of §25304.
(The court, in
discussing the non-applicability of Stanton v. Panish, mangled
the facts of that case, portraying the incumbent, Brown, as Stanton’s
opponent in the primary. Brown didn’t run; the opponent was Mackey.)
Where a candidate dies later than the 68th day before the election, the
contest remains on the ballot (and if the deceased candidate is elected,
the governor appoints a successor). §15402. West's death, at sea,
was presumed. On petition of his widow, the Ventura County entered an
order establishing his death as having occurred on April 11, 1970, 51
days before the election.
A candidate does not become "qualified" until nominating papers have
been filed. Elections Code §13.5 provides: [N]o person shall be
considered a legally qualified candidate for any of the offices set
forth in subdivision (b) unless that person has filed a declaration
of candidacy, nomination papers, or statement of write-in candidacy,
accompanied by documentation, including, but not necessarily limited
to, certificates, declarations under penalty of perjury, diplomas, or
official correspondence, sufficient to establish, in the determination
of the official with whom the declaration or statement is filed, that
the person meets each qualification established for service in that
office by the provision referenced in subdivision (b). Subdivision (b)
includes candidates "(5) For the office of judge of the municipal court..."
and "(6) For the office of judge of the superior court...."