"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. 

That, however, 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. 

In interpreting the various election provisions, there is a marked tendency on the part of courts to show how creative they can be. 

Today’s discussion is confined to Superior Court elections. 

The timing of Superior Court elections is governed by Art. VI, §16(c) of the state Constitution: 
 
 

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. 

Notwithstanding 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 it should 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. 

Bearden was 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.

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." Emphasis added. 

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.
 

 UPDATE: Voters on June 2, 1998, approved SCA 4 (Proposition 220),  which became effective the following day.  

French 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. 

The court held at 770:

[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.

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 election.

"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." 

Pollack 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.

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. 

Pollack argued 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): 

A vacancy 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."

Anderson 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. 

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. 

That conclusion 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 (at 740-41): 

Since article 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 term begins." 

Since Judge 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.

Mosk protested (at 741-42): 

There are 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. 

The second 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. 

When Judge 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.

Mosk added (at 242): 

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 provision.  

Zecher v. Cory (1975) 13 Cal.3d 743 

HOLDING: Same as Anderson v. Phillips, supra.

Relying on its decision that day in Anderson v. Phillips, supra, the high court granted the writ. Justice Stanley Mosk dissented. 

He observed (at 747-48): 

It is easy to illustrate how untenable is the majority conclusion. Consider, for example, three hypothetical circumstances. 

Superior 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. 

Superior 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. 

Superior 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 from serving. 

Fields 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. 

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. 

Accordingly, he declared, the election must be held in 1978. 

Stanton 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.

The California 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):

That section 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.

[T]he history 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.

Our interpretation 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.

Tobriner wrote (at 122):  

The majority 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.

Note: Stanton 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.)  
 
 

COMMENT: This was a case that pitted logic against reason.   Panish’s 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.  But, in 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.  It cannot 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.  It does 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 successor.

 

People ex rel. Superior Court v. Robinson (1987) 190 Cal.App.3d 334 

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. 

Robinson relied 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.)

2. 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...."  Return to text