Tuesday, Feb. 3, 1998, Page 7

Timing in Judicial Elections

Part 1: The Superior Court


By 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. 

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: 

California Constitution, Art. VI, §16

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 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. 

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.
(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." 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. 
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 that plan. 

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.
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 election.
The matter is now covered by statute. Elections Code § 8140 provides, in relevant part: 

"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.
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. 

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."
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, that would 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. 

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. 
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. 

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.

(Italics in the original.) 

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.

(Italics in the original.) 

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.  
COMMENT: 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." 

Staats’ 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 vacancy. 

The majority 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 expired. 

"[W]hen 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. 

Sec. 16(c) 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. 

The majority’s 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. 

If the 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. 

This policy 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." 

Such an 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. 

Judicial 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 "tells-it-as-he-sees-it" independence. 

A code section which was not alluded to by either the majority or the dissenter, but which appears apposite, is Government Code §1776, which provides: 

          Except 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 the office.
(Emphasis added.) 

That provision, 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 the majority. 

(Anderson 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.) 


Zecher 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 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. 

COMMENT: Neither 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

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. 
Legislation creating 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. 

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.
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,..." 

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.
The opinion continued (at 113): 
      [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.
The court went on to comment (at 115): 
      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.
Chief Justice Rose Bird and Justice Matthew O. Tobriner each filed a dissent. 

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.
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. 

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. 
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. 

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.)

1. 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.  Return to text

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

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