Anderson v. Phillips

• Citation: 119 Cal.Rptr. 879,532 P.2d 1247,13 Cal.3d 733
• Decision Date: 14 March 1975
• Docket Number: S.F. 23244
• Court: California Supreme Court
• Parties: , 532 P.2d 1247 Carl West ANDERSON, Petitioner, v. George W. PHILLIPS, Jr., as Presiding Judge, etc., et al., Respondents, Edmund G. Brown, Jr., as Governor, etc., Intervener. In Bank

Page 879

119 Cal.Rptr. 879

13 Cal.3d 733, 532 P.2d 1247

Carl West ANDERSON, Petitioner, v. George W. PHILLIPS, Jr., as Presiding Judge, etc., et al., Respondents, Edmund G. Brown, Jr., as Governor, etc., Intervener.

S.F. 23244.

Supreme Court of California,

In Bank.

March 14, 1975.

Edwain A. Heafey, Jr., Peter W. Davis and Crosby, Heafey, Roach & May, Oakland, for petitioner.

Richard J. Moore, County Counsel, and James E. Jefferis, Asst. County Counsel, Oakland, for respondents.

Thomas Schneider and Sally Laidlaw, Oakland, as amici curiae on behalf of respondents.

Evelle J. Younger, Atty. Gen., Iver E. Skjeie, Asst. Atty. Gen., and Richard C. Creeggan, Deputy Atty. Gen., for intervener.

BY THE COURT.

Petitioner, having been appointed to fill a vacancy in an office of the Superior Court for the County of Alameda, seeks a writ of mandate to compel respondents, the presiding judge of the superior court and the superior court itself, to assign judicial duties to him. By leave of the court, the Governor has been permitted to intervene. (Code Civ.Proc., § 387.)

We have concluded that although petitioner may not compel that judicial duties be assigned to him, he nevertheless is entitled to require respondent presiding judge to exercise his discretion to determine whether such assignments should be made.

The series of events culminating in the present dispute began with the decision in early 1974 by Judge Redmond Staats not to seek reelection to office. The term to which Judge Staats had been elected was to expire on January 5, 1975. At the June 4, 1974, general election, Lewis F. Sherman, then a judge of the Municipal Court for the Berkeley-Albany Judicial District, who had run unopposed, was elected to the office to be vacated by Judge Staats. His term was to commence on January 6, 1975. Judge Staats retired from office, however, on September 14, 1974. Former Governor Reagan then appointed Judge Sherman to the vacancy created by the retirement of Judge Staats. Judge Sherman took office on September 16, 1974, but retired on October 31, 1974, and died on November 22, 1974.

The office from which Judge Sherman had retired remained vacant until January 4, 1975, when petitioner, whom former Governor Reagan had appointed the day before, was sworn in and duly filed his oath of office. In reliance on a December 24, 1974, opinion of the Attorney General (--- Ops.Cal.Atty.Gen. --- (1974) (CV 74/310)), respondent presiding judge concluded that the appointment of petitioner was effective to fill the vacancy existing in the superior court office only until the expiration of the term to which the original incumbent, Judge Staats, had been elected. He has, therefore, refused since January 6, 1975, the date on which Judge Sherman's term was to commence, to assign any judicial duties to petitioner.

Mandate is an appropriate remedy by which to compel the exercise of discretion by a court or governmental officer. (Code Civ.Proc., § 1085; Hurtado v. Superior Court (1974) 11 Cal.3d 574, 579, 114 Cal.Rptr. 106, 522 P.2d 666; Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379.) Petitioner here seeks to compel respondent ¹ to exercise the discretion conferred on him as presiding judge by Government Code section 69508, ² to 'distribute the business of the court among the judges.'

Mandate does not lie to control the exercise of discretion. (Hurtado v. Superior Court supra, 11 Cal.3d 574, 579, 114 Cal.Rptr. 106, 522 P.2d 666.) Government Code section 69508 does not require that a presiding judge assign specific matters or any 'business' of the court to a particular judge. Assignments of the 'business' of the court among judges of the court is wholly discretionary. Mandate is, nonetheless, appropriate to compel an officer both to exercise his discretion and to exercise it under a proper interpretation of the applicable law. (See Hollman v. Warren (1948) 32 Cal.2d 351, 196 P.2d 562.) Therefore, since respondent's refusal to assign court business to petitioner is based on his determination that petitioner is not now a judge of the Alameda County Superior Court, the writ will lie if that determination is erroneous.

Both terms of superior court judges and vacancies in offices of a superior court are governed by article VI, section 16, subdivision (c), of the California Constitution, which provides: '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.'

Petitioner contends that the language of section 16, subdivision (c), and past cases interpreting that section and its pre-1966 predecessor compel the conclusion that his appointment was effective to fill a vacancy that continues until a new election can be held in 1976 and the person then elected takes office on January 3, 1977.

Respondent and the Governor contend on the other hand that the appointment cannot extend beyond the term of the prior incumbent judge, that a new vacancy came into existence at the time the new term would have commenced, and that the new Governor, who had assumed office at that time, is entitled to fill the new vacancy by appointment. They argue that to hold otherwise would permit an appointment to a vacancy that did not yet exist in a term that had not yet commenced, even though in some cases the person elected might yet appear and claim his right to the office.

The authorities on which respondent and the Governor rely for these propositions are inapposite, however. Many of them relate to nonjudicial offices governed by other statutory or constitutional provisions, which offices are filled by election or appointment to terms whose dates of commencement and expiration are fixed by the governing law.

'Whether a public officer has a fixed term of office can be determined only by reference to the law creating the office.' (Boyd v. Huntington (1932) 215 Cal. 473, 479, 11 P.2d 383, 385.) In Boyd the validity and duration of a gubernatorial appointment to the Board of Dental Examiners was at issue. By examination of the act creating the board, which established rotating terms, we were able to conclude that the Legislature contemplated terms that would have fixed dates and that appointments to fill vacancies on the board were necessarily for terms that would 'run with the office and not with the officer.' (215 Cal. at p. 480, 11 P.2d at p. 386.) Similarly, in De Woody v. Belding (1930) 210 Cal. 461, 292 P. 265, the office at issue was not judicial, but was that of county supervisor, the term of which had fixed commencement and termination dates. In that context we held that the death of an incumbent after his reelection to a new term, but before the commencement of that term, 'did not create a present vacancy in the full-term of office' and that 'the power of appointment would not accrue until after the commencement of the full-term of office.' (210 Cal. at pp. 464--465, 292 P. at 266.) In People v. Ward (1895) 107 Cal. 236, 40 P. 538, the office of district attorney was in dispute. The governing statute established terms with fixed dates. The successful candidate, elected for a two-year term to commence on January 7, 1895, died on December 15, 1894, and on January 2, 1895, the board of supervisors purported to appoint the incumbent to fill the term that was to commence five days hence. Under the applicable law, the incumbent was entitled to hold office until January 7th and to continue in office 'although his term has expired, until his successor has qualified.' (Pol.Code, § 879.) We held that no vacancy occurred during the term of the incumbent and therefore, even though a vacancy was certain to arise on January 7th, the board of supervisors lacked power 'by anticipation (to) fill one, which was to arise In futuro, during the term of (the Board's) successor.' (107 Cal. at p. 242, 40 P. at p. 540.)

One additional case cited in the Attorney General's opinion relied on by respondent, People v. Waterman (1890) 86 Cal. 27, 24 P. 807, did involve a superior court office, but there a very different question was presented. The issue to be decided was whether the term of a judge who was to fill a newly created superior court office for which an election was to be held would be a full six-year term or would expire at the same time as the term of the incumbent of the existing office. We pointed out that the election was not to fill a vacancy and thus was not governed by the vacancy provision of article VI, section 6, of the Constitution which then provided that a judge elected to fill a vacancy in a superior court office 'shall hold office for the remainder of the unexpired term.' In that context we use the language quoted in the Attorney General's opinion: 'No vacancy in a term can occur until a term is commenced.' Not only did the governing constitutional provision differ from that here under consideration, but we were concerned with a newly created office for which no term had ever existed before. These cases do not, therefore, support the proposition that the appointment of petitioner could not extend beyond the date on which the term of the former incumbent would have expired.

The office of a superior court judge, unlike the nonjudicial offices at issue in the cases discussed above, is not an office having a term with fixed commencement and termination dates. Although each term begins on the first Monday following January 1 of the year after the election to fill the office, a vacancy which occurs thereafter is filled by election to a new six-year term. Thus, unlike the office of sheriff at issue in Adams v. Doyle (1903) 139 Cal. 678, 681, 73 P. 582, a vacancy in a superior court judgeship is a vacancy in an office, not a vacancy in a...