Brailsford v. Blue
| Citation | 19 Cal.Rptr. 485,57 Cal.2d 335,369 P.2d 13 |
| Parties | , 369 P.2d 13 William H. BRAILSFORD, Petitioner, v. Jack BLUE, as County Clerk of the County of Alameda, State of California, Respondent. S. F. 20945. |
| Decision Date | 19 February 1962 |
| Court | California Supreme Court |
Wagener, Jewett, Lynch & Curran and Donald W. Curran, Oakland, for petitioner.
J. F. Coakley, Dist. Atty., R. Robert Hunter, Chief Asst. Dist. Atty., and Frank D. Parker, Asst. Dist. Atty., Oakland, for respondent.
Petitioner asks this court for a writ of mandate to restrain Jack Blue, as County Clerk of the County of Alameda, State of California, (hereinafter referred to as 'respondent'), from making any reference to Judicial Office No. 2 of the Municipal Court for the Oakland-Piedmont Judicial District in the County of Alameda, State of California (an office now held by petitioner), on the ballot to be prepared and printed for use by the electors at the primary and general elections in 1962.
(1) Edward J. Smith was a duly elected, qualified and acting Judge of the Municipal Court of the Oakland-Piedmont Judicial District in Alameda County for a term of office expiring on January 7, 1963. For the purposes of the elections to be held in 1962, this office has been designated as Judicial Office No. 2.
(3) On October 2, 1961, petitioner was appointed by the Governor of this state to fill the vacancy caused by the death of Judge Smith.
(4) Petitioner took the oath of office on October 27, 1961, and is now, and ever since has been, performing the duties of such office.
(5) Less than ten months exist between the date of the occurrence of the vacancy above mentioned and the forthcoming primary election to be held on June 5, 1962.
(6) Respondent is charged with the dity of conducting the election of judges in said judicial district, and it is alleged in the petition that he intends to, and unless otherwise ordered by this court will, include Judicial Office No. 2 of the Municipal Court of the Oakland-Piedmont Judicial District in Alameda County, now occupied by petitioner, on the ballot in the primary election of June 5, 1962, and, if necessary, on the ballot in the general election of November 6, 1962.
This is the sole question presented: In view of the provisions of the last sentence of section 71180 of the Government Code, should Judicial Office No. 2 of the Municipal Court for the Oakland-Piedmont Judicial District in Alameda County be placed on the ballot at the primary election to be held on June 5, 1962? 1
No. The municipal courts of California, as presently constituted, were created by amendment of section 11 of article VI of the Constitution, approved November 7, 1950. This amendment expressly validated, and made fully and completely effective, the Municipal and Justice Court Act of 1949. (Stats.1949, ch. 1510, p. 2681.)
Section 9 of said Municipal and Justice Court Act consisted of a single paragraph containing two sentences, as follows: (Italics added.)
Section 9 of the Municipal and Justice Court Act was subsequently codified as section 71180 of the Government Code. (Stats.1953, ch. 206, p. 1278.) In the codification the first sentence was left unchanged, except that reference to sections 2 and 3 of the Municipal and Justice Court Act was changed to the appropriate Government Code sections. The last sentence of the section was made into three sentences, as follows:
Section 71180 was amended in 1959 to delete therefrom any references to judges of justice courts. The only other change made was to put the last two sentences in a separate paragraph. No amendments have been made since 1959.
The term of office and the time for election of judges of the municipal court are provided for in sections 71141 and 71145 of the Government Code. 2
In Donnellan v. Hite, 139 Cal.App.2d 43, 46 et seq., 293 P.2d 158, the court considered section 71180 of the Government Code as it affected the election of a successor to the person initially appointed to a newly created municipal court judgeship, and held that the ten-month period during which no successor could be elected was to be computed from the date of the vacancy to the date of the primary election.
Section 9 of the Municipal and Justice Court Act, hereinabove quoted, provided that no successor to an appointee to any vacancy in the office of judge of a municipal court could be elected at any election held within ten months of the date of the occurrence of the vacancy.
In the large majority of cases judicial offices are filled at the primary election. Under...
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