Brown v. Hite

• Decision Date: 04 February 1966
• Citation: 48 Cal.Rptr. 869,410 P.2d 373,64 Cal.2d 120
• Court: California Supreme Court
• Parties: , 410 P.2d 373 James Harvey BROWN et al., Petitioners, v. Benjamin S. HITE, as Registrar of Voters, etc., Respondent. L. A. 28757.

Page 869

48 Cal.Rptr. 869

64 Cal.2d 120, 410 P.2d 373

James Harvey BROWN et al., Petitioners, v. Benjamin S. HITE, as Registrar of Voters, etc., Respondent.

L. A. 28757.

Supreme Court of California, In Bank.

Feb. 4, 1966.

Rehearing Denied March 2, 1966.

Beardsley, Hufstedler & Kemble, Charles E. Beardsley, Seth M. Hufstedler and John Sobieski, Los Angeles, for petitioners.

Harold W. Kennedy, County Counsel, and Edward H. Gaylord, Asst. County Counsel, for respondent.

MOSK, Justice.

Petitioners, judges of the municipal courts of the Los Angeles and Antelope Judicial Districts, seek a writ of mandate ordering respondent, the registrar of voters for both judicial districts, to omit from the notice of election and from the ballots to be used in the 1966 direct primary election the offices which they hold. ¹

This case presents issues in many respects similar to those discussed in Caldwell v. Bruning, 48 Cal.Rptr. 849, 410 P.2d 353, filed this day, and we have concluded that the offices held by Judges Brown, Higgins, Saeta, and Wright should be omitted from the 1966 election ballots. However, with regard to the offices held by petitioners Grillo and Mohr, the elective process commenced in 1964 was never completed and no person was elected to a new term of office in that year. We have concluded that in these circumstances the successor to Judges Grillo and Mohr should be chosen at the election to be held in 1966.

Each of the petitioners was originally appointed to office in 1964. Petitioner James Harvey Brown has held office since December 28, 1964; he succeeded Richard L. Wells, who had resigned on October 23, 1964, in order to accept an appointment as judge of the superior court. Petitioner Joseph R. Grillo has held office since November 6, 1964. His predecessor, Judge Mario L. Clinco, resigned on September 1, 1964, upon qualifying as judge of the superior court. Petitioner Thomas J. Higgins assumed office on December 1, 1964, succeeding Judge Harry V. Peetris, who had also been appointed to the superior court and had resigned on September 28, 1964. Petitioner David L. Mohr assumed office on August 25, 1964. His predecessor, Judge Edmund W. Cooke, had retired for disability on July 9, 1964. Petitioner Philip M. Saeta has been in office since December 31, 1964; his predecessor, Judge Goscoe O. Farley, resigned upon qualifying as superior court judge on December 17, 1964.

The aforementioned petitioners are judges of the Municipal Court, Los Angeles Judicial District. The remaining petitioner, Judge William J. Wright, is the municipal court judge for the Antelope Judicial District. He has held office since August 29, 1964, and was appointed to succeed Judge Alfred J. McCourtney, who qualified as judge of the superior court on July 14, 1964.

Each of the petitioners received two appointments to office. The first appointment in each case specified that the petitioner was to hold office for the remainder of a term expiring on January 4, 1965, and until his successor is elected and qualifies. Subsequent to January 4, 1965, the Governor issued to each petitioner a second appointment purportedly for the remainder of a new six-year term which had commenced on that day.

In Caldwell v. Bruning, supra, we held that appointees to the position of municipal court judge hold office not only for the remainder of the fixed term existing at the time of the appointment but also for an additional period terminating upon the election and qualification of their successors. No vacancy is created upon the expiration of the existing term nor is the office deemed to be vacant for the purpose of selecting a successor to the appointee. The tenure of appointees is prescribed by Government Code section 71180, which contains no provision creating a vacancy in such circumstances; and the provision of Government Code section 71145, declaring that the office shall be deemed vacant for the purpose of selecting a successor upon the expiration of the term, is inapposite in determining the tenure of appointees. (Campbell v. Hite (1962) 57 Cal.2d 484, 487-488, 20 Cal.Rptr. 328, 369 P.2d 944.) Therefore, no vacancy in these offices existed at the time petitioners were reappointed and the second commissions issued were void. ²

The time at which the next election is to he held is prescribed by Government Code section 71141, which states that 'judges of the municipal court and justice court shall be elected at the general state election next preceding the expiration of the term for which the incumbent has been elected.' We held in Caldwell v. Bruning, supra, that for the purposes of this section the word 'incumbent' must be interpreted as relating to the person last elected to a fixed term of office. We also held that in cases in which an election has been held and a candidate has been elected, the term of office to which the section refers is the term created by that election even though the prevailing candidate does not attempt to qualify for the new term. (See Adams v. Doyle (1903) 139 Cal. 678, 681, 73 P. 582; People ex rel. Showers v. Taylor (1881) 57 Cal. 620, 622.) The term of office is to be distinguished from the tenure of the individual elected in cases in which the statutory scheme suggests that the Legislature so intended. (Holbrook v. Board of Directors etc. (1937) 8 Cal.2d 158, 161, 64 P.2d 430; Boyd v. Huntington (1932) 215 Cal. 473, 479-480, 11 P.2d 383.)

When an election has been held for the office of municipal court judge and a candidate has been elected, the elective process is exhausted for the purposes of selecting a person to hold office for the new term. (Cf. French v. Jordan (1946) 28 Cal.2d 765, 770, 172 P.2d 46.) Unless Government Code section 71141 is interpreted as authorizing an election at the expiration of the new term, a void is left in the statutory scheme of elections, for, in contrast to the provisions relating to judges of the superior court and justice court (Cal.Const., art. VI, § 8; Gov.Code, § 71180.3), no provision has been enacted which would authorize the election of a successor to the appointee at an earlier date.

Judge McCourtney, the predecessor of petitioner Wright, filed nomination papers for the 1964 election and his name appeared on the direct primary election ballot. He was unopposed and was elected to a new six-year term of office at the primary election and prior to his resignation. (Cal.Const., art. II, § 2 3/4.) Therefore, petitioner Wright's status is identical in all material respects with that of the petitioner in Caldwell v. Bruning, supra, and no election should be conducted for this office until 1970.

The predecessor of petitioner Saeta, Judge Farley, also filed nomination papers for the 1964 election. He was unopposed and no petition was filed before either the direct primary or the general election indicating that a write-in campaign would be conducted. Therefore, pursuant to Elections Code section 25304, his name did not appear on the ballot at either election and he was declared elected on the day of the November general election, prior to his resignation. ³ Thus, the tenure of Judge Saeta is identical with that of Judge Wright, and no election should be conducted for this office in 1966.

The predecessors of Judges Brown, Grillo, Higgins, and Mohr also filed nomination papers for the 1964 election; they were unopposed and their names did not appear on the primary election ballot. (Elec.Code, § 25304.) However, they resigned prior to the general election of November 1964 and, therefore, it must be determined whether they were elected to new terms of office.

Government Code section 71141 provides that the next election shall be held at the general election next preceding the expiration of the term for which the incumbent has been elected. In Caldwell v. Bruning, supra, we held that the word 'incumbent' refers to the person last elected to a fixed term even if he does not qualify for office. Thus, if the predecessors of these petitioners were elected to new six-year terms in 1964, the next election for these offices should not be held until 1970. However, if they were not elected to new terms, different rules must necessarily apply.

Petitioners contend that a new term of office was created automatically upon the expiration of the existing term in January 1965 even if no person was elected to fill that term. They cite Holbrook v. Board of Directors etc. (1937) supra, 8 Cal.2d 158, 64 P.2d 430, in which it was held that a new term in the office of director of an irrigation district commenced even though the election for this new term had been declared void. However, the language of Government Code section 71141, which was not involved in that situation, would seem to preclude such a result in the case at hand, for that section expressly refers to the 'term for which the incumbent has been elected.' (Italics added.) Thus, it seems clear that some person must be elected in order for a new term to commence. (Campbell v. Hite (1962) supra, 57 Cal.2d 484, 487-488, 20 Cal.Rptr. 328, 369 P.2d 944.)

Elections Code section 25304 (ante, fn. 3) provides that the name of an incumbent shall not appear on the primary election ballot unless some other person also files nomination papers or unless a petition indicating that a write-in campaign will be conducted is filed within 20 days after the final day for filing nomination papers. If the name of the incumbent has not appeared on the primary election ballot, it is to be placed on the general election ballot if a petition is filed not less than 45 days before the November general election indicating that a write-in campaign will be conducted. If in conformity with this section the incumbent's name appears on neither ballot he is to be declared elected on the day of the November general election.

Since no election for the offices held by the above named petitioners was in fact conducted in 1964, it is necessary to determine at...