Fields v. Eu

• Citation: 556 P.2d 729,134 Cal.Rptr. 367,18 Cal.3d 322
• Decision Date: 23 November 1976
• Docket Number: S.F. 23442
• Court: California Supreme Court
• Parties: , 556 P.2d 729 Allen P. FIELDS et al., Petitioners, v. March K. FONG EU, as Secretary of State, etc., et al., Respondents; Edmund G. BROWN, Jr., as Governor, etc., Real Party in Interest. In Bank

Page 367

134 Cal.Rptr. 367

18 Cal.3d 322, 556 P.2d 729

Allen P. FIELDS et al., Petitioners, v. March K. FONG EU, as Secretary of State, etc., et al., Respondents Edmund G. BROWN, Jr., as Governor, etc., Real Party in Interest.

S.F. 23442.

Supreme Court of California,

In Bank.

Nov. 23, 1976.

Dahl, Hefner, Stark & Marois and Richard K. Park, Sacramento, for petitioners.

Evelle J. Younger, Atty. Gen., Iver E. Skjeie, Asst. Atty. Gen., and Floyd D. Shimomura, Deputy Atty. Gen., for respondents and for real party in interest.

MOSK, Justice.

The California Constitution directs that judges of the superior court shall be elected 'at general elections.' (Art. VI, § 16, subd. (b).) General elections are held only in even-numbered years. (Elec.Code, § 23.) In any year, however, the Legislature is constitutionally authorized to increase by statute the number of superior court judges in a county. (Art. VI, § 4.) The question therefore arises, at which general election shall a newly created office of superior court judge be first filled? The answer, as will appear, is to be found by construing together the several constitutional provisions bearing on judicial elections.

On October 31, 1975, the Governor signed into law an amendment to Government Code section 69593, increasing the number of superior court judges in Sacramento County from 18 to 20. (Stats.1975, ch. 481.) On February 11, 1976, petitioners herein, two municipal court judges, filed with respondent Sacramento County Registrar of Voters their declarations of intention to become candidates for election to the two newly created superior court offices at the June 8, 1976, statewide primary election. ¹ On March 8, petitioners applied for nomination papers. The registrar refused to issue such papers on the ground that the offices in question will not be certified for the ballot until the 1978 general elections. In so ruling, the registrar relied on a written opinion to the same effect by respondent Secretary of State.

On March 12, petitioners filed an application in the Court of Appeal for an order commanding respondents to accept their filing fees and furnish them with nomination papers for these offices, and to place the offices on the June 1976 primary ballot with petitioners' names as candidates therefor. (Elec.Code, § 6403.) On March 23, the Court of Appeal denied the request without opinion, and on March 29 petitioners applied to this court for a hearing. Inasmuch as the Secretary of State was required by law to certify and transmit a list of all eligible candidates to each county clerk no later than April 1 (Elec.Code, § 6580), we declined to interrupt the election process but instead issued an alternative writ to be heard at a future date. Respondents and the Governor, who is the real party in interest, demurred to the petition on the ground they are under no legal duty to place these offices on the ballot until the 1978 general elections.

At the outset we observe that the issue of when elections should be held to fill new superior court judgeships is of general public interest and is likely to recur. Accordingly, this proceeding is not rendered moot by the fact that the 1976 primary election has now taken place. (Green v. Layton (1975) 14 Cal.3d 922, 925, 123 Cal.Rptr. 97, 538 P.2d 225.)

We set forth in the margin the relevant portions of section 16 of article VI of the Constitution. ² Upon analysis it will be seen that section 16 creates an integrated and internally consistent plan for filling the judicial offices of the superior and appellate courts of this state. Subdivisions (a) and (d) deal with the appellate courts. They prescribe the time and place of the elections to those offices, the length of their terms, and the method of filling vacancies. Subdivisions (b) and (c) fulfill the same function for the superior courts: subdivision (b) designates the time and place of the elections to all trial courts ('other courts'), while subdivision (c) declares--with respect to superior courts only--the length of term and the method of filling vacancies. ³

More specifically, subdivision (c) provides that superior court vacancies are to be filled by a two-step process of appointment and election. First, the Governor 'shall appoint a person to fill the vacancy temporarily until the elected judge's term begins.' Then the latter--who may be the appointee or any other qualified candidate--must be chosen 'at the next general election after the January 1 following the vacancy . . ..' Because general elections are held only in alternate years, the last-quoted provision inevitably operates as follows: if the vacancy occurs during a year in which there is no general election, the office will appear on the June primary ballot of the immediately following year; but if 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. ⁴

Under our constitutional scheme, therefore, the timing of the election to fill a superior court vacancy depends strictly on the date the vacancy occurs. We recognize that most vacancies arise during an incumbent's term of office. There are many possible reasons for such an event: the death or retirement of the judge is doubtless the most common, but a statute lists 12 reasons in all (Gov.Code, § 1770) and others have been added by judicial decision (e.g., Walter v. Adams (1952) 110 Cal.App.2d 484, 489--490, 243 P.2d 21). Nevertheless, their frequency during an incumbent's term does not mean that vacancies cannot occur at other times.

The word 'vacancy' in section 16 is not defined in that provision or elsewhere in the Constitution, and there is no indication that it is used in any technical sense. It is settled that unless it appears that a word in the Constitution is employed in a technical sense, it must be given the ordinary meaning it had in common usage at the time the provision was adopted. (Kaiser v. Hopkins (1936) 6 Cal.2d 537, 538--539, 58 P.2d 1278; In re Quinn (1973) 35 Cal.App.3d 473, 482--483, 110 Cal.Rptr. 881, and cases cited.) In that usage a vacancy is simply a state of being empty, unoccupied, or unfilled, without regard to when or how the condition arose. To cite an example often given in the cases, 'A new house which has never been occupied is no less vacant than an old one which had been occupied, but whose tenant had removed from it. So a new office, which has never been filled, is vacant when there is no incumbent, as much so as if it had had an incumbent, and he had resigned or died.' (Yates v. McDonald (Ky.1906) 96 S.W. 865, 866--867.)

Adopting this meaning in the case at bar, we conclude that subdivision (c) of section 16 applies to both 'old' and 'new' vacancies: i.e., a vacancy arises within the meaning of that provision either when an incumbent suprior court judge dies or for any reason relinquishes his office, or when a statute creating a new superior court judgeship takes effect. In both events, subdivision (c) operates to prescribe the particular election at which such 'vacancy shall be filled . . ..'

Petitioners ask us to read the Constitution in a much different manner. They contend that the word 'vacancy' in subdivision (c) should be restricted to instances in which an incumbent judge dies or leaves an existing office. They do so, however, not because of some technical meaning of the word--none is proposed--but in order to evade the specific directive of subdivision (c) that superior court vacancies be filled at the next general election 'after the January 1 following the vacancy . . ..' Having thus carved out a separate category of vacancies--i.e., those arising upon the creation of new superior court judgeships--petitioners then seek constitutional authority to run for the latter offices. They purport to find it in subdivision (b) of the same section ('Judges of other courts shall be elected in their counties or districts at general elections'). And because subdivision (b) speaks only of electing trial judges 'at general elections' and does not prescribe which election is meant, petitioners conclude that the Constitution has left the question unanswered and hence they are entitled to run at whichever general election first occurs after the creation of the office.

The argument is implausible, and its corollary is even more unlikely. Petitioners concede the Governor must have the power to temporarily fill new superior court judgeships by appointment, but they range far afield to find the constitutional source of that power. Because they insist such vacancies are not within the ambit of subdivision (c), they are unable to rely on the simple declaration therein that 'the Governor shall appoint a person to fill the vacancy' (fn. 2, Ante). They are thus compelled to look elsewhere--even to a different article of the Constitution: in article V, in the midst of an enumeration of the general powers of the executive, a provision recites that 'Unless the law otherwise provides, the Governor may fill a vacancy in office by appointment until a successor qualifies.' (Art. V, § 5, subd. (a).) This provision, petitioners claim, is the source of the Governor's authority to make appointments to newly created superior court judgeships. (See also Gov.Code, § 1772.)

It is a cardinal rule of construction that words or phrases are not to be viewed in isolation; instead, each is to be read in the context of the other provisions of the Constitution bearing on the same subject. (Wallace v. Payne (1925) 197 Cal. 539, 544, 241 P. 879.) The goal, of course, is to harmonize all related provisions if it is reasonably possible to do so without distorting their apparent meaning, and in so doing to give effect to the scheme as a whole. (Serrano v. Priest (1971) 5 Cal.3d 584, 596, 96 Cal.Rptr. 601, 487 P.2d 1241; People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 637, 268 P.2d 723; Edler v. Hollopeter (1931) 214 Cal. 427,...