Pollack v. Hamm

• Decision Date: 15 October 1970
• Docket Number: No. 7865,7865
• Citation: 475 P.2d 213,3 Cal.3d 264,90 Cal.Rptr. 181
• Court: California Supreme Court
• Parties: , 475 P.2d 213 Donald A. POLLACK, Petitioner, v. Robert L. HAMM, as Registrar of Voters, etc., et al., Respondents; Robert L. SHAW, Real Party in Interest. Sac.

Page 181

90 Cal.Rptr. 181

3 Cal.3d 264, 475 P.2d 213

Donald A. POLLACK, Petitioner, v. Robert L. HAMM, as Registrar of Voters, etc., et al., Respondents;

Robert L. SHAW, Real Party in Interest.

Sac. No. 7865.

Supreme Court of California,

In Bank.

Oct. 15, 1970.

Edward L. Lascher, Ventura, for petitioner.

Thomas C. Lynch, Atty. Gen., Sanford N. Gruskin and Howard J. Schwab, Deputy Attys. Gen., Herbert L. Ashby, County Counsel, and Shannon Trower, Asst. County Counsel, for respondents.

Robert L. Shaw, in pro. per., for real party in interest.

BY THE COURT

By this petition for a writ of mandate, petitioner sought to compel respondent Hamm, as Registrar of Voters, to refrain from conducting the June 2, 1970, election or any election during 1970 to fill a vacancy in Office No. 3 of the Superior Court of Ventura County. We declined to prohibit the election but issued an alternative writ directing that the results of the June election not be certified pending final determination of the issues raised by the petition. For reasons that are set forth below we have concluded that a vacancy existed in Office No. 3, that this office was properly subject to election during 1970, and that the alternative writ should therefore be discharged and the petition denied.

The following sequence of events generated the instant dispute as to the proper manner by which to fill the vacancy in Office No. 3.

In December 1969, the Governor appointed Philip J. West to a vacancy existing in Office No. 3 of the Superior Court of Ventura County occasioned by the resignation of the prior incumbent who had accepted an appointment to the Court of Appeal. Pursuant to article VI, section 16, subdivision (c), of the California Constitution, ¹ the appointment of Judge West was made to fill that vacancy temporarily until the winner of an election to a full term took office. ² Also in conformity with article VI, section 16, subdivision (c), respondent Hamm included the office among those subject to election at the next general election after January 1, 1970, i.e., the statewide primary election to be held on June 2, 1970. ³

The time within which to file a declaration of intention to run for Office No. 3 extended from February 9 through February 18, 1970, and the time for filing nomination papers to qualify as a candidate in the June election extended from February 24 through March 20, 1970. ⁴ Judge West, who had taken office on January 16, 1970, qualified as a candidate for a full term in Office No. 3. The only other person to qualify as a candidate during the statutory period was the real party in interest in this proceeding, Robert L. Shaw, presently a judge of the municipal court.

On April 11, 1970, after the time within which candidates for the office could qualify to have their names on the ballot in the June primary election, Judge West was lost at sea in a boating accident, and, on May 14, 1970, the Superior Court of Ventura County entered an order, on the petition of Judge West's widow, establishing his death as having occurred on April 11, 1970. In the interim between the disappearance of Judge West and the official determination of his death, the Governor appointed petitioner to fill the vacancy that once against existed in Office No. 3. The appointment was made on April 30, 1970, and petitioner assumed the office on May 8, 1970, thereafter instituting this action seeking to clarify his status and to prohibits any further action toward filling the office by election prior to the next general election after January 1, 1971. We permitted the scheduled election to continue and, at the June 2, 1970, primary election, Judge Shaw received a majority of the votes cast for Office No. 3.

Petitioner assumes that the death of Judge West created a New vacancy in Office No. 3, and contends that, properly construed, article VI, section 16, subdivision (c), of the California Constitution precludes any election to fill that office prior to the next general election after January 1 of 1971 inasmuch as the vacancy came into being during 1970. Judge Shaw, on the other hand, contends that no vacancy existed at the time petitioner was appointed and took office, that the appointment was therefore invalid, and that petitioner lacks standing to maintain this action whether or not his appointment is valid. He also contends that the June 2, 1970, primary election was properly conducted in accordance with the provisions of article VI, section 16, subdivision (c), and that, as the recipient of a majority of the votes cast for a nonpartisan office at a valid primary election, he has been duly elected to a full term in Office No. 3. ⁵ We first examine petitioner's standing to maintain this action.

Vacancy in a Judicial Office

The parties do not dispute the obvious proposition that a vacancy occurs in a judicial office upon the death of the incumbent. We are called on to determine whether an appointment to fill an apparent vacancy is valid although made prior to the date upon which the death of the incumbent office holder is officially confirmed.

In the absence of a dispute making declaratory relief appropriate, no statutory means by which to establish the fact of death is available other than to persons claiming an interest in real or personal property whose title is affected by the death. (Prob.Code, § 1170.) The presumption of death of a missing person not heard from in seven years (Evid.Code, § 667) is manifestly inadequate to guide public officials charged with the responsibility of avoiding the disruption of governmental services by prompt appointments to vacant offices. But where, from the circumstances attending the disappearance of an office holder, it reasonably appears more likely than not that the incumbent is deceased, an official in whom constitutional or statutory authority to appoint a successor reposes need not rely on that presumption for it is not exclusive. It has long been the rule that, where there is evidence of a specific peril, death may be found to have occurred in a shorter period. (Ashbury v. Sanders (1857) 8 Cal. 62, 65--66; Esstate of Kustel (1884) 2 Cof. 1, 3; Estate of Luesmann (1892) 2 Cof. 531, 534.) 'Although the general rule is that the presumption of life continues during the entire period of seven years following the disappearance of a person, such presumption may be overcome by evidence showing either that within such time the missing person was subjected to some specific peril, or that other circumstances or conditions intervented sufficient to quicken the ordinary seven-year period of time necessary to create the presumption of death. (Citations.) But, in that regard, it is unnecessary that the evidence be direct or positive, but it need be only of such character as to make it more probable that the person died at a particular time than that he survived.' (Estate of Christin (1933) 128 Cal.App.2d 625, 630--631, 17 P.2d 1068, 1071.)

We think it beyond question that the circumstances of Judge West's unfortunate disappearance were such as to make it reasonably appear more probable than not at the time the Governor appointed petitioner that Judge West was deceased. Inasmuch as no challenge to the appointment was made on this or any other ground prior to the time petitioner assumed the office, a judicial determination establishing the fact of death or other official confirmation was unnecessary to the validity of the appointment which became effective when petitioner took the oath of office pursuant to article XX, section 3, of the California Constitution.

Judge Shaw further contends, however, that even if petitioner was validly appointed, he lacks standing to object to the election because his appointment is only to fill the vacancy temporarily until the winner of the election takes office on January 4, 1971. In resolving this question we necessarily reach the merits of petitioner's contention that he was appointed to fill a new vacancy which occurred in 1970 and that he is therefore entitled to hold the office until the winner of an election to be held in 1972 takes office on January 8, 1973.

Duration of a Gubernatorial Appointee's Tenure

Article VI, section 16, subdivision (c) was adopted by the people in 1966 as part of a scheme of constitutional revision. Its provisions incorporate in substance those of former article VI, section 8. That section read in pertinent part: 'The term of office of judges of the superior courts shall be six years from and after the first Monday of January after the first day of January next succeeding their election. A vacancy in such office shall be filed by the election of a judge for a full term at the next general state election after the first day of January next succeeding the accrual of the vacancy; Except that if the term of an incumbent, elective or appointive, is expiring at the close of the year of a general state election and a vacancy accrues after the commencement of that year and prior to the commencement of the ensuing term, the election to fill the office for the ensuing full term shall be held in the closing year of the expiring term in the same manner and with the same effect as though such vacancy had not accrued. In the event of any vacancy, the Governor shall appoint a person to hold the vacant office until the commencement of the term of the judge elected to the office as herein provided.' (Italics added.)

When the present article VI, section 16, subdivision (c) was adopted, the exception encompassed by the italicized sentence was deleted because it had been held to be operative only during the early part of the year. (Barber v. Blue (1966) 65 Cal.2d 185, 188--189, 52 Cal.Rptr. 865, 417 P.2d 401; Cal.Const. Rev.Com., 1966 Proposed Revision, Comments, p. 94.) In Barber v. Blue, supra, the last election for the superior court office in suit had been held in 1964. The incumbent died in December 1965 and a successor had been appointed in January 1966. ...