Stanton v. Panish

• Decision Date: 02 September 1980
• Citation: 167 Cal.Rptr. 584,28 Cal.3d 107
• Court: California Supreme Court
• Parties: , 615 P.2d 1372 John R. STANTON, Petitioner, v. Leonard PANISH, as Registrar-Recorder, etc., et al., Respondents; Edmund G. BROWN, Jr., as Governor, etc., Real Party in Interest. L.A. 31289.

Page 584

167 Cal.Rptr. 584

28 Cal.3d 107, 615 P.2d 1372

John R. STANTON, Petitioner, v. Leonard PANISH, as Registrar-Recorder, etc., et al., Respondents Edmund G. BROWN, Jr., as Governor, etc., Real Party in Interest.

L.A. 31289.

Supreme Court of California, In Bank.

Sept. 2, 1980. ^*

F. John Nyhan, Paul M. Harrigan and Lawler, Felix & Hall, Los Angeles, for petitioner.

Bonelli, Wood & Heib, Encino, Malcolm H. Mackey, Los Angeles, and Stanley Sapiro, Encino, as amici curiae on behalf of petitioner.

John H. Larson, County Counsel, and Edward G. Pozorski, Deputy County Counsel, Los Angeles, for respondent Panish.

George Deukmejian, Atty. Gen., Richard D. Martland, Asst. Atty. Gen., and Henry G. Ullerich, Deputy Atty. Gen., for respondent Eu and for real party in interest.

THE COURT:

Leonard Panish, Registrar-Recorder of the County of Los Angeles, respondent herein, has announced his intention to remove Office No. 3 of the Los Angeles County Superior Court from the November 4, 1980, general election ballot, thereby cancelling the election scheduled for that office. In his opinion cancellation of the election is required by section 16, subdivision (c) (hereinafter section 16(c)) of article VI of the California Constitution because the office became vacant on June 22, 1980, upon the resignation of the incumbent. Petitioner received the greatest number of votes, but less than a majority, in the June 1980 primary in which he was one of five candidates for the office, and therefore became a "run-off" candidate in the November 1980 general election.

Petitioner seeks mandate to compel the respondent registrar-recorder to proceed with the election and to compel respondent March Fong Eu, the Secretary of State, to certify candidates for election and the results thereof. He contends that in circumstances such as these, in which the six-year term of the incumbent judge is expiring, and the election process has commenced with the qualification of candidates to fill the office for the ensuing term prior to the accrual of the vacancy, the Constitution requires that the office be filled by completion of the election process rather than by an appointment under section 16(c). We agree and direct the issuance of a peremptory writ of mandate.

This dispute had its origin in a January 30, 1980, announcement by Judge Roy M. Brown, that he would not be a candidate for reelection to a new term, and would retire on June 21, 1980. His six-year term as the incumbent in Office No. 3 was to expire at the end of 1980. ¹ Petitioner with four others qualified as candidates for the office at the June 3, 1980, primary election, and with one other candidate for the November 4, 1980, run-off.

On June 22, 1980, Judge Brown retired. Respondent Panish then notified petitioner that Office No. 3 would not appear on the November ballot because, no candidate having been elected at the primary election, section 16(c) provides that the vacancy thereafter created by the retirement of Judge Brown is to be filled "by election to a full term at the next general election after the January 1 following the vacancy, . . ." A confirmatory letter from the Los Angeles County Counsel to petitioner advised that in counsel's opinion this provision served to "void the upcoming November election for this office as a matter of law." The letter recommended that petitioner examine our opinions in Anderson v. Phillips (1975) 13 Cal.3d 733, 119 Cal.Rptr. 879, 532 P.2d 1247, and Pollack v. Hamm, supra, 3 Cal.3d 264, 90 Cal.Rptr. 181, 475 P.2d. 213, implying that respondent Panish relied on the interpretation and application of section 16(c) in those cases. In our view that reliance was misplaced.

Contrary to respondent's suggestion, Pollack and Anderson reflect our recognition of a constitutional intent that unless there is express constitutional or statutory provision otherwise, and whenever possible the succession of superior court judges shall be by popular election. Only if the electoral process cannot be carried out or a vacancy occurs prior to the qualification of a candidate or candidates for an office in the year in which an incumbent's term expires, does section 16(c) permit the postponement of an election for a superior court office beyond the sixth year of a term. That section does not compel cancellation of a scheduled election. It does no more than provide the means by which a vacancy is to be filled if the election cannot proceed, thereby authorizing the appointment of a judge to fill the vacancy until the elected judge takes office.

We are lead to the foregoing conclusion by the following reasoning: Section 16, subdivision (b), commands: "Judges of other courts (than the Supreme Court and Court of Appeal) shall be elected in their counties or districts at general elections." Section 16(c) supplements this constitutional directive with respect to superior courts, providing: "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." In Pollack we noted that the intent of section 16(c) was that "an opportunity to pass on the qualifications of superior court judges will be available to the electorate no less often then every six years," and we therein recognized our obligation to construe the provision so as to effectuate that intent. (3 Cal.3d 264, 273, 90 Cal.Rptr. 181, 186, 475 P.2d 213, 218.)

In Pollack we further considered a situation created by the resignation of an incumbent superior court judge. The Pollack vacancy was filled by appointment in December, 1969, the year before a general election was to be held. Section 16(c) therefore mandated that an election be held for that office in 1970. The appointee and one other candidate qualified to run for the office in the June primary election. The appointee/candidate died prior to the primary, but after the date by which additional candidates might have qualified. The Governor appointed a second person to the vacant office before the primary election. The new appointee, arguing that he had been appointed to fill a new vacancy, sought to have the 1970 election cancelled on the ground that section 16(c) precluded an election prior to the general election following January 1, 1971.

We rejected that claim because the "vacancy" to which section 16(c) referred could be found to be a single vacancy arising upon the incumbent's resignation and continuing until an elected successor took office. By that construction we effectuated the intent of section 16(c), thereby insuring "that the only circumstance in which an election may be postponed beyond the sixth year of the elected incumbent's term will be those in which it is impossible to carry out the full elective process." (3 Cal.3d at p. 273, 90 Cal.Rptr. at p. 186, 475 P.2d at p. 218.) Our Pollack observation that under this interpretation of section 16(c) more than six years might elapse between elections if a vacancy arose during the year of expiration of an elected incumbent's term, did not constitute a broad holding that the section precluded an election in all cases in which a vacancy occurs during the final year of an incumbent's term.

Rather, the history of section 16(c) demonstrates that when a vacancy occurs in the last year of the term of an incumbent superior court judge at a time when the full elective process can be conducted, an election for the office shall be held except in those cases in which the vacancy arises and an appointee assumes the office prior to the qualification of one or more persons as candidates for that office. This history, which we discussed at length in both Pollack v. Hamm, supra, 3 Cal.3d 264, 270-273, 90 Cal.Rptr. 181, 475 P.2d 213, and again in Anderson v. Phillips, supra, 13 Cal.3d 733, 739, 119 Cal.Rptr. 879, 532 P.2d 1247, confirms that the purpose of the drafters of the second sentence of section 16(c) was not to cause an already scheduled election to be cancelled. The provision was intended only to relieve an appointee to a vacancy arising early in the last year of an incumbent's term, and who assumes office before other potential candidates have qualified, from the burden of standing for election immediately thereafter.

Until section 16(c) was adopted in 1966, former section 8 of article VI had specified 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." Because the "general state election" at which judicial offices are first placed on the ballot is the primary election (Pollack v. Hamm, supra, 3 Cal.3d 264, 268 fn. 3, 90 Cal.Rptr. 181, 475 P.2d 213) this provision had the effect of forcing appointees to such vacancies who assumed office prior to a scheduled election and were not already candidates to attempt immediately to qualify and seek election if they wished to retain the office beyond the end of that year. The general rule, to which this part of former section 8 was an exception, was that an appointee need not stand for election in the year of the accrual of the vacancy. (Barber v. Blue (1966) 65 Cal.2d 185, 187, 52 Cal.Rptr. 865, 417 P.2d 401.) After we noted in Barber that this exception was operative only during the early part of the year, the drafters of the 1966 constitutional revisions eliminated it from the proposed successor amendment, section 16(c). The purpose of that change, however, was solely to relieve appointees who...