Stanton v. Panish , 28 Cal. 3d 107 ( 1980 )

TOBRINER, J.

I respectfully dissent. In my view the language of the controlling constitutional provision, and the past authorities of this court construing that provision, support the determination of the Los Angeles registrar that an election should not be held in November 1980 for the superior court seat at issue here.

Article VI, section 16, subdivision (c) [hereafter section 16(c)] of the California Constitution provides that “[a] vacancy [in the superior court] 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 the present case the “vacancy” in the judicial office arose on June 22, 1980, when the incumbent resigned his office. Thus, pursuant to the constitutional provision, the office is to be filled by election “at the next general election after the January 1 following the vacancy,” i.e., the first general election after January 1, 1981, and not at the November 1980 general election.

Although the majority purport to find a latent ambiguity in the terms of the constitutional provision, in my view the provision is clear on its face. Moreover, the past authorities of this court analyzing the provision at issue uniformly support this “plain reading” of the provision. Thus, in Anderson v. Phillips (1975) 13 Cal.3d 733, 739 [119 Cal.Rptr. 879, 532 P.2d 1247], for example, our court explained the 1966 revision of section 16(c), which resulted in the present provision, in the following terms: “[T]he effect of the 1966 revision was to eliminate the requirement that an election be held during the last year of an incumbent’s term if a vacancy accrues during that year, and to assure that the appointee will not have to stand for election until the general election two years hence.” (Italics added.) Similarly, in both Pollack v. Hamm (1970) 3 Cal.3d 264, 273 [90 Cal.Rptr. 181, 475 P.2d 213] and Fields v. Eu (1976) 18 Cal.3d 322, 326 [134 Cal.Rptr. 327, 556 P.2d 729], we expressly stated that under section 16(c) “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.” (Italics added.)

In the face of these uniform pronouncements, and without any supporting authority whatsoever, the majority conclude that section 16(c) should not be interpreted as written but instead should be read to draw a distinction between vacancies in a superior court office which occur early in the last year of a judge’s term, prior to the commencement of the electoral process, and vacancies that occur later, “at a time when another person has qualified as a candidate for the office.” {Ante, pp. 115-116.) With respect to the latter vacancies, the majority conclude that the constitutional provision should not be applied according to its terms, but should instead be read as compelling an immediate election. In Anderson v. Phillips, supra, however, our court explicitly recognized that section 16(c) “makes no distinctions between vacancies arising before or after a scheduled election... . ” (13 Cal.3d at p. 740.) The majority have apparently created the proposed distinction out of thin air.

The majority attempt to justify their novel reading of the provision by suggesting that a principal objective of section 16(c) is to require an election whenever the electoral process can feasibly be carried out. If that were the objective of the section, it would logically follow that an election should be held even when a vacancy occurs before the electoral process begins. The majority concede, however, that under such circumstances section 16(c) mandates a postponement of the election, in order to assure that the appointee has an adequate time to make a record before he must stand for election. Because the provision draws no distinction between those vacancies which occur before the electoral process begins and those vacancies which occur thereafter, the same rationale which justifies the postponement of an election in the former situation similarly calls for a postponement in the latter circumstance. (Cf. Barton v. Panish (1976) 18 Cal.3d 624, 629 [135 Cal.Rptr. 65, 557 P.2d 497].)

In sum, I believe the majority’s interpretation of section 16(c) is untenable in light of both the clear language of the provision and the uniform interpretation that such language has been given in numerous prior decisions of this court. I would deny the requested writ.