Barton v. Panish

California Supreme Court Dec 20, 1976 No. L.A. 30660Published

Before: Clark

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Holding. The court held that the 10-month limitation in Government Code section 71180, which prohibits the election of a successor to a judicial appointee within 10 months of the vacancy, applies even when the appointment occurs after the electoral process has commenced. Consequently, the Governor's appointment of a judge prior to the election effectively postpones the election for that office.

Issues

Whether the 10-month limitation in Government Code section 71180 applies to judicial appointments made after the electoral process has begun.
Whether Government Code section 71180 unconstitutionally abridges the right to vote.

Disposition. denied

Quotations verified verbatim against the opinion

“No successor to such appointee shall be elected at any election held within 10 months of the date of the occurrence of the vacancy.”

“Brown reasons that an appointment made at any time during the election process—the vacancy occurring within 10 months of the election—serves to postpone the election.”

“The 10-month limitation of section 71180 is absolute on its face, containing no exception for when the appointment occurs after close of the filing period.”

Opinion

CLARK, J.

Marilyn Sue Barton petitions for writ of mandate to compel Los Angeles County Registrar, Board of Supervisors, Clerk of the Board of Supervisors, and Secretary of State to certify the results of the 8 June 1976 primary election for Office No. 1 of the Los Cerritos Municipal Court. By leave of court, the Governor has been permitted to intervene.

Judge Roberta Butzbach was elected to the office with a term expiring 3 January .1977- Although she filed a timely notice of intention to stand for reelection, she subsequently determined to retire on 1 March 1976, not perfecting her candidacy. On 12 March, Irv Schleimer filed nomination papers and on 15 March, petitioner filed within the five-day extension allowed when an incumbent does not perfect candidacy.

On 1 April, the Secretary of State certified petitioner and Schleimer as candidates for the office. Each paid the $416.67 filing fee and incurred substantial campaign expenditures in both time and money.

On 4 May 1976, and after the sample ballots for the June election had been mailed, Governor Edmund G. Brown, Jr., appointed J. Kimball

[627]

Walker, real party in interest, to the office. He took his oath three days later and has performed the duties of office since then.

Petitioner received a majority of the votes cast at the election. However, respondents refused to certify the election results, claiming the election was void under Government Code section 71180.

Municipal judges are elected at general elections held in the even-numbered year before the current term expires. (Cal. Const., art. VI, § 16, subd. (b); art. XX, § 20.) Government Code section 71180 provides: “Any vacancy in the office of judge of a municipal court shall be filled by appointment by the Governor, but no vacancy shall be deemed to exist in any such office before the time fixed in Sections 71080, 71082, and 71083 for the selection of the judges of such court and the time fixed by law for their qualification. The appointee shall hold office for the remainder of the unexpired term of his predecessor and until his successor is elected and qualifies. [If] If the office to which any person so appointed was not previously occupied, he shall hold office until his successor is elected at the general state election next succeeding the occurrence of the vacancy and qualifies.

Barton v. Panish

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CLARK, J.

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