Osborne v. LaFont

Opinion

FILES, P. J.

This election contest appeal raises the single question whether Government Code section 71701, requiring that a justice court judge “shall at the time of his selection be a resident of the county,” repealed by implication the provision in Government Code section 71140 that judges of a justice court “shall be residents eligible to vote in the judicial district. . . .for a period of at least 54 days . . . .” We have concluded that section 71701 controls, and that an attorney who does not reside in the district may be selected if he resides in the county.

At the June 8, 1976, election in the Catalina Judicial District of Los Angeles County defendant Robert LaFont received a majority of the votes cast for the office of judge. The incumbent, contestant Wm. Bryan Osborne, received the second highest number of votes. Contestant then fcommenced this proceeding in the superior court. As his ground of contest, contestant alleged that defendant was ineligible for the office in that he had not been a resident of the judicial district for a period of 54 days prior to June 8, 1976. The superior court granted the motion of defendant LaFont for judgment on the pleadings and gave judgment for defendants upon the ground that the contestant had not stated a ground of contest. From that judgment, contestant has appealed.

[877]

The requirement of residency in the judicial district, as set forth in Government Code section 71140, was in effect for many years prior to 1975T

On August 14, 1974, the California Supreme Court handed down its opinion in

Gordon

v.

Justice Court,

12 Cal.3d 323 [115 Cal.Rptr. 632, 525 P.2d 72], holding that, in criminal cases in which the defendant was charged with an offense carrying a possible jail sentence, the use of a nonattomey judge was a violation of due process of law unless the defendant consented thereto. At the time that opinion was filed there were in California 127 single-judge justice courts presided over by nonattorney judges.

To meet the conditions which would arise when the