Dutcher v. Olson

[1191]Opinion

CROSBY, J. Incumbent Joanne Harrold was elected to the Municipal Court, West Orange County Judicial District, in June 1982. The election was nullified after trial of a suit brought by Dan Dutcher, among others, in which the superior court found Harrold violated section 29303 of the Elections Code by knowingly filing a false declaration of candidacy.1 The court ordered a new election between the defeated candidates, Dutcher and Ronald Nix, in the November 1982 General Election.2 But Dutcher and Nix, each of whom paid for candidate’s statements for distribution in the voter’s pamphlet for the June election, were advised by Registrar of Voters A. E. Olson they would not be entitled to candidate’s statements for the new election without prepaying the prorated costs3 or obtaining a superior court order to the contrary. Dutcher petitioned the superior court for relief and obtained a writ of mandate pursuant to section 10015,4 which ordered the registrar of voters to print and distribute candidate’s statements at no cost to Dutcher or Nix.

On appeal the county counsel argues a candidate might be entitled to a free statement only if the second election is required due to errors “directly attributable” to the registrar5 and contends the ruling in Pierce v. Harrold exonerates his office in this case. From these premises he concludes Dutcher and Nix must underwrite the second candidate’s statement. We believe this to be a non sequitur. The question is better posed as [1192]follows: As between the candidates and the county, who should bear the burden of attempting to recoup the expense of printing and distributing new statements for the second election from the party at fault? Although the county is “innocent,” we see little justice in rewarding a public service with a second billing.6

The June election was declared a nullity “in fact and in law.” {Pierce v. Harrold, supra, 138 Cal.App.3d 415, 434.) “Nullity” has been defined as “. . . an act or proceeding in a cause which the opposite party may treat as though it had not taken place, or which has absolutely no legal force or effect.” (Black’s Law Dict. (5th ed. 1979) p. 963, col. 1; italics added.) The practical and legal upshot of Pierce can be viewed as a finding the June election did not occur. But the candidates filed statements for distribution in that election and paid their pro rata share of the costs under section 10012, which required the county to include the statements in the voter’s pamphlet. It is of no consequence the statements actually appeared; distribution of candidate’s statements for an election which is not held through no fault of the candidates can hardly satisfy the registrar’s statutory duty under section 10012. In our view, the court’s order did not give Dutcher and Nix anything in the November election they were not already entitled to receive. That a promissor is prevented from rendering effective performance by the acts of a third party does not relieve the obligation where it is still possible to perform.