In the beginning, California had no municipal court system. 

Art. VI, §1 of the state Constitution was amended by voters on Nov. 4, 1924 to vest judicial powers in "such municipal courts as may be established in any city or city and county...." However, no reference to these new courts was added to the provision on the timing of Superior Court elections (Art. VI, §6). Through the years, the state constitutional provision has undergone various alterations -- it’s now Art. VI, §16(c) -- but has remained confined to elections to the upper trial bench, while the timing of Municipal Court elections has been governed by statutes. 

Government Code §§71145 and 71180 are the statutes: 
 

A crucial difference from the scheme relating to Superior Court elections is at once apparent: an appointee to a Municipal Court vacancy fills out the unexpired term of the predecessor, rather than the office being placed on the ballot at the next election, except that the Municipal Court appointee will not have to stand for election for at least 10 months after the vacancy to which he or she is appointed arose.

Donnellan v. Hite (1956) 139 Cal.App.2d 43 

HOLDING: Where a Municipal Court seat is newly created, it may not be on the next primary-election ballot if that election takes place less than 10 months after the creation of the vacancy.

The Los Angeles County registrar of voters intended to put the office to which Donnellan had been appointed on the June, 5 1956 primary ballot. Donnellan sought a writ in the Court of Appeal to prevent the registrar from doing so. 

He relied on Government Code §71180, appearing in the box to the right. He reasoned that he was an appointee to a new post; he was entitled to keep the office until his successor was elected; under the code section, no successor "shall be elected at any election held within 10 months of the date of the occurrence of the vacancy"; and June 5-- the date of the primary election -- was only nine months from the time the office came into existence. 

As the registrar-recorder apparently viewed it, the vacancy occurred on Sept. 7, 1955; the next general election was to take place in November, 1956, 14 months in the future; 14 months is greater than 10 months; the circumstance set forth in the final sentence of §71180, which would create a postponement of the election, was not present; the election must take place in 1956. 

The Court of Appeal sided with Donnellan. 

The gist of its view was this: if a candidate for the Municipal Court wins the primary, that candidate wins the office, so that the primary election has the same effect as a victory in the general election, and must be considered a general election. Here’s how Acting Justice John Nourse put it (at 46-47): 

It is apparent from a reading of the last...sentence of...[§71180] that it contemplates that no general election, as distinguished from a nominating election, shall be held within 10 months of the creation of the vacancy for the purpose of electing a successor to a person appointed to that vacancy. Since the adoption of section 2¾ of article II of the Constitution the primary election has been, in legal effect, insofar as nonpartisan offices are concerned, a general as distinguished from a nominating election.... 

Under the provisions of section 2¾ of article II a candidate for a judicial or other nonpartisan office who secures a majority of the votes cast for that office at the primary election is elected. Experience has shown that in the large majority of cases a judicial office is filled at the primary election and these elections will, except in the unusual case of an office being created at an extra session of the Legislature in an uneven-numbered year, always be held within 10 months of the effective date of any act creating a new office of municipal judge.... 

It is not reasonable to suppose that when the Legislature said that a successor to an appointee to a vacancy such as that here should not be elected at any election held within 10 months of the date of the occurrence of the vacancy that it did not intend to include a primary election which is in legal effect a general election.

The registrar-recorder was ordered to omit the office from the June 5 primary election ballot. 
 
 

Brailsford v. Blue (1962) 57 Cal.2d 335 

HOLDING: Where an elected judge leaves office before the expiration of the term, and the vacancy is filled by the governor, no election for that office shall take place within 10 months of the creation of the vacancy; rather, the election will take place two years hence.

The county recorder indicated his intention to include Brailsford’s office on the June 5, 1962 ballot. Brailsford brought a writ proceeding in the California Supreme Court seeking to bar that action. A writ was granted, in an opinion by Justice Marshall F. McComb. 

Under Government Code §71180, McComb said, the office of a Municipal Court appointee will not go onto the ballot if the appointment was made less than 10 months before the election. Since Brailsford was appointed less than 10 months before the June 5, 1962 primary, McComb said, he would not be up for election until 1964. 

§71180, as it then read, would not appear, on its face, to have that effect. After declaring the governor would fill Municipal Court vacancies, it said: 

The appointee shall hold office for the remainder of the unexpired term of his predecessor and until his successor is elected and qualifies. 

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

McComb provided an answer. He pointed out that the predecessor statute, §9 of the Municipal and Justice Court Act, contained this language: 

Any person so appointed shall hold office for the remainder of the unexpired term of his predecessor and until his successor is elected and qualifies, except that 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 said vacancy and qualifies; provided, however, that no successor to a person appointed to fill a vacancy shall be elected at any election held within ten months of the date of the occurrence of said vacancy.

McComb reasoned (at 339): 

Section 9 of the Municipal and Justice Court Act, then, must be taken to mean that no successor to the Governor's appointee to fill any vacancy in the office of judge of a municipal court could be elected prior to the holding of a primary election more than 10 months from the inception of the vacancy.  

Section 2 of the Government Code provides, in substance, that no change in the law is intended by codification. As a result, the last three sentences of section 71180, as codified in 1953, must be given the same meaning as is found in the last sentence of section 9 of the Municipal and Justice Court Act.  

Parts of an amended statute not affected by the amendment will be given the same construction that they received before the amendment....Therefore, since the only change intended by the 1959 amendment to section 71180 of the Government Code was to delete therefrom any reference to judges of justice courts, the portion of section 71180 prohibiting any election within 10 months after the inception of the vacancy is controlling here. 

Among subsequent amendments to §71180 was the changing of the phrase "No successor to such appointee" to "No successor to the appointee," evidencing a legislative validation of the construction given the provision in Brailsford.

Campbell v. Hite (1962) 57 Cal.2d 484 

HOLDING: Where an appointee fills a Municipal Court vacancy in an office which was scheduled to be on the ballot in the next primary election, and where the vacancy was created less than 10 months before that election, Government Code §71180 applies, sparing the appointee of the need to face voters at the next election, notwithstanding that the appointee will remain in office beyond the expiration of the term of the judge originally elected to the office. 

Writing for a unanimous panel, Justice Marshall F. McComb sustained a demurrer to the writ petition, declaring that the registrar was right: they weren’t up for election, yet. 

McComb said (at 487): 

This is the sole question necessary for us to determine: In view of the provisions of the last sentence of section 71180 of the Government Code, should the above-mentioned judicial offices of the Municipal Court for the Los Angeles Judicial District be placed on the ballot at the primary election to be held June 5, 1962?  

No. The last sentence of section 71180 of the Government Code..., declaring that no successor to an appointee to any vacancy in the office of judge of a municipal court shall be elected at "any election" held within 10 months of the date of the vacancy, must be taken to mean that no successor to the Governor's appointee to fill such vacancy can be elected prior to the holding of a primary election more than 10 months from the inception of the vacancy.

Each of the five petitioners was an appointee to a seat originally held by a judge had been elected for a term expiring the first Monday after Jan. 1 of 1963 -- i.e., Jan. 7, 1963 -- and each of the judges was concerned that as of that date, "the office shall be deemed vacant." Providing assurance that the judges would not be job-hunting at that point, McComb said: 

The second sentence of section 71180 of the Government Code reads: "The appointee shall hold office for the remainder of the unexpired term of his predecessor and until his successor is elected and qualifies."  

The exception in section 71145 beginning with the word "but" is an exception to the provisions of that section only. It is not repeated in section 71180. Therefore, the term of office of each of the petitioners is for the term of his predecessor and until his successor is elected and qualifies. This construction determines petitioners' tenure in office between the end of the fixed terms of their predecessors and the next election.

Thus, the "office would be deemed vacant" under §71145 where the elected judge’s term has ended even though there is not a successor who is "elected and qualifies" -- as where both candidates in a run-off die prior to the election (no candidate elected) or the victor dies before taking office (doesn’t "qualify" by taking the oath of office). The term of an elected Municipal Court judge cannot be extended beyond six years. 

However, a judge appointed to fill a vacancy, pursuant to §71180, will remain in office beyond the expiration of the term of the judge originally elected to that office where 10 months have not elapsed between the creation of the vacancy and the primary. Ibid. 

Sec. 71145 is the section dealing with election of Municipal Court judges, while §71180 concerns appointed judges. 

HOLDING: Where a judge of the Municipal Court is reelected but leaves office before the new term commences, and a successor is appointed prior to the commencement of that term, the appointee is entitled to remain in office through the entirety of the new six-year term.

In 1966, the county clerk put Caldwell’s office on the ballot. The judge filed a petition for writ of mandate in the California Supreme Court to have the contest removed from the ballot. Caldwell contended that on Jan. 4, 1965, when Hartley failed to "qualify" for the office by taking the oath of office, a vacancy was created in the new six-year term to which Hartley had been elected. Brown appointed him to fill out the balance of that term -- i.e., appointed him to a six-year term -- rendering it improper to put the office on the 1966 ballot, he reasoned.  

The writ was granted in an opinion by Justice Stanley Mosk. 

The court held (at 116) that the new appointment in 1965 was "void," but that the appointment made in 1964 entitled Caldwell to a full six-year term. 

The conclusion that there was no appointment to make in 1965 sprang from an application of Campbell v. Hite, supra. Mosk explained (at 115): 

The determinative factor in that case was not that no new term of office would be created but that no vacancy would occur upon the expiration of the existing term. It was determined that the tenure of office of appointees is governed by Government Code section 71180, which provides without qualification that all appointees to the office of judge of a municipal court shall hold office not only for the fixed term but until their successors are elected and qualify.

Mosk declared (at 116): 

We have concluded that the appointment which petitioner received on January 4, 1965, was void. Government Code section 71180 empowers the Governor to make an appointment only to fill a vacancy. On that date no vacancy existed in the office held by petitioner nor was the office deemed to be vacant.

Zeroing in on the words, "term for which the incumbent has been elected," Mosk (at 116) identified the incumbent "as the person who has last been elected to a fixed term of office." Hartley, who had been elected to a new six-year commencing Jan. 4, 1965. He continued (at 117-18): 

In Adams v. Doyle (1903)..., 139 Cal. 678, 681, it was held that a person who has been elected may be deemed the incumbent even though he never qualifies for the office. (Accord, People v. Taylor (1881) 57 Cal. 620, 622.) Thus, the fact that Judge Hartley resigned prior to the commencement of the new term does not preclude this construction of the statute. Respondent argues that the term to which Judge Hartley was elected never came into existence because of his failure to qualify for office. In Boyd v. Huntington (1932) 215 Cal. 473, 479, it was said that the meaning of the words "term of office" is not governed by any uniform rule but must be determined by reference to other portions of the statutes in which they are found.... 

The statutory scheme for the election of municipal court judges is regrettably ambiguous, but we have concluded that Government Code section 71141, read in the context of other relevant sections of the code, should be construed to provide that the term of office of such judges runs for a fixed period and is unaffected by the fact that the person elected to the term may fail to qualify for office or may resign prior to the expiration of the term. Government Code section 71145 provides that the term of office of judges of the municipal and justice courts is six years from and including the first Monday of January after the January 1st next succeeding their election, and that the office "shall be deemed to be vacant upon the expiration of the fixed term for the purpose of selecting a successor." (Italics added.) This language suggests that the term relates to the office and not to the tenure of the person who has been elected, which might terminate prior to the expiration of this period....

The language of Government Code section 71180...also suggests that in the absence of some specific statutory exception, elections for the office of municipal court judge are to be held at fixed intervals. This section does not itself define the term of appointees but instead provides that an appointee shall hold office for the remainder of the unexpired term of his predecessor. Thus, it is clear that the resignation of the predecessor does not cause the term to expire. The only exception to this rule relates to appointees to offices which have not previously been occupied, that is, judicial positions newly created by the Legislature. Such appointees are to hold office only until a successor is elected at the general election next succeeding the occurrence of the vacancy, and qualifies. The office held by petitioner was previously occupied by Judge Hartley and, therefore, this exception is inapposite to the case at hand.  

The provisions of Government Code section 71180 contrast sharply with those relating to the terms of office of persons appointed as judge of the superior court (Cal. Const., art. VI, § 8)....Such appointees are entitled to hold office only until their successors are elected at the next election which would have been held had the vacancy not occurred or at the next general state election after the first day of January next succeeding the creation of the vacancy, whichever occurs first, and qualifies. Thus, it has been held that an appointment to the office of superior court judge results in the premature expiration of the term of office of the predecessor of the appointee and the creation of a new term of office subsequent to the prescribed election....The failure of the Legislature to include comparable provisions in Government Code section 71180 cannot be ignored.

Brown v. Hite (1966) 64 Cal.2d 120  

HOLDING: Where a Municipal Court judge is elected to a new six-year term, but leaves office before the new term commences, the person who is appointed to fill the vacancy will not face voters until the year prior to the end of the new six-year term. However, where an incumbent is unopposed in the primary, but retires prior to the deadline for filing notice that a write-in campaign would be attempted at the November election, that incumbent may not be deemed to have been reelected, and the person appointed to fill the vacancy will face voter in the election two years hence.  
 

Each of their predecessors had been up for election in June, 1964 and had been unopposed. Each left office before his new term commenced on Jan. 5, 1967. Six of them were elevated by Gov. Edmund Brown Sr. to the Superior Court, and one received a disability retirement. 

Brown appointed each of the successors in 1964 to fill the unexpired term of his predecessor, and in January, he appointed each to a full six-year term. 

At issue was an interpretation of Government Code §71141, which provides, in relevant part: "Judges of the municipal court...shall be elected at the general state election next preceding the expiration of the term for which the incumbent has been elected." 

Four of the petitioners were entitled to relief, and two weren’t, Justice Stanley Mosk said in an opinion for a unanimous court. 

Los Angeles Municipal Court Judge Philip Saeta and Antelope Municipal Court Judge William J. Wright were successors to judges who had been unopposed at the June primary and resigned from office following the November, 1964 general election. Under Caldwell v. Bruning (1966) 64 Cal.2d 111, decided that same day, each was entitled to a full six-year term, Mosk said. 

Los Angeles Municipal Court Judges James Harvey Brown, Joseph Grillo, Thomas Higgins, and David Mohr also been unopposed in June. However, that, in itself, did not mean that they were elected to new terms, Mosk said, pointing out that write-in campaigns could have been launched against them in the November election. The deadline, under Elections Code §25304, for filing a petition indicating that a write-in campaign would be conducted was 45 days before the general election. 

Inasmuch as the predecessors of Brown and Higgins resigned later, the period had expired for filing such a petition, Mosk wrote, declaring that the predecessors must be deemed to have been elected and the successors stand in their shoes for six years. 

The predecessors of Grillo and Mohr, on the other hand, resigned more than 45 days before the general election. "Therefore, at the time of their resignations the substantive portion of the elective process was incomplete and it would seem that they cannot be deemed to have been elected to new terms of office," Mosk said (at 127). 

Mosk was faced with a quandary. When would Grillo and Mohr be up for election? Under Government Code §71180, each was entitled to "hold office for the remainder of the unexpired term of his predecessor and until his successor is elected and qualifies." But the unexpired term of the predecessor had lapsed. They would hold office until the successor were "elected and qualifies," but the section provides no guidance as to when that would be. 

Mosk reasoned (at 128): 

Since [the predecessors] Judges [Mario] Clinco and [Edmund] Cooke were not elected to new terms of office, and since no new term was automatically created upon the expiration of the existing term, it is difficult to determine from the language of Government Code section 71141 when the next election for these offices should be held. This section defines the time of election in relation to the date at which the current term expires, and it would seem that no such fixed term exists. At the present time petitioners Grillo and Mohr have no fixed tenure but are entitled to remain in office for an undetermined period terminating upon the election and qualification of their successors.  

A similar problem was discussed in Campbell v. Hite.... In Campbell, the petitioners had been appointed to the municipal court within 10 months of the election scheduled to be held in 1962. The court concluded that an election in 1962 was precluded by Government Code section 71180, and held that in these circumstances the successors to the petitioners should be elected at the next general election. This decision would appear to be apposite in determining the time of election of petitioners Grillo and Mohr. No election was held for the offices occupied by these petitioners in 1964 and thus Campbell v. Hite, supra, suggests that an election should be conducted in 1966.  

We recognize that Government Code section 71141 contains no explicit provision authorizing an election at that time, for the 1966 election can, under no interpretation, be described as the election next preceding the expiration of a term. However, in the absence of any statute dealing with the time of election in cases in which no term of office exists, we believe that this section should be construed as authorizing an election at the next succeeding general election in cases in which for some reason an election is not held on the regularly scheduled date.

Mosk offered these perceptions (at 129): 

It is apparent that the statutes dealing with the election of municipal court judges are neither simple nor unambiguous. In individual cases they may produce arbitrary results; an individual appointed on a given day may be required to stand for election within a relatively short period of time whereas another person appointed on the following day may remain in office for a full six-year term or longer. This anomaly could be avoided by requiring all appointees to stand for election within a specified period of time. However, the Legislature has provided otherwise, and it is beyond the powers of this court to do more than construe the statutes as they have been enacted. 

HOLDING: The retirement of a Municipal Court judge in the year that judge's seat is up for election, after the qualification of candidates for the seat and before the primary, will result in the cancellation of the election upon the appointment by the governor of the judge's successor. [Subsequently abrogated by statute.]

A Los Cerritos Municipal Court judge who was up for election in 1976 retired March 1 of that year. Marilyn Sue Barton and Irv Schleimer became candidates in the June 8, 1976 primary election for her office. On May 4, Gov. Edmund Brown, Jr., appointed J. Kimball Walker to the vacancy. Barton received a majority of the votes and brought a writ petition in the California Supreme Court to establish her entitlement to take office in January. The California Supreme Court, in a unanimous opinion by Justice William Clark, denied relief. 

Clark relied upon the Government Code §71180’s proviso that when an appointee fills a Municipal Court vacancy, "[n]o successor to such appointee shall be elected at any election held within 10 months of the date of the occurrence of the vacancy." 

Barton argued that the 10-month proviso should be held inapplicable where the election process is already underway. Otherwise, she asserted, an unreasonable result would be reached. 

Clark responded (at 629): 

While the Governor's ability to appoint up to election day, and thus to postpone the election, will tend to discourage potential candidates from seeking vacant offices, the Legislature could reasonably determine the 10-month limitation serves a valid public purpose. The provision is no doubt designed to encourage qualified persons to accept municipal court appointments, assuring appointees an opportunity to show their judicial qualifications on the bench and permitting them to run for election thereafter. Unless the Governor's power to appoint during the period following close of nomination and before election is implemented by postponing the election, appointees during that period would be unable to run for the office. It might be very difficult to find qualified attorneys willing to accept appointment, having to give up their law practices to serve for only a half year with no opportunity to be elected to office. The difficulty in filling vacancies from the spring of even numbered years to the end of the electoral process and the potential impairment of administration of justice in our municipal courts during that period may properly be viewed by the Legislature as justifying application of the 10-month limitation to judges appointed after commencement of the election process.

Barton sought to rely on Elections Code section 25305 (now §8204), which provided for a five-day extension for filing nominating papers when the incumbent does not perfect his or her candidacy. That section, she argued, evidences a legislative desire that once the election process starts, it not be interrupted. The contention was dismissed quickly. "The 10-month limitation comes into effect only if the Governor makes an appointment," Clark said (at 629). "Section 25305 does not deal with appointments." 

The jurist went on to say (at 630): 

Today's decision must both frustrate the electoral process and discourage potential candidates from running for office when an existing vacancy is subject to gubernatorial appointment prior to election. However, whether such interference with the electoral process is justified when weighed against the policy calling for able interim judges is a legislative question. 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. While consideration of the interests of both electorate and candidates may call for such exception by legislative intervention, the power of this court is to do no more than construe statutes as written.

Legislative intervention did come in 1980, as discussed in connection with the next case to be summarized.

Morrison v. Michael (1979) 98 Cal.App.3d 507 

HOLDING: The elevation of a Municipal Court judge in the year who is facing opposition in the primary election, after the qualification of candidates for the seat and before the primary, will result in the cancellation of the election upon the appointment by the governor of the judge's successor. [Subsequently abrogated by statute.]

Lawrence A. Truitt was a judge of the Eureka Municipal Court in Humboldt County. In 1978, he drew a challenge in the June 6 primary election from John R. Morrison. With the primary approaching, Gov. Edmund Brown Jr., who had appointed Truitt two years earlier, thwarted that challenge. He elevated Truitt to the Superior Court on May 11, and then proceeded to appoint District Attorney John Buffington to the Municipal Court vacancy. Truitt assumed his new office on May 22. 

Morrison outpolled Truitt in the primary, but the secretary of state declined to certify the results. Morrison sought a writ in the Superior Court, but it was denied, and he appealed. The First District Court of Appeal, in an opinion by Justice William Newsom, affirmed. 

Newsom (at 511) quoted Barton v. Panish, supra, at 630, for the proposition that "[t]he 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." 

The jurist had no difficulty in disposing of Morrison’s contention that here, as in Pollack v. Hamm (1970) 3 Cal.3d 264, the departure from office of an appointee, as opposed to an elective judge, merely reopens a vacancy and is not a new vacancy that will affect the timing of the election. Newsom pointed out that the state constitutional section under which Superior Court judges are appointed, Art. VI, §16(c), expressly provides that when a governor makes a Superior Court appointment, "the Governor shall appoint a person to fill the vacancy temporarily until the elected judge's term begins" In quoting that language, Newsom italicized the word "temporarily" and observed (at 511): 

In holding that appointment of petitioner -- the second appointee -- merely reopened the original vacancy and did not therefore operate to postpone the election, the court construed a constitutional provision which on its face applies to superior, not municipal, court judges, and is hence inapplicable to the present case. 

The Legislature had and has the undoubted power to enact parallel rules governing municipal and superior court elections, but has chosen not to do so.

The Legislature still has not chosen to enact parallel rules, rational though such an action would have been. However, it did choose in 1980 to abrogate the decisions in Barton and Morrison through an amendment to §71180. It placed the then-existing §71180 in subdivision (a), and added subdivision (b). That subdivision has undergone slight changes since 1980, including an additional paragraph being tacked onto the end in 1981. It provides that if a vacancy in the office that’s up for election occurs after the last day for filing declarations of candidacy and before the primary, the election will be put off until November. 

Morrison also maintained that Brown’s appointment of Buffington was void because at the time it was made, Truitt had not yet assumed his Superior Court post. After reviewing out-of-state authority, Newsom declared (at 514): 

We therefore hold that unless expressly forbidden by statute, the Governor is empowered to make an appointment to judicial office to fill an impending vacancy, provided he or she is still in office at the time vacancy occurs and the commission becomes effective.

Cathey v. Weissburd (1988) 202 Cal.App.3d 982 

HOLDING: The retirement of a Municipal Court judge in the year that judge's seat is up for election, after the qualification of candidates for the seat and before the Primary Election, will result in the postponement of the election to the seat until the November General Election, with the candidate attaining a plurality winning the election.

Los Angeles Municipal Court Commissioner Juelann Cathey and attorneys R. Thomas Wire and Barry J. Glanell were candidates in the June 7 primary election, competing for an open seat on the Los Angeles Municipal Court. Seeking another open seat in that election were Los Angeles Superior Court Commissioner Robert Zakon and Los Angeles Municipal Court Commissioner John Gunn. Gunn and Zakon each paid $21,000 to have their candidate statements published in the Voter’s Pamphlet. 

Shortly before the primary, the incumbents whose seats were up for election retired. The registrar recorder announced that, under Government Code §71180(b), votes cast for the candidates in the June election would not be counted and the election would be staged in November. 

Cathey, Gunn and Zakon brought writ proceedings in the Second District Court of Appeal to compel the registrar recorder to count the ballots and certify the results. Div. One of the appeals court issued its ruling on July 12, 1988. In a "By the Court" opinion, it rejected the petitioners’ contentions that §71180(b) failed to pass constitutional muster. 

The petitioners took the position that Municipal Court candidates were a cognizable class and that it offended the Equal Protection Clause to treat them differently from Superior Court candidates. (Under identical circumstances of a Superior Court incumbent retiring shortly before the election, the election process would go forward, under Stanton v. Panish, 1980) 28 Cal.3d 107.) 

"It is clear that the superior court and municipal court are separate and distinct and it does not violate the state Constitution to treat these courts differently," the court responded (at 986). 

The candidates also contended that their right to equal protection was breached because their contest would be determined by a plurality vote while most Municipal Court races are decided by a vote of the majority. Div. One replied (at 986):

The Constitution does not require election by majority vote. It should be noted that Elections Code section 54 provides that a plurality of votes in any election is sufficient to choose the officeholder unless otherwise directed in the Constitution. That some municipal court judges are elected by plurality and some by majority is justified by a compelling government interest to preclude a retiring judge from surreptitiously effecting that judge's replacement. (See Barton v. Panish (1976) 18 Cal.3d 624, 630.)

Gunn and Zakon had each expended $21,000 on the publication of a candidate statement, and the registrar recorder informed them the money would not be refunded. The appeals court commented (at 987): 

While it appears the Legislature did not anticipate fully the instant circumstances that have caused petitioners to have suffered monetary losses, it sought to relieve an obvious hardship by providing for a waiver of the filing fee for the November election for candidates who filed nomination papers for the June primary. (Gov. Code, §71180.) This waiver evidences an intent on the part of the Legislature to avoid penalizing candidates in petitioners' position. It follows that, in due course, the Legislature might well reduce further the burden to a candidate who, like petitioners, has paid for a candidate's statement for the June primary and is facing the very heavy expense of paying for another candidate's statement for the November general election. (See Elec. Code, §§10012, 10012.3, 10012.5.) However, we take judicial notice that, as the Legislature, under its rules, will not entertain new legislation prior to its next session, which commences in December, there is no opportunity for it to alleviate petitioners' financial burden relative to the cost of the candidate's statements. Therefore, we invite petitioners to seek relief from the Los Angeles County Board of Supervisors (Elec. Code, §10012) regarding the county's charge for candidate's statements for the general election as it appears that, at the very least, the expense to the county for duplicating the candidate's statements that were previously printed for the June primary election would be substantially less than the original cost.

 

COMMENT: That last paragraph is curious. The court almost takes the political position that the Legislature should provide for free candidate statements to contenders in the general election who paid for such statements in an aborted primary -- just as it has provided that there be no further filing fee -- or, at least, that it establish a reduced rate. Perhaps the vague language is a reflection of the wide divergence of the political philosophies of two of the members of the panel, Presiding Justice Vaino Spencer (liberal) and the late Justice L. Thaxton Hanson (conservative). (Also on the panel was Justice Reuben Ortega.)  Certainly the paragraph was unnecessary to a resolution of the issue before the court: whether the votes cast in the June primary should be counted. For whatever reason, the court felt compelled to suggest legislation (a suggestion the Legislature has not taken) to avoid "penalizing" candidates who, in the future, encountered the same plight as Gunn and Zakon. But what "penalty" was there? The office-seekers paid for candidate statements in the June primary. The county incurred the expense of mailing out the candidate statements that had been paid for. This was hardly a matter of retaining moneys that were unearned. As to Gunn, who went on to become a candidate in the November election (and won), the candidate statement was of value, lending to him exposure to voters, and consequent name recognition. As to Zakon, whose financial resources had been exhausted, the expenditure did prove to be of no value. Nonetheless, because he got what he paid for, there was no forfeiture, no penalty. The fruitless expense was, rather, a consequence of the incumbent retiring before the primary, and a consequence of an absurd statutory provision which creates a crap-game approach to judicial elections.  In running in the primary for Municipal Court open seats, candidates assume the risk of their funds having been wastefully expended in the event the incumbent retires prior to the election. §71180 is the statute governing the timing of Municipal Court elections which anyone entering such an election would be expected to consult. Hence, the actions of the candidates in putting down money for candidate statements were governed by the same axiom as that applicable to betting on the final destination of a small metal orb placed in a spinning wheel: "Ya pays your money and ya takes yer chances."  In the specific case of Gunn and Zakon, the first of the two to announce his candidacy was Gunn. The announcement came Jan. 8, 1988. At that time, it was public knowledge that Satt would retire on April 1. (See Metropolitan News, Jan. 8, 1988, p. 1, "Commissioner John Gunn to Seek Open Seat on Court He Now Serves.")   The county did not solicit advertising from Gunn and Zakon in the Voter’s Pamphlet. It did not deceive or entice the candidates in connection with taking their fees. It merely abided by the statutory duty to make the space available and to charge the candidates the actual pro rata cost of distributing their statements. Accordingly, the subsidizing of the distribution of their candidate statements in the November election (if the statements were distributed at no cost to the candidates) or the partial subsidization (if there were merely a price break) would be wholly inappropriate. The candidates’ blunder in running in the primary (if they did not know of §71180), or their gambling loss (if they counted either on Satt delaying his retirement or their writ proceeding succeeding) should not result in taxpayer funds being expended on advertisements for them in the Voters’ Pamphlet.  What makes the suggestion particularly unmeritorious is that it raises equal protection concerns that are as serious as those put forth by the petitioners in this case were frivolous. Gunn did have a candidate statement in the General Election. Official Sample Ballot and Voter Information, Los Angeles edition, p. 13. His opponent, Municipal Court Commissioner Gary A. Polinski, did not. Had Gunn been provided space in the Voter's Pamphlet in his race against Polinski at no cost or at a reduced rate, while Polinski would have to have paid for such space, there clearly would have been impermissibly disparate treatment.  The court gives advice to Gunn and Zakon to seek "relief" from the Board of Supervisors in connection with their statements in the November election because "at the very least" the cost of distribution would be less. The phraseology is vague, and might well be the product of comprise among the signatories to the opinion. If the cost of distribution were for any reason less, the amount charged to the candidates of necessity would be less since only the actual pro rata cost may be passed on to them. (Former Elections Code §10012, now §13307.) No "relief" would be necessary to achieve that reduction. To the extent the court would have the board go beyond "the very least" and provide full or partial subsidization of the costs of distributing the candidate statements, the suggestion -- which the board, to its credit, did not take -- would be infirm for the same reasons as the hinted-at state legislation.

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1. Currently, Art. II, §6 provides that judicial elections shall be nonpartisan. Elections Code §8140 declares: "Any candidate for a nonpartisan office who at a primary election receives votes on a majority of all the ballots cast for candidates for that office shall be elected to that office."   Return to text

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