Keane v. Smith

485 P.2d 261, 4 Cal. 3d 932, 95 Cal. Rptr. 197, 1971 Cal. LEXIS 370
CourtCalifornia Supreme Court
DecidedMay 25, 1971
DocketSac. 7889
StatusPublished
Cited by38 cases

This text of 485 P.2d 261 (Keane v. Smith) is published on Counsel Stack Legal Research, covering California Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Keane v. Smith, 485 P.2d 261, 4 Cal. 3d 932, 95 Cal. Rptr. 197, 1971 Cal. LEXIS 370 (Cal. 1971).

Opinion

Opinion

THE COURT.

In this election contest involving the office of Judge of the Superior Court in and for the County of Sierra, defendant Gordon I. Smith appeals from a judgment declaring that at the primary election held on June 2, 1970, he and plaintiff John F. Keane each received 621 votes for such office and ordering that (1) the declaration of election made in favor of, and the certificate of election issued to defendant, be annulled and (2) the names of plaintiff and defendant appear as candidates for such judicial office on the November 1970 general election ballot. As we explain infra, we have concluded that the trial court correctly determined the election contest. We affirm the judgment.

Plaintiff Keane, the incumbent judge, and defendant Smith, the incumbent district attorney-public administrator, were the only candidates for the office of superior court judge in Sierra County listed on the ballot in the primary election held in that county on June 2, 1970. The office of district attorney and public administrator, vacated by Smith, was also to-be filled at the same primary, but there were no declared candidates and no names were listed on the ballot for that office.

The official canvass of all precincts in the county pursuant to section 18460 et seq. of the Elections Code 1 and of all the absentee ballots pursuant to section 18200 et seq. resulted in a tabulation of 632 votes for defendant Smith and 618 votes for plaintiff Keane. The latter filed the instant contest pursuant to section 20000 et seq. and the votes were recounted. The trial *935 court announced the official results of the recount as 630 votes for Smith and 622 votes for Keane; however, it reserved its final decision as to 10 of the votes included in that tally until the parties had time to brief the issues presented. Of the 10 challenged votes, 9 were for Smith and 1 was for Keane.

After considering the arguments raised by the parties, the trial court concluded that all 10 votes were improperly counted. It found that the one vote for Keane should not have been counted because it “was not marked by the rubber stamp required by Section 14415 of the Elections Code. ...” Each of the other nine challenged ballots, originally counted for Smith, contained an “X” opposite his name, printed on the ballot as a candidate for judge. In addition, on each of these ballots, the voter had written in Smith’s name as a candidate for district attorney-public administrator. Finding that by reason of these acts, as to each of the nine ballots, it was impossible to determine the voter’s choice for the office of superior court judge, the trial court concluded that the nine ballots could not properly be counted for Smith. (§ 17072, subd. (c). 2 ) It, therefore, declared that each candidate had received a total of 621 votes, that neither had been elected, and that both should stand for election in November.

Both parties appealed. However, the parties stipulated in writing that the appeals should not stay the court’s order placing their names as candidates for the office on the ballot for the November 1970 general election without waiver of any of their rights. At the general election Keane received a substantial majority of the votes, and thereafter dismissed his appeal without prejudice. Thus, we are concerned solely with the appeal of defendant Smith, who contends that the nine votes for him which the trial court rejected were properly cast and should have been counted.

We must first consider Keane’s contention that the judgment is not appealable. Under the provisions of the Elections Code, any judgment in an election contest is appealable, except one in a primary election contest involving a simple recount. (§ 203 74.) 3 Thus, the instant appeal is properly before us unless it is shown that for the purposes of this appeal (a) the June election was a primary election, and (b) the election contest involved only a simple recount. Keane has not demonstrated either of these propositions.

We first consider whether Smith has appealed a primary election contest. *936 In Immel v. Langley (1959) 52 Cal.2d 104 [338 P.2d 385] we held that section 23á of article II of the California Constitution 4 "is self-executing, and its effect, when applicable, is to transmute the primary election into a general election as to the nonpartisan offices to which it relates. [Citations.] In order for a primary election to have the effect of a general election, however, the constitutional provision quoted above requires that a candidate for a nonpartisan office shall receive votes on a majority of all the ballots cast, and where, as here, there is a tie vote, the section does not operate to change the primary election into a general election.” (Id. at p. 106.) We also held that since the trial court found a tie vote, it should have ordered that the names of both candidates be listed on the ballot at the general election.

The determination in the instant case as to whether or not the June primary election was “transmuted” into a general election is complicated by the fact that there were two tabulations of the vote at the primary. The first count, the official canvass, revealed that one candidate (Smith) had a majority of the votes. The recount before the court showed a tie vote. Consequently, the character of the election—whether primary or final— depends upon which count is seen as controlling.

Faced with a similar factual situation, we held in Immel that the results of the official canvass are determinative. Thus, we stated: “This proceeding was properly brought under section 8511 of the Elections Code [now § 20021].[ 5 ] which enumerates the grounds for the contest of a general election, since it then appeared from the canvass of votes that Langley had been elected at the primary. The character of the suit did not change when the recount showed that neither of the candidates had received a majority vote, and the contestors were entitled to appeal under section 8575 of the Elections Code [now § 20115],[ 6 ] which provides that a party aggrieved in a contest based on section 8511 may appeal from the judgment.” (Italics added.) (52 Cal.2d atp. 107.)

*937 Applying this reasoning to the present case, we conclude that since the official canvass indicated that Smith had received a majority of the votes cast, for purposes of appeal the primary election was “transmuted” into a general election as to the office of superior court judge and the contest should be treated as a contest of a general election. We hold that the judgment is appealable under section 20115.

In addition, we observe that even were we to assume arguendo that the election remained for all purposes a primary election, the judgment would still be appealable.

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Bluebook (online)
485 P.2d 261, 4 Cal. 3d 932, 95 Cal. Rptr. 197, 1971 Cal. LEXIS 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keane-v-smith-cal-1971.