McKesson v. Donaghue

147 P.2d 377, 23 Cal. 2d 821, 1944 Cal. LEXIS 202

• Court: California Supreme Court
• Decided: March 23, 1944
• Docket: S. F. No. 17011
• Status: Published

Opinions

CURTIS, J.

This is an original proceeding in mandamus to compel the respondent, as Registrar of Voters of the County of Los Angeles, to include on the ballot for the forthcoming consolidated primary election to be held on May 16, 1944, the petitioner’s name as a candidate for “Office No. 14 (unexpired term) ” of the Superior Court of the County of Los Angeles. The matter is submitted on petition and demurrer, and on. a stipulation waiving oral argument and permitting immediate disposition of the controversy.

The determination of this proceeding requires the construction and reconciliation of certain sections of the Elections Code so as to effectuate the legislative intent with respect to the nominating procedure to be followed in presenting to the electorate candidates for judicial office.

The petition sets forth the following facts: In August, 1943, the Honorable Benjamin J. Scheinman, a duly elected and qualified Judge of the Superior Court of the County of Los Angeles, entered the armed forces of the United States, and for several months last past he has been, and now is, absent from the state on ordered military service. This situation, under the doctrine of the case of People v. Sischo (1943), ante, p. 478 [144 P.2d 785], created a temporary vacancy in Judge Scheinman’s office, the term of which will expire on January 8, 1945. Pursuant to sections 2573 and 2574 of the Elections Code, the Secretary of State certified to the respondent on February 16, 1944, that the judicial offices in the county of Los Angeles to be filled at the election on May 16, 1944, were twenty superior court judgeships, each for a term of six years commencing January 9, 1945, and the single judgeship on said court for the unexpired term of Judge Scheinman. Accordingly, and as required by section 2575 of the Elections Code, the respondent published a notice of offices for which candidates were to be nominated or elected at the May 16th ■ election, and included in such listing was the temporary judicial vacancy on said superior court caused by Judge Scheinman’s military absence from the state and specified “Office No. 14 (unexpired term).”

On February 28, 1944, the Governor of this state appointed William B. McKesson, the petitioner herein, to fill the interim appointive portion of the term of Judge Scheinman, and on March 2, 1944, the petitioner duly qualified as Judge of the Superior Court of the County of Los Angeles. On March 7, 1944, a sponsors’ declaration of the candidacy of the petitioner for the remainder of the unexpired term was executed by the proper number of qualified sponsors (Elec. Code, sees. 2612-2617), a declaration of acceptance of the nomination was executed by the petitioner (Elec. Code, sec. 2618), and on that date (seventy days before the May 16th election, as prescribed by section 2621.5 of the Elections Code, enacted at the special session of the Legislature in January, 1944, and effective February 2, 1944), both documents, with the requisite filing fees, were delivered to the respondent. The respondent accepted these papers, but he has announced that he will take no further steps in the matter because the petitioner failed to file his declaration of intention to become a candidate for the judicial office mentioned. (Elec. Code, sees. 10600-10602.) Accordingly, unless this court directs the respondent to cause the petitioner’s name to be printed on the ballot for the May 16th election, he will not do so.

It is the petitioner’s position that sections 10600 to 10602 do not affect his situation because he is a candidate for judicial office by virtue of the filing of a sponsors’ declaration rather than a personal declaration of candidacy. The respondent, on the other hand, claims that said sections of the Elections Code apply to all candidates for judicial office, regardless of the form of nomination. In this argument the respondent is joined by Dailey S. Stafford, who on February 11, 1944, and within the time specified (secs. 10601-10601.5) filed his declaration of intention to become a candidate for the unexpired term of Judge Scheinman; and on March 2, 1944, he filed his personal nomination papers and paid the requisite filing fee. As such candidate said Dailey S. Stafford is a party whose interest will be directly affected by the outcome of this proceeding, and accordingly he has so identified himself herein. (Code Civ. Proc., sec. 1107.)

To be considered at the outset are the sections of the Elections Code the application of which constitutes the principal point of dispute between the parties:

Section 10600: “In any election at which two or more judges or justices of any court are to be voted for or elected for the same term, it shall be deemed that there are as many separate judicial offices to be filled as there are judges or justices of the court to be elected. Each separate office shall be designated by a distinguishing number not greater than the total number of offices. ...” (Emphasis added.) (Based on former Stats. 1927, ch. 316, p. 528.)

Section 10601: “Each candidate for a numerically designated judicial office, not more than ten nor less than five days prior to the first day on which his nomination papers may be circulated and signed, or not more than ten nor less than five days prior to the first day on which his nomination papers may be presented for filing, shall file in the office in which his nomination papers are required to be filed, a written and signed declaration of his intention to become a candidate for that office and shall state in his declaration for which of the numerically designated offices he intends to become a candidate.” (Emphasis added.) (Based on former Stats. 1927, ch. 316, p. 528.)

Section 10601.5: “Every candidate for a judicial office, not more than 10 or less than five days prior to the first day on which his nomination papers may be circulated and signed or may be presented for filing, shall file, in the office in which his nomination papers are required to be filed, a written and signed declaration of his intention to become a candidate for that office.” (Emphasis added.) (Added by Stats. 1941, ch. 1160, p. 2892, see. 1.)

Section 10602: “The numerically designated offices»shall be grouped and arranged on all ballots in numerical order. No person may be a candidate nor have his name printed upon any ballot as a candidate for any numerically designated office other than the one indicated by him in his declaration of intention to become a candidate.” (Emphasis added.) (Based on former Stats. 1927, ch. 316, p. 528.)

, In passing, it may be said that this legislation, affecting judicial offices only, is not open to objection as violative of the “uniformity” provisions of the state Constitution. (Art. I, see. 11; art. IV, sec. 25.) The distinction is a natural and reasonable one pursuant to the treatment of the judiciary as a separate class in article VI of the state Constitution, and these sections of the Elections Code unquestionably apply uniformly to all who fall within their purview. (See Steiger v. Collins, 215 Cal. 634 [12 P.2d 426]; Baertschiger v. Leffler, 36 Cal.App.2d 208, 213 [97 P.2d 501].)

Relating the present factual situation to the legislative plan embraced within the above-quoted sections, the petitioner first argues that the interim elective term which he seeks is not a “numerically designated office” and consequently the procedural requirements referable to a candidate therefor have no bearing here. He cites as prerequisites under section 10600 the following conditions: (1) “two or more judges” to be elected, and (2) “for the same term.” To illustrate his point of distinction he refers to the aforementioned listing of judicial offices in the county of Los Angeles to be filled at the May 16th election: twenty superior court judgeships, each for a six-year term commencing January 9, 1945, as contrasted to the single interim judgeship on the same court, with the term beginning May 16, 1944, and ending January 8, 1945—less than eight months. But, for the purposes of this opinion, it does not matter whether the petitioner is a candidate for a numerically or non-numerically designated office, for he undoubtedly is a “candidate for a judicial office” and would be required to file a preliminary “declaration of his intention” under section 10601.5, unless it appears that the sponsor method of candidacy would not reasonably comprehend such procedural step. In determining this critical point, of course, all pertinent sections of the Elections Code must be read together and construed in a manner consistent with their respective purposes.

It appears from said code that the Legislature intended to set up two systems for the nomination of candidates for office: (1) by personal declaration, and (2) by sponsors’ declaration. Thus, under section 2600 it was provided:

“No candidate’s name shall be printed on the ballot to be used at the direct primary unless a declaration of his candidacy is filed not less than 'sixty and not more than ninety days prior thereto.

“The declaration may be made by the candidate, or, on his behalf by sponsors of the candidate.

“When the declaration is made by sponsors the candidate’s affidavit of acceptance shall be filed with the declaration.” (Emphasis added.)

(The 60-day period was changed to 65 days for a limited period by section 2600.5, added at the special session of the Legislature in January, 1944, above mentioned.)

The petitioner contends that the efficient operation of the two forms of nomination established by the Legislature would not sustain the application of the provisions of either section 10601 or section 10601.5, supra, to the sponsor method, and that compliance with said sections was intended-to be incumbent only upon candidates for judicial office by virtue of personal declaration therefor. Upon analysis of the import of the pertinent sections herein and with due consideration for the purposes to be achieved by the two independent nominating procedures as provided, the petitioner’s position seems to accord with the legislative intent.

Under section 2600.5, supra, the earliest date on which the sponsors could have filed a declaration of candidacy for the petitioner was February 16, 1944—“90 days prior to the” May 16th election. As previously stated, such declaration and the petitioner’s affidavit in acceptance of the nomination were delivered to the respondent for filing on March 7, 1944—“70 days prior to the” May 16th election. (Sec. 2621.5, supra.) Turning to the pertinent time limitation of section 10601.5, supra, the requirement that the candidate shall file his declaration of intention “not more than 10 or less than five days prior to the first day on which his nomination papers . . . may be presented for filing” undoubtedly refers to “90 days prior to the” election. (Sec. 2600.5, supra.) Thus, to apply such provision here, it would have been necessary for the petitioner to have filed a declaration of his intention to become a candidate for the above-mentioned interim office sometime during the period between February 7 and February 11, inclusive, 1944. Section 2620 expressly authorizes the sponsor method of nomination for a “nonpartisan” office, and strict compliance with such independent method did not require that the petitioner’s nomination papers be executed and delivered to the respondent for filing until March 7, 1944, as in fact was done here—“70 days prior to the” May 16th election, although 25 days beyond the time allowed for the filing of a “declaration of his intention to become a candidate for” judicial office. It is not reasonable to assume that the Legislature intended to so emasculate the function of the independent sponsor system of nomination for judicial candidates.

The petitioner’s claim as to the Legislature’s intent to require the filihg of a “declaration of intention” only with respect to personal declarations of candidacy finds still further support when the time element in sections 10601 and 10601.5 is correlated with the sponsor concept of nomination for judicial office. As above noted, the time for the filing of nomination papers by sponsors is fixed at the earliest date of 90 days before the primary election. (Sec. 2600,5, supra.) Under the express terms of sections 10601 and 10601.5 the electors are provided with the opportunity of learning “not more than 10 or less than five days prior to” the earliest date authorized for the filing of nomination papers, the persons who, by the filing of their “declaration of intention,” aspire to judicial office. This five-day gap before nomination papers either by the candidate or sponsors may be filed must have been intended for some purpose, and its value becomes apparent in conjunction with the authorized sponsor procedure. (Secs. 2612, et seq.) Thus, in this time the electors, if not satisfied with those who have declared their intention to become candidates, may proceed to inquire into the qualifications of other persons and propose under the sponsor system someone whom they consider better fitted for the office in question. Such possible procedure demonstrates the beneficial purpose of the sponsor system, which should be allowed full scope of function with respect to judicial as well as other offices, in the absence of an express legislative declaration necessitating its rejection. Such interpretation of the preliminary requirement as to aspirants for judicial office under sections 10601 and 10601.5 gives effect to the purport of the statutory language and at the same time correlates the purpose of such advance procedural step with the independent sponsor method of nomination long-recognized by the Legislature as an equivalent means of proposing a candidate for public office. In this manner both divisions of the Elections Code, as here noted, may operate expeditiously and in harmony one with the other.

In this connection, it should here be noted that by the enactment of sections 10600-10602 the Legislature has clearly evidenced its intention that an aspirant for a numercially designated judicial office must “indicate” the particular office for which he is to be a candidate. Section 10602 requires that such indication must appear in the “declaration of intention” of one who personally declares his candidacy. In the case of a candidate nominated under the sponsor method, such indication should appear either in the sponsors’ declaration of candidacy or in the candidate’s acceptance of the nomination. Thus, full effect is given to the Legislature’s intent requiring particularity as to numerically designated judicial offices.

Still other considerations present themselves with respect to the propriety of limiting the provisions of sections 10601 and 10601.5 to candidates for judicial office by personal nomination. Under the express language of these sections, only candidates, not sponsors, may file the “declaration of intention.” If the candidate by sponsors’ nomination is required to file such preliminary “declaration of intention” and thus to indicate his purpose to become a candidate, then what would be the object in having his sponsors also file a declaration of his candidacy? Such duplication of procedural steps is not compatible with the independent function of the two systems of nomination authorized by the Legislature. (Sections 2600, 2600.5 supra.) Moreover, if sections 10601 and 10601.5 governed candidates by sponsors’ nomination, then when the sponsors would have authority to file their nominating papers—at the earliest “90 days prior to the” election—they could only present a candidate who had already declared his intention. Thus, the sponsors’ declaration of candidacy would be a superfluous action insofar as putting any new name before the public for office, and would serve simply to add some political prestige to a candidate already in the running. Such limited concept is not in accord with the essential purpose of the sponsor method of nomination, as above discussed, and it is not reasonable to conclude that the Legislature intended its function to be so restricted with respect to judicial offices. Bather the import of the sponsor system of nomination attains greater significance in relation to judicial offices when correlated with sections 10601 and 10601.5, as above indicated.

In opposition to the petitioner’s claim that he, as a candidate for a non-numerically designated office under the sponsors’ system of declaration, was not required to comply with section 10601.5, supra, the respondent relies principally upon the opening words of said section—“every candidate” •—as including “one put forward for election, whether with or against his own will; one put forward by others for an office; . . .” (29 C.J.S. 19, Elec.) He also argues that if said section is construed as not comprehending a person nominated as petitioner was here for the judicial office in question, then one late in declaring his intended candidacy, as prescribed, could still become a candidate under the sponsor system by securing sponsors to act on his behalf so as to relieve himself of the consequences of his default under section 10601.5. These points of argument are worthy of mention and have been considered, but they cannot prevail herein in view of other matters above recited as evincing the legislative intent to establish two nominating systems of independent force and effective operation to permit the electors to exercise the widest choice possible in presenting a list of qualified candidates for judicial office. In these circumstances section 10601.5, as here pertinent, must be interpreted in harmony with this fundamental observation. In thus holding that the petitioner, as a candidate by sponsor declaration, was not required to comply with said section 10601.5, it is clear that the validity of the filing of his nomination papers is not open to question and his name as a candidate for the judicial office here involved must be placed on the sample and official ballot at the forthcoming primary election.

Let a peremptory writ of mandate issue forthwith.

Gibson, C. J., Shenk, J., Carter, J., and Edmonds, J., concurred.