Zecher v. Cory

532 P.2d 1253, 13 Cal. 3d 743, 119 Cal. Rptr. 885, 1975 Cal. LEXIS 206

Opinions

Opinion

THE COURT

Petitioner, whom former Governor Reagan appointed on January 2, 1975, to a vacancy in an office of the Superior Court for Santa Clara County, seeks a writ of mandate to compel respondents, the Controllers respectively of the State of California and the County of Santa Clara, to pay her salary.¹ Mandate is the proper remedy. (California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593, 598 [116 Cal.Rptr. 361, 526 P.2d 513]; Sawyer v. Colgan (1894) 102 Cal. 283, 293 [36 P. 580, 834].) We have concluded that the peremptory writ should issue as prayed.

This dispute, like that in Anderson v. Phillips, ante, page 733 [119 Cal.Rptr. 879, 532 P.2d 1247], also filed today, involves the duration of a vacancy in a superior court office. The former incumbent of the office in dispute, Judge James B. Scott, was elected to a new term at the general election of June 4, 1974. His new term was to commence on January 6, 1975. (Cal. Const., art. VI, § 16, subd. (c).) Judge Scott vacated the office on December 13, 1974, however, when he became an Associate Justice of the Court of Appeal. He continued in the new office through January 6, 1975, and to the present. Petitioner contends on that basis that under the provisions of article VI, section 16, subdivision (c), the vacancy in the superior court office to which she was appointed continues until a judge elected in the 1976 general election qualifies and takes office on January 3, 1977. We agree.

We held today in Anderson v. Phillips, supra, ante, page 733, that under the express language of article VI, section 16, subdivision (c), a person appointed by the Governor to fill a vacancy in a superior court office is entitled to “fill the vacancy temporarily until the elected judge’s term begins,” and that if an incumbent who has been elected to succeed himself vacates the office by taking an incompatible oath, the term to which he had been elected does not come into existence. Thus the vacancy in the superior court office to which petitioner was appointed continues until a judge elected at the next general election assumes the office.

Let the peremptory writ of mandate issue as prayed.

Footnotes

1

The expense of the salary of a superior court judge is shared by the state and the county for which the judge is elected or appointed. (Gov. Code, § 68206.)