JOHN R. STANTON, Petitioner, v. LEONARD PANISH, as Registrar-Recorder, etc., et al., Respondents; EDMUND G. BROWN, JR., as Governor, etc., Real Party in Interest, 28 Cal. 3d 107

Opinion THE COURT. Leonard Panish, Registrar-Recorder of the County of Los Angeles, respondent herein, has announced his intention to remove Office No. 3 of the Los Angeles County Superior Court from the November 4, 1980, general election ballot, thereby cancelling the election scheduled for that office. In his opinion cancellation of the election is required by

section 16, subdivision (c) (hereinafter

section 16(c)) of

article VI of the California Constitution because the office became vacant on June 22, 1980, upon the resignation of the incumbent. Petitioner received the greatest number of votes, but less than a majority, in the June 1980 primary in which he was one of five candidates for the office, and therefore became a “run-off” candidate in the November 1980 general election. Petitioner seeks mandate to compel the respondent registrar-recorder to proceed with the election and to compel respondent March Fong Eu, the Secretary of State, to certify candidates for election and the results thereof.

He contends that in circumstances such as these, in which the six-year term of the incumbent judge is expiring, and the election process has commenced with the qualification of candidates to fill the office for the ensuing term prior to the accrual of the vacancy, the Constitution requires that the office be filled by completion of the election process rather than by an appointment under

section 16(c). We agree and direct the issuance of a peremptory writ of mandate. This dispute had its origin in a January 30, 1980, announcement by Judge Roy M. Brown, that he would not be a candidate for reelection to a new term, and would retire on June 21, 1980. His six-year term as the incumbent in Office No. 3 was to expire at the end of 1980. Petitioner with four others qualified as candidates for the office at the June 3, 1980, primary election, and with one other candidate for the November 4, 1980, run-off. On June 22, 1980, Judge Brown retired.

Respondent Panish then notified petitioner that Office No. 3 would not appear on the November ballot because, no candidate having been elected at the primary election,

section 16(

c) provides that the vacancy thereafter created by the retirement of Judge Brown is to be filled “by election to a full term at the next general election after the January 1 following the vacancy,...” A confirmatory letter from the Los Angeles County Counsel to petitioner advised that in counsel’s opinion this provision served to “void the upcoming November election for this office as a matter of law.” The letter recommended that petitioner examine our opinions in Anderson v. Phillips (1975) 13 Cal.3d 733 [119 Cal.Rptr. 879, 532 P.2d 1247], and Pollack v. Hamm, supra, 3 Cal. 3d 264, implying that respondent Panish relied on the

interpretation and application of

section 16(

c) in those cases. In our view that reliance was misplaced. Contrary to respondent’s suggestion, Pollack and Anderson reflect our recognition of a constitutional intent that unless there is express constitutional or statutory provision otherwise, and whenever possible, the succession of superior court judges shall be by popular election. Only if the electoral process cannot be carried out or a vacancy occurs prior to the qualification of a candidate or candidates for an office in the year in which an incumbent’s term expires, does

section 16(

c) permit the postponement of an election for a superior court office beyond the sixth year of a term. That

section does not compel cancellation of a scheduled election. It does no more than provide the means by which a vacancy is to be filled if the election cannot proceed, thereby authorizing the appointment of a judge to fill the vacancy until the elected judge takes office. We are led to the foregoing conclusion by the following reasoning:

Section 16, subdivision (b), commands: “Judges of other courts [than the Supreme Court and Court of Appeal] shall be elected in their counties or districts at general elections.”

Section 16(

c) supplements this constitutional directive with respect to superior courts, providing: “Terms of judges of superior courts are 6 years beginning the Monday after January 1 following their election. A vacancy shall be filled by election to a full term at the next general election after the January 1 following the vacancy, but the Governor shall appoint a person to fill the vacancy temporarily until the elected judge’s term begins.” In Pollack we noted that the intent of

section 16(

c) was that “an opportunity to pass on the qualifications of superior court judges will be available to the electorate no less often than every six years,” and we therein recognized our obligation to construe the provision so as to effectuate that intent. (3 Cal.3d 264, 273.) In Pollack we further considered a situation created by the resignation of an incumbent superior court judge. The Pollack vacancy was filled by appointment in December 1969, the year before a general election was to be held.

Section 16(

c) therefore mandated that an election be held for that office in 1970. The appointee and one other candidate qualified to run for the office in the June primary election. The appointee/candidate died prior to the primary, but after the date by which additional candidates might have qualified. The Governor appointed a second person to the vacant office before the primary election. The new appointee, arguing that he had been appointed to fill a new vacancy, sought to have the 1970 election cancelled on the ground that

section 16(

c) precluded an election prior to the general election following January 1, 1971. We rejected that claim because the “vacancy” to which

section 16(

c) referred could be found to be a single vacancy arising upon the incumbent’s resignation and continuing until an elected successor took office. By that construction we effectuated the intent of

section 16(c), thereby insuring “that the only circumstances in which an election may be postponed beyond the sixth year of the elected incumbent’s term will be those in which it is impossible to carry out the full elective process.” (3 Cal.3d at p. 273.) Our Pollack observation that under this

interpretation of

section 16(

c) more than six years might elapse between elections if a vacancy arose during the year of expiration of an elected incumbent’s term, did not constitute a broad holding that the

section precluded an election in all cases in which a vacancy occurs during the final year of an incumbent’s term. Rather, the history of

section 16(

c) demonstrates that when a vacancy occurs in the last year of the term of an incumbent superior court judge at a time when the full elective process can be conducted, an election for the office shall be held except in those cases in which the vacancy arises and an appointee assumes the office prior to the qualification of one or more persons as candidates for that office. This history, which we discussed at length in both Pollack v. Hamm, supra, 3 Cal. 3d 264, 270-273, and again in Anderson v. Phillips, supra, 13 Cal.3d 733, 739, confirms that the purpose of the drafters of the second sentence of

section 16(

c) was not to cause an already scheduled election to be can-celled. The provision was intended only to relieve an appointee to a vacancy arising early in the last year of an incumbent’s term, and who assumes office before other potential candidates have qualified, from the burden of standing for election immediately thereafter. Until

section 16(

c) was adopted in 1966, former

section 8 of

article VI had specified that “if the term of an incumbent, elective or appointive, is expiring at the close of the year of a general state election and a vacancy accrues after the commencement of that year and prior to the commencement of the ensuing term, the election to fill the office for the ensuing full term shall be held in the closing year of the expiring term in the same manner and with the same effect as though such vacancy had not accrued.” Because the “general state election” at which judicial offices are first placed on the ballot is the primary election (Pollack v.

Hamm, supra, 3 Cal.3d 264, 268, fn. 3) this provision had the effect of forcing appointees to such vacancies who assumed office prior to a scheduled election and were not already candidates to attempt immediately to qualify and seek election if they wished to retain the office beyond the end of that year. The general rule, to which this part of former

section 8 was an exception, was that an appointee need not stand for election in the year of the accrual of the vacancy. (Barber v. Blue (1966) 65 Cal.2d 185, 187 [52 Cal.Rptr. 865, 417 P.2d 401].) After we noted in Barber that this exception was operative, only during the early part of the year, the drafters of the 1966 constitutional revisions eliminated it from the proposed successor amendment,

section 16(c). The purpose of that change, however, was solely to relieve appointees who assumed office prior to a scheduled election, but in time to qualify for inclusion on the ballot, of the need to stand for election. We find no intent to deprive the electorate of an opportunity to fill the office in situations in which the vacancy accrued after the date on which a candidate for the office had qualified for inclusion on the ballot. Our holding in Fields v. Eu (1976) 18 Cal.3d 322, 326 [134 Cal.Rptr. 367, 556 P.2d 729], is not contrary. Although in summarizing the usual operation of

section 16(

c) we observed in Fields that “if the vacancy arises at any time in an election year, the office will not be placed on the ballot until the next election year, i.e., two years later,” we were not therein presented with the issue before us. The sole question in Fields was how

section 16(

c) operated with respect to newly created judicial offices, rather than the section’s application to vacancies arising in the last year of an incumbent’s term after the date on which one or more candidates have qualified and an election has been scheduled. In these latter situations the elective process must continue. Our

interpretation of the effect of the constitutional amendment is further supported by the following language in the declaration of Judge Bruce W. Sumner, the former chairman of the California Constitution Revision Commission under whose auspices

section 16(

c) was drafted: “The 1966 revision to

article VI, by which the current

Section 16(

c) was adopted, was proposed for the sole purpose of eliminating the requirement.. . that a judge appointed in the last year of the term of an office stand for election that same year. This was the only change which was discussed by the Commission and the only change which we considered....

The only change discussed in any of the hearings held by each house on the proposed amendment. . . was in the context of eliminating the requirement that an appointee stand for election to an office in the year of his appointment to that office.” While such evidence, of course, is not conclusive, it may be considered in the absence of evidence that the electorate may have had reason to understand the provision differently. (See Mosk v. Superior Court (1979) 25 Cal.3d 474, 495-496 [159 Cal.Rptr. 494, 601 P.2d 1030]; Friends of Mammoth v.

Board of Supervisors (1972) 8 Cal.3d 247, 257-258 [104 Cal.Rptr. 761, 502 P.2d 1049]; Tillie Lewis Foods, Inc. v. City of Pittsburg (1975) 52 Cal.App.3d 983, 1006-1007 [124 Cal.Rptr. 698].) Even in the absence of such evidence regarding the intended scope of

section 16(

c) we could not accept the

interpretation proposed by respondent Panish. To do so we would first have to assume that even though

section 16(

c) does not expressly conflict with

section 16, subdivision (b), in all cases in which a vacancy occurs during the final year of a term,

section 16(

c) overrides the right of the electorate to fill a superior court office by election at intervals of no more than six years. This

interpretation would be unreasonable. The right of suffrage, protected by

article II of the California Constitution, is a fundamental right “preservative of other basic civil and political rights.” (Reynolds v. Sims (1964) 377 U.S. 533, 562 [12 L.Ed.2d 506, 527, 84 S.Ct. 1362]; see also, Castro v. State of California (1970) 2 Cal.3d 223, 234 [85 Cal.Rptr. 20, 466 P.2d 244].) “Every reasonable presumption and

interpretation is to be indulged in favor of the right of the people to exercise the elective process.” (Hedlund v. Davis (1956) 47 Cal.2d 75, 81 [301 P.2d 843].) When, as here, language that appears unambiguous on its face is shown to have a latent ambiguity, customary rules of construction also support our conclusion. Constitutional provisions, like statutes, must be harmonized to avoid conflict (Serrano v. Priest (1971) 5 Cal.3d 584, 596 [96 Cal.Rptr. 601, 487 P.2d 1241]) and construed to avoid absurd and unfair consequences (Amador Valley Joint Union High Sch. Dist. v.

State Bd. of Equalization (1978) 22 Cal.3d 208, 245 [149 Cal.Rptr. 239, 583 P.2d 1281]; Fields v. Eu, supra, 18 Cal.3d 322, 328). Our

interpretation of

section 16(

c) at once gives the greatest possible effect to

section 16, subdivision (b), and avoids the absurd and unfair result which would follow if the

section were interpreted to compel cancellation of scheduled elections. Were respondents’

interpretation adopted, a retiring incumbent dissatisfied with the candidates for, or the outcome of, a contest for the office could cause an election to be cancelled by an appropriately timed resignation. Even in cases such as this where no such motivation impelled the retirement of the incumbent, the potential unfairness is manifest to those candidates who have expended the considerable time and resources necessary in a contested election. We cannot accept such an

interpretation as being either consistent with the intent of the voters who adopted

section 16(

c) or compelled by its language or history. We therefore conclude that the resignation or retirement of an incumbent superior court judge during the final year of his term, at a time when another person has qualified as a candidate for the office, does not compel cancellation of the scheduled election for that office.

Let a peremptory writ of mandate issue directing respondent registrar-recorder to include the candidates qualified for Office No. 3 of the Los Angeles County Superior Court on the ballot for the November 4, 1980, general election and to accept candidates’ statements, and directing respondent Secretary of State to certify Office No. 3 and the candidates therefor for inclusion on the ballot for that election. Each party shall bear his or her own fees and costs incurred in connection with this proceeding. Petitioner’s request for an award of attorney’s fees pursuant to Code of Civil Procedure

section 1021.5 is denied. The judgment is final forthwith. Although the new term does not commence until January 5, 1981, a superior court term is said to expire at the end of the year before which the elected successor is to take office. (See Cal. Const., art. VI, § 16, subd. (c); Pollack v. Hamm (1970) 3 Cal.3d 264, 273, fn. 6 [90 Cal.Rptr. 181, 475 P.2d 213].) There are, of course, alternative methods by which a candidate may qualify to run for a superior court office. (See, e.g., Elec.

Code, §§ 25301, 25304, 25305.) If a vacancy occurs during the last year of an incumbent’s term after the elective process had commenced by the qualification of any candidate, including an unopposed incumbent who need not appear on the ballot (Elec. Code, § 25304) that process must continue. Only if no election can be held because no candidate has qualified for the primary or general election does the appointment provision of

section 16(

c) operate to authorize an appointment for a period extending beyond the date on which the incumbent’s term expires.