SAMUEL UNGER et al., Petitioners, v. THE SUPERIOR COURT OF THE CITY AND COUNTY OF SAN FRANCISCO, Respondent; REPUBLICAN PARTY OF CALIFORNIA et al., Real Parties in Interest, 37 Cal. 3d 612

Opinion MOSK, J. Under California law, a vacancy in the office of a justice of the Supreme Court is filled by appointment of the Governor. Thereafter, at a general election in which the appointee runs unopposed, the voter is asked whether the Governor’s appointment should be confirmed. (Cal. Const., art. VI, § 16.)

Section 6 of

article II (hereinafter

section 6) provides, “Judicial, school, county, and city offices shall be nonpartisan.” The issue in this proceeding is whether a political party and its governing body are prohibited by

section 6 from endorsing or otherwise supporting a campaign not to confirm justices of the Supreme Court at a general election. On March 9, 1982, petitioners, two registered voters, filed a petition for a writ of mandate in the superior court alleging that the Republican Party, its state central and executive committees, and two individuals had endorsed the “nonconfirmation” of three justices of the Supreme Court in the November 1982 General Election, and that they planned to use the assets of the party to further this goal. This conduct, according to the allegations, exceeded the powers of real parties in interest under

section 6 and sections 9276 and 9440 of the Elections Code. Petitioners sought to restrain real parties in interest from supporting the “nonconfirmation” campaign. The trial court sustained real parties in interests’ demurrer and entered an order of dismissal. Thereafter, petitioners, claiming that appeal from the trial court’s order was an inadequate remedy because of the impending election, filed this petition for a writ of mandate seeking to vacate the order.

The election at which the confirmation of the justices was unsuccessfully opposed by real parties in interest has taken place, and the relief sought by petitioners is therefore no longer available. However, we address their contentions because the issues raised are of general public interest and will likely recur in future elections. (Green v. Layton (1975) 14 Cal.3d 922, 925 [123 Cal.Rptr. 97, 538 P.2d 225]; Knoll v. Davidson (1974) 12 Cal.3d 335, 344 [116 Cal.Rptr. 97, 525 P.2d 1273]; Zeilenga v. Nelson (1971) 4 Cal.3d 716, 719-720 [94 Cal.Rptr. 602, 484 P.2d 578]; Board of Education v.

Watson (1966) 63 Cal.2d 829, 832 [48 Cal.Rptr. 481, 409 P.2d 481].) As we have seen,

section 6 does not refer to any specific conduct by a political party or its governing body; it merely declares the general principle that judicial, school, county and city offices shall be nonpartisan. In deciding whether the conduct which petitioners seek to enjoin in the present proceeding violates this principle of nonpartisanship, we look to the legislative background and purpose of

section 6, as well as to the historical role played by political parties in nonpartisan elections and in the conduct of party affairs. A consideration of these matters will lead us to the conclusion that

section 6 does not prohibit parties from endorsing, supporting, or opposing candidates for nonpartisan office. Early in the history of California, political parties were viewed as private associations, not subject to control by the Legislature in their selection of candidates for election. (Britton v. Board of Commrs. (1900) 129 Cal. 337, 340-341 [61 P. 1115]; People v. Cavanaugh (1896) 112 Cal. 674, 675-676 [44 P. 1057].) They were governed largely by custom and usage, and nominations for elective office were made by party conventions. (Spelling v. Brown (1898) 122 Cal. 277, 279 [55 P. 126]; Hutchinson v.

Brown (1898) 122 Cal. 139, 192-193 [54 P. 738].) In 1907, in Katz v. Fitzgerald, 152 Cal. 433, 435 [93 P. 112], it was recognized that the state had the power to regulate political parties, and when the direct primary law was enacted early in the century the Legislature exercised this power by regulating both party conventions and the method by which parties nominated candidates. (Stats. 1909, Ex.

Sess. 1907, ch. 405, §§ 2, 24, pp. 691, 706; Stats. 1911, ch. 398, §§ 2, 24, pp. 770, 788; Stats. 1913, ch. 690, §§ 2, 24, pp. 1381, 1405.) Today, the code contains numerous provisions concerning the organization and obligations of parties and their governing bodies. (Div. 7, § 8000 et seq.) However, such entities are not agencies of the state for all purposes, and, as a number of observers have commented, their governing bodies remain free to act on behalf of the party without specific legislative authorization. (59 Ops.Cal.Atty.Gen. 60, 62 (1976); 23 Ops.Cal.Atty.Gen. 119, 120 (1954); Friedman, Reflections Upon the Law of Political Parties (1956) 44 Cal.L.Rev. 65, 71.) Our focus, then, is not to decide whether political parties have legislative authority to support or oppose candidates for nonpartisan office, but whether there is any express restraint against such actions.

Of the various alternatives open to the Legislature in promoting the principles of nonpartisanship, it chose only to control the form of elections for nonpartisan office in various respects, and to impose a single restriction on the conduct of political parties.

In the former category are provisions stating that declarations of candidacy and other nomination papers for nonpartisan office may not refer to party affiliation (§ 6401.5), the name of the party to which a nonpartisan candidate belongs may not appear on the ballot, a voter may cast his ballot for a candidate for such an office without regard to party affiliation (§§ 10200.5, 10214), and partisan and nonpartisan offices are listed in separate columns of the ballot (§ 10207).

The only limitation on the conduct of political parties with respect to elections for nonpartisan office is that they may not nominate a candidate for such an office.

Section 37 defines “nonpartisan office” as “an office for which no party may nominate a candidate”; conversely,

section 36 defines a partisan office as one for which a party may nominate a candidate.

Section 37 goes on to provide, in language almost identical to

section 6, that “Judicial, school, county and municipal offices are nonpartisan offices.” Since there is no other restriction on the participation of political parties in elections for nonpartisan office, the inference is clear that no additional limitation was intended. Factors in addition to the absence of an express prohibition reinforce the conclusion that the Legislature did not intend to impose the restrictions asserted by petitioners.

The Legislature has granted broad discretion to county and state central committees (the governing bodies of political parties) to act on behalf of the party. (E.g., §§ 9443, 9276, 9440, 9272.) Obviously, the election of candidates whose views are perceived as being consistent with the principles espoused by the party would enhance the interests of the party. Moreover, it has been customary for the governing bodies of political parties to endorse or assist candidates in elections for nonpartisan office. (See Unger v.

Superior Court (1980) 102 Cal.App.3d 681, 684, and fn. 4 at pp. 684-685 [162 Cal.Rptr. 611]; Lee, The Politics of Nonpartisanship (1960) at pp. 102-104; 59 Ops.Cal.Atty.Gen. 60, supra, at pp. 64-65.) Surely, if the Legislature had intended to deny them such rights it has had ample opportunity to enact legislation to that end. Another indication that such a restriction was not intended is the passage in 1963 of

section 11702, which prohibits governing bodies of political parties from endorsing, supporting, or opposing any candidate for nomination by the party for partisan office in the primary election. The fact that there is no parallel limitation on endorsements for nonpartisan office raises a clear inference that the Legislature intended no such limitation. Thus, we conclude that the Legislature has not prohibited political parties from continuing their practice of endorsing and supporting candidates for nonpartisan office. Unless

section 6 expresses a contrary intent, real parties in interest must prevail in this proceeding. An analysis of the history of

section 6 demonstrates that it was not designed to place any greater restrictions on the conduct of political parties than those which were in existence prior to its enactment, i.e., a prohibition against nomination of candidates for nonpartisan office. The first mention of nonpartisan office in the Constitution appeared in 1926, when

article II,

section 2¾, was adopted. It provided that a candidate for judicial, school, county, township “or other nonpartisan office” was deemed elected if he received a majority of all the ballots cast for that office at the primary election. Then, as now, the Constitution did not define the term “nonpartisan office.” However, for many years before the adoption of

article II,

section 2%, the direct primary law contained provisions similar to the code requirements described above to promote the nonpartisan character of elections. Although there was no express prohibition against the nomination of candidates for nonpartisan office by political parties, the substance of these provisions (similar to the current provisions of the code regulating the form of nonpartisan elections) accomplished that result. (Stats. 1913, ch. 690, p. 1379.) It must have been intended, therefore, that the undefined term “nonpartisan office” as used in

article II,

section 2%, of the Constitution signified an office filled by an election nonpartisan in form, and for which a party could not nominate a candidate. Petitioners point to no evidence to the contrary.

Article II,

section 2¾, was deleted from the Constitution in 1972, and

section 5 of

article II, identical to

section 6, was substituted in its place. The proceedings of the Constitution Revision Commission as well as the ballot pamphlet presented to the voters in 1972 demonstrate that

section 2¾ was viewed as a guarantee that judicial and local offices were nonpartisan, and that no change in the meaning of the provision was intended by the change in the language, except that city offices were added to the list of nonpartisan offices, in recognition of existing practice.

Section 5 was renumbered

section 6, without change in language, in 1976. It is manifest from this analysis that

section 6 was not intended to impose restraints on the conduct of political parties greater than those that existed before its enactment by the voters in 1972 as

section 5. Since no prohibition against support of or opposition to nonpartisan candidates was in effect prior thereto, the conclusion follows that real parties in interest acted within their rights in taking a position on the confirmation of justices in the 1982 General Election. The only authority to the contrary is Unger v. Superior Court, supra, 102 Cal.App.3d 681 (hereinafter Unger I).

There, the Marin County Democratic Central Committee endorsed and planned to make financial contributions to four candidates for election to the nonpartisan office of the governing board of the Marin Community College District at the November 6, 1979, election. Petitioner, a candidate for the board who was not endorsed by the committee, sought to enjoin the committee’s action, claiming that it violated

section 6. The court, relying on a broad definition of the term “nonpartisan” in a dictionary, held that

section 6 prohibited the committee from supporting or opposing candidates to the governing board of the district. It is evident from what we say above that we must disapprove this holding. The opinion does not mention the legislative history of

section 6, nor does it recognize that there is no express prohibition in

section 6 or elsewhere in our statutes to prohibit the conduct in question. The court simply chose the broadest definition of “nonpartisan” among several offered in the dictionary upon which it relied. We consider one final argument made by petitioners. They assert that

section 6 prohibits the governing body of a political party from endorsing or supporting a candidate for office absent a prior “poll” of party members as to their preferences. We take this assertion to mean that a political party may not endorse a candidate before a primary election, since the only “poll” of party members of which we are aware is at the primary. We cannot approve this contention.

As we conclude above, the governing bodies of political parties may act on behalf of the party, except to the extent limited by law; there is no requirement that a “poll” be held before such a body may support or oppose a candidate for nonpartisan office. Petitioners rely primarily on an opinion of the Attorney General to bolster their claim that a “poll” is required. (23 Ops.Cal.Atty.Gen. 119, supra.) But this opinion addresses a different problem.

It declares that a county central committee may not lawfully endorse or support one of several competing candidates of the same party who oppose each other in a preprimary campaign. This prohibition is implied from statutes which the opinion interprets as designed to avoid interparty factionalism. We do not see how such a conclusion, based on avoiding conflict among members of the same party, provides support for petitioners’ assertion that political parties may not support or oppose candidates for nonpartisan office.

The opinion is, if anything, more favorable to the position of real parties in interest than to that of petitioners, for it recognizes the principle that the governing bodies of parties “possess the powers conferred upon them by party usage and of which the law has not deprived them.” {Id. at p. 120.) The prohibition implied in the cited opinion of the Attorney General against preprimary support of partisan candidates was later embodied in

section 11702; and as noted above {ante, fn. 8), the

section has been declared unconstitutional by a federal district court as a violation of the First Amendment rights of political parties. Two federal courts in Florida have reached a similar conclusion, holding unconstitutional statutes prohibiting political parties from endorsing candidates for partisan (Abrams v. Reno (S.D.Fla. 1978) 452 F.Supp. 1166, 1171-1172) and judicial (Concerned Democrats of Florida v. Reno (S.D.FIa. 1978) 458 F.Supp. 60, 64-65) office. In view of our determination that neither

section 6 nor any other provision of law barred real parties in interest from supporting or opposing the confirmation of the justices of the Supreme Court, it is not necessary to consider whether such a ban would violate their constitutional rights. Our conclusion in this case is reached without consideration of policy questions. We are not unmindful of the persuasive reasons why it is preferable for political parties to refrain from endorsing or opposing nonpartisan candidates.

However, that is a matter for consideration by the Legislature; it, not the judiciary, is the proper body to impose regulations on the conduct of political parties. The alternative writ heretofore issued is discharged as having served its purpose, and the peremptory writ is denied. Files, J., and Janes, J., concurred. Petitioner Unger is not affiliated with any political party; petitioner Blasdeil is a registered Republican.

ReaI party in interest Tirso del Junco is chairman of the Republican State Central Committee, and real party in interest William Campbell was the chairman and member of a study and campaign committee of the Republican Party for the nonconfirmation campaign. All statutory references will be to the Elections Code, unless otherwise noted.

Section 9276 provides that the Republican State Central Committee “shall conduct party campaigns for this party and in behalf of the candidates of this party. It shall appoint committees and appoint and employ campaign directors and perfect whatever campaign organizations it deems suitable or desirable and for the best interest of the party.”

Section 9440 provides that a county central committee “shall have charge of the party campaign under general direction of the state central committee or of the executive committee selected by the state central committee.” Since the issue of relief sought by petitioners is moot, we need not consider their claim, denied by real parties in interest, that real parties in interest violated

section 9277 because their decision to support the campaign was made at a state central committee meeting which lacked a quorum. The code allows only political parties receiving a certain percentage of the vote at a primary or general election to qualify to participate in a primary election. (§ 6430.) The term “political party” as used in this opinion refers only to a party so qualified.

Section 9443 provides that county central committees of the Republican Party “shall perform such other duties and services for this political party as seem to be for the benefit of the party.”

Section 9276, authorizes the state central committee to conduct party campaigns and to form whatever campaign organizations it “deems suitable or desirable and for the best interest of the party,” and

section 9440 provides that a county central committee shall have charge of the party campaign.

Section 9272 authorizes the officers of the state central committee to exercise “the power usually exercised by such committees and the officers thereof insofar as may be consistent with this division.” The study by Professor Lee does not specifically mention support of candidates for judicial office.

It indicates, however, that party funds and the use of party precinct machinery were utilized in support of nonpartisan candidates, and that party organizations participated in local elections in 25 percent of the counties surveyed. (Tables 32 and 33 at p. 102.) According to declarations filed in Unger by the chairmen of the local central committees, their committees had endorsed and/or supported candidates for judicial and other nonpartisan office for many years.

Section 11702 is a part of the Truth in Endorsements Law, designed to protect the public from deception in political campaigns. (§ 11701.)

Section 11702 was recently held unconstitutional by a federal district court as denying political parties rights under the First Amendment. (San Francisco County Democratic Central Committee v. Eu, No. C-83-5599 MPH.) For example, various local offices were excepted from the partisan primary (§ 2); party designations could not appear on ballots or on nomination papers for judicial, school, county or township offices (§ 5, subd. 2; § 12, subd. 1), and a voter could vote for candidates for nonpartisan office regardless of party affiliation (§ 16). In 1939, a specific prohibition against party nomination of nonpartisan candidates was enacted as

section 41 of the code. (Stats. 1939, ch. 26, § 1, p. 49.) Commissioner Spear, a member of the Constitution Revision Commission, moved to retain the constitutional requirement that judicial and local offices mentioned in

section 2 % be nonpartisan, and the motion was carried by a voice vote. (Minutes of Aug. 1, 1968, meeting of the art. II com., p. 3.) The commission’s report states that

section 2% is the only existing constitutional guarantee that judicial, school, and county offices are nonpartisan, and that the substance of the

section should be retained and clarified. City offices were added to the list of nonpartisan offices in recognition of existing practice. (Proposed Revisions of Cal. Const. (1970) pt. 2, p. 19.) The ballot pamphlet for the 1972 election stated simply that “Judicial, school, county, and city offices would be continued as nonpartisan offices.” (Proposed Amend, to Cal. Const., Gen. Elec. (Nov. 7, 1972) p. 18.) Petitioners appear to claim that even if a political party is allowed to endorse or oppose a candidate for nonpartisan office, it should be prohibited from engaging in other conduct during the campaign to vindicate its views. In view of our conclusion that neither

section 6 nor any other provision of law was intended to restrain political parties from participating in the election campaign for nonpartisan office (aside from the prohibition in § 37), we can see no justification for such a limitation. Unger, one of the petitioners in the present proceeding was also the petitioner in Unger I.

Real parties in interest seek to distinguish Unger I on the ground that it dealt with an election contest between opposing candidates, whereas here even if the nonconfirmation campaign had been successful, the election would not have determined who would serve as the holder of the office, since any vacancy resulting from the unseating of a justice would be filled by appointment of the Governor. Thus, claim real parties in interest, unlike the situation in Unger I, the ultimate holder of the office would not be beholden to the party’s interests.

We have some doubts regarding the validity of this distinction in view of the broad grounds on which Unger I was decided. But we need not decide whether the distinction is valid since we disapprove of the holding of Unger I in any event. For example, the opinion relies on a provision of the code (now § 9688), which authorizes state central committees to conduct campaigns for party candidates as implying that the committee may not endorse one of several of the candidates who are members of the party before the primary election.

If such endorsement were allowed, dissension within the party would result, which would inhibit the committee from carrying out its statutory function of conducting the party’s campaign on behalf of its candidates.

The opinion also cites a provision (now § 9443), which allows a county central committee to act for the “benefit” of the party; it reasons that the preprimary endorsement of a single candidate is not for the benefit of the party, but for an individual or group within the party. (23 Ops.Cal.Atty.Gen. 119, supra, at pp. 122-123.) The statute held unconstitutional in Concerned Democrats prohibited parties or partisan political organizations from supporting or assisting candidates for judicial office.

Although the petitioner there was an unofficial political organization, the court made no distinction in its holding between the two types of entities. It concluded that there were less restrictive means by which the legislature could assure the neutrality of judges, including restrictions on the conduct of candidates for judicial office during the election campaign. Retired Presiding Justice of the Court of Appeal sitting under assignment by the Acting Chairperson of the Judicial Council. Retired Associate Justice of the Court of Appeal sitting under assignment by the Acting Chairperson of the Judicial Council.