Moore v. Panish

MOSK, J.

I dissent.

The reliance of the majority on Narver v. Jordan (1916) 173 Cal. 424 [160 P. 245]—cited no less than five times in their opinion—demonstrates an appalling insensitivity to California political history. And, as should be obvious, Narver as an authority is a legal non sequitur; it involved a candidate who sought to cross-file for several *549party nominations for one office, not as in the instant case two separate offices at one election.

Narver and cross-filing played an interesting role in our state’s political development. Following an era when a politician required a black belt in corruption in order to survive in state and local government, Governor Hiram Johnson began in 1910 to cleanse the fetid electoral environment. As described by Gladwin Hill in Dancing Bear: An Inside Look at California Politics (1968) page 56, “Historically party organizations had been composed of activists selected originally at local and county conventions. Out of these would come a smaller, more elite group of delegates to a party’s state convention, where nominees for major offices were chosen, [t] The [Johnson] progressives scrapped this arrangement. Instead, party county committees were filled with persons elected in the biennial party primaries. Once elected, these county committees could hold meetings every day in the week if they wanted.”

In 1916 when Hiram Johnson left Sacramento for Washington as a United States Senator, party organizational responsibility rapidly assumed a significant place in the political spectrum, culminating in the elimination of cross-filing in 1959. As one of the state’s leading political observers put it, “The preoccupation of present-day California with political party affairs, along with incessant factional bickering within the two major parties, is a far cry from the spirit of nonpartisanship which prevailed for so many years.” (Phillips, Big Wayward Girl: An Informal Political History of California (1968) p. 41.) The county central committees have once again become the official political party mechanism, recognized by law, and its members are formally defined by law as officers to be elected by the voters registered in the respective parties. As elected officers, a fortiori, they occupy an elective office.

Neither Narver nor any other case holds that one person may seek election to two offices at the same election, regardless of the nature of the offices. No case purports to distinguish between types of offices or compatibility of offices; the only issue is whether the two positions sought are elective offices.1

*550For more than 42 years, it has been the unchallenged law of California that one person may not be a candidate for more than one office at one election, and that the term “office” embraces every position for which an election is held. The majority, relying on mere ipse dixit, now jettison that salutary provision of the law and embark on an uncharted course that will have untoward consequences for the principle of wider participation of the citizenry in the political process.

In 1940, then Attorney General Earl Warren advised the Clerk of Contra Costa County that “In my opinion a member of the county central committee and, likewise, an Assemblyman, holds an ‘office’ as that term is used in subdivision (b) of section 2634 of the Elections Code [now § 6402, subd. (b)], which prohibits a person from filing nomination papers for more than one office at the same election.” He pointed to section 3935 (now § 6465) of the Elections Code which specifically refers to “the office . . . of . . . member of a county central committee.” (Ops.Cal.Atty.Gen. (1940) No. NS-2739.)

In 1950, then Attorney General Fred N. Howser informed the Registrar of Voters of Los Angeles that a county commmitteeman was an “officer,” and one could not be both a senator and a county committeeman. He referred to this court which had denied a writ of mandate sought by a person who attempted to run for the two offices simultaneously.

Opinions confirming the one-person office rule were rendered by then Attorney General Edmund G. Brown in 1952 and 1954.

In 1962, as Attorney General I ruled consistently with the foregoing. In an opinion also signed by Assistant Attorney General Charles Barrett, we advised Secretary of State Frank Jordan that:

“Subsection (b) of this section has been construed by this office as preventing an individual from seeking two offices at the same election (Ops.Cal.Atty.Gen. No. NS-2739 [1940]). The same opinion held that the position of County Central Committeeman was an ‘office’ within the meaning of section 6402(b). This opinion has existed for twenty-two years, has formed the basis of subsequent opinions of this office (e.g., 23 Ops.Cal.Atty.Gen. 22 [1954], 19 Ops.Cal.Atty.Gen. 118 [1952]), is consistent with the policy of preventing a conflict in the duties of public officers, and is hereby reaffirmed. It would therefore appear that an individual cannot file nomination papers for two offices at the same election and at the same time abide by section 6402(b).” (40 Ops.Cal.Atty.Gen. 99, 100 (1962) fn. omitted.)

*551Thus, for more than four decades the law has been clear and unambiguous, and so found to be by four Attorneys General. The state’s county registrars, including this respondent, have abided by that law. As observed in Cristmat, Inc. v. County of Los Angeles (1971) 15 Cal.App.3d 590, 595 [93 Cal.Rptr. 325]: “Opinions of the Attorney General are entitled to great weight as an administrative construction of a statute. [Citations.] ‘It must be presumed that the aforesaid interpretation [of the Attorney General] has come to the attention of the Legislature, and if it were contrary to the legislative intent that some corrective measure would have been adopted in the course of the many enactments on the subject in the meantime.’” (Accord, Southwest Explor. Co. v. County of Orange (1955) 44 Cal.2d 549, 554 [283 P.2d 257]; Meyer v. Board of Trustees (1961) 195 Cal.App.2d 420, 432 [15 Cal.Rptr. 717].)

The majority have cavalierly brushed aside numerous sections of the Elections Code which reveal legislative intent. For example, in section 6465 the Legislature has provided the form of notice to be published preceding an election. It declares that the notice published shall designate the offices and candidates therefor, and then lists various state, district, congressional, legislative, judicial, school, county, and county central committee offices. Similarly, under section 6587 the county clerk must publish notice of “offices for which candidates are to be nominated or elected,” and included therein are members of the county central committee. Section 6551 provides that the county clerk must provide forms required for nomination and election to candidates for office; included are congressional, state, county, and political party county central committees. The latter position was added by the Legislature as recently as 1978, indicating clearly that its intent to consider county committeemen as officers still prevails. And section 10213, the caption of which is “Order of Offices,” includes the county committee as one of the offices. All of these obvious indicia of legislative intent are blithely ignored by the majority.

There can be no rational policy reason to retreat from the uncomplicated statutory requirement that one person may run for only one office at one election. Indeed, policy arguments favoring the existing rule are particularly persuasive.

Conceivably it is possible for a person to serve on a local nonpartisan board and simultaneously conduct partisan campaigns as a party committeeman. But I suggest the inevitable injection of party politics into a nonpartisan office is likely to create administrative and substantive problems.

*552More significantly, it is extremely difficult—and in many instances impossible—for a state official, a congressman, or a state legislator to adequately serve his constituents if he is also an elected member of a party county central committee. To attend meetings of the committee and to perform his function as the political campaign arm of his party, he would be required periodically to abandon his post in Washington or Sacramento. Indeed, the 1962 Attorney General’s opinion noted that the law “suggests a policy of encouraging members of the County Central Committee to attend meetings of the committee. A member of such a committee who spends the better part of his Central Committeeman term in Washington as a Congressional Representative is hardly able to conform to this policy.” (40 Ops.Cal.Atty.Gen. at p. 100, fn. 1.)

It is for that reason, in my opinion, and also to encourage greater participation in the political process by nonofficeholders, that the Legislature has seen fit to prohibit one from seeking election to two offices, here a nonpartisan board and a partisan county committee office. If one person-one vote is a valid principle, one person-one office would appear to be equally desirable. The majority do a grave disservice to a long-accepted and salutary principle by their myopic interpretation of the term “office.”

I would deny the writ.

Richardson, J., and Kaus, J., concurred.

The majority’s reliance on Stout v. Democratic County Central Com. (1952) 40 Cal.2d 91 [251 P.2d 321], overlooks the following significant language in the opinion: “The real question presented is whether those offices exist at all ... . The title of the persons named to those additional offices is incidental to that main question. We hold, therefore, that mandamus is the proper remedy.” (Italics added; id., p. 94.) Azevedo v. Jordan (1965) 237 Cal.App.2d 521 [47 Cal.Rptr. 125], is also inapposite except in its reference to the creation of an office by the Legislature and its ability to change or abolish an office not constitutionally established.