OPINION
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 *Page 614 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,1 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.2 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.3 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].)4 *Page 615 (1a) As we have seen, section 6 does not refer to any specific conduct by a political party or its governing body;5 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.) (2a) 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 Uponthe Law of Political Parties (1956) 44 Cal.L.Rev. 65, 71.)
(1b) 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 *Page 616 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.)6 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.)7 Surely, if the Legislature had intended to deny them such rights it has had ample opportunity to enact legislation to that end. *Page 617
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.8 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 2 3/4, 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 3/4, 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.)9 It must have been intended, therefore, that the undefined term "nonpartisan office" as used in article II, section 2 3/4, 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. *Page 618
Article II, section 2 3/4, 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 2 3/4 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.10 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.11
The only authority to the contrary is Unger v. SuperiorCourt, 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,12 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. *Page 619
It is evident from what we say above that we must disapprove this holding.13 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.14 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 *Page 620 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.Fla. 1978) 458 F. Supp. 60, 64-65) office.15
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.
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."