California Advisory Opinions February 02, 1984: Ca. Att. Gen Opinion 84-108

Advisory Opinion Text

TO BE PUBLISHED IN THE OFFICIAL REPORTS

JOHN K. VAN DE KAMP Attorney General

OPINION
of
JOHN K. VAN DE KAMP Attorney General
JACK R. WINKLER Assistant Attorney General

THE HONORABLE GEORGE DEUKMEJIAN, GOVERNOR OF CALIFORNIA, has requested the opinion of this office on the following questions:

1. Does article VI, section 17, of the California Constitution prohibit a justice of the Supreme Court or a justice of a court of appeal who resigns from that office before the expiration of the term for which that judge was selected or elected from becoming a Senator or Representative in the Congress of the United States before the expiration of such term?

2. Does article VI, section 17, of the California Constitution prohibit a justice of the Supreme Court or a justice of a court of appeal who resigns from that office before the expiration of the term for which that judge was selected or elected from filing a declaration of candidacy and seeking election to the office of Senator or Representative in the Congress of the United States before the expiration of such term?

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1. Article VI, section 17, of the California Constitution does not prohibit a justice of the Supreme Court or a justice of a court of appeal who resigns from that office before the expiration of the term for which that judge was selected or elected from becoming a Senator or Representative in, the Congress of the United States before the expiration of such term.

2. Article VI, section 17, of the California Constitution does not prohibit a justice of the Supreme Court or a justice of a court of appeal who resigns from that office before the expiration of the term for which that judge was selected or elected from filing a declaration of candidacy and seeking election to the office of Senator or Representative in the Congress of the United States before the expiration of such term.

Article VI, section 17, of the California Constitution provides:

"A judge of a court of record may not practice law and during the term for which the judge was selected is ineligible for public employment or. public office other than judicial employment or judicial office. A judge of the superior or municipal court may, however, become eligible for election to other public office by taking a leave of absence without pay prior to filing a declaration of candidacy. Acceptance of the public office is a resignation from the office of judge.

"A judicial officer may not receive fines or fees for personal use."

We are asked whether a justice of a California appellate court may lawfully become a candidate for and accept office as a member of the Senate or House of Representatives in the Congress of the United States after resigning his or her judicial office but prior to the expiration of the justice's term on the court in view of this constitutional provision.

The provisions of article VI, section 17, were construed recently in 66 Ops.Cal.Atty.Gen. 440 (Opn. No. 83-607 which issued Nov. 23, 1983) in which it was concluded that that section prohibits a superior court judge who resigns that office before the expiration of its term from accepting a public teaching position before the expiration of such term. We adhere to that conclusion and the analysis on which it was based.

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The question presented differs from that presented in our prior opinion in two significant respects. First, the public employment for which article VI, section 17, makes the judicial officer ineligible is membership in the Congress rather than a public teaching position. Second, the judicial office concerned is a justice of an appellate court rather than a superior court judge. As will be seen these differences produce an opposite conclusion from the one reached in our prior opinion.

We first consider the range of public employments and public offices for which article VI, section 17, makes judicial officers ineligible during their respective terms of office. The California Supreme Court has authoritatively interpreted this constitutional provision as having application to federal offices.

In People ex rel. Haffel v. Sischo (1943) 23 Cal.2d 478 one James Garibaldi had been elected judge of the superior court in 1938 for a term ending in January 1945. In June 1942, Judge Garibaldi accepted a reserve commission in the U.S. Army Air Corp and shortly thereafter was ordered to active duty out of California. In December 1942, the Governor appointed Ranse Sischo to the judicial office Judge Garibaldi held assuming it to be vacated by his absence. A proceeding in quo warranto was brought to test Sischo's claim to the office. The court held that Judge Garibaldi's absence for military service created a temporary vacancy in the office which the Governor properly filled by Sischo's appointment but that on completion of his military service Judge Garibaldi had the right to resume the office until the completion of the term for which he was elected. Among the several constitutional and statutory provisions considered by the court was article VI, section 18, of the California Constitution which then provided:

"The justices of the supreme court, and of the district courts of appeal and the judges of the superior courts and the municipal courts shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they shall have been elected or appointed, and no justice or judge of a court of record shall practice law in or out of court during his continuance in office; provided, however, that a judge of the superior court or of a municipal court shall be eligible to election or appointment to a public office during the time for which he may be elected, and the acceptance of any other office shall be deemed to be a resignation from the office held by said judge."

The Supreme Court interpreted this provision as follows:

"It is clear that the State of California cannot, by its Constitution or otherwise, determine eligibility or prescribe qualifications for offices other than its own state offices. This section of the Constitution is not intended to,

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and does not relate to federal offices. (The federal office provisions are found in section 20 of article IV, previously discussed.) It will be observed, as pointed out by respondent, that this section in the portion appearing before the proviso declares that judges shall be ineligible to any other office or public employment than a judicial office or employment during the term for which they have been elected. Manifestly, the only office or employment for which the Constitution of California can declare the conditions of eligibility or ineligibility of a person is an office or employment under the authority of the State of California. This state has no power, by Constitution or otherwise, to declare that a judge of the superior court is ineligible to occupy an office in another state or under the government of the United States. It is therefore obvious that section 18 of article VI relates exclusively to the eligibility of judges to hold or occupy other offices which exist under the authority of the State of California."

Article VI of the California Constitution was revised in 1966. The new article VI, section 17, was derived from former article VI, section 18, quoted above. (See Proposed Revision of Article VI of the California Constitution by the California Constitution Revision Commission dated February 1966, at p. 96.) The staff notes to the Amended Third Working Draft Summary for Article VI of the California Constitution Revision Commission dated September 10, 1965, stated in part:

"No change is made in the prohibition against judges holding other office or public employment."

The Background Notes of the same Summary state in part:

"Interpretation of the provision applies it exclusively to state offices and state employment and is inapplicable to a judge who accepts a commission in the United States Armed Forces, or is an officer of the State Guard."

This is an obvious reference to the rule announced by the Supreme Court in the Sischo case. Thus it seems clear that the understanding of the California Constitution Revision Commission when it formulated the new wording of article VI, section 17, patterned on former article VI, section 18, was that the provision applied exclusively to state offices and was not intended to change the rule of the Sischo case that the provision had no application to federal offices.

The Qualification Clause, article 1, section 2, clause 2, of the United States Constitution, provides:

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"No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen."

(Cf. art. 1, § 3, cl. 3 for qualifications for a United States Senator.)

In Joyner v. Mofford (9th Cir. 1983) 706 F.2d 1523 the court made these observations about the Qualification Clause:

"From the beginning of the Republic, commentators have asserted that the three qualifications contained in the Clause—age, citizenship, and residency—are exclusive, and that neither Congress nor the states may require more of a candidate. . . . In Powell v. McCormack , 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), the Supreme Court accepted this restrictive view of the Qualifications Clause--at least as applied to Congress—and held that members of Congress may not set extra-constitutional qualifications for taking a seat in the House of Representatives. In addition, as the district court observed in the present case, the same principle has frequently been applied to state laws imposing additional qualifications on candidates for federal office."

The Joyner court went on to point out a distinction which the courts have made in applying the Qualification Clause as follows:

"The courts considering challenges to state laws relying on the Qualifications Clause have distinguished between state provisions which bar a potential candidate from running for federal office, and those which merely regulate the conduct of state officeholders. The former category of laws imposes additional qualifications on candidates and therefore violates the Qualifications Clause, while the latter category is constitutionally acceptable since it merely bars state officeholders from remaining in their positions should they choose to run for federal office. The burden on candidacy, imposed by laws of the latter category, is indirect and attributable to a desire to regulate state officeholder's and not to impose additional qualifications to serving in Congress."

The first sentence of article VI, section 17, renders state judges ineligible from public office which would bar them from holding office. If interpreted to apply to membership in the Congress it would violate the Qualifications Clause. ( Joyner v. Mofford , supra .)

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We note that in Alex v. County of Los Angeles (1973) 35 Cal.App.3d 994, the court, without any reference to the Sischo case, applied the leave of absence without pay provision of article VI, section 17, to a campaign for federal office. However, nothing in the Alex case suggests that article VI, section 17, bars a state judge from seeking or accepting a federal nonjudicial office.

For these reasons we conclude that article VI, section 17, does not prohibit a California appellate court justice who resigns from that office before the expiration of the term for which that justice was selected or elected from becoming a Senator or Representative in the Congress of the United States before the expiration of such term.

The second question presented is whether a California appellate court justice who resigns that office may file a declaration of candidacy and seek election to membership in Congress before the expiration of the term of such judicial office. The only reference to declaration of candidacy in article VI, section 17, is in the second sentence which by its express terms applies only to judges of the superior and municipal courts. The first sentence applies to appellate court judges but purports only to render them ineligible to hold public offices and public employments. Such ineligibility would be a potent deterrent to a declaration of candidacy or other seeking of an office to which the declaration of ineligibility applies but such declaration does not in itself prohibit such seeking. As we have pointed out, the Sischo case held that the constitutional prohibition has no application to federal offices. Furthermore any construction of article VI, section 17, making it applicable to seeking membership in the Congress would violate the Qualification Clause as we pointed out above and we reject any such interpretation for that reason as well.

We therefore conclude that article VI, section 17, does not prohibit a California appellate court justice who resigns from that office before the expiration of the term for which that justice was selected or elected from filing a declaration of candidacy or otherwise seeking election to the office of Senator or Representative in the Congress of the United States before the expiration of such term.