November 21, 2006

Court of Appeal Orders DA Election Annulled, Special Election To Be Held

From the Court's opinion in Faulder v. Board of Supervisors:

"Petitioner Keith A. Faulder (petitioner) filed a petition for writ of mandate (petition) seeking a stay of the general election for the office of Mendocino County District Attorney scheduled to take place on November 7, 2006, and directing the Mendocino County Board of Supervisors and Mendocino County Assessor-Clerk-Recorder Marsha Wharff (collectively referred to as the County) to cancel the election and to hold a special election, pursuant to Elections Code section 8026.1 Petitioner claims that the special election provision in section 8026 was triggered when the incumbent district attorney, Norman L. Vroman, who was a candidate in a two-person race for reelection, died on September 21, 2006, less than 68 days before the scheduled election.

The County, joined by the surviving candidate, real party in interest (RPI)Meredith J. Lintott, contends that the special election provision of section 8026 applies only to primary elections, and not to general elections. They argue that the circumstances presented by this case are governed instead by section 15402. Section 15402 does not require a special election but rather compels that a deceased candidate’s name remain on the ballot and votes cast in his or her favor are to be counted in determining the results. If the deceased candidate receives a majority of the votes, the vacancy will be filled “in the same manner as if the candidate had died subsequent to taking office for that term.” (§ 15402.)

For the reasons set forth in this opinion, we conclude that section 8026 applies to all elections, including general elections, when a candidate in a two-person, nonpartisan, nonjudicial contest involving an incumbent dies within 68 days of the date set for the election.

Accordingly, the petition is granted, and we issue a peremptory writ of mandate to respondents ordering that the election for Mendocino County District Attorney be canceled, annulled, and invalidated, and that a special election is to be held in accordance with section 8026. We further order that the ballots in the district attorney election already under seal remain so permanently."

Posted by Randy Riddle at November 21, 2006 01:55 PM