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Court of Appeal, First District, Division 1, California.

Thomas SPINOSA, Plaintiff and Appellant, v. REPUBLICAN COUNTY CENTRAL COMMITTEE OF SAN FRANCISCO et al., Defendants and Respondents.


Decided: May 30, 1985

Thomas Spinosa, in pro. per. Nielsen, Hodgson, Parrinello & Mueller, John E. Mueller, San Francisco, for defendants and respondents.

Following the death of the late Congressman Philip Burton, of California's 5th Congressional District, a special election in the district was called by the Governor, for the election of his successor.   The City and County of San Francisco lay partly within the district.   Several of the city's registered Republican voters, including plaintiff Thomas Spinosa, were candidates for their party's nomination for the office.   The Republican County Central Committee endorsed one of them for the office.   Plaintiff Thomas Spinosa and others commenced an action seeking a writ of mandate commanding the city's county central committee not to endorse a candidate for the vacant congressional office.   Judgment was entered for the defendant county central committee, from which judgment plaintiff Thomas Spinosa has appealed.

 The appeal's issue is whether the city's county central committee was empowered by law to endorse a candidate for its party's nomination for a vacant congressional office, during the primary phase of a special election called by the Governor pursuant to statute.

Government Code section 1773, as relevant to the appeal, provides:

“When a vacancy occurs in the office of Representative to Congress, ․ the Governor shall within 14 calendar days after the occurrence of the vacancy issue a writ of election to fill the vacancy;  ․”

The office of Representative in Congress is, of course, a partisan office.

California's Constitution, article II, section 5, as relevant, provides:

“The Legislature shall provide for primary elections for partisan offices․”

Pursuant to such mandate the Legislature has enacted Elections Code sections 7200–7204, inclusive (Div. 6, Ch. 7).

Section 7200 states:

“Candidates at any special election to fill a vacancy in the office of Representative in Congress, ․ shall be nominated as provided in this chapter.”

As provided by section 7201:

“A special primary election shall be held in the district in which the vacancy occurred ․, preceding the day of the special general election at which the vacancy is to be filled․”  (Our emphasis.)

Sections 7202 and 7203 then state:

“All candidates shall be listed on one ballot [at the special primary election] and, ․ if any candidate receives a majority of all votes cast, he shall be declared elected, and no special general election shall be held.”  (§ 7202.)

“If no candidate receives a majority of votes cast, the name of that candidate of each qualified political party who receives the most votes cast for all candidates of that party shall be placed on the special general election ballot as the candidate of that party.”  (§ 7203.)

And if a special general election be held, it shall be conducted on a Tuesday “following the issuance of an election proclamation by the Governor pursuant to Section 1773 of the Government Code,” (§ 7200.5), and following the special primary election.

We advert now to the statutory functions of Republican, and other, county central committees.

County central committees are creatures of statute.  (See Elec.Code, §§ 9320–9444 inclusive.)

The 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” (Elec.Code, § 9440), and “shall perform such other duties and services for [its] political party as seem to be for the benefit of the party.”  (Elec.Code, § 9443.)


“․ The ․ county central committee in each county shall not endorse, support, or oppose, any candidate for nomination by that party for partisan office in the direct primary election.”  (Elec.Code, § 11702;  our emphasis.)

And, emphasizing the point, Election Code section 11703 provides that any partisan candidate in a direct primary campaign, claiming in writing to have the endorsement of a political party organization shall therein state:  “Official organizations of the (name) Party are prohibited by law from endorsing candidates in primary elections.”  (Our emphasis.)

The defendant Republican County Central Committee recognizes that Elections Code section 11702 bars it from endorsing, supporting, or opposing any partisan candidate seeking his party's nomination for Representative in Congress in a “direct primary election.”   But, as we understand its argument, it distinguishes between the “special primary election” called for by section 7201, and the “direct primary election” at which it is barred from endorsing a candidate for his party's nomination, by Elections Code section 11702.   It insists that “Elections Code section 11702 only prohibits political party endorsements” in “direct primary elections,” and not the “special primary election” of section 7201.

We disagree.

It is first observed, as appears to be well known, that the phrase “direct primary election” is an alternative appellation for “primary election.”   For all primary elections are necessarily “direct.”  By such elections party candidates are directly chosen by ballot of the party voters, as distinguished from the erstwhile practice of indirectly selecting them by electing or otherwise choosing delegates to party conventions who in turn select the party candidates.  “Direct primary” thus describes the very nature of all primary elections.


Elections Code section 21 asserts:

“ ‘Primary election’ includes all primary nominating elections provided for by this code.”  (Emphasis added.)

As noted, section 11703 states:

“Official organizations of the (name) Party are prohibited by law from endorsing candidates in primary elections.”  (Our emphasis.)

The impetus for such statutes is well described by People v. Crutcher, 262 Cal.App.2d 750, 752–753, 68 Cal.Rptr. 904, as follows:  “The limitation upon the official political body [to make endorsements of party candidates] is to provide equal and unhampered opportunity for an individual candidate to seek nomination at the primary for a political office as representative of that candidate's political party.   The influence of the official political body may not be used for or against any party member.   The primary is to seek, fairly, the party representative to contest for that office against such other persons another political party may likewise provide as a candidate seeking the office.”   Such a rationale will reasonably apply to all primary elections.

 We have considered the county central committee's argument that plaintiff Spinosa's grievance now being “moot” and “only of academic importance,” his appeal should be dismissed.   It is concluded, however, that the question involved is of public importance, and likely to recur.  “It is now established law that where ․ issues on appeal affect the general public interest and the future rights of the parties, and there is reasonable probability that the same questions will again be litigated and appealed, an appellate court may, although the appeal be subject to dismissal, nevertheless adjudicate the issues involved.”  (People v. West Coast Shows, Inc., 10 Cal.App.3d 462, 468, 89 Cal.Rptr. 290;  and see Unger v. Superior Court, 102 Cal.App.3d 681, 688, 162 Cal.Rptr. 611.)

 So also have we considered the contention that:  “Reversal would sanction prior restraints prohibited by the First Amendment.”   Similar arguments generally have been rejected by First National Bank of Boston v. Bellotti, 435 U.S. 765, 788–792, 98 S.Ct. 1407, 1422–1424, 55 L.Ed.2d 707;  Buckley v. Valeo, 424 U.S. 1, 90–108, 96 S.Ct. 612, 668–677, 46 L.Ed.2d 659;  Storer v. Brown, 415 U.S. 724, 734–737, 94 S.Ct. 1274, 1281–1282, 39 L.Ed.2d 714;  Unger v. Superior Court, supra, 102 Cal.App.3d 681, 162 Cal.Rptr. 611, passim;  Cal. Democratic Council v. Arnebergh, 233 Cal.App.2d 425, 43 Cal.Rptr. 531, passim.

Nor are we persuaded that “equitable considerations” compel denial of the writ of mandate, which expressly lies to correct any violation of the Elections Code.  (Elec.Code, § 10015.)

For these several reasons we find merit in the appeal of plaintiff Spinosa, and reverse the judgment.

The judgment is reversed.

ELKINGTON, Associate Justice.

RACANELLI, P.J., and NEWSOM, J., concur.

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