The Governor should nominate Judge Evans now, not appoint her later [Updated]

Last week, Governor Gavin Newsom nominated Supreme Court Justice Patricia Guerrero to succeed Chief Justice Tani Cantil-Sakauye, who had announced she would not seek reelection. The Governor at the same time “announced his intention to appoint Alameda County Superior Court Judge Kelli Evans to serve as an Associate Justice of the California Supreme Court to fill the vacancy created by Justice Guerrero’s elevation to Chief Justice.” (Here.)

There’s a difference between nominating a Supreme Court justice and appointing one. Concerning Judge Evans, the practical significance is when she would be on the ballot for a “yes” or “no” confirmation vote. If she’s nominated, Judge Evans’s election would be this November. If she’s appointed, she won’t be on the ballot until 2026. (This doesn’t affect when Evans would take her seat on the court. That should happen this coming January, assuming, as is likely, her nomination or appointment is confirmed.)

The Governor has opted for an appointment. I think he should nominate Judge Evans instead because that’s what the state constitution mandates.

You can stop reading now if you don’t want to get bogged down in wonky stuff about the less-than-clear terms of Article VI, section 16, of the California Constitution.

Section 16(d)(1) explains what a Supreme Court justice whose term is expiring must do if they want to continue serving: “Within 30 days before August 16 preceding the expiration of the judge’s term, a judge of the Supreme Court or a court of appeal may file a declaration of candidacy to succeed to the office presently held by the judge.”

If, like Chief Justice Cantil-Sakauye, the justice chooses to let her term expire without standing for election, subdivision (d)(1) imposes a time-sensitive duty on the Governor: “If the declaration is not filed, the Governor before September 16 shall nominate a candidate.” (Emphasis added.) (That’s what Newsom did when he nominated Guerrero to be the next chief justice.)

Then, the sitting justice who has filed a declaration of candidacy or the nominated successor appears on the November ballot: “At the next general election, only the candidate so declared or nominated may appear on the ballot, which shall present the question whether the candidate shall be elected.” (The “next general election” means a “general election[ ] at the same time and places as the Governor.” (Section 16(a).))

If a justice leaves the court before their term expires, there’s a vacancy. Section (d)(2) provides, “The Governor shall fill vacancies in those courts [i.e., the Supreme Court and Courts of Appeal] by appointment.” (Emphasis added.)

Newsom believes he should appoint Judge Evans to fill the vacancy that will occur if Justice Guerrero leaves her associate justice position to become chief justice, which will happen this January if — as is probable — her nomination is confirmed first by the Commission on Judicial Appointments and then by the voters.

But that seems to ignore the Governor’s duty under (d)(1) to “nominate a candidate” by September 15 when a declaration of candidacy is not filed for Guerrero’s associate justice position.

Justice Guerrero did file “a declaration of candidacy to succeed to the office” she presently holds, i.e., associate Supreme Court justice, but she withdrew that declaration after she was nominated to be chief justice. The withdrawal should be treated as equivalent to there not being a declaration filed by tomorrow’s August 15 deadline. The absence of Justice Guerrero’s declaration of candidacy triggers the Governor’s constitutional duty to nominate an associate justice candidate, i.e., Judge Evans, to be on November’s ballot.

The (d)(1) provisions about declarations of candidacy and nominations apply when there is an imminent “expiration of [a] judge’s term.” The Governor apparently believes that’s not the situation with Justice Guerrero because she was appointed to fill the vacancy created when Justice Mariano-Florentino Cuéllar left the court and because Justice Cuéllar’s term doesn’t expire until January 2027. (Cuéllar was elected to a 12-year term in 2014.) But Justice Guerrero’s term is expiring soon — in January 2023, not in 2027.

Supreme Court justices “terms are 12 years beginning the Monday after January 1 following their election, except that a judge elected to an unexpired term serves the remainder of the term.” (Section 16(a).) Justice Guerrero is not now serving the remainder of Justice Cuéllar’s unexpired term because she has not been “elected” to that term. She would have been so elected if she hadn’t withdrawn her declaration of candidacy and then if she were on the ballot for her current associate justice position.

Instead, Justice Guerrero’s term is described in subdivision (d)(2): “An appointee holds office until the Monday after January 1 following the first general election at which the appointee had the right to become a candidate or until an elected judge qualifies.” That is January 1, 2023.

The (d)(2) provision, which requires Supreme Court appointees to stand for election at the first gubernatorial general election after their appointment, is why Justices Joshua Groban and Martin Jenkins — who were appointed in late 2018 and 2020, respectively — were required to file, and have recently filed, declarations of candidacy and are on this year’s ballot. It’s also why Justice Guerrero filed her declaration of candidacy and why she would have been on the ballot for an associate justice position if she hadn’t been nominated for chief justice and withdrawn her declaration.

The main point is this: the Governor’s duty under (d)(1) to nominate by September 15 a Supreme Court candidate is triggered when a justice doesn’t file a required declaration of candidacy. It shouldn’t matter if the declaration was required because a justice’s elected term is expiring (that’s why Justice Goodwin Liu will also be on this year’s ballot — he was elected in 2014 (the first gubernatorial general election after his 2011 appointment) to complete Justice Carlos Moreno’s 12-year term that is expiring) or because a justice’s appointed term is expiring (as with Justice Guerrero, and Justices Groban and Jenkins).

Whenever a justice who needs to file a declaration of candidacy doesn’t file that declaration, the Governor then has the constitutional obligation to nominate a candidate for that justice’s position.

The Governor’s interpretation of section 16 is not unreasonable. The language of that provision is not a model of clarity and could stand some revision. However, I think his interpretation is wrong.

So, that leaves the question: what, if anything, is the penalty for a governor not timely fulfilling his constitutional duty to nominate a candidate for Supreme Court justice? Beats me.

Related:

Only 48 days to name a new chief justice

Guerrero confirmation hearing scheduled for August 26; no hearing set yet for Evans

One year to Election Day for five Supreme Court justices

[August 15 update: Craig Anderson in the Daily Journal — “Debate ensues over Newsom’s intent to nominate judge to state Supreme Court.” (I’m quoted in the article.)]