An election for a vacant Fresno County judicial seat sought by Clovis City Councilman Bob Whalen has been removed from the ballot. The county election clerk says the judgeship’s initial placement on the ballot was an error and he removed it after a call from the governor’s office last week.
“I received a call from the governor’s office indicating that they thought an error may have occurred,” said Fresno County Clerk James Kus. “We did a review of our information and we agreed that a clerical error had occurred. Kus said that the seat instead will be placed on the 2024 ballot.
Whalen, who is a top prosecutor manager in the Fresno County District Attorney’s office, was the lone candidate for Superior Court Judge No. 9.
Whalen, a Republican, questioned the intentions of Gov. Gavin Newsom, a Democrat.
“The governor frequently does like to continue to arrogate more power to himself. And this may be just another step in that direction,” Whalen said. “But, you know, he is not above the law, the law is what governs. That’s why I think it’s important for us to kind of have this conversation with the county clerk and why it is important to have judges in positions that are going to make sure that the law is followed, not the politics.”
The judicial seat became vacant when Judge Denise Whitehead retired in November. The state Constitution requires judicial vacancies to be filled in an election if the date of Jan. 1 has twice passed following the vacancy — even if the term would be up for election in the coming cycle.
The governor can appoint someone to serve in the seat until the next election in 2024.
Governor’s Office Called Fresno Election Clerk
Kus tells GV Wire that he initiated research last December as to whether the seat would be on the June 2022 ballot. After placing the seat on the ballot — and after Whalen filed to run for that seat — Kus admits he did not follow up on his research.
After receiving a call from the governor’s office — Kus declined to specify who made the call — he made the change. The governor’s office, after the publication of this story, said it was staff from the judicial appointment unit, making a semi-regular check.
The Fresno County Board of Supervisors appointed Kus to the elected clerk position in February 2021 after the retirement of Brandi Orth.
“It’s a complicated process to do that review on the vacancy, even in a simple situation,” Kus said. “We had to double-check it all. The final action that should have happened in December of 2021, when we were made aware of (Judge Whitehead’s) vacancy having occurred, didn’t happen. All it is is one change, 2022 to 2024 in one system … that we didn’t do.”
Going forward, Kus plans to add another layer of review when a judicial vacancy occurs.
After this story first published, the governor’s office replied: “The decision to remove the vacancy from election was made independent of our office.”
Kus Informs Whalen
A day after the call from the governor’s office, Kus removed the judicial seat from the ballot and called Whalen.
“He was genuinely and extremely apologetic. He felt very bad about having to make the phone call,” Whalen said. “I tried to encourage him that actually the first decision he made was the correct decision.”
Because the declaration of intent period expired, Whalen is not able to run for any of the remaining 17 judicial positions with expiring terms. Elections are taken off the ballot if only one candidate runs — as will be the case in June for all of the judgeships with expiring terms.
Whalen said he would not challenge another sitting judge even if that was an option.
“Generally, at least from the district attorney’s office, it’s not our practice to run against sitting judges. I was unlikely to do that,” Whalen said.
Whalen will be refunded his $2,250.74 filing fee.
Whalen Considers His Next Move
Whalen plans to speak with the clerk’s office for more interpretation. He says this decision is a “Constitutional violation.”
“It is a conclusion, that at least until I have an opportunity to hear them out, is inconsistent with the canons of statutory interpretation,” Whalen said.
Whalen said that litigation is an “option that’s available.”
“I’m pretty hopeful and confident that this most recent decision by the county clerk will be reviewed by him and that he will understand that the two January rule isn’t in effect when you have a judge who vacates when it would require that the people not vote for that particular spot in the normal length of term of that judicial office. The way that (Kus) is interpreting it is extending the judicial office to more than six years,” Whalen said.
Whalen’s elections plans will also change. He will now run for re-election in November for Clovis City Council. He will also keep his position in the district attorney’s office.
What the Constitution Says
Kus referred to the state Constitution that determines how a judicial vacancy is filled.
“Terms of judges of superior courts are six years beginning the Monday after January 1 following their election. A vacancy shall be filled by election to a full term at the next general election after the second January 1 following the vacancy, but the Governor shall appoint a person to fill the vacancy temporarily until the elected judge’s term begins,” reads Article 6, Sec. 16(c).
Unlike other elected positions, the end of a term is not fixed when there is a vacancy. For example, when Rep. Devin Nunes, R-Tulare, resigned from Congress on Jan. 1, the seat he represented still expires on Jan. 3, 2023. For Superior Court judges, the “two January rule” is in effect for the seat’s expiration. The six-year term will begin anew at the next election cycle.
The election countdown begins when the seat becomes officially vacant, not when an appointment is made. Six Fresno County Superior Court judges are up for election for the first time in 2022 after appointments from Newsom. None drew a competitor.[Update, 2/28/2022, 3:15 p.m.: This story has been updated with a reply from the governor’s office.]