County Considers Suit to Thwart Robinson Bid to Return to Bench

The unprecedented effort by Mark P. Robinson Sr. to return to the Orange County Superior Court seat he resigned last spring has led to a showdown with his former colleagues and the county.

The court, four of its judges and three county officials are asking the state attorney general’s office for permission to sue Robinson in a rare proceeding to determine who has the right to sit in his still-vacant court seat.

Robinson, who resigned last May after 17 months on the bench, ran unopposed last spring along with 21 other incumbent judges and did not appear on the June 7 ballot--a process that led to automatic reelection.

Possible Loophole Cited The suit is necessary, acting Presiding Judge Richard J. Beacom said Wednesday, because Robinson is persisting in his efforts to return to the bench and because a Sept. 26 attorney general’s opinion seems to indicate a possible loophole for other judges who resigned.

In the September opinion, the attorney general’s office said Robinson gave up his rights to a new six-year term when he resigned.

“My position is that I’ve been elected to a new term by operation of law” and have a right to assume office, said Robinson, who once tried during his 17 months on the bench to swap posts with a Los Angeles County Superior Court judge.

Indeed, the secretary of state’s office sent his certificate of election Dec. 28 in a package to the Orange County Courthouse along with certificates for other judges who won election. The certificates confirm each judge’s right to a new term.

But a term becomes effective only when a judge fills out a written oath of office and returns the completed form to the secretary of state, an employee in the secretary of state’s office said.

Decision Due Later in Month A Superior Court clerk, Robinson said, refused to give a blank copy of the statutory oath Monday to an employee of the law offices he shares with his son in Santa Ana. The clerk also refused later Monday to accept the same oath that Robinson had written from the statute, he said.

“So we sent it to the secretary of state,” Robinson said. “But we told the secretary of state to hold the oath of office and not to do anything with it yet that will disrupt procedures until this legal proceeding is over.”

The proposed lawsuit is an action in quo warranto, a proceeding that demands that a defendant prove what right he has to hold a public office. Such actions must be cleared first with the state attorney general’s office, said Chief Assistant Atty. Gen. Richard D. Martland.

The request to file the suit was hand-delivered to Martland last Friday, Beacom acknowledged. If approved, Martland said, the county will file the suit in Sacramento County. Martland said a decision will not be made until later this month, after Robinson has had a chance to reply to the county’s proposal to file suit.

Joining Beacom and Presiding Judge Everett W. Dickey as plaintiffs are newly appointed Judges John J. Ryan and Donald E. Smallwood.

Ryan was appointed to fill the vacancy created by Judge William Sheffield’s Sept. 25 resignation, and Smallwood was appointed to fill the seat of Judge J.E.T. Rutter, who retired June 17.

Sheffield, Rutter and Kenneth E. Lae, who went on a disability retirement Dec. 12, also were named as defendants because they are the only other judges who ran without opposition and who subsequently left the bench. They also received certificates of election.

If Robinson’s view of the law were accepted, the suit maintains, Ryan and Smallwood could be ousted any time before they have to stand for election in 1986 if the judges they replaced want to return. There is no indication, however, that either Sheffield, now a divinity student, or Rutter, a private judge or arbitrator, wants to return to the bench.

Lae’s seat has not been filled yet.

The attorney general’s Sept. 26 opinion, which is not binding, decided that the law allows write-in campaigns to be initiated against unopposed judges after the June primary until 59 days before the November election--Sept. 11 last year.

An unopposed candidate, therefore, could be “deemed” elected until Sept. 11, the opinion stated.

Robinson, who was appointed at the end of Gov. Edmund G. Brown Jr.’s term in 1982, is a successful plaintiff’s personal injury lawyer who acknowledged at the time of his swearing-in that he was not sure how long he would stay on the bench.

He lives in the Mid-Wilshire District of Los Angeles and maintains an office there. He had hoped to switch posts with a judge in Los Angeles County, but the plans fell through.

Several months after he left the bench, he indicated that he might return for the new term at the start of the year. He met with Gov. George Deukmejian’s aides in an effort to secure an appointment in Los Angeles instead, but nothing was promised.