Fresno clerk says Assistant DA Whalen will be on ballot for judge. Why was Newsom overruled?

Fresno County Chief Assistant District Attorney Bob Whalen will be on the June ballot for a Superior Court judge position, County Clerk James Kus decided late Tuesday — more than a week after Whalen’s name was pulled at the request of Gov. Gavin Newsom’s office.

“I’m on the ballot!” Whalen messaged after he got the news from the clerk’s office. Kus confirmed his decision.

Whalen had been set to run for the judgeship after Judge Denise Whitehead resigned in November, but Kus removed Whalen’s name.

The clerk’s office cited a “clerical error” after Kus said he received a call from the governor’s office informing him state law required Newsom to make an interim appointment. Kus said he was told the position should not go before voters until 2024.

Whalen challenged that, arguing a 1980 California Supreme Court decision supported his position that the seat should be on the June ballot.

In that case, Stanton vs. Panish, the court ruled that a Los Angeles Superior Court judge race could proceed after a judge retired. Whalen also sought help from a Sacramento law firm to support his argument.

Whalen, Kus and Fresno County Counsel Daniel Cederborg met March 1 to review the issue in what Whalen later described as “an excellent discussion on legal points.”

Whalen said he expected a decision the same day. But Kus was more circumspect, and said he needed to review similar cases before a decision.

That decision came a week later. “I have carefully reviewed the facts and sought counsel on the complex and competing legal claims,” said Kus.

“Taking all the relevant circumstances into consideration, including the constitutional preference for having Superior Court judges elected... the timing of the clerical error, and the reliance on that error by third parties, I have determined that the best course of action is to allow the election for the office to proceed...”

Whalen said he was “very encouraged by the County Clerk’s decision,” saying it’s consistent with the California Constitution. He said it’s important that voters decide who will be their Superior Court judge.

“We are aware Gov. Newsom may disagree with this position. Should the governor choose to take action against the clerk, we will be there to defend the rights of the voters,” he said.

This story was originally published March 8, 2022 at 6:37 PM.