California Cases March 22, 2022: Kissner v. Santa Clara Office of Educ.

Case Description

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NOT TO BE PUBLISHED

Appeal from an order of the Superior Court of Santa Clara County, No. 21CV381463, Audra Ibarra, Judge. Affirmed.

James R. Williams, County Counsel, Melissa Kiniyalocts and Xavier M. Brandwajn, Deputy County Counsel, for Defendants and Appellants.

The Sutton Law Firm, James R. Sutton, Bradley W. Hertz and J.P. Fisher for Plaintiffs and Respondents.

OPINION

ZELON, J.

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The Santa Clara County Office of Education and Santa Clara County Superintendent of Schools Mary Ann Dewan appeal from an order granting respondents David Kissner's and Shahryar Rokni's petition for a writ of mandate to compel Dewan to certify a signed petition and schedule a special election to fill a vacancy on a school board. Appellants argue the petition was not legally sufficient because it failed to comply with applicable Education Code requirements. For the reasons stated below, we conclude the petition complied with those requirements. Accordingly, we affirm the order.

I

Factual and Procedural Background

A. Respondents' Petition to Force a Special Election to Fill a School Board Vacancy

The Loma Prieta Joint Union School District (District) is a kindergarten to eighth grade school district located in the Santa Cruz mountains between Santa Clara and Santa Cruz Counties. It is governed by a five-member Board of Trustees (Board). In December 2020, weeks after being elected to the Board, Alex Hall moved out of the District and subsequently resigned. Respondents wrote to the Board urging it to hold an election instead of appointing another person to replace Hall, but were rebuffed.

On March 15, 2021, the Board filled the vacancy by provisional appointment. On April 2, 2021, respondents submitted a signed petition to Superintendent Dewan to force the Board to hold a special election to fill the vacancy. On April 7, 2021, Suzanne Carrig sent a memo from Dewan to respondents. The memo confirmed receipt of the petition and asked respondents to attest there were no "top funders" by "submitting a letter including an attestation under penalty of perjury to such fact." The same day, respondents submitted a signed attestation under penalty of perjury that "we did not raise more than $2000 or have any top funders requiring disclosure during the course of this petition campaign." Kissner and Rokni also sent an e-mail to Carrig and Dewan asking if the attestation "meets your requirements." On April 26, 2021, Rokni sent another e-mail asking, "Has there been any issue that requires our

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attention for clarification or additional information?" Carrig responded, "At this time there is no clarification or further information needed."

On April 28, 2021, Dewan found the petition legally insufficient "due to the failure to include the full and accurate cost estimates of the special election provided by the county official and . . . failure to comply with the relevant provisions of Elections Code section 100-104." As to the former, Dewan noted that the petition failed to include the "separate cost estimates for an all-mail ballot election and for the November 2021 vote-by-mail/vote center election. The omission of this required information denied those in the Loma Prieta Joint Union School District community the necessary information to make an informed decision when viewing and/or signing the petition." (Italics added.) As to the latter, Dewan noted that Election Code section 101 requires a local initiative election to include language that the public has a right to see the "'Official Top Funders'" sheet and the petition may be circulated by a paid signature gatherer, and Election Code section 104 requires the petition to include a notice identifying the top funders or a statement showing the circulator showed each signed an "'Official Top Funders'" sheet. "Although the signed attestation that you provided stated there were no top funders as defined in Election Code section 107, the omission of the statements of the right to see the information and that the petition may be circulated by a paid signature gatherer did not provide the signers the opportunity to ask as required by Elections Code sections 101 and 104."

In response, Rokni sent an e-mail asking about the relevance of the November election cost because "[b]ased on the Ed[ucation] [C]ode, our special election has zero chance of being conducted in November." In reply, Carrig explained that "[t]he date of the election is determined by the County Superintendent as part of the order of the election; there is no requirement that the election be an all-mail ballot election, therefore, all estimated costs provided by the elections official were required to be on the circulated

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petition." She further stated: "The decision of the County Superintendent regarding the sufficiency of your petition for special election is final and there is no process to appeal."

B. Respondents' Petition for Writ of Mandate

On May 5, 2021, respondents filed a verified petition for writ of mandate to compel certification and scheduling of the special election. Respondents argued the special election petition included the required cost estimate because it includes "the cost estimate for the only potential election date allowable under the law." They further argued the petition need not comply with the requirements of Election Code section 101 notifying signers about top funders and paid signature gatherers because that statute is not listed among the requirements for a petition to force a special election to fill vacancies on school boards. Finally, they argued they did not need to inform signers about top funders pursuant to Election Code section 104 because they did not raise any funds at all to pay for the petition effort.

In an accompanying declaration, submitted under penalty of perjury, respondent Kissner stated he began the process of preparing for the petition to force a special election in January 2021 with Rokni. On January 3rd and 6th, 2021, Kissner contacted the Santa Cruz and Santa Clara County elections officials respectively to get cost estimates for a potential special election. The Santa Cruz elections office provided a single estimate of $5 to $9 per Santa Cruz County registered voter, or $14, 445 to $26, 001. The Santa Clara elections office provided a cost estimate of $167, 905 to $272, 846, for an August 2021 All Mail Ballot stand-alone election; and a cost estimate of $350, 963 to $570, 315, for a November 2021 Mail Ballot and Vote Center stand-alone election

In late February 2021, the District announced its timeline for making an appointment to fill the vacancy, and Kissner concluded, based on that timeline and the

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relevant Education Code provision, that the latest possible election date would be September 21, 2021. As a result, he included only the Santa Clara elections official's estimate for the August 2021 election on the petition.

Kissner further stated that he and Rokni finalized the petition on March 15, 2021, and then "mobilized to talk with community members and gather signatures." They gathered almost 90 signatures in 18 days and turned in the petition on April 2. "There was no funding or expense involved, no fundraising, no donors, no committee."

Appellants filed an opposition to the petition for a writ of mandate. They argued Dewan's decision to reject the special election petition should be upheld because the petition did not include the cost estimate for a Vote-by-mail and Vote Center election that was provided by the Santa Clara elections office and did not include all required campaign finance disclosures. They contended that respondents were required to include the "full" cost estimate and cannot omit those portions that "they personally believed . . . were irrelevant." Appellants further contended the November election cost estimate should have been included because it is the estimate for the default method of voting in a special election, that is, voting by both mail and at vote centers. Appellants also argued respondents' attestation that "we did not raise more than $2000 or have any top funders requiring disclosure during the course of this petition campaign" was insufficient to satisfy the requirements of Election Code section 104 because they did not explain whether the phrase "course of this petition campaign" included the entire calendar year or just the days since they began gathering signatures after the March 15, 2021 provisional appointment.

The Santa Clara County Registrar of Voters and the Santa Cruz County Registrar of Voters, who were both named in the petition for writ of mandate, filed statements taking no position on the writ. However, they agreed that the special election should occur on or before September 21, 2021.

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A hearing on the petition for writ of mandate was held on June 7, 2021. Following the hearing, the parties filed supplemental briefs. The trial court granted the petition for writ of mandate finding respondents "actually, substantially and reasonably complied with requirements of Education Code section 509, subd. 1(f)(1)(A)" by including only the August 2021 cost estimate. The court further found respondents "actually, substantially and reasonably complied with the requirements of Education Code section 5091, subd. (f)(1)(D)" because "[t]here was no fundraising, no expenses and no committee."

II

Discussion

Education Code section 5091 sets forth the statutory scheme for filing a school board vacancy. Section 5091, subdivision (c), provides that "[i]f a provisional appointment is made . . ., the registered voters of the district may, within 30 days from the date of the appointment, petition for the conduct of a special election to fill the vacancy." "The petition shall be submitted to the county superintendent of schools having jurisdiction who shall have 30 days to verify the signatures. If the petition is determined to be legally sufficient by the county superintendent of schools, the provisional appointment is terminated, and the county superintendent of schools shall order a special election to be conducted no later than the 130th day after the determination." (§ 5091, subd. (c)(2).)

The county superintendent of schools shall not verify the signatures, "nor shall any further action be taken with respect to the petition," if it does not meet "any of the requirements of this subdivision." (§ 5091, subd. (f)(2).) Those requirements include: "(A) The petition shall contain the estimate of the elections official of the cost of conducting the special election."; "(B) The name and residence address of at least one,

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but not more than five, of the proponents of the petition shall appear on the petition, each of which proponents shall be a registered voter of the school district or community college district, as applicable."; "(C) None of the text or other language of the petition shall appear in less than six-point type."; and "(D) The petition shall be prepared and circulated in conformity with Sections 100 and 104 of the Elections Code." (§ 5091, subd. (f)(1).)

As relevant here, Elections Code section 104 requires the petition to include a disclosure of top funders, as set forth in Elections Code section 107. (Elec. Code, § 104, subd. (b)(4).) Elections Code section 107 requires a "committee formed pursuant to Section 82013 of the Government Code" to create a top funder sheet (Elec. Code, § 107, subd. (a)(1)), and Government Code section 82013 defines a "committee" to mean "any person or combination of persons who directly or indirectly . . . (a) Receives contributions totaling two thousand dollars ($2, 000) or more in a calendar year."

Appellants first contend that actual compliance, not merely substantial compliance, with section 5091 is required. We need not decide whether substantial compliance is legally sufficient because the trial court found actual compliance and, as explained below, we reach the same conclusion.

Appellants argue the special election petition failed to comply with the requirements of (1) section 5091, subdivision (f)(1)(A), by not including the full cost estimate from the Santa Clara County Registrar, and (2) section 5091, subdivision(f)(1)(D), by failing to establish respondents were not a committee within the meaning of Government Code section 82013. "In reviewing [an order] granting a writ of mandate, we apply the substantial evidence standard of review to the court's factual findings, but independently review its findings on legal issues. [Citation.] Interpretation of statutes, including local ordinances and municipal codes, is subject to de novo review." ( City of San Diego v. San Diego Employees' Retirement System (2010) 186 Cal.App.4th 69, 78.)

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A. Respondents Complied with the Requirements of Section 5091, subdivision (f)(1)(A )

Section 5091, subdivision (f)(1)(A), requires a special election petition to include "the estimate of the elections official of the cost of conducting the special election." The Santa Clara County Registrar provided two cost estimates, one for a special election to be held in August 2021 and one for a special election to be held in November 2021. In this case, however, the special election could not be held more 190 days after the provisional appointment, which occurred on March 15, 2021. (See § 5091, subd. (c)(2) [30-day period after appointment to file petition, plus 30-day period for Superintendent to certify petition, plus 130-day period within which to schedule the special election].) One hundred ninety days after March 15, 2021, is September 21, 2021. As noted, in their nonopposition to the petition for writ of mandate, the Santa Clara County Registrar and the Santa Cruz County Registrar agreed the special election should be held no later than September 21, 2021. If calculated from when respondents submitted the signed petition, April 2, 2021, the special election was required to be held within 160 days, or on or before September 8, 2021. Thus, of the two dates provided by the Santa Clara County Registrar for holding the special election, the only legally possible date was the one in August 2021. Stated differently, the November 2021 estimate is not a cost estimate for "conducting the special election" because it was not legally possible to conduct the special election in November 2021 under the applicable Education Code provisions. (See Civ. Code, § 3531 ["The law never requires impossibilities."]; National Shooting Sports Foundation, Inc. v. State of California (2018) 5 Cal.5th 428, 433 ["Impossibility, as an aid to statutory interpretation, is akin to the absurdity canon, which counsels courts to 'avoid any [statutory] construction that would produce absurd consequences.'"].) The special election petition satisfied the requirements of section 5091, subdivision (f)(1)(A), when it included only the August 2021 cost estimate of the Santa Clara County Registrar.

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Appellants argue the date of the election has nothing to do with the cost of the special election; rather it is the method of conducting the election that matters. The required cost estimate, however, must be based on a legally permissible date to conduct the special election because it is an estimate of "the cost of conducting the special election." (§ 5091, subd. (f)(1)(A).) In sum, the trial court properly concluded respondents complied with the requirements of section 5091, subdivision (f)(1)(A).)

B. Respondents Complied with the Requirements of Section 5091, subdivision (f)(1)(D)

As noted, section 5091, subdivision (f)(1)(D), requires a written top funder disclosure unless respondents did not raise more than $2, 000 in a calendar year for the special election petition. Respondents submitted a signed attestation that they did not raise more than $2, 000 "during the course of this petition campaign." Appellants fault respondents for failing to explain to Dewan whether the phrase "course of this petition campaign" reflected the calendar year or "the far shorter period since they began gathering signature after the March 15, 2021 provisional appointment." Respondent Rokni specifically asked whether the attestation was sufficient and whether Dewan wanted further clarification or explanation, and was told that no clarification was needed. Moreover, the trial court found there was no fundraising or committee, and its finding is supported by Kissner's declaration, which stated, under penalty of perjury, that the petition campaign began in January 2021, and "[t]here was no funding or expense involved, no fundraising, no donors, no committee." In sum, the trial court properly concluded respondents complied with the requirements of section 5091, subdivision

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(f)(1)(D), because they were not required to include a top funder disclosure with the special election petition.

III

Disposition

The order is affirmed. Respondents are entitled to their costs on appeal.

WE CONCUR: BEDSWORTH, ACTING P.J., GOETHALS, J.

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Notes:

Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

The Santa Clara elections office also noted it was very costly to hold a stand-alone election when compared to a shared-cost election with the Primary or General election.

All further statutory citations are to the Education Code, unless otherwise stated.

Appellants also argue omitting the November 2021 cost estimate is "indefensible" because the estimate more accurately reflects the cost of the default method of voting, which requires an in-person component, whether at a polling site or vote center. Appellants notes the Superintendent has no authority to choose the method by which the election shall be held, i.e., an all-mail ballot or with an in-person component. Appellants, however, do not contest that the Superintendent may certify and schedule the special election despite lacking the authority to choose the voting method. Moreover, as stated as above, the petition was legally sufficient to trigger the superintendent's duties.

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