California Cases December 21, 2023: Heckman v. Dupuis

Case Description

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NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. 22CV007072)

TUCHER, P.J.

Alan Heckman brought a pre-election challenge to a parcel tax proposed by the Livermore Valley Joint Unified School District (the District).

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After the trial court denied his petition for writ of mandate, the election took place and the voters passed the measure. Heckman appeals, contending the election procedures and materials did not comply with statutory requirements, that he was deprived of the right to cross-examine witnesses, and that the court erred in dismissing one cause of action. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The voters of the District have for many years periodically approved a parcel tax to support educational programs. The tax that took effect on July 1, 2015 was set to expire in June 2022. As that date approached, the District considered options to renew the parcel tax.

The District's Board of Education (the Board) received presentations about alternatives for a parcel tax election at its meetings on October 28, 2021, January 11, 2022, and February 1, 2022. The October 28 presentation explained that there were only three election dates before expiration of the parcel tax: a special election on April 12, 2022, a mail-ballot election on May 3, 2022, and the statewide primary election on June 7, 2022. At the January 11 meeting, the presentation set out the May 3, 2022 mail-ballot election and the June 7, 2022 statewide primary election as the two available election dates. At the February 1 meeting, the presentation indicated the Board would proceed with the May 3, 2022 election, with that date being the deadline for completed ballots to be returned or postmarked. On February 1, the Board adopted Resolution No. 032-21/22 calling for the election on the parcel tax to take place on May 3, 2022, later designated Measure A. The school superintendents of Alameda and Contra Costa Counties then gave

Dyrell Foster, Sheila Fagliano, and Ellen Goold), who allegedly authored the argument in favor of the measure.

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formal notice of the parcel tax election to be held on May 3; the notices did not specify that the election would be held by mail.

Heckman filed a petition for writ of mandate on February 10, 2022, but on February 14 the clerk rejected it for filing, citing defects in format. Heckman successfully filed his petition on February 15, 2022.

The petition alleged four causes of action, asserting the then-pending election violated state law regarding the timing of elections (Elec. Code, § 1000) and the Board did not authorize the use of mailed ballots (§ 4000, subd. (a)); that the texts of the ballot question and the argument in favor of the measure were improper; and that the argument the Board submitted in favor of the text was false and misleading. Heckman sought a writ of mandate that would prevent the May 3, 2022 election from proceeding and require amendments to the ballot question and argument in support of Measure A.

A week later, on February 22, 2022, Heckman filed a notice that on February 24 he would move ex parte for an order establishing an expedited briefing and hearing schedule. He requested a hearing on the merits during the week of February 28 through March 4, at which county election officials, or the persons most knowledgeable about the printing and distribution of election materials, would appear as witnesses. The trial court set the hearing on the merits for February 28.

On the day of the February 28 hearing, Heckman filed an amendment to the petition for writ of mandate adding a fifth cause of action, alleging the

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election officials intended to violate section 4101 by distributing the voter pamphlet and voter information guide for the election too early.

Also on February 28, the trial court denied the petition for writ of mandate as to the first four causes of action, and dismissed without prejudice the fifth cause of action, finding it was not ripe. The Board gave notice of entry of the order on March 16. The parties agree that election took place as scheduled on May 3, and on May 13, 2022 Heckman filed a notice of appeal.

DISCUSSION

I. Standard of Review

" '" 'In reviewing the trial court's ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed.'" '" ( K.G. v. Meredith (2012) 204 Cal.App.4th 164, 174.) We review claims of mootness and ripeness de novo when based on undisputed facts. ( Ibid .)

II. Election by Mail Ballot

Heckman contends the election was improper because it neither took place on an established election date for purposes of section 1000 nor satisfied the statutory requirements for a mail-ballot election. As a result, he asks us to invalidate the election.

The resolution calling for the parcel tax election recited that "Section 1000 of the California Elections Code . . . authorizes the District to conduct such an election on an established election date" and that "May 3, 2022, is an established election date."

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Section 1002 provides that, "[e]xcept as provided in Section 1003 . . . all state, county, municipal, district, and school district elections shall be held on an established election date." Section 1000 specifies certain "established election dates," and Heckman points out correctly that May 3, 2022 is not among them.

Section 1003 sets forth categories of elections to which these provisions do not apply, among them "[a]ny election conducted solely by mailed ballot pursuant to Division 4 (commencing with Section 4000)." (§ 1003, subd. (f).) Section 4000, in turn, authorizes an election to be "conducted wholly by mail" if three conditions are met: the election is one of several enumerated types (a condition Heckman does not dispute is met here), "[t]he governing body of the local agency authorizes the use of mailed ballots for the election," and "[t]he election is held on an established mailed ballot election date pursuant to Section 1500." (Italics added.) One of the dates for mail-ballot elections is "[t]he first Tuesday after the first Monday in May of each year" (§ 1500, subd. (a))-which May 3, 2022 was.

Heckman argues that because the Board's resolution mistakenly cited section 1000 and because it did not specify that the "established election date" was that for mailed ballot elections, the Board violated a mandatory provision of law and the election should be invalidated. He relies on Daniels v. Tergeson (1989) 211 Cal.App.3d 1204, which considered a post-election challenge to a candidate's eligibility. A statute required a candidate for office

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to be a registered voter in the district at least 30 days before the deadline for filing nomination papers, but the candidate had been registered only 28 days in advance. ( Id . at pp. 1206-1207; Gov. Code, § 25041.) The appellate court explained that the effect of election irregularities depended on whether the statute violated was directory or mandatory: "A violation of a mandatory provision vitiates an election. Departure from a directory provision does not render the election void if there has been substantial compliance with the law, and there is no indication that the result of the election was changed or the rights of voters impaired by the violation." ( Daniels , at p. 1208.) Explaining the difference between the two, the court explained that "[w]hether a provision is mandatory or directory depends on the character of the act prescribed. If it goes to the substance or necessarily affects the merits or results of an election, the provision is mandatory. Provisions relating to the time and place of holding elections, the qualifications of voters and candidates and other matters of that character are mandatory." ( Ibid .) Because the statute at issue in Daniels affected the merits of an election by determining who was eligible to be a candidate, it was mandatory, and its violation resulted in nullification of the election. ( Id . at pp. 1209, 1213.)

Heckman argues that the provisions governing the dates for regular and mail-ballot elections similarly are mandatory, that the Board did not authorize the use of mailed ballots or give notice to the voters that the election would be by mail, and that the election accordingly was invalid.

There are multiple problems with this argument. First, we cannot grant the relief Heckman's petition sought. He requested a writ of mandate ordering the Board to rescind the notice of election; a declaration that the May 3, 2022 election may not proceed; an injunction preventing Depuis, Cooper, Monroe, and the Board from proceeding with the election; and a writ

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of mandate ordering them to amend the ballot question for the parcel tax measure and the argument in favor of the measure. But the election date was well over a year ago, and we cannot stop an election that has already taken place. (See Long v. Hultberg (1972) 27 Cal.App.3d 606, 608-609 [dismissing appeal as moot]; Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128, 132 ( Lenahan ) [plaintiffs "may not, after the election has been held, still urge a court to stop it"].)

Second, Heckman has not established that the statutory violation he alleges can be a proper ground for invalidating an election that has already occurred. An election that has taken place may be invalidated only in limited circumstances: misconduct by a member of the precinct board, bribery of an elector or member of the precinct board, election of an ineligible candidate, illegal votes, denial of the right to vote, and error in conducting the election, canvassing the returns, or counting the ballots. (§ 16100; see McKinney v. Superior Court (2004) 124 Cal.App.4th 951, 958, citing Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192 ( Friends of Sierra Madre ).) Invalidation may also be proper if the claimed irregularities "prevented a full and fair vote" ( Lenahan , supra , 14 Cal.2d at p. 132) or amounted to a violation of due process ( Jobs &Housing Coalition v. City of Oakland (2021) 73 Cal.App.5th 505, 512-513 ( Jobs &Housing Coalition )). Heckman makes no showing that any of these standards is met. Failure to comply with procedural prerequisites to a governmental action is not among the illegalities recognized by the Elections Code. ( Friends of Sierra Madre , at p. 192.)

Third, Heckman's challenge fails on the merits. The materials prepared for two Board meetings at which the election was discussed make clear the Board was aware that if it selected May 3, 2022 for the election,

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then the balloting would occur by mail. That is the date it chose, and in so choosing it necessarily authorized a mailed-ballot election. Nothing in the terms of section 4000 mandates any particular form of words in the resolution setting an election by mailed ballots or in the notice to voters. Despite the apparent clerical error in the resolution's citation to section 1000 and its failure to recite that the election would be by mail, we agree with the trial court that by authorizing an election on that date, the Board authorized the use of mailed ballots as required by section 4000, subdivision (a).

In his reply brief, Heckman argues that the election was improper for two additional reasons: (1) it was not conducted wholly by mail in accordance with section 4000, due to the existence of one accessible voting location in Alameda County for those who needed assistance; and (2) the deadline for receipt of ballots stated in Alameda County's voter information guide was different from that required by section 4103. These arguments fail for at least three reasons. First, Heckman did not raise these matters properly in his opening brief (see Rental Housing Owners Assn. of Southern Alameda County , Inc. v. City of Hayward (2011) 200 Cal.App.4th 81, 94, fn. 12 [we generally do not consider matters raised for first time in reply brief]; Goehring v. Chapman University (2004) 121 Cal.App.4th 353, 372 [claims of error must be stated under separate heading].) Second, the arguments concern events that took place after the trial court entered judgment, and they are therefore not properly before us. (See Cassidy v. California Bd. of Accountancy (2013) 220 Cal.App.4th 620, 628.) Finally, Heckman does not show that either of these matters falls within the statutory grounds to invalidate an election.

Heckman also asserts in his reply brief that a pre-election challenge to Measure A was proper, and that he timely appealed from such a challenge.

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Even accepting these premises, we are not persuaded of the conclusion he draws from them-that if his pre-election challenge was meritorious then the election result must be annulled. Heckman once again fails to establish his eligibility for post-election relief, as we are not free to carve new exceptions into the rule that the results of an election, once it occurs, must be respected. (See Friends of Sierra Madre , supra , 25 Cal.4th at p. 192.)

III. Language of Ballot Materials

Heckman also asks us to invalidate the election because, he contends, (1) the ballot question and the argument in favor of Measure A were not impartial, and (2) the trial court applied the wrong burden of proof when considering his second cause of action alleging the text of the ballot measure was untrue, partial, and argumentative.

Challenges to ballot materials must generally be made before an election, and, in the absence of materials that are so misleading as to amount to a due process violation, lack of impartiality is not a basis to invalidate an election that has already taken place. ( Jobs &Housing Coalition , supra , 73 Cal.App.5th at p. 512; Denny v. Arntz (2020) 55 Cal.App.5th 914, 920-921.) Here, we are reviewing denial of a pre-election challenge but, the election having taken place, Heckman's challenge to the ballot materials is now moot.

Heckman asks us to consider this issue despite its mootness, contending it raises issues of statutory interpretation that are likely to recur in future elections yet evade timely appellate review. He points to cases in which appellate courts have exercised their discretion to consider otherwise moot challenges to elections on this basis. (See, e.g., Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 167, 172 [constitutionality of prohibition of write-in voting in runoff elections]; Fuller v. Bowen (2012) 203 Cal.App.4th 1476, 1483 [challenge to candidate's qualifications for office];

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Vargas v. Balz (2014) 223 Cal.App.4th 1544, 1547 [city clerk's authority to change arguments submitted in opposition to municipal initiatives].)

We decline to exercise our discretion to consider Heckman's challenge to the ballot materials. First, he made no effort to seek timely appellate review of the trial court's ruling. He could have sought writ relief in this court, and been eligible for prompt pre-election review, as occurred in several of the cases upon which he relies for his argument that the ballot materials were misleading. (See, e.g., McDonough v. Superior Court (2012) 204 Cal.App.4th 1169, 1171-1172; Yes on 25, Citizens for an On-Time Budget v. Superior Court (2010) 189 Cal.App.4th 1445, 1448-1449, 1451-1452; Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1425-1426.) Instead, he waited almost two months after the trial court's ruling to file his notice of appeal, doing so only after the election took place.

Not only is this issue moot, but even if it were not, we could render only an advisory opinion on the statutory issue Heckman contends is a matter of public interest. Heckman contends the trial court mistakenly applied a heightened" 'clear and convincing'" burden of proof to his challenge to the ballot question in his second cause of action and that the error prejudiced him. He brought his second cause of action under section 13119, subdivision (c), which requires statements of ballot measures to be "a true and impartial synopsis of the purpose of the proposed measure," and section 13314, which authorizes issuance of a writ of mandate based on proof that there is error or omission in a ballot or voter information guide and that issuance of the writ will not substantially interfere with the conduct of the election. Implicit in this statute, he argues, is a burden of proof by preponderance of the evidence. And, he seems to contend, section 9509, which authorizes a writ of mandate or injunction requiring amendment of

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election materials in school district elections only upon proof by clear and convincing evidence that the material is false or misleading or otherwise inconsistent with law, has no application to his challenge.

Regardless of the correct burden of proof, the trial court found that under either standard it would reject this cause of action. That is, the court found, Heckman " has not shown by a preponderance of the evidence or by clear and convicting proof that the six statements" alleged in the second cause of action violate section 13119, subdivision (c). (Italics added.) So, even before this case became moot there was no need to resolve the legal issue Heckman identifies.

As to Heckman's specific challenges to the impartiality or accuracy of statements in the ballot and related materials, he makes no showing at all that they merit appellate review despite being moot. Indeed, in his opening brief, he merely lists the individual words or phrases he suggests should have been deleted or revised, deferring any analysis of the challenged statements to his reply brief. Even if this challenge were not moot, we would treat it as forfeited. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 ( Allen ) [we need not consider undeveloped arguments or matters raised for the first time in reply brief].)

IV. Cross-Examination of Election Officials

Heckman filed his petition on February 15, 2022. A week later, on February 22, he filed an ex parte application for an order shortening time, seeking an expedited briefing schedule and a hearing on the merits during the week of February 28 through March 4. The application indicated Heckman would ask that certain county election officials or the person most knowledgeable about the printing and distribution of election materials appear at the hearing on the merits. The supporting memorandum argued

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that "[q]uestions likely will arise in [the election officials'] declarations that would require further explanation and/or cross[-]examination."

Two county election officials submitted declarations in response. Helen Nolan, assistant registrar of voters for Contra Costa County, declared that a decision on the merits of the petition after March 4, 2022 would substantially interfere with the printing and distribution of the official election materials, and she asked the court to render a decision by that date. She explained that the Contra Costa Elections Division needed to send the approved election materials to the translator no later than March 7; that voter information pamphlets and ballots must be submitted to the printer by March 14; and that all printed materials must be prepared for mailing no later than March 17 and mailed to military and overseas citizens no later than March 18.

Cynthia Cornejo, Alameda County's deputy registrar of voters, filed a declaration on February 24, 2022. She stated that the "drop-dead printing deadline" for election materials was Monday, February 28, and the registrar would need to receive a court order directing changes to the materials no later than that date in order not to substantially interfere with the election. She explained that the process of preparing the materials involved several steps, including proofreading the ballots and voting materials, translating them, and printing them. The ballots must then be mailed to military and overseas voters starting on March 19, and for other voters the pamphlets must be distributed by March 24 and the vote by mail ballots must be sent by April 4. And, she stated, even though the election would be held by mail, the county must provide accessible voting machines at its headquarters, which must be programmed.

At the February 24, 2022 ex parte hearing, Heckman questioned the accuracy of some of the declarations' statements about the applicable

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deadlines and reiterated his request to cross-examine the election officials at the hearing on the merits. Concluding that none of the issues Heckman raised were relevant to the merits of the petition, the trial court denied the request.

Heckman contends this ruling was an abuse of the trial court's discretion. Although the election has taken place, he asks us to review this issue because, he suggests, it raises an issue of public interest that is likely to evade appellate review. He contends the statutory scheme for mail-ballot elections requires a different mailing schedule than reflected in the declarations; that is, he argues, under section 4101, a combined voter information guide and ballot must be mailed no earlier than the 29th day before the election, which was later than the date Cornejo specified for mailing the voter information guide. He asserts the error was prejudicial because it reduced the time available for the court to review the election materials and it hampered timely appellate review.

Not only is this issue moot, but it is clear that the trial court's refusal to allow cross-examination made no difference to the outcome of the case. A writ of mandate based on erroneous election materials is proper only if the materials are false, misleading, or otherwise violate the law and issuance of the writ "will not substantially interfere with the printing or distribution of official election materials as provided by law" (§ 13313, subd. (b)(2); see § 13314, subd. (a)(2) [similar requirement for challenge to printing ballot or voter information guide]; § 9509, subd. (b)(2) [similar requirement for election materials in school district elections].) Each declaration explained why issuance of a writ after a specified date would" 'substantially interfere'" with the preparation and distribution of the ballot materials and the election. But the trial court's rejection of Heckman's challenge to the election materials

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was not based on a finding that an injunction would substantially interfere with the election, but rather a finding that the materials were not improper at all. Heckman has made no showing that the testimony of the election officials about the schedule for carrying out the election had any bearing on the issue the trial court found dispositive. We see no reason to issue an advisory opinion on this matter.

V. Dismissal of Fifth Cause of Action

On the day of the February 28, 2022 hearing on the merits, Heckman filed an amendment to the petition for writ of mandate asserting a fifth cause of action against election officials Dupuis and Cooper. He alleged that under section 4101," 'the combined county voter information guide and mail ballot'" for a vote-by-mail election must not be mailed before the 29th day before the election, and the statement in Cornejo's declaration that the Alameda County registrar would distribute the voter pamphlet by March 24, 2022 (more than 29 days before the May 3 election) showed that the Alameda County registrar intended to violate section 4101. And, he alleged, assistant registrar Nolan's statement that all printed materials must be prepared for mailing no later than March 17 indicated that the Contra Costa County registrar also had an incorrect understanding of the permissible mailing dates. He asserted this cause of action under section 13314, which authorizes an elector to seek a writ of mandate "alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, county voter information guide, state voter information guide, or other official matter, or that any neglect of duty has occurred, or is about to occur." (§ 13314, subd. (a)(1).) He sought a writ of mandate or an injunction ordering the election officials not to begin mailing the voter pamphlet/voter

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information guide to any voters other than military and overseas voters before April 4, 2022, or declaratory relief.

At the hearing, the trial court concluded the fifth cause of action was premature because the materials had not yet been mailed. It dismissed the cause of action without prejudice as not ripe, telling Heckman he could bring the claim again if the election officials in fact mailed the ballots too early.

Heckman contends this ruling was error. He argues the cause of action was ripe because section 13314 authorizes a petition for writ of mandate when a neglect of duty in violation of the Election Code "is about to occur" (§ 13314, subds. (a)(1) &(2)(A)), and the declarations of the election officials show that a violation of section 4101 would soon occur. (See Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 171 [controversy is ripe" 'when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made' "].) And, he argues, the ruling prejudiced him because it hampered expeditious review of his claim. (See § 13314, subd. (a)(3) [action or appeal under § 13314 has priority over all other civil matters].)

We question whether the trial court was correct in dismissing the cause of action as not ripe. Section 13314 applies to errors that are "about to occur," and there is at least a reasonable argument that a mailing set to take place in the next month is "about to occur." Whatever the outcome of that dispute, however, this claim is moot. The election has taken place. Neither we nor the trial court can give effective relief at this point.

Nor is this an appropriate case to consider a moot issue. The trial court made no ruling on the merits of the fifth cause of action, which was added only hours before the hearing on the petition for writ of mandate. The parties did not brief the legal issues pertinent to the claim, including the

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applicability of section 4101 to a case where the election officials intend to send the voter information guides and mail ballots separately, rather than in a combined format; the propriety of sending the voter information guide and mail ballot separately; and whether it was necessary to send the materials for a local election to military and overseas voters on an earlier date (see 52 U.S.C. § 20302(a)(8); see also Elec. Code, §§ 3102, 3105). Nor did the parties provide any additional evidence that might have been relevant to the merits of the claim. On this undeveloped record, we will not issue an advisory opinion on the election officials' obligations under section 4101.

DISPOSITION

The judgment is affirmed.

WE CONCUR: FUJISAKI, J. PETROU, J.