Foster v. Ronco CA3 ( 2021 )

Filed 10/27/21 Foster v. Ronco CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
DIANNE FOSTER et al., C092805
Plaintiffs and Appellants, (Super. Ct. No.
S-CV-0045280)
v.
RYAN RONCO, as County Clerk/Recorder/Registrar
of Voters, etc.,
Defendant and Respondent.
Plaintiffs Dianne Foster and Virginia Valenzuela (plaintiffs) are the proponents of
a local recall campaign against the members of the board of directors of the Foresthill
Public Utility District (the district). To qualify the recall petitions for the ballot, plaintiffs
needed to obtain at least 962 valid signatures within a 60-day circulation period
beginning on March 18, 2020. On May 18, 2020, the last day of the circulation period,
plaintiffs submitted four recall petitions, each containing just over 1,200 signatures.
However, upon examination of the petitions, the local elections office determined that
many of the signatures were invalid and, as a result, the recall petitions fell just short of
the minimum number of valid signatures required to trigger an election.
1
Plaintiffs then filed a petition for writ of mandate seeking an order compelling the
local elections official (defendant) to allow additional time for plaintiffs to gather
signatures. Plaintiffs argued that stay-at-home orders imposed in response to the
COVID-19 pandemic prevented them from obtaining enough signatures within the
statutory deadline, in violation of their First Amendment rights. The trial court denied
the writ petition.
In this appeal, plaintiffs, proceeding in propria persona, seek to reverse the
superior court’s judgment denying their petition for writ of mandate. We conclude that
the appeal is moot as to the director who subsequently was voted out of office, but
otherwise affirm the judgment.
BACKGROUND LAW
“Recall is the power of the electors to remove an elective officer.” (Cal. Const.,
art. II, § 13.) Although the California Constitution speaks of recall as a power reserved to
the people, it grants the Legislature broad authority to enact laws governing the recall
process. (Cal. Const., art. II, §§ 16, 19; Libertarian Party of California v. Eu (1980) 28
Cal.3d 535, 540.) The statutes governing recall elections are contained in section 11000
et seq. of the Elections Code.1 Sections 11200 through 11242 address the specific
procedures governing the recall of local elective officers. (See Persky v. Bushey (2018)
21 Cal.App.5th 810, 821.)
Under the statutory scheme, a recall is commenced by the service, filing, and
publication/posting of a notice of intention to circulate a recall petition. (§§ 11006,
11020-11022.) In the case of a local officer, the notice is filed with the local elections
official. (§ 11021.) Within seven days thereafter, the officer sought to be recalled may
file an answer. (§§ 11023-11024.)
1 Undesignated statutory references are to the Elections Code.
2
The proponents of the recall may not circulate the petition for signatures until the
local elections official notifies them the form and wording of the petition meets statutory
requirements. (§§ 11040-11043.5.) Once such approval is obtained, the amount of time
proponents have to circulate the petition depends on the number of registered voters in
the electoral jurisdiction. (§ 11220.) To qualify for the ballot, the petition must be
signed by a specified percentage of the registered voters in the electoral jurisdiction,
calculated as of the time of the last report of registration. (§ 11221.)
When a petition is presented for filing, the elections official must determine
whether the number of signatures affixed to the petition, prima facie, equals or exceeds
the minimum number of signatures required. (§ 11222.) If so, the petition is deemed
filed as of that date. (§ 11222.) If not, the petition is void and no “further action” is
taken. (§ 11222.)
After the petition is filed, the elections official has 30 (business) days to examine
the petition and verify the signatures. (§ 11224.) If the number of valid signatures is
greater than the required number, the elections official must certify the petition as
sufficient. (Ibid.) If the number of valid signatures is less than the required number, the
petition must be certified as insufficient and “no action shall be taken on it.” (§ 11226;
see also §§ 11224, 11225.) A failure to secure a sufficient number of signatures does not
preclude the proponents from initiating another recall petition. (§§ 11225, subd. (g),
11300; Moore v. City Council of Maywood (1966) 244 Cal.App.2d 892, 896.)
BACKGROUND FACTS AND PROCEDURE
On February 25, 2020, plaintiffs filed and served a notice of intention to circulate
petitions to recall four members of the district’s board of directors. On March 18, 2020,
the Placer County elections office approved the form of the petitions, allowing plaintiffs
to begin circulating them. Based on the number of active registered voters in Foresthill,
plaintiffs had 60 days, until May 18, 2020, to collect and submit 962 valid signatures for
each of the four petitions.
3
Meanwhile, in early 2020, in response to the COVID-19 global pandemic,
Governor Newsom and the California Department of Public Health (DPH) issued a series
of orders aimed at slowing the spread of the virus. Among them, on March 19, 2020,
Governor Newsom issued a statewide “stay-at-home” order, which ordered all people
living in California to stay at home, except for those needed to maintain critical
infrastructure. (Executive Order N-33-20 (Mar. 19, 2020)
[as of Oct. 25, 2021],
archived at .) The stay-at-home restrictions remained in
place through early May 2020, when California announced a four-stage plan to gradually
ease restrictions and reopen lower-risk businesses, subject to mandatory physical
distancing measures. (Executive Order N-60-20 (May 4, 2020)
[as of
Oct. 25, 2021], archived at ; DPH Order (May 7, 2020)
[as of Oct. 25, 2021], archived at
.) Since then, the state, counties, and localities have
implemented a variety of measures—intensifying or diminishing restrictions—in
attempting to strike the proper balance between public health, economic growth, and
activities. (See, e.g., DPH Order (Aug. 28, 2020)
[as of Oct. 25, 2021], archived at .)2
2 On our own motion, we take judicial notice of the March 19, 2020 Executive
Order N-33-20; the May 4, 2020 Executive Order N-60-20; the May 7, 2020 DPH Order;
and the August 28, 2020 DPH Order. (Evid. Code, § 452.)
4
In March or April 2020, plaintiffs contacted the Secretary of State’s office and
requested that the deadline to submit signatures be extended or, alternatively, that the
required number of signatures be reduced. The Secretary of State’s office informed
plaintiffs that it only oversees statewide recalls, and that plaintiffs’ local elections official
is responsible for local recall petitions.
Although plaintiffs claim the local elections official would not grant an extension
without Secretary of State authorization, there is nothing in the record showing that
plaintiffs ever requested an extension from defendant. Plaintiffs instead apparently
focused their efforts on trying to obtain the required number of signatures. From March
through May 2020, the proponents circulated the recall petition, collecting between 1,215
and 1,224 signatures for each petition.
On May 18, 2020, the proponents submitted the signatures they collected to the
Placer County elections office for verification. On June 30, 2020, the proponents were
notified that none of the petitions contained enough valid signatures (962) to trigger a
recall election. The petitions were determined to be between 14 and 52 signatures short
of the minimum number required. Based on the examination results, defendant certified
each petition as insufficient.
On July 28, 2020, plaintiffs filed a writ petition in the Sacramento County
Superior Court. On July 31, the court set the matter for hearing on the merits on August
6, 2020. On August 3, 2020, after reviewing plaintiffs’ opening memorandum of points
and authorities, the trial court vacated the hearing based on concerns about improper
venue.
On August 11, 2020, plaintiffs filed a second petition for a writ of mandate
(hereinafter, the “writ petition”), this time in the Placer County Superior Court.3 The
3 The writ petition failed to name the four individual board members as real parties
in interest. Because we deny this appeal on other grounds, we find it unnecessary to
5
allegations of the writ petition were virtually identical to those in the Sacramento action,
except that plaintiffs (1) removed the Secretary of State as a named party-respondent, and
(2) deleted the previously referenced August 7, 2020 deadline to have the petition
included in the ballot for the November 2020 election.
The petition contained two causes of action, alleging that section 9014,
subdivision (b), and section 11042, subdivision (b), are unconstitutional as applied in
light of the COVID-19 stay-at-home orders. Plaintiffs sought a peremptory writ of
mandate compelling defendant either to accept the signatures submitted as sufficient to
qualify the petitions for a recall election, or to allow the proponents an “additional 2-
week extension”—presumably from the date of judgment and not the May 18, 2020
statutory deadline—to gather and submit additional signatures.
The writ petition was set for hearing on September 10, 2020. On September 1,
2020, defendant filed an opposition to the writ petition. On September 3, 2020, plaintiffs
filed a supporting memorandum, but the court rejected it as untimely.4
On September 10, 2020, after hearing oral argument, the trial court issued an
(unsigned) memorandum opinion denying the writ petition. The trial court began by
characterizing the writ petition as a “confusing hodge-podge,” addressing provisions of
the Elections Code “which are clearly inapplicable to the relief” sought. The court noted
that section 9014, subdivision (b) deals with proposed initiative or referendum measures,
not recall petitions, and that section 11042, subdivision (b) deals with the process to
approve the form and content of a recall petition before circulation. Thus, the court
consider whether the board members were indispensable parties. (See Sonoma County
Nuclear Free Zone ’86 v. Superior Court (1987) 189 Cal.App.3d 167, 173; Tracy Press,
Inc. v. Superior Court (2008) 164 Cal.App.4th 1290, 1297.)
4 Although plaintiffs refer to the September 3 memorandum in their appellate brief,
they do not challenge the trial court’s refusal to consider it.
6
denied the specific relief requested in the first and second causes of action of the writ
petition.
Nevertheless, the court concluded that the gravamen of the writ petition was
plaintiffs’ claim that the statewide stay-at-home orders prevented the proponents from
gathering enough valid signatures to qualify their petitions for the November 2020 ballot.
The trial court considered and rejected this claim on the merits. The court explained:
“From their own allegations, it is evident [plaintiffs] were able to obtain more than the
required number of signatures, directly contradicting their assertions that the [COVID-19
restrictions] impeded their ability to obtain signatures for the recall petitions.” According
to the court, “[plaintiffs] simply came up short,” and “ran out of time” to verify the
sufficiency of the signatures before filing the petitions. Thus, the court ruled that
plaintiffs failed to make a sufficient showing that they were prevented from obtaining the
required number of signatures due to the state’s COVID-19 restrictions. Further, even if
there was merit to their substantive claim, the court was persuaded that granting the
requested writ relief would substantially interfere with the conduct of the November 2020
election, in contravention of section 13314, subdivision (a)(2).
On October 6, 2020, plaintiffs filed a premature notice of appeal.5 On October 8,
2020, the court entered its judgment denying the writ petition, incorporating its prior
written decision as an exhibit.
5 We have exercised our discretion under California Rules of Court, rule
8.104(d)(2), to treat the notice of appeal as having been filed immediately after the entry
of judgment.
7
DISCUSSION
I
Mootness
The trial court construed the writ petition as seeking to qualify the recall petitions
for the November 2020 election. Thus, as a preliminary matter, we consider whether this
appeal is moot due to the completion of that election.
A case becomes moot when a court ruling can have no practical effect or cannot
provide the parties with effective relief. (Corrales v. Bradstreet (2007) 153 Cal.App.4th
33, 46.) Here, although plaintiffs’ stated goal was to qualify the recall petitions for the
November 2020 election, the relief requested in their writ petition was not tied to that
election. Under the Elections Code, the time for holding a recall election is triggered by a
finding of sufficiency and the corresponding issuance of an order scheduling a recall
election. (§§ 11225, 11240-11242.) Once such an order issues, the recall election must
be held “not less than 88, nor more than 125, days after the issuance of the order.”
(§ 11242.) If a regular or special election is to be held within this time period, the statute
provides that the recall election must be held “on the same day[ ] and consolidated with”
that election. (§ 11242.) Otherwise, the governing body must call a special election.
(See § 12001; Baroldi v. Denni (1961) 197 Cal.App.2d 472, 477.)
In this case, because the petitions were found to be insufficient, there never was an
order for an election. Thus, the statutory requirements governing the timing of the
election, which apply only after the issuance of such an order, never applied. It follows
that the petitions were not required to qualify for the November 2020 ballot and,
therefore, the passage of the November 2020 election did not (by itself) render this appeal
moot.
Nonetheless, plaintiffs brought to our attention in their opening brief that board
member Linda Cholcher was voted out of office at the November 2020 election. Since
board member Cholcher no longer holds office, she obviously cannot still be recalled.
8
Thus, as to her, the appeal is moot. (Granger v. Legislative Body of Escondido (1936) 15
Cal.App.2d 557, 558.) We now turn to the merits of the writ petition, beginning with our
standard of review.
II
Standard of Review
In this appeal, plaintiffs seek to reverse the trial court’s judgment denying their
petition for a traditional writ of mandate. A traditional writ of mandate lies to compel the
performance of a duty required by law. (Code Civ. Proc., § 1085.) To obtain a writ of
mandate under Code of Civil Procedure section 1085, a plaintiff must show (1) a clear,
present, and usually ministerial duty on the part of the defendant to act, and (2) a
correlative clear, present, and beneficial right in the plaintiff to the performance of that
duty. (Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507.)
On appeal from a trial court’s decision denying a traditional writ of mandate, we
review the record to determine whether the trial court’s findings and judgment are
supported by substantial evidence. (Howard Jarvis Taxpayers Assn. v. Amador Water
Agency (2019) 36 Cal.App.5th 279, 291.) However, to the extent resolution of the issues
depends on the interpretation of a statute or constitutional provision, or application of the
law to undisputed facts, we decide those issues de novo. (Ibid.; Corrales v. Bradstreet,
supra, 153 Cal.App.4th at pp. 47-48.)
A party challenging the constitutionality of a statute carries a heavy burden. (City
of Walnut Creek v. Silveira (1957) 47 Cal.2d 804, 811.) There is a strong presumption in
favor of the constitutionality of a statute and any doubts must be resolved in favor of the
Legislature’s action. (Fox v. Federated Department Stores, Inc. (1979) 94 Cal.App.3d
867, 880; In re Ricky H. (1970) 2 Cal.3d 513, 519 [courts will presume a statute is valid
unless unconstitutionality clearly, positively, and unmistakably appears].)
9
III
Application of the 60-day Circulation Deadline
As discussed above, to qualify the recall petitions for the ballot, the proponents
were required to obtain at least 962 valid signatures within the 60-day circulation period
beginning on March 18, 2020. (§§ 11220, subd. (a)(2), 11221, subd. (a)(2).) Plaintiffs
contend that the 60-day circulation deadline was unconstitutional in light of the stay-at-
home restrictions imposed in response to the COVID-19 pandemic. We conclude, as did
the trial court below, that plaintiffs have failed to carry their burden to demonstrate the
circulation deadline was unconstitutional as applied.6
An as-applied challenge to the constitutional validity of a statute “contemplates
analysis of the facts of a particular case or cases to determine the circumstances in which
the statute or ordinance has been applied and to consider whether in those particular
circumstances the application deprived the individual to whom it was applied of a
protected right.” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084.) The result of
a successful as-applied challenge is not invalidation of the statute as a whole, but an order
enjoining the specific unlawful application. (California Family Bioethics Council, LLC
v. California Institute for Regenerative Medicine (2007) 147 Cal.App.4th 1319, 1339.)
The statute at issue in this case is section 11220, subdivision (a), which imposed a
60-day deadline for the proponents to gather enough valid signatures to trigger a recall
election. (§ 11220, subd. (a)(2).) Plaintiffs contend application of the 60-day deadline,
in conjunction with the state’s stay-at-home restrictions, effectively prevented them from
6 It bears repeating that the two causes of action alleged in the complaint challenged
statutes wholly unrelated to the 60-day circulation deadline. Nevertheless, since the
validity of the 60-day circulation deadline was litigated below, we conclude the issue was
preserved for appeal.
10
obtaining the requisite minimum number of signatures, thereby violating their First
Amendment rights.
As a general rule, the administration of elections is a matter that the United States
Constitution largely entrusts to the states. (Kusper v. Pontikes (1973) 414 U.S. 51, 57 [38
L.Ed.2d 260, 266].) “ ‘[A]s a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than chaos, is to
accompany the democratic processes.’ ” (Feldman v. Reagan (9th Cir. 2016) 843 F.3d
366, 386.) However, as in all other areas of governmental action, the exercise of such
power is subject to constitutional limitations. (Gould v. Grubb (1975) 14 Cal.3d 661,
669.)
When analyzing whether a state election law impermissibly impinges on rights
protected by the First Amendment, we apply the framework derived from the United
States Supreme Court’s decisions in Anderson v. Celebrezze (1983) 460 U.S. 780 [75
L.Ed.2d 547] and Burdick v. Takushi (1992) 504 U.S. 428 [119 L.Ed.2d 245]. (Edelstein
v. City and County of San Francisco (2002) 29 Cal.4th 164, 174 (Edelstein); accord,
Miller v. Thurston (8th Cir. 2020) 967 F.3d 727, 736 (Miller); Voting for America, Inc. v.
Steen (5th Cir. 2013) 732 F.3d 382, 387-388 (Steen); Marcellus v. Virginia State Board of
Elections (4th Cir. 2017) 849 F.3d 169, 175; SAM Party of New York v. Kosinski (2d Cir.
2021) 987 F.3d 267, 274.)
Under the Anderson-Burdick framework, the rigorousness of our inquiry depends
upon the extent to which the challenged election law burdens the First Amendment rights
that the plaintiff seeks to vindicate. (Edelstein, supra, 29 Cal.4th at p. 174.) We must
“ ‘weigh “the character and magnitude of the asserted injury to the rights . . .” against
“the precise interests put forward by the State as justifications for the burden imposed by
its rule,” taking into consideration “the extent to which those interests make it necessary
to burden the plaintiff's rights.” ’ ” (Steen, supra, 732 F.3d at p. 388.) State rules that
impose “ ‘severe burdens on the plaintiffs’ rights,’ [ ] must be ‘narrowly tailored and
11
advance a compelling state interest.’ [Citation.] ‘Lesser burdens, however, trigger less
exacting review, and a State’s “important regulatory interests” will usually be enough to
justify “reasonable, nondiscriminatory restrictions.” ’ ” (Miller, supra, 967 F.3d at p.
736; accord, Edelstein, at p. 174; Steen, at p. 388; SAM Party of New York v. Kosinski,
supra, 987 F.3d at p. 274.)
The difficulty here is that plaintiffs’ brief does not even acknowledge this
standard, let alone apply it. There is no discussion of the severity of the alleged burden
on their First Amendment rights or the level of scrutiny that should apply. Nor does the
brief make any effort to weigh the alleged burden on plaintiffs’ First Amendment rights
against the state’s legitimate regulatory interests. And while the brief refers to several
federal decisions cited in their writ petition, the brief generally fails to discuss the facts of
those cases or explain how they apply. Instead, plaintiffs simply assert, in a conclusory
fashion, that all the cited cases share the “ ‘common thread’ ” of finding state petitioning
requirements to be unconstitutional in the context of COVID-19 restrictions.
Such generalized claims, unsupported by meaningful analysis and citation to
authority, are inadequate to carry an appellant’s burden to establish error. (Allen v. City
of Sacramento (2015) 234 Cal.App.4th 41, 52; Department of Alcoholic Beverage
Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078;
Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Thus, we are well within our
authority to deem the contention forfeited. (Allen, supra, at p. 52.)
Nonetheless, even if considered on the merits, plaintiffs’ claim fails. As defendant
noted in opposing the writ petition, none of the cases cited by plaintiffs are factually
analogous. In those cases, the plaintiffs obtained orders enjoining statutory signature
filing deadlines by showing the deadlines, in conjunction with stay-at-home restrictions,
would unconstitutionally impair the ability to collect the minimum number of signatures
12
necessary to qualify for the ballot.7 (Fair Maps Nevada v. Cegavske (D.Nev. 2020) 463
F.Supp.3d 1123, 1130; Esshaki v. Whitmer (E.D.Mich. 2020) 455 F.Supp.3d 367, 369-
371, 383-384, stay granted in part by Esshaki v. Whitmer (6th Cir. 2020) 813 Fed. Appx.
170, 171; Thompson v. DeWine (S.D.Ohio 2020) 461 F.Supp.3d 712, 717-718, 735-736,
revd. by Thompson v. DeWine (6th Cir. 2020) 976 F.3d 610, 620.)
Here, in contrast, plaintiffs did not seek to enjoin the 60-day deadline to secure
additional time to gather signatures before the deadline. Plaintiffs instead gambled that
they would be able to obtain the requisite number of signatures notwithstanding the
effects of the stay-at-home orders. As it turns out, plaintiffs were able to collect more
than the required minimum number of signatures by the May 18 deadline. It was only
later—after being notified they did not have enough valid signatures—that plaintiffs
sought a belated “extension” of the statutory deadline. Thus, the trial court reasonably
concluded plaintiffs failed to show that the COVID-19 restrictions unconstitutionally
burdened their First Amendment rights.
Plaintiffs accuse the trial court of failing to adequately consider how the stay-at-
home restrictions affected their ability to obtain “valid” signatures. We see no error.
Although we acknowledge the stay-at-home orders likely made obtaining valid signatures
more difficult, this by itself is not sufficient to prove a First Amendment violation. (See,
e.g., Miller, supra, 967 F.3d at p. 738.) That plaintiffs were able to collect approximately
125 percent of the required minimum number of signatures, and 95 to 99 percent of the
7 Plaintiffs also cite Miller v. Thurston (W.D.Ark. 2020) 462 F.Supp.3d 930, 934-
937, but that court declined to enjoin the signature filing deadline, granting an injunction
only as to in-person signature and notarization requirements, which itself was reversed in
Miller, supra, 967 F.3d at page 741. Thus, Miller v. Thurston is unavailing to plaintiffs.
In their appellate brief, plaintiffs also cite a Sacramento Superior Court opinion, Macarro
v. Padilla (Super. Ct. Sac. County, 2020, No. 34-2020-80003404). But a trial court
opinion in an unrelated case has no precedential value. (Bolanos v. Superior Court
(2008) 169 Cal.App.4th 744, 761; In re Molz (2005) 127 Cal.App.4th 836, 845.)
13
required minimum number of valid signatures, supports the trial court’s finding that
plaintiffs’ signature gathering efforts were not unconstitutionally impaired.
This is not to say that plaintiffs could not have obtained an extension if they had
timely applied for one before the circulation deadline expired. However, plaintiffs made
a calculated decision to wait to file this action until after the signatures were submitted.
They must bear the consequences of that decision.
Under the Elections Code, once a recall petition is determined to contain less than
the required number of valid signatures, the elections official has a ministerial duty to
certify it as insufficient and to take no further action. (§§ 11222, subd. (b), 11224, subd.
(a), 11225, subd. (g), 11226.) There is no provision in the election laws allowing a
proponent to file supplemental signatures after a recall petition is found to be insufficient.
(§§ 11224, subd. (a), 11225, subds. (c) & (g), 11226; see Hartman v. Kenyon (1991) 227
Cal.App.3d 413, 420.) Thus, even if the circulation deadline could somehow be extended
at this late date—a dubious proposition—it would be unavailing to plaintiffs since the
petitions already were certified as insufficient. (Wilcox v. Enstad (1981) 122 Cal.App.3d
641, 648.) While we recognize that election statutes should be liberally construed to
enable citizens to exercise their rights of recall, “recognition of this policy ‘does not
allow the courts to enlarge the scope of a procedural statute where the statutory
provisions are clear.’ ” (Hartman, supra, at p. 420; accord, Wilcox, supra, at pp. 651-
652, 655.) Nothing in this case convinces us that these procedural restrictions are
unconstitutional. Accordingly, we affirm.
14
DISPOSITION
The appeal is dismissed as moot as to the petition to recall board member
Cholcher. Otherwise, the judgment denying the writ petition is affirmed. Defendant
shall recover his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
KRAUSE , J.
We concur:
HULL , Acting P. J.
RENNER , J.
15