Opinion
D071907
07-11-2018
CITIZENS OVERSIGHT, INC. et al., Plaintiffs and Appellants, v. MICHAEL VU et al., Defendants and Appellants.
Thomas E. Montgomery, County Counsel, Timothy M. Barry, Chief Deputy County Counsel, Stephanie Karnavas, Deputy County Counsel, for Defendants and Appellants. Care Law Group and Alan L. Geraci, for Plaintiffs and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2016-00020273-CL-MC-CTL) APPEALS from a judgment and an order of the Superior Court of San Diego County, Joel R. Wohlfeil, Judge. Reversed. Thomas E. Montgomery, County Counsel, Timothy M. Barry, Chief Deputy County Counsel, Stephanie Karnavas, Deputy County Counsel, for Defendants and Appellants. Care Law Group and Alan L. Geraci, for Plaintiffs and Appellants.
INTRODUCTION
When counting votes in order to certify election results, the elections official is required to manually count one percent of the votes cast to check the accuracy of the electronic voting systems that are used to count the ballots. (Elec. Code, §§ 15360, subd. (a), 336.5.) Defendant Michael Vu, the San Diego County Registrar of Voters, starts this process after all precinct ballots have been turned in on election night, and includes in that tally the vote-by-mail ballots that have been processed and counted.
Further statutory references are to the Elections Code unless otherwise noted.
In this case, the trial court interpreted section 15360 to require that all vote-by-mail ballots, including those processed and counted after election night, be included in the one percent manual tally. The court concluded that provisional ballots need not be included in the tally. It granted attorney fees to plaintiffs for prevailing on the requirement that all vote-by-mail ballots be included in the one percent manual tally.
Defendants appeal the judgment and writ requiring that all vote-by-mail ballots be included, and the associated award of attorney fees. Plaintiffs appeal the judgment that provisional ballots need not be included. After the appeals were filed, however, the Legislature amended the Election Code to specify that the one percent manual tally includes neither vote-by-mail ballots counted after election night nor provisional ballots, effective January 1, 2018.
This legislative change renders the issues in this case moot. Because the trial court awarded attorney fees on the question of vote-by-mail ballots, however, we must review that award, which requires us to review the merits of the trial court's ruling. After careful review, we find that the trial court erred in finding that former section 15360, operative from 2012 through 2017, required the inclusion of all vote-by-mail ballots, including those received and counted after election night, in the one percent manual tally. The court was correct, however, in finding that provisional ballots need not be included.
Accordingly, we reverse the order awarding attorney fees, reverse the judgment and vacate the writ of mandamus.
BACKGROUND
In each voting cycle, the Election Code requires the elections official to conduct a manual tally of one percent of the ballots. In both the former and amended statutes, section 15360, subdivision (a), states that: "(a) [d]uring the official canvass of every election in which a voting system is used, the official conducting the election shall conduct a public manual tally of the ballots tabulated by those devices, including vote by mail ballots . . . ." It goes on to describe methods for conducting the tally. The one percent manual tally is defined in section 336.5 as "the public process of manually tallying votes in 1 percent of the precincts, selected at random by the elections official, and in one precinct for each race not included in the randomly selected precincts. This procedure is conducted during the official canvass to verify the accuracy of the automated count."
The version of section 15360 that was in effect while this case was litigated in the trial court did not specify whether provisional ballots or all vote-by-mail ballots had to be included, or only those received and counted as of election night. Vote-by-mail ballots are valid if they are postmarked as of election day and received by the elections official within three days after the election day. (§ 3020, subd. (b).) If a voter did not sign the envelope of the mail-in ballot, the elections official must notify the voter and provide the voter the opportunity to sign his or her envelope. Ballots from late-signed envelopes are valid if received at the county elections office within eight days of the election. (§ 3019, subd. (f).) Provisional ballots are those cast at a polling place or at the county's election office, but that have some irregularity or question about the status of the voter that cannot be immediately verified. They are counted after being verified.
Plaintiffs Citizens Oversight, Inc., and Raymond Lutz (collectively, Citizens Oversight) filed a second amended complaint (SAC) for declaratory and mandamus relief against Vu and the County of San Diego (collectively, Registrar). Citizens Oversight claimed that the Registrar was conducting the required one percent manual tally incorrectly because the Registrar sampled only those vote-by-mail ballots that were processed and counted by election night, and it did not count provisional ballots. The court conducted a trial and heard evidence on the claims.
The San Diego County Chief Administrative Officer, Helen Robbins-Meyer, was also named as a defendant, but the trial court granted a nonsuit as to her.
Vu testified at trial that he included in his one percent manual tally the precinct ballots and those vote-by-mail ballots that had been received and counted by election night. He did not include provisional ballots. In the June 2016 election, the one percent manual tally included 256,685, or 52.43 percent, of the total 489,610 vote-by-mail ballots. There were about 51,427, or 68.2 percent, of the provisional ballots that were verified and counted, but not included in the one percent manual tally. The total number of ballots certified was 775,930. The valid provisional and vote-by-mail ballots received after election day totaled about 37 percent of the total votes that were cast in the June 2016 election, and were excluded from the one percent manual tally. The Registrars of Voters of Sacramento County and Los Angeles County used the same system, including in the one percent manual tally all precinct ballots and vote-by-mail ballots that had been counted by election night, and excluding provisional ballots and late-received vote-by-mail ballots. The San Luis Obispo County Registrar of Voters delayed the selection of the one percent of ballots for a week so that more vote-by-mail ballots could be used, but excluded provisional ballots.
Witness Deborah Seiler had worked for the Secretary of State analyzing election legislation; as chief consultant to the Assembly elections and reapportionment committee; for private companies related to elections and elections administration; chaired the code revision committee for the California Association of Clerks and Election Officials; and as assistant registrar and registrar of voters. She explained that the one percent manual tally requirement was first added to the Elections Code in 1965, when electronic voting systems were just coming into use. With the assistance of legislative counsel, Seiler drafted the definition of the one percent manual tally that is set forth in section 336.5. In her opinion, the one percent manual tally should be conducted "during the canvass as opposed to after the canvass because that's a fundamental aspect of the tally. The tally is done during the canvass as opposed to a recount which is done after results are certified, canvassed and certified."
Section 336.5 states: " 'One percent manual tally' is the public process of manually tallying votes in 1 percent of the precincts, selected at random by the elections official, and in one precinct for each race not included in the randomly selected precincts. This procedure is conducted during the official canvass to verify the accuracy of the automated count." (Italics added.)
The Registrar of Voters of Los Angeles County explained that waiting until all the votes had been received, verified and tabulated to conduct the one percent manual tally would conflict with the purpose of the tally, which was to alert the election officials to errors in the voting systems, so that those errors could be corrected before the final canvass of the votes. Vu testified that the tally must be done as soon as possible after election night so that the office would be able to certify the election within 30 days.
Citizens Oversight presented a statistician with expertise in auditing the integrity of the results in California election systems. He confirmed that the one percent manual tally is an ineffective and inefficient means to confirm election results. The tally can, however, detect whether the central tabulating system has been compromised.
The court entered judgment on January 10, 2017, with a statement of decision. It granted partial declaratory judgment for Citizens Oversight, finding that section 15360 required the Registrar to select vote-by-mail ballots from all mail-in ballots for the one percent manual tally, not just those counted as of the election day; and that section 15360 did not require the Registrar to include provisional ballots in the random selection process. The court issued a writ of mandamus directing the Registrar to include all vote-by-mail ballots in the random selection process for the manual tally in future elections. In an order after judgment, the court awarded attorney fees to Citizens Oversight in the amount of $80,268.75, pursuant to Code of Civil Procedure section 1021.5. The court did not grant costs to either party, as each prevailed in part and lost in part.
Code of Civil Procedure section 1021.5 provides that the trial court may award attorney fees "to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons. . . ."
DISCUSSION
We asked the parties to file supplemental letter briefs on the effect of the amendments to section 15360. After their responses, we find the trial court's judgment is moot.
A. Postjudgment Legislative Change Rendered Moot the Issues Raised in the SAC
While the case was on appeal, the Legislature amended section 15360, effective January 1, 2018, to specify that the one percent manual tally includes only the vote-by-mail ballots that were counted by election night and does not include provisional ballots. (§ 15360, subds. (a)(1)(A), (a)(2)(A).) It does not include those valid vote-by-mail ballots that were counted and received by the Registrar after election day. The amended statute gives election officials the discretion to include provisional ballots and additional vote-by-mail ballots if desired. (§ 15360, subds. (a)(1)(B)(ii), (a)(2)(B)(iii)(II).)
Those subdivisions now read in pertinent part, with the newly added language in italics:
"(a)(1)(A) A public manual tally of the ballots canvassed in the semifinal official canvass, including vote by mail ballots but not including provisional ballots . . . .
"[¶] . . . [¶]
"(a)(2) A two-part public manual tally, which includes both of the following:
"(A) A public manual tally of the ballots canvassed in the semifinal official canvass, not including vote by mail or provisional ballots, cast in 1 percent of the precincts chosen at random by the elections official and conducted pursuant to paragraph (1).
"(B)(i) A public manual tally of not less than 1 percent of the vote by mail ballots canvassed in the semifinal official canvass. . . ." (§ 15360, subd. (a), italics added.)
The " 'semifinal official canvass' " is the collection and tallying of ballots on election night. (§ 353.5.)
This change in the law directly and materially affects the judgment. There is no longer any controversy about the inclusion of provisional ballots and of vote-by-mail ballots that are counted after election night. Neither need be included. The question at hand is now moot. (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1222 (Irritated Residents) ["an intervening change in the law that is the crux of a case may result in mootness"]; Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 134 (Paul) [case moot after original party went out of business].) When subsequent legislative action renders an entire controversy moot and dismissal of the appeal would have the effect of affirming the underlying judgment without having reached the merits, appellate courts usually " 'dispose of the case, not merely of the appellate proceeding which brought it here' [citation] . . . by reversing the judgment solely for the purpose of restoring the matter to the jurisdiction of the superior court, with directions to the court to dismiss the proceeding." (Id. at p. 134.) There was an actual controversy about the interpretation of the statute when this case was filed, but "the case has lost that essential character" due to intervening events. (Irritated Residents, at p. 1222.) A court may exercise its discretion to retain and resolve a case that is moot " 'when there remain "material questions for the court's determination," where a "pending case poses an issue of broad public interest that is likely to recur," or where "there is a likelihood of recurrence of the controversy between the same parties or others." ' " (In re David B. (2017) 12 Cal.App.5th 633, 644, citations omitted.) There are no such issues here, except for the award of attorney fees. Interpretation of the prior statute has no continuing force or effect.
B. The Award of Attorney Fees Is Not Moot and Must Be Reversed
We must review the merits of the trial court's judgment granting declaratory relief, even though there is no remaining justiciable issue about the number of vote-by-mail ballots to be included in the one percent manual tally, because the court awarded attorney fees to Citizens Oversight for prevailing on its claim that the Registrar was required to tally all valid vote-by-mail ballots. (See Carson Citizens for Reform v. Kawagoe (2009) 178 Cal.App.4th 357, 365 (Carson) [action for declaratory relief not moot due to award of attorney fees in superior court, even though requested action no longer viable].)
The Registrar has asked that we take judicial notice of the legislative history of the amendments in effect in 2018 pursuant to Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544, footnote 4, and Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 31-37. Legislative history is generally appropriate only when the language of the statute is ambiguous. (Kaufman, at p. 29.) Doe states that the court may take notice of legislative history when the materials are "relevant to a material issue in this case." (Doe, at p. 544, fn. 4.) The language of the amended statute is not ambiguous. The Registrar states that the legislative history of the amendment is "necessary to fully respond to the questions raised by the Court in its order of May 8, 2018." We disagree, and deny the supplemental request for judicial notice. The amended statute is not ambiguous. The Registrar contends that the legislative history of the amendment of section 15360 "further substantiate[s] the conclusion that the trial court's decision in favor of [Citizens Oversight] was wrong as a matter of law." The Legislature's change in the law does not mean that the trial court's decision was wrong as a matter of law. The legal effect of a law is a question for the courts to decide, following the standard rules of statutory interpretation.
We review the trial court's statutory interpretation de novo. (Carson, supra, 178 Cal.App.4th at p. 366.) Our " 'fundamental task' " in interpreting a statute is " 'to determine the Legislature's intent so as to effectuate the law's purpose.' " (Ibid.; Fluor Corp. v. Superior Court (2015) 61 Cal.4th 1175, 1198.) "We begin with the plain language of the statute, affording the words of the provision their ordinary and usual meaning and viewing them in their statutory context, because the language employed in the Legislature's enactment generally is the most reliable indicator of legislative intent. The plain meaning controls if there is no ambiguity in the statutory language. If, however, the statutory language may reasonably be given more than one interpretation, courts may consider various extrinsic aids, including the purpose of the statute, the evils to be remedied, the legislative history, public policy, and the statutory scheme encompassing the statute." (Fluor, at p. 1198, citations and internal quotation marks omitted.)
Both the former and the current versions of section 15360 begin, "During the official canvass of every election in which a voting system is used . . . ." (§ 15360, subd. (a).) The official canvass is the final counting and reconciliation of all valid ballots cast in an election. (§ 335.5.) A certified statement of the results of an election must be submitted to the Secretary of State within 30 days after the election. (§ 15372.) The phrase "during the official canvass" gives election officials discretion when to conduct the one percent manual tally. It does not require — or suggest — that the one percent manual tally be conducted after all later-received vote-by-mail ballots are counted or after provisional ballots are verified. It means that the tally should be conducted at some time before the final count.
Section 335.5 provides: "The 'official canvass' is the public process of processing and tallying all ballots received in an election, including, but not limited to, provisional ballots and vote by mail ballots not included in the semifinal official canvass. The official canvass also includes the process of reconciling ballots, attempting to prohibit duplicate voting by vote by mail and provisional voters, and performance of the manual tally of 1 percent of all precincts."
The former statute did not provide that the elections official could count only those vote-by-mail ballots counted as of election day, but neither did it provide that "all" vote-by-mail ballots must be included in the tally. To the contrary, "all" was contained in a proposed version of the amendments, and was stricken before enactment, along with a requirement to count provisional ballots. The initial amendment proposed in 2006 included a subdivision that stated, "The manual tally shall include all ballots cast by voters in each of the precincts selected, including absentee, provisional, and special absentee ballots." (2/24/06 Legis. Counsel's Dig., Assem. Bill No. 2769, Sess. 2005-2006.) This proposed subsection was stricken from the final bill. (5/26/06 Legis. Counsel's Dig., Assem. Bill No. 2769, Sess. 2005-2006.) " 'When the Legislature chooses to omit a provision from the final version of a statute which was included in an earlier version, this is strong evidence that the act as adopted should not be construed to incorporate the original provision.' " (UFCW & Employers Benefit Tr. v. Sutter Health (2015) 241 Cal.App.4th 909, 927, quoting People v. Delgado (2013) 214 Cal.App.4th 914, 918.)
Further, the Legislature explicitly stated in the definition of the one percent manual tally that its purpose was "to verify the accuracy of the automated count." (§ 336.5, subd. (a).) In 1994, the one percent manual tally statute was moved out of the code chapter on recounts into the section on canvass procedures, because the function of the one percent manual tally is not to assure the accuracy of all votes, but rather to assure the accuracy of the tabulating machines so that adjustments can be made before the final count, if necessary.
In addition, we note that on September 15, 2016, before trial in this case, the chief counsel of the Secretary of State issued County Clerk/Registrar of Voters (CC/ROV) Memorandum #16295, setting forth the position of the Secretary of State that "the one percent manual tally requirement set forth in . . . section 15360 does not require provisional ballots or all vote-by-mail ballots to be included in the tally." An agency's interpretation of a statute is not binding on the court but is entitled to consideration and respect. (Carson, supra, 178 Cal.App.4th at pp. 368-369.)
At first blush, it is disquieting that the one percent manual tally conducted by the Registrar excluded more than one-third of the total votes cast in the 2016 primary. But the one percent manual tally was implemented to check the accuracy of the electronic tabulating systems, not of the election results as a whole, as reflected in section 336.5. It is not analogous to a recount or used for a recount.
Because the Legislature instituted the one percent manual tally to check the accuracy of electronic voting devices, and not the accuracy of the vote as a whole, its purpose is served by starting the tally as soon as the precinct ballots are received and processed, rather than waiting until all valid ballots have been verified and counted. Any error in the tabulating system should be found as soon as possible during the counting process. We find, for purposes of the award of attorney fees, that the trial court erred in concluding that former section 15360 required a one percent manual tally of all vote-by-mail ballots.
DISPOSITION
The judgment and the order awarding attorney fees are reversed, and the writ of mandate is vacated. Each party to bear its own costs on appeal.
BENKE, J. WE CONCUR: McCONNELL, P. J. O'ROURKE, J.