Bradley v. Perrodin

• Citation: 131 Cal.Rptr.2d 402,106 Cal.App.4th 1153
• Decision Date: 10 March 2003
• Docket Number: No. B156528.,B156528.
• Court: California Court of Appeals
• Parties: Omar BRADLEY, Plaintiff and Respondent, v. Eric J. PERRODIN, Defendant and Appellant; Melanie Andrews, Plaintiff and Respondent, v. Leslie Irving, Defendant and Appellant.

131 Cal.Rptr.2d 402

106 Cal.App.4th 1153

Omar BRADLEY, Plaintiff and Respondent, v. Eric J. PERRODIN, Defendant and Appellant;

Melanie Andrews, Plaintiff and Respondent, v. Leslie Irving, Defendant and Appellant.

No. B156528.

Court of Appeal, Second District, Division 1.

March 10, 2003.

Rehearing Denied March 27, 2003.

Review Denied June 11, 2003.

Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser, Santa Monica, Daniel J. Sharfstein and Lea Rappaport Geller for Defendant and Appellant Eric J. Perrodin.

Quinn Emanuel Urquhart Oliver & Hedges, Warrington S. Parker III and Lee J. Papageorge, Redwood Shores, for Defendant and Appellant Leslie Irving.

Reed & Davidson, Dana W. Reed and Bradley W. Hertz; Milton Grimes, Newport Beach, for Plaintiff and Respondent Omar Bradley.

Law Office of Gilbert Gaynor and Gilbert Gaynor, Los Angeles, for Plaintiff and Respondent Melanie Andrews.

ORTEGA, J.

The hotly contested 2001 Compton municipal election resulted in two election contests challenging the results of the runoff election in the mayoral and city council races. The trial court granted both election contests, removing the winners from office and replacing them with their opponents. Finding the runoff ballot had listed the candidates' names in both races in the wrong alphabetical order, the trial court concluded that switching the name-order would have changed the outcome of both races due to the advantage the top-ballot placement affords over lower-ballot placements. The trial court also granted the contest against the city council winner on the ground that she had committed offenses against the electorate.

With regard to the mayoral election, we reverse the judgment and reinstate the winning candidate as mayor. In the city council race, we affirm the portion of the judgment annulling the winning candidate's election for having committed offenses against the elective franchise. We reverse the portion of the judgment for the challenger based on name-order error.

BACKGROUND

The court held a consolidated trial of election contests brought by respondent Omar Bradley against appellant Eric Perrodin for the Compton Mayor's office and by respondent Melanie Andrews against appellant Leslie Irving for a Compton City Council position. For the sake of convenience, we will discuss the contests separately although they involved overlapping issues and evidence.

A. The Compton Mayoral Election (Perrodin's Appeal)

Nine candidates, including Perrodin and Bradley, vied for mayor in Compton's primary election of April 2001. Compton City Clerk Charles Davis, the local elections official, listed the nine mayoral candidates on the primary ballot according to a randomized alphabet obtained from the Secretary of State. (See Elec.Code §§ 13112, 13113.)¹ Pursuant to that randomized alphabet, Perrodin's name was listed above Bradley's on the primary ballot. There is no allegation that Davis erred in preparing the primary ballot.

The primary election failed to yield a majority of votes for any single candidate. Bradley, the incumbent mayor, finished first with 4,312 votes; Perrodin, a deputy district attorney and former police officer, came in second with 1,983 votes.

Davis prepared a ballot for the June 5, 2001, runoff election between Bradley and Perrodin, using the same randomized alphabet as in the primary election. Accordingly, the runoff ballot listed Perrodin's name above Bradley's.

On June 5, 2001, Perrodin won the mayoral runoff election with 5,472 votes to Bradley's 5,191 votes.

After the June runoff election, Bradley filed an election contest against Perrodin, with the following allegations: (1) Perrodin and others prepared fraudulent or counterfeit ballots for the runoff election; (2) Davis erred in failing to use the appropriate randomized alphabet for the June election that would have placed Bradley's name before Perrodin's on the runoff ballot; (3) Perrodin committed offenses against the elective franchise (§§ 16100, subd. (c), 18000 et seq.); (4) precinct board members committed malconduct (§ 16100, subd. (a)); and (5) illegal votes were cast (§ 16100, subd. (d)).

A lengthy court trial was held with 85 witnesses testifying over the course of several months. Of Bradley's numerous allegations, the trial court upheld only one, finding that Davis' failure to place Bradley's name above Perrodin's on the runoff ballot constituted grounds to void Perrodin's election and declare Bradley the new mayor. The trial court reasoned as follows: (1) the Elections Code required Davis to request a new randomized alphabet from the Secretary of State for the June runoff election; (2) had Davis made such a request, the Secretary of State would have provided the same randomized alphabet that had been drawn on March 12, 2001, for the Kern County special election; (3) the randomized draw for the Kern County election would have required Davis to place Bradley's name above Perrodin's on the runoff ballot; and (4) due to the advantage that a top ballot position affords a candidate over lower-placed candidates (the so-called primacy effect), Perrodin received at least 306 votes that would have gone to Bradley had Bradley's name been listed first.² Based on the primacy effect theory, the trial court shifted 306 votes from Perrodin to Bradley and declared Bradley the victor. The court rejected Perrodin's contention that Bradley's sole remedy to correct any name-order error on the ballot was to file a pre-election writ petition. (§ 13314.)

The trial court rejected Bradley's remaining grounds for contesting the election. The court found: (1) no evidence of counterfeit or fraudulent ballots; (2) insufficient evidence that Perrodin committed offenses against the franchise;³ (3) the precinct board did not commit malconduct and any procedural errors and irregularities were not the board's fault and did not affect the outcome of the election; (4) 144 illegal votes were cast, but it was impossible to determine (except for nine illegal votes that had been cast for the Perrodin slate)⁴ for whom the illegal votes were cast; and (5) while Davis was careless in failing to follow proper election procedures, he did not willfully neglect or refuse to perform his duties.

Based solely on the primacy effect resulting from the order in which the two candidates' names were placed on the ballot, the trial court annulled Perrodin's certificate of election and ordered that a new certificate of election be issued to Bradley. The court entered judgment against Perrodin and declared Bradley to be mayor.

Bradley was sworn in as mayor on February 11, 2002. Thereafter, Perrodin appealed from the judgment and petitioned for a writ of supersedeas and immediate stay. We issued the writ and stay after requesting opposition and hearing oral argument. (Bradley v. Perrodin (Feb. 26, 2002, B156528).) On February 28, 2002, the California Supreme Court denied Bradley's application for stay and petition for review. (Bradley v. Perrodin (Feb. 28, 2002, S104699).) The judgment in favor of Bradley having been stayed pending resolution of Perrodin's appeal, Perrodin has been serving as mayor while this appeal was pending.

B. The Compton City Council Election (Irving's Appeal)

Appellant Irving and respondent Andrews were the top candidates in one of two city council races in the April 2001 primary election. (The other council race, won by Yvonne Arceneaux in a runoff election against Frank K. Wheaton, is not at issue in this appeal.) In the June 5, 2001, runoff election, Irving defeated Andrews by a vote of 5,414 to 4,863.

Andrews then filed the present election contest against Irving, contending that Davis had erred by placing Irving's name above Andrews' on the runoff ballot. Andrews' position differed from Bradley's on this point in one significant respect. Unlike Bradley, Andrews contended that under either randomized alphabet at issue in this case — the one drawn for the primary election or the one drawn for the Kern County election — Andrews' name should have been first on the runoff ballot. In other words, under both randomized draws, "A" was to come before "I," so Andrews should have been listed before Irving no matter which draw was to be used.

Davis conceded below that Andrews' name should have been listed first under either of the two randomized alphabets at issue in this case. Davis stated, and the trial court agreed, that Irving's name was mistakenly placed before Andrews' due to Davis' unintentional error. The finding that Davis' error was unintentional is not disputed in this appeal.

Andrews also contended below that Irving had committed offenses against the elective franchise by soliciting (either personally or through her agents) nine noncitizens to register to vote, and by illegally influencing or instructing the nine noncitizens to vote for Irving.

The trial court, after rejecting Irving's argument that the ballot name-order error should have been addressed in a pre-election writ proceeding (§ 13314), found the error sufficient to overturn Irving's election. The court shifted 295 votes from Irving to Andrews based, as in the mayoral election contest, on the primacy effect theory,⁵ and declared Andrews the winner.

In addition, the trial court found Irving had committed offenses against the elective franchise, either personally or through her agents, by: (1) knowingly soliciting nine non-citizens to register for absentee ballots in violation of section 18100, subdivision (a); (2) being present in the nine absentee voters' homes while they were voting and telling them how to vote, in violation of section 18371, subdivision (a); (3) fraudulently registering the nine non-citizens and assisting them to vote or completing their absentee ballots for them, in violation of section 18500; and (4) soliciting illegal votes from the nine nonqualified voters, in violation of section 18561. The trial court also declared Irving, having committed offenses...