Clark v. Burleigh, S020854

• Decision Date: 24 December 1992
• Docket Number: No. S020854,S020854
• Court: California Supreme Court
• Parties: , 841 P.2d 975 Bradley J. CLARK, as Registrar of Voters, etc., Plaintiff, Cross-defendant, and Respondent, v. William B. BURLEIGH, Defendant, Cross-complainant, and Appellant; Richard M. Silver, Defendant and Respondent.

Page 455

14 Cal.Rptr.2d 455

4 Cal.4th 474, 841 P.2d 975

Bradley J. CLARK, as Registrar of Voters, etc., Plaintiff, Cross-defendant, and Respondent, v. William B. BURLEIGH, Defendant, Cross-complainant, and Appellant Richard M. Silver, Defendant and Respondent.

No. S020854.

Supreme Court of California,

In Bank.

Dec. 24, 1992.

Rehearing Denied Feb. 18, 1993.

[4 Cal.4th 478] [841 P.2d 976] David W. Brown, Monterey, for defendant, cross-complainant and appellant.

Ralph R. Kuchler, Douglas C. Holland, County Counsel, and Albert H. Maldonado and Leroy W. Blankenship, Deputy County Counsel, for plaintiff, cross-defendant and respondent.

No appearance for defendant and respondent.

MOSK, Associate Justice.

We review the constitutionality of a section of the Elections Code ( § 10012.1) that prescribes the content of a statutory "candidate's statement" that a candidate for local judicial office may prepare and file for inclusion in the voter's pamphlet. The statute

[841 P.2d 977] provides that such a statement must be limited to the candidate's name, age, occupation, and a brief description of the candidate's own background and qualifications, and must not refer to those of other candidates for the office. As will appear, we conclude that the statute violates neither the free speech guaranty of the First Amendment nor the Fourteenth Amendment's guaranty of equal protection of the laws.

I

The Elections Code prescribes the content and manner of preparation and distribution of ballots and related election materials. Thus at least 10 but not more than 40 days before an election the county clerk must mail each voter a sample ballot essentially identical to the ballot that will be used in the ensuing election. (Elec.Code, §§ 10007, 10010.) ¹ If a local initiative or referendum appears on the ballot, the clerk must mail with the sample ballot an analysis of the measure by public counsel and any written arguments submitted for or against the measure, and may also mail a copy of its text. (See §§ 3781, 3783 [county measures]; §§ 4015, 5011, and 5013 [city measures]; §§ 5156.5, 5157 [district measures].) All the foregoing documents are customarily transmitted to the voters in a single publication called the "voter's pamphlet." ²

In addition, if a local, nonpartisan elective office appears on the ballot--i.e., a legislative, executive, or judicial office in the government of a county, a city, or a district--the clerk will provide a form on which any candidate for that office may prepare and file a "candidate's statement." ( § 10012.) Filing such a statement is wholly optional; but if the candidate chooses to file a statement--and if it otherwise complies with the statute--the clerk will include it in the voter's pamphlet. (Ibid.)

Section 10012 prescribes the general rules that govern the statutory "candidate's statements." In such a statement the candidate is permitted to give only his or her name, age, occupation, and "a brief description ... of the candidate's education and qualifications" in no more than 200 words. ( § 10012.) ³ The statute prescribes strict deadlines for filing such a statement, and provides that after it is filed the statement may be withdrawn but may not be changed. ⁴ When they appear in the voter's pamphlet such candidates' statements must be printed "in type of uniform size and darkness, and with uniform spacing." ( § 10012.) And the statute authorizes the local agency to require each candidate filing such a statement to pay in advance his or her estimated pro rata share of the cost of printing and mailing the statement, as a condition of including it in the voter's pamphlet. ⁵

Section 10012.1--the statute here in issue--further refines these requirements in the context of a nonpartisan election for a local judicial office. It provides in its entirety: "In addition to the restrictions set forth in Section 10012, any candidate's statement submitted pursuant to Section 10012 by a candidate for judicial office shall be limited to a recitation of the candidate's own personal background and qualifications and shall not in any way make reference to other candidates for judicial office or to another candidate's qualifications, character, or activities. The clerk shall not cause to be printed or circulated any statement which the clerk determines is not so limited or which includes any such references."

II

In conjunction with the June 1990 statewide primary election, an election was scheduled in Monterey County to fill office No. 2 of the Monterey Superior Court. The incumbent in that office, Superior Court Judge Richard M. Silver, filed for reelection. A municipal court judge, Judge William B. Burleigh, sought election to the same office, and filed his candidate's statement under section 10012.1. Contrary to the restrictions laid down by that section, however, Judge Burleigh devoted the bulk of his candidate's statement to an attack on Judge Silver. Thus Judge Burleigh expressly referred to Judge Silver by name three times, characterized him as a "Jerry Brown appointee," and stated that "I am greatly disturbed by his decisions." In particular, Judge Burleigh charged that "Criminal activity is being dismissed. Innocent citizens have had their lives and businesses disrupted by court interference." (Italics in original.) As only "Some Examples" of the foregoing, Judge Burleigh then referred to three cases assertedly decided by Judge Silver. (Italics in original.) He emphasized that in the first such case Judge Silver "dismissed " a narcotics charge after a police seizure, in the second case Judge Silver found "no malice " in a stabbing resulting from a fight, and in the third case Judge Silver ordered a supermarket to "remain open " after it announced it would close. (Italics in original.) Judge Burleigh concluded that "It's time to get tough with criminals ... time to end court interference in community affairs." (Italics in original.) ⁶

The Monterey County Registrar of Voters (hereafter the registrar) is authorized by section 10012.1 to determine whether any candidate's statement filed in a Monterey County election violates that statute. Rather than so determining in the case at bar, however, the registrar filed this action for declaratory relief (Code Civ.Proc., § 1060), seeking a judicial determination whether Judge Burleigh's candidate's statement violated section 10012.1, and, if so, whether the statute is constitutional. In response, Judge Burleigh filed a cross-petition for writ of mandate ( § 10015) to compel the registrar to publish his statement as written. In his pleadings Judge Burleigh conceded that his statement made reference to Judge Silver and his qualifications in express violation of section 10012.1; he contended, however, that the statute is unconstitutional on its face because it infringes on his rights to freedom of speech and equal protection of the laws.

After a hearing the trial court found that Judge Burleigh's candidate's statement violated section 10012.1; and after a review of the case law the court concluded that section 10012.1 does not contravene the guaranties of either free speech or equal protection. The court therefore denied Judge Burleigh's petition for writ of mandate. The court nevertheless declined to strike Judge Burleigh's entire statement; instead, exercising its general equitable powers, the court struck from the statement only the references to Judge Silver ⁷ and directed the registrar to print the remainder in the voter's pamphlet.

Judge Burleigh appealed. In a divided decision the Court of Appeal reversed the judgment, holding section 10012.1 unconstitutional on the ground that the statute violates the free speech guaranty of the First Amendment. The Court of Appeal did not reach the equal protection issue. For the reasons that follow, we will hold that section 10012.1 does not violate either the First Amendment or the equal protection guaranty, and hence will affirm the judgment.

III

We begin with three preliminary points.

First, although the election in question has now been held, we do not deem the matter moot. Rather, we will address the issues on their merits because they are of general public interest and likely to recur. (Meyer v. Grant (1988) 486 U.S. 414, 417-418, fn. 2, 108 S.Ct. 1886, 1890 fn. 2, 100 L.Ed.2d 425; Unger v. Superior Court (1984) 37 Cal.3d 612, 614, 209 Cal.Rptr. 474, 692 P.2d 238 and cases cited.)

Second, there is no doubt that when as here the facts are not in dispute, an action for declaratory relief is a proper vehicle for challenging the constitutionality of a statute. (Steffel v. Thompson (1974) 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505; see, e.g., Meyer v. Grant, supra, 486 U.S. 414, 108 S.Ct. 1886; Abbott v. City of Los Angeles (1960) 53 Cal.2d 674, 678, fn. 2, 3 Cal.Rptr. 158, 349 P.2d 974, and cases cited.)

Third, in his pleadings Judge Burleigh alleged generally that section 10012.1 violates both federal "and state" constitutional guaranties. In his briefs in this court, however, he relies exclusively on the First Amendment to the federal Constitution, and fails to make or support any contention that the statute contravenes any provision of the California Constitution; indeed, he nowhere even mentions our fundamental charter. In oral argument before this court counsel for Judge Burleigh did make passing reference to the California Constitution, but again failed to explain how the statute violates any provision of that document. We decline to address such a pro forma claim. (See Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 228, 220 Cal.Rptr. 712; Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050, 213 Cal.Rptr. 69; Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 769, 140 Cal.Rptr. 388, and cases cited.)

We turn to the merits of the appeal. "To assess the constitutionality of a state election law, we first examine whether it burdens rights protected by the...