Foster v. Ronco
| Decision Date | 27 October 2021 |
| Docket Number | C092805 |
| Parties | DIANNE FOSTER et al., Plaintiffs and Appellants, v. RYAN RONCO, as County Clerk/Recorder/Registrar of Voters, etc., Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
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.
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.
"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.)
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.)
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.
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)
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 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...
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