Hammond v. Agran

• Decision Date: 09 December 1999
• Docket Number: No. G024266.,G024266.
• Parties: Barry HAMMOND, Plaintiff and Respondent, v. Larry AGRAN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

90 Cal.Rptr.2d 876

76 Cal.App.4th 1181

Barry HAMMOND, Plaintiff and Respondent, v. Larry AGRAN, Defendant and Appellant.

No. G024266.

Court of Appeal, Fourth District, Division 3.

December 9, 1999.

Kenneth D. Agran and Jan Rainbird, Irvine, for Defendant and Appellant.

Megan L. Wagner, Irvine, and Barry Hammond, in pro. per., Sherman Oaks, for Plaintiff and Respondent.

OPINION

SILLS, P.J.

The narrow issue on which this case turns is the scope of the word "qualifications" as used in the Elections Code statute governing the content of candidates' statements in voters' pamphlets. (See Elec.Code, § 13307, formerly Elec.Code, § 10012.) It is now established that the word does not encompass attacks on one's opponents. (See Clark v. Burleigh (1992) 4 Cal.4th 474, 488-489, 14 Cal.Rptr.2d 455, 841 P.2d 975.) But does it encompass a candidate's ideas or platform?

The answer is yes: The Legislature envisioned that a candidate's ideas and views (as distinct from attacks on opponents) could fairly constitute "qualifications" within the meaning of the statute. Indeed, common sense would lead to no other conclusion. It is hard to imagine, for example — if the candidate's statement had been around in the Presidential Election of 1860 — that Abraham Lincoln's opinions about the expansion of slavery into the territories somehow didn't qualify him to be President, but his work and background as a prominent railroad attorney (work for which in general Lincoln is not remembered) did.

Facts

Larry Agran, formerly a Mayor and city council member of Irvine, ran again for the city council in the November 1998 General Election. In August 1998 he submitted a candidate's statement, which consisted of five paragraphs, centered on the general themes of his role of leading the city council in drafting Irvine's general plan, his fidelity to that plan, and his opposition to a commercial airport at a nearby marine base. We reproduce the entirety of the statement in the margin.¹ Barry Hammond, a political opponent of Agran's, then filed a petition for writ of mandate, contending that the middle three paragraphs of the statement contained "false, misleading and/or inconsistent information."² Hammond contended that Agran could not take credit for his role in the drafting of Irvine's general plan because he was not on the city council when its original general plan was enacted in 1973. He further argued that Elections Code section 13307, precluded his statement from expressing his views on the airport and jail, because they were "not related" to his qualifications.³

On August 25, the court held a hearing at which Agran himself testified. Hammond's counsel took the position that "ideas and point of view are not related" to candidates'"qualifications," saying that ideas could be used to attack another candidate or institution. The trial judge was not immediately persuaded, and asked, "If the qualifications aren't relevant to the voter's decision in casting their vote, what's the purpose of stating qualifications?"

Even so, after the hearing was concluded, the trial court ordered the middle paragraphs stricken in their entirety. The court indicated that it believed this court's decision in Dean v. Superior Court (1998) 62 Cal.App.4th 638, 73 Cal.Rptr.2d 70, and the Supreme Court's decision in Clark v. Burleigh, supra, 4 Cal.4th 474, 14 Cal. Rptr.2d 455, 841 P.2d 975, both excluded "campaign statements" or "campaign planks" from the purview of the word "qualifications" as used in Elections Code section 13307.⁴ However, the trial court did allow Agran to prepare an overnight revision of the statement, which it accepted the next morning. The main difference between the two statements is that the new statement narrowed Agran's role in the city's general plan and contained no direct statement of opposition qua opposition to a nearby jail or airport; rather, it merely implied Agran's present opposition to a commercial airport through the device of mentioning his past work with an organization designed to "defeat the proposed international airport at El Toro." We also reproduce that statement in the margin.⁵ Agran filed a timely appeal from the order.

DISCUSSION

The Word "Qualifications" In Section 13307 Includes A Candidate's Views on Public Issues

The Case is Not Moot

We may summarily dispense with a mootness contention made by Hammond based on the fact the election has already taken place.⁶ The matter is obviously, as it was in Clark v. Burleigh, supra, 4 Cal.4th 474, 14 Cal.Rptr.2d 455, 841 P.2d 975, an example of the rule that cases are not moot when they present questions capable of repetition yet evading review. (Cf. Clark, supra, 4 Cal.4th at p. 481, 14 Cal.Rptr.2d 455, 841 P.2d 975 [rejecting mootness argument because matter was of "general public interest and likely to recur"].) Hammond's argument in favor of mootness is that there is no public interest in the case because the statute "plainly" excludes a candidate's viewpoints. That reasoning is both circular and wrong in its premise. It is circular because it is predicated on the assumption that Hammond is necessarily correct on the merits (as we show below, he isn't), and it is wrong in its premise because it assumes that the question of whether a candidate's views may be included in a candidate's statement has already been definitively determined (as we show below, it hasn't).

Prior Cases Did Not Decide the Issue

While Clark v. Burleigh, supra, 4 Cal.4th 474, 14 Cal.Rptr.2d 455, 841 P.2d 975 tells us what "qualifications" does not include — it does not include attacking one's opponents — the case does not directly deal with the question of what is a qualification within the meaning of the statute. Clark involved a candidate's statement in a judicial election in which a municipal court judge running for superior court made direct negative references, by name, to the incumbent. The trial court excised the statement. Most of the Clark opinion is devoted to a thorough discussion of the constitutionality of the removal; the focus is the question of exactly what kind of "forum," for purposes of constitutional analysis, a candidate's statement is. (See Clark, supra, 4 Cal.4th at pp. 482-88, 14 Cal.Rptr.2d 455, 841 P.2d 975.) Only in passing on that issue does it deal with the meaning of the statute.

What the high court did say about the meaning of the statute is mostly set forth in one paragraph spanning pages 488 to 489, 14 Cal.Rptr.2d 455, 841 P.2d 975 in the official reporter. After previously concluding that candidates' statements fall into the last of three possible categories (i.e., not the "traditional public forum" or a "designated public forum," but a "`remaining'" catchall category (see Clark v. Burleigh, supra, 4 Cal.4th at pp. 482-83, 14 Cal.Rptr.2d 455, 841 P.2d 975)), the opinion tackles the question of "whether the Legislature, by creating the statutory `candidate's statement,' intentionally opened a public forum that candidates for local judicial office may use for the purpose of attacking their opponents." (Id, at p. 488, 14 Cal.Rptr.2d 455, 841 P.2d 975.) Answer: no. Because the statute "specifically lists the permissible contents" of the candidate's statement, the "negative implication of this specific list," said the Clark court, was that "the Legislature did not intend the statutory candidate's statement to contain any other material." It cited the venerable rule of linguistic construction expressio unius est exclusio alterius — i.e., having expressed the one thing, you must have meant to exclude what you left out. Then the court added that "[m]ore important" than this "implication" from linguistics was the "express" prohibition in another statute against candidates for judicial office from discussing "`another candidate's qualifications, character, or activities.'" (See id. at p. 489, 14 Cal. Rptr.2d 455, 841 P.2d 975, citing former Elections Code section 10012.1 (now Elections Code section 13308).)

The other part of the Clark opinion where the court touches on the meaning of the statute is toward the end, where the court is concerned with the reasonableness of the statute construed so as to preclude attacks on one's opponents. (See id. at pp. 493-494, 14 Cal.Rptr.2d 455, 841 P.2d 975.) Pointing out that local elections are "normally low-profile events" and candidates frequently do not have the "means" of informing the voters of their qualifications, the Clark court observed that the Legislature "created" the candidate's statement "[t]o help fill this informational void." (Id. at p. 493, 14 Cal.Rptr.2d 455, 841 P.2d 975.) "From its terms and conditions," said the court, "we may reasonably infer that its primary purpose is to give the voters at least a minimal amount — 200 words' worth — of basic information about the background and qualifications of little-known candidates." (Ibid.) The court then went on to explain that, in light of the basic purpose of the statute (i.e., filling informational voids), there were three reasons the Legislature would not have wanted the statement to be used "as a partisan campaign device to attack" opponents. One, to prevent confusion caused by a "mixed" message; two, to prevent displacement of factual information about the candidate himself or herself given the limited amount of space available (200 words normally, at most 400 words); and three, to prevent misuse of the device by blindsiding an opponent who would not have time to answer the attack. (Ibid.)

Finally, on the next page and in the context of again explaining the constitutional adequacy of the statute as construed, the Clark court suggested that even "attacks on opposing candidates" are not necessarily "wholly incompatible with the purposes of the statutory candidate's statement," but that the restriction was "at least reasonable" and the "governing decisions" of the federal Supreme Court required "no more" of the statute. (Id. at p. 494, 14 Cal.Rptr.2d 455, 841...