Heckman v. Dupuis

• Docket Number: A165201
• Decision Date: 21 December 2023
• Parties: ALAN HECKMAN, Plaintiff and Appellant, v. TIM DUPUIS et al., Defendants and Respondents; BOARD OF EDUCATION OF THE LIVERMORE VALLEY JOINT UNIFIED SCHOOL DISTRICT et al., Real Parties in Interest and Respondents
• Court: California Court of Appeals Court of Appeals

1

ALAN HECKMAN, Plaintiff and Appellant, v. TIM DUPUIS et al., Defendants and Respondents;

BOARD OF EDUCATION OF THE LIVERMORE VALLEY JOINT UNIFIED SCHOOL DISTRICT et al., Real Parties in Interest and Respondents

A165201

California Court of Appeals, First District, Third Division

December 21, 2023

NOT TO BE PUBLISHED

(Alameda County Super. Ct. No. 22CV007072)

TUCHER, P.J.

Alan Heckman brought a pre-election challenge to a parcel tax proposed by the Livermore Valley Joint Unified School District (the District).^[1] After the trial court denied his petition for writ of mandate, the election took place and the voters passed the measure. Heckman appeals, contending the election procedures and materials did not comply with statutory requirements that he was deprived of the right to cross-examine witnesses and that the court erred in dismissing one cause of action. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The voters of the District have for many years periodically approved a parcel tax to support educational programs. The tax that took effect on July 1, 2015 was set to expire in June 2022. As that date approached, the District considered options to renew the parcel tax.

The District's Board of Education (the Board) received presentations about alternatives for a parcel tax election at its meetings on October 28, 2021, January 11, 2022, and February 1, 2022. The October 28 presentation explained that there were only three election dates before expiration of the parcel tax: a special election on April 12, 2022, a mail-ballot election on May 3, 2022, and the statewide primary election on June 7, 2022. At the January 11 meeting, the presentation set out the May 3, 2022 mail-ballot election and the June 7, 2022 statewide primary election as the two available election dates. At the February 1 meeting, the presentation indicated the Board would proceed with the May 3, 2022 election, with that date being the deadline for completed ballots to be returned or postmarked. On February 1, the Board adopted Resolution No. 032-21/22 calling for the election on the parcel tax to take place on May 3, 2022, later designated Measure A. The school superintendents of Alameda and Contra Costa Counties then gave

Dyrell Foster, Sheila Fagliano, and Ellen Goold), who allegedly authored the argument in favor of the measure. formal notice of the parcel tax election to be held on May 3; the notices did not specify that the election would be held by mail.

Heckman filed a petition for writ of mandate on February 10, 2022, but on February 14 the clerk rejected it for filing, citing defects in format. Heckman successfully filed his petition on February 15, 2022.^[2]

The petition alleged four causes of action, asserting the then-pending election violated state law regarding the timing of elections (Elec. Code, § 1000)^[3] and the Board did not authorize the use of mailed ballots (§ 4000, subd. (a)); that the texts of the ballot question and the argument in favor of the measure were improper; and that the argument the Board submitted in favor of the text was false and misleading. Heckman sought a writ of mandate that would prevent the May 3, 2022 election from proceeding and require amendments to the ballot question and argument in support of Measure A.

A week later, on February 22, 2022, Heckman filed a notice that on February 24 he would move ex parte for an order establishing an expedited briefing and hearing schedule. He requested a hearing on the merits during the week of February 28 through March 4, at which county election officials, or the persons most knowledgeable about the printing and distribution of election materials, would appear as witnesses. The trial court set the hearing on the merits for February 28.

On the day of the February 28 hearing, Heckman filed an amendment to the petition for writ of mandate adding a fifth cause of action, alleging the election officials intended to violate section 4101 by distributing the voter pamphlet and voter information guide for the election too early.

Also on February 28, the trial court denied the petition for writ of mandate as to the first four causes of action, and dismissed without prejudice the fifth cause of action, finding it was not ripe. The Board gave notice of entry of the order on March 16. The parties agree that election took place as scheduled on May 3, and on May 13, 2022 Heckman filed a notice of appeal.

DISCUSSION

I. Standard of Review

" '" 'In reviewing the trial court's ruling on a writ of mandate (Code Civ. Proc., § 1085), the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed.'" '" (K.G. v. Meredith (2012) 204 Cal.App.4th 164, 174.) We review claims of mootness and ripeness de novo when based on undisputed facts. (Ibid.)

II. Election by Mail Ballot

Heckman contends the election was improper because it neither took place on an established election date for purposes of section 1000 nor satisfied the statutory requirements for a mail-ballot election. As a result, he asks us to invalidate the election.

The resolution calling for the parcel tax election recited that "Section 1000 of the California Elections Code . . . authorizes the District to conduct such an election on an established election date" and that "May 3, 2022, is an established election date."

Section 1002 provides that, "[e]xcept as provided in Section 1003 . . . all state, county, municipal, district, and school district elections shall be held on an established election date." Section 1000 specifies certain "established election dates,"^[4] and Heckman points out correctly that May 3, 2022 is not among them.

Section 1003 sets forth categories of elections to which these provisions do not apply, among them "[a]ny election conducted solely by mailed ballot pursuant to Division 4 (commencing with Section 4000)." (§ 1003, subd. (f).) Section 4000, in turn, authorizes an election to be "conducted wholly by mail" if three conditions are met: the election is one of several enumerated types (a condition Heckman does not dispute is met here), "[t]he governing body of the local agency authorizes the use of mailed ballots for the election," and "[t]he election is held on an established mailed ballot election date pursuant to Section 1500." (Italics added.) One of the dates for mail-ballot elections is "[t]he first Tuesday after the first Monday in May of each year" (§ 1500, subd. (a))-which May 3, 2022 was.

Heckman argues that because the Board's resolution mistakenly cited section 1000 and because it did not specify that the "established election date" was that for mailed ballot elections, the Board violated a mandatory provision of law and the election should be invalidated. He relies on Daniels v. Tergeson (1989) 211 Cal.App.3d 1204, which considered a post-election challenge to a candidate's eligibility. A statute required a candidate for office to be a registered voter in the district at least 30 days before the deadline for filing nomination papers, but the candidate had been registered only 28 days in advance. (Id. at pp. 1206-1207; Gov. Code, § 25041.) The appellate court explained that the effect of election irregularities depended on whether the statute violated was directory or mandatory: "A violation of a mandatory provision vitiates an election. Departure from a directory provision does not render the election void if there has been substantial compliance with the law, and there is no indication that the result of the election was changed or the rights of voters impaired by the violation." (Daniels, at p. 1208.) Explaining the difference between the two, the court explained that "[w]hether a provision is mandatory or directory depends on the character of the act prescribed. If it goes to the substance or necessarily affects the merits or results of an election, the provision is mandatory. Provisions relating to the time and place of holding elections, the qualifications of voters and candidates and other matters of that character are mandatory." (Ibid.) Because the statute at issue in Daniels affected the merits of an election by determining who was eligible to be a candidate, it was mandatory, and its violation resulted in nullification of the election. (Id. at pp. 1209, 1213.)

Heckman argues that the provisions governing the dates for regular and mail-ballot elections similarly are mandatory, that the Board did not authorize the use of mailed ballots or give notice to the voters that the election would be by mail, and that the election accordingly was invalid.

There are multiple problems with this argument. First, we cannot grant the relief Heckman's petition sought. He requested a writ of mandate ordering the Board to rescind the notice of election; a declaration that the May 3, 2022 election may not proceed; an injunction preventing Depuis, Cooper, Monroe, and the Board from proceeding with the election; and a writ of mandate ordering them to amend the ballot question for the parcel tax measure and the argument in favor of the measure. But the election date was well over a year ago, and we cannot stop an election that has already taken place. (See Long v. Hultberg (1972) 27 Cal.App.3d 606, 608-609 [dismissing appeal as moot]; Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128, 132 (Lenahan) [plaintiffs "may not, after the election has been held, still urge a court to stop it"].)

Second Heckman has not established that the statutory violation he alleges can be a proper ground for invalidating an election...