Willburn v. Wixson
| Decision Date | 05 March 1974 |
| Citation | 37 Cal.App.3d 730,112 Cal.Rptr. 620 |
| Court | California Court of Appeals Court of Appeals |
| Parties | George Raymond WILLBURN, Plaintiff and Respondent, v. Eugene WIXSON, Defendant and Appellant. Civ. 14114. |
David L. Morrow, and Stennett M. Sheppard, Redding, for defendant and appellant.
This appeal involves an election contest arising from the election of a county supervisor in the Fifth Supervisorial District of Trinity County at the general election held on November 7, 1972. There were three candidates, George Raymond Willburn, the plaintiff and respondent (hereinafter referred to as 'contestant' or Willburn), Eugene Wixson, defendant and appellant, and a write-in candidate, Hazel Willburn, who is not a party hereto. According to the votes cast and accepted at the election, Wixson won by a plurality of four votes.
It was not urged by contestant Willburn that defendant Wixson committed any wrongdoing or that he was in any way responsible for the acts of which contestant Willburn complained. Epitomized, the offenders were said to be (1) members of the election boards of some of the six precincts of the fifth supervisorial district, because they failed to notify all voters about to vote, to mark ballots showing the candidate of their choice with an ' 'd' rubber stamp as required by statute (Elec.Code, §§ 14409, 14412 1), (2) certain supporters of write-in candidate Hazel Willburn who were accused of having solicited votes for her on election day within 100 feet of polling places in violation of sections 14211 and 14212. None of these violations were shown to have benefited Wixson or to have hurt Willburn--in short, they were not proved to have changed or affected the results of the election in any way. 2 The trial court, nevertheless, held that such acts vitiated the fifth district supervisorial election. We, however, agree with the position
of defendant Wixson on appeal that the trial court's conclusion is improper, and we will reverse the judgment.
The following table shows the precinct tallies for the fifth district supervisorial election:
Hazel Rejected
Contestant Defendant Willburn Votes
---------- --------- -------- --------
South Hayfork No. 1 44 40 18 (2)
South Hayfork No. 2 41 41 13 0
Wildwood 24 22 25 1
Mad River 38 38 41 3
Ruth 39 32 23 3
Zenia-Caution 26 38 1 0
Absentee 14 19 29 0
---------- --------- -------- --------
226 230 150 9
The rejected two votes in South Hayfork No. 1 are in parentheses because this was a subject of dispute. The county clerk testified that the tally sheet for this precinct did not show any ballots as having been rejected. A precinct worker at South Hayfork No. 1 testified that two ballots were rejected because they were marked in pencil. The credibility of that testimony is questionable. The record shows that all ballots, those counted as well as those rejected, are dispatched to the county clerk by the election board along with the tally sheets. (Rejected ballots are contained in 'envelope No. 6.) In this case not a single ballot was introduced into evidence. The trial court, however, found that a total of nine ballots was rejected because marked with pencil.
The record showed that some, but not all, of the voters to whom ballots were delivered were informed by a member of the election board that the ballot must be marked with the rubber stamp or the ballot would not be counted. Particularly, it appeared that young and inexperienced voters were so advised. Written instructions conveying that information were posted in the voting booths and were printed on the ballots. It was shown that this omission to caution voters orally regarding use of the rubber stamp occurred sometimes in three, and perhaps four, precincts. There was no evidence regarding the practice in Wildwood or Zenia-Caution precincts.
In his petition, contestant did not include improper electioneering and solicitation of votes as a specific ground of contest. The issue appears to have been joined, however, by stipulation. A reading of the record as a whole shows that some doubtful campaigning by the friends and relatives of the write-in candidate, Hazel Willburn, may possibly have occurred. There was none by defendant Eugene Wixson. (A vehicle with a George Willburn sign was located within 100 feet of one polling place for a short period of time during the voting.) Generally speaking, the problem appears to have been that no one, including the county clerk, was able to define how the distance of 100 feet should be measured, e.g., polling places were located in schools, a church and in a building or buildings on the county fairgrounds. The county clerk sought the advice of the district attorney. When he was unavailable, the advice of another attorney was solicited. Eventually, election boards were notified, and they in turn instructed workers for Hazel that distances should be measured from the corner boundary line of the property containing (and nearest to) the polls. Although that definition might cause a variation of several hundred feet with reference to the actual room in which the voting booths were placed and the election boards stationed, it appears there was at least an attempt at compliance with the clerk's fiat. In other instances, Hazel Willburn workers adopted their own points of reference. No wilful violation of the 100 foot restriction has been directed to out attention.
The workers for the write-in candidate were equipped with short pencils bearing the name of Hazel Willburn. These they sought to hand to people who appeared to be about to vote, soliciting them to vote for Hazel. It was not shown that in any specific case such solicited voter actually used such pencil, either to write in Hazel Willburn's name or to mark an 'x' thereafter (or elsewhere) on his or her ballot.
Nor was it explicitly shown where, with reference to distance from the polls, such pencil solicitations occurred. One of contestant's witnesses testified to the use of a pencil for the purpose of voting. This witness stated her vote was cast for contestant. Since no ballots were produced in evidence, it cannot be determined whether this ballot was counted or rejected. (It is to be noted, however, that the county clerk's table shows that three votes in that precinct were rejected.)
The foregoing facts make relevant the following code sections: Section 14409: 'In order to prevent voters from marking their ballots with a pencil, except for write-in votes, or otherwise contrary to law, whenever an election officer delivers a ballot to any voter he shall then distinctly state to the voter, so that he may be heard by the bystanders, that the voter shall mark the ballot with the stamp provided by law or the ballot will not be counted except that he may write in his choice of candidate for any office he desires.' 3
Also in point by virtue of the stipulated additions to the issues pleaded are the following: Sections 14211 and 14212 provide, respectively: 'No person, within 100 feet of a polling place, shall solicit a vote or speak to a voter on the subject of marking his ballot.'
'No person, including an election officer, shall do any electioneering on election day within 100 feet of any polling place.'
But also in point and applicable to all of the code sections quoted above are the following statutory limitations upon sections 14409, 14412, 14211 and 14212. First, the limitation in section 20022 which provides: 'No irregularity or improper conduct in the proceedings of the precinct board members, or any of them, is such malconduct as avoids an election, unless the irregularity or improper conduct is such as to procure the defendant to be declared either elected or one of those receiving an equal and highest number of votes where no one person has received the highest number of votes.'
And section 20021 which provides, in pertinent part as follows: 'Any elector of a county, city, or of any political subdivision of either may contest any election held therein, for any of the following causes:
'(a) That the precinct board or any member thereof was guilty of malconduct.
'. . .at
'(e) That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected.'
Sections 14409 and 14412 are ambiguous. Do they mean that one voting for a writein candidate must switch to a rubber stamp to make the x after having written in the name with a pencil, or may he then mark the with a pencil, or need he, having written in the name, follow it by an x at all? See--to add to the puzzlement--Muir v. Steinberg (1961), 197 Cal.App.2d 264, 271, 17 Cal.Rptr. 431.
Turning to sections 14211 and 14212, they, too, are ambiguous. What is the proper point among several which seem logical from which '100 feet from a polling place' must be measured? The results of this litigation do not depend upon an accurate interpretation of the Legislature's ambiguities. We do not reach those questions.
As this court reads section 20022, it was not proven that any 'malconduct,' 'irregularity,' or 'improper conduct' of any of the precinct board members procured defendant to be elected, and as we read section 20021, there is no proof that any member of any election board in the fifth district of Trinity County Was proven to be guilty of 'malconduct.' That...
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