Field v. Bowen

199 Cal.App.4th 346

131 Cal.Rptr.3d 721

11 Cal. Daily Op. Serv. 12,029

2011 Daily Journal D.A.R. 14,249

Mona FIELD, et al., Plaintiffs and Appellants,

v. Debra BOWEN as Secretary of State et al., Defendants and Respondents;Abel Moldonado et al., Interveners and Respondents.

No. A129946.

Court of Appeal, First District, Division 3, California.

Sept. 19, 2011.

Gautam Dutta, for Appellants.

Kamala D. Harris, Attorney General, Douglas J. Woods, Acting Senior Assistant Attorney General, Zackery P. Morazzini, Supervising Deputy Attorney General, Mark R. Beckington, Deputy Attorney General, for Respondents.

Nielsen, Merksamer, Parrinello Gross & Leoni, James R. Parrinello, Marguerite Mary Leoni, Christophe Elliott Skinnell, Sacramento, for Intervener and Respondent.

SIGGINS, J.

A group of voters and aspiring congressional candidates challenge the constitutionality of the open primary law, Proposition 14, approved by the voters in June 2010. Plaintiffs contest two aspects of Senate Bill No. 6, the legislation adopted to implement the proposition. (Sen. Bill No. 6 (2009–2010 Reg. Sess.), hereafter SB 6; see Legis. Counsel's Dig., Sen. Bill No. 6 (2009–2010 Reg. Sess.).) At issue are Elections Code section 13105, which precludes candidates from stating on the ballot a preference for a nonqualified political party, and Elections Code section 8606, which prohibits the counting of write-in votes at the general election for offices covered by Proposition 14.

Our review of relevant case law leads us to conclude both statutes are constitutional. The objection to the party labeling restriction on the ballot is essentially the same as the one rejected in Libertarian Party of California v. March Fong Eu (1980) 28 Cal.3d 535, 170 Cal.Rptr. 25, 620 P.2d 612( Libertarian Party ). The challenge to the write-in vote counting ban rests on the erroneous premise that SB 6 allows votes that cannot be counted to be lawfully cast. We therefore affirm the order denying plaintiffs' motion for a preliminary injunction against enforcement of Proposition 14.

I. BACKGROUND

A. Proposition 14 and Qualified Parties

As defined in the Elections Code,¹ the term “party” means “a political party or organization that has qualified for participation in any primary election.” ( § 338.) A party qualifies for participation in a primary election by polling a sufficient number of votes at a gubernatorial election (2 percent of the statewide vote), having a sufficient number of voters affiliate with the party (1 percent of the vote at the last gubernatorial election), or by petitioning for qualification with the signatures of a sufficient number of voters (10 percent of the vote at the last gubernatorial election). (§ 5100.) California currently recognizes six qualified parties: American Independent, Democratic, Green, Libertarian, Peace and Freedom, and Republican. (See http:// www. sos. ca. gov/ elections/ elections_ f. htm, as of September 19, 2011.)

At primary elections before approval of Proposition 14 (Legis. Counsel's Dig., Sen. Const. Amend. No. 4 (2009–2010 Reg. Sess.), pp. A–1 et seq.), voters affiliated with a qualified party, and, with permission of the party, voters who declined to state a party affiliation, would vote to select the party's nominee for the general election. The qualified party candidate with the highest vote advanced to the general election as the party's nominee. (See former Cal. Const., art. II, § 5, subd. (b) [amended by Prop. 14 § 3]; former §§ 2151 [amended by Stats.2009, ch. 1, § 9], 13102, subd. (b) [amended by Stats.2009, ch. 1, § 45] & 15451 [amended by Stats.2009, ch. 1, § 57].) In addition to party nominees, the general election ballot included candidates who qualified through the process of independent nomination by petition. (See Libertarian Party, supra, 28 Cal.3d at pp. 541–542, 170 Cal.Rptr. 25, 620 P.2d 612.) Separately, a person could run in the general election as a write-in candidate. ( Id. at p. 541, fn. 7, 170 Cal.Rptr. 25, 620 P.2d 612.)

Proposition 14 replaced party (partisan) primaries with one open primary for the following offices, referred to in the measure and legislation as “voter-nominated” offices: Governor, Lieutenant Governor, Secretary of State, Treasurer, Controller, Insurance Commissioner, Attorney General, State Senators, State Assembly Members, State Board of Equalization Members, United States Senators, and Members of the United States House of Representatives. (Cal. Const., art. II, § 5, subd. (a); § 359.5.) Candidates for the office are listed on a single primary ballot, voters may vote for any candidate without regard to the political party preferenceof the candidate or the voter, and the top two vote-getters, regardless of party preference, advance to compete in the general election. (Cal. Const., art. II, § 5, subd. (a).) Partisan elections are retained for the office of President of the United States, political party committees, and party central committees. (Cal. Const., art. II, § 5, subds. (c), (d).)

Proposition 14 became effective on January 1, 2011.

B. The Litigation

Plaintiffs filed suit in July 2010 against the Secretary of State (Secretary) and county election officials to have SB 6 declared unconstitutional and unenforceable, and Proposition 14 declared “inoperative” due to the unenforceability of SB 6.² Plaintiffs Mona Field, Richard Winger, Stephen A. Chessin, and Jennifer Wozniak are identified in the first amended complaint as voters who “wish[ ] to vote, and have [their] vote[s] be counted, in future elections for candidates whose names might not appear on the ballot.” Plaintiffs Jeff Mackler and Rodney Martin wish to run for the U.S. House of Representatives “stating a preference” on the ballot for “Socialist Action” and “the Reform Party,” respectively.

Former Senator and Lieutenant Governor Abel Maldonado, the legislative sponsor of Proposition 14 and SB 6, the California Independent Voter Project, “an organization representing the interests of independent (‘Decline–to–State’) candidates,” and Yes on 14—Californians For An Open Primary, the citizens committee that advocated for adoption of Proposition 14 (collectively, interveners), successfully intervened in the case.

Plaintiffs moved for a preliminary injunction against enforcement of Proposition 14 and SB 6. Arguments on the motion confirmed that plaintiffs were raising facial challenges to SB 6's constitutionality. The motion was denied, based primarily on plaintiffs' failure to show a likelihood of success on the merits.

II. DISCUSSION

A. Scope of Review

An appeal from an order granting or denying a preliminary injunction “[o]rdinarily ... involves a very limited review of the trial court's exercise of discretion concerning two factors: (1) the likelihood that plaintiffs will ultimately prevail and (2) the interim harm plaintiffs will sustain if the preliminary injunction is denied compared to the interim harm defendant will suffer if the injunction is granted pending a final determination of the merits. [Citations.] [¶] Occasionally, however, the likelihood of prevailing on the merits depends upon a question of pure law rather than upon evidence to be introduced at a subsequent full trial. This issue can arise, for example, when it is contended that an ordinance or statute is unconstitutional on its face and that no factual controversy remains to be tried. If such a question of pure law is presented, it can sometimes be determinative over the other factor, for example, when the defendant shows that the plaintiff's interpretation is wrong as a matter of law and thus the plaintiff has no possibility of success on the merits. [Citations.]” ( Hunter v. City of Whittier (1989) 209 Cal.App.3d 588, 595–596, 257 Cal.Rptr. 559( Hunter ).)

This case presents no reason to engage in an analysis of the parties' respective hardships. Because plaintiffs' likelihood of prevailing turns entirely on pure issues of law, we may independently review the trial court's determination of the legal issues and pass upon the merits of the case. (See Citizens to Save California v. California Fair Political Practices Com. (2006) 145 Cal.App.4th 736, 746, 52 Cal.Rptr.3d 17 [“where a case is clear and no fact questions are presented, a determination on the merits is appropriate and becomes law of the case”]; North Coast Coalition v. Woods (1980) 110 Cal.App.3d 800, 805, 168 Cal.Rptr. 95 [where “[t]he issue of the validity of the challenged regulations is solely one of law ... this court is in as good a position to resolve the issue now as the trial court would be after determination of this appeal”]; see also King v. Meese (1987) 43 Cal.3d 1217, 1228, 240 Cal.Rptr. 829, 743 P.2d 889.)

B. Party Designations on the Ballot(1) Plaintiffs' Arguments and the Applicable Statutes

Plaintiffs Mackler and Martin allege in the first amended complaint that their inability under SB 6 “to state a party preference on the ballot for a non-qualified party” violates their constitutional rights. In their briefing they contend that they have the right, “at a bare minimum,” to identify themselves on the ballot as “Independent.” They submit that SB 6's “[nonqualified] [p]arty [p]reference [b]an” violates: the First and Fourteenth Amendments, the free speech clause of the California Constitution (Cal. Const., art. I, § 2, subd. (a)), the federal elections clause, (U.S. Const., art. I, § 4, cl.1), and the California equal protection clause (Cal. Const., art. 1, § 7). It is unclear whether plaintiffs' Fourteenth Amendment claim refers to the rights to freedom of speech, freedom of association, and equal protection collectively or only some of them.

Plaintiffs first challenge section 13105, subdivision (a), which, as amended by SB 6, reads as follows: “In the case of candidates for a voter-nominated office in a primary election, a general election, or a special election to fill a vacancy in the office of United States Senator, Member of the United States...