Opinion
H043950
10-25-2017
MICHAEL E. BOYD, Plaintiff and Appellant, v. COUNTY OF SANTA CRUZ, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. CV179607)
Michael E. Boyd appeals from an order denying his ex parte application for an order staying the printing of ballot materials prepared for the November 2016 local election in the respondent jurisdictions, the City of Santa Cruz (City) and the County of Santa Cruz (County). We conclude that the relief appellant seeks, the issuance of a peremptory writ enjoining the cannabis business tax and sales and use tax operative in these jurisdictions, is unavailable to appellant in these procedural circumstances. Consequently, we must dismiss the appeal.
Background
In July 2014 appellant, proceeding in pro per (as he continues to do on appeal) filed a complaint against the County, its board of supervisors, and several individuals, alleging violations of federal and state law in the County's adoption of a cannabis business tax. In the November 4, 2014 election the voters in these jurisdictions adopted the business tax through the County's Measure K and the City's Measure L.
Appellant's lawsuit was removed to federal court. On June 2, 2016, after multiple amendments (including the addition of the City and City officials as defendants), the case was dismissed with prejudice and remanded to state court.
On August 29, 2016, appellant filed a petition seeking a "writ of mandate or injunction," contesting the ballot materials for two new measures proposed for the November 2016 election. Measure E would amend the County's cannabis business tax, while Measure I would amend the cannabis business tax for the City. In their arguments in favor of the County amendment, the proponents explained that the language of Measure K would only be revised to conform to the new state law definition of cannabis, cannabis business, and medical marijuana business. The tax would then apply not only to dispensaries, but "to all cannabis-related business, such as cultivators." The City measure, Measure I, was nearly identical in its redefinition of those terms.
The proposed new definition of "cannabis business" was "business activity directly involved with, related to, or concerning cannabis, including, but not limited to, cultivating, dispensing, transporting, manufacturing, compounding, converting, processing, preparing, storing, packaging, or conducting wholesale and/or retail sales of cannabis and any ancillary products in the unincorporated area of the County, whether or not carried on for gain or profit."
On September 6, 2016, appellant filed the pleading at issue in this appeal, an ex parte application for an order staying the printing of the ballot materials. He apologized for failing to seek leave to amend his complaint, and in this document he asked for such leave. Appellant urged the court to find that the materials supporting Measures E and I were "inaccurate, misleading, and biased" in favor of passage, thereby denying voters their state constitutional rights. He was personally harmed by the business tax itself, he said, because it "limit[ed] access to his medicine," in violation of article I of the California Constitution.
Plaintiff's relied on inapposite "access" language contained in article I, section 3, of the California Constitution. That provision, read in context, clearly pertains to access to government meetings and other government conduct; it does not comprehend individual access to medicine. Article I, section 3, states in part: "(a) The people have the right to instruct their representatives, petition government for redress of grievances, and assemble freely to consult for the common good. [¶] (b) (1) The people have the right of access to information concerning the conduct of the people's business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny. [¶] (2) A statute, court rule, or other authority, including those in effect on the effective date of this subdivision, shall be broadly construed if it furthers the people's right of access, and narrowly construed if it limits the right of access. A statute, court rule, or other authority adopted after the effective date of this subdivision that limits the right of access shall be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest."
That same day, the County and the City opposed the petition and ex parte application on both procedural and substantive grounds. They asserted that the ex parte motion was untimely, as any challenge had to be made by August 22, 2016. They objected to appellant's filing of the writ petition without first seeking leave to amend the prior pleading, which pertained to the 2014 measures; this petition, filed two years after the original complaint, challenged entirely new measures. Respondents further argued that appellant could not show any false or misleading language in the ballot arguments in favor of passage. The City added the assertion that appellant lacked standing to challenge Measure I, as he lived outside the City limits.
The County Clerk had already sent the ballots to the printer, and the voter booklets were due there that day by 5:00 p.m.
In an effort to meet the City's objection, plaintiff submitted a "Specific Power of Attorney" from a Santa Cruz citizen granting plaintiff authority to engage in litigation related to Measure I.
The superior court heard argument on the ex parte application in the afternoon of September 6, 2016. In its written order, filed the same day, it denied appellant's application without comment. Appellant immediately filed his notice of appeal from that order. Both measures were passed by the voters at the November 8, 2016 election.
The County has requested judicial notice of this fact, and appellant has not objected. We grant the motion. (Cf. Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1424, fn. 2.) --------
Discussion
At the outset we note that plaintiff has misstated the statutory basis of his appeal. His notice of appeal and Civil Case Information Statement describe the September 6, 2016 order as an order after judgment, made appealable by Code of Civil Procedure section 904.1, subdivision (a)(2). There is no judgment to which this order can pertain; the record contains no ruling on appellant's writ petition or any other disposition of the litigation besides the order denying appellant's ex parte motion to stop the printing of the November 2016 ballot materials. We will consider the appeal as taken from an order "refusing to grant . . . an injunction," made appealable under Code of Civil Procedure section 904.1, subdivision (a)(6).
Nevertheless, appellant cannot obtain the relief he seeks, for two reasons. First, he has asked this court for a writ or, alternatively, an order to show cause "why Defendants' 'Cannabis Business tax' and 'Sales and Use tax' should not be enjoined." If that remedy is not available to him, he requests a remand to superior court "for further proceedings"—apparently on the July 2014 complaint that was sent back from the federal district court. Neither of these requests is an avenue of relief for appellant. He did not file a petition for a writ of mandate in this court, nor have we any reason to treat his appeal as such a petition. Even if we did, there is no ground for finding those taxes, enacted by initiative in 2014, entirely invalid; that challenge was abandoned once the federal court remanded appellant's lawsuit to superior court without further action on it by appellant. And as noted above, the subsequent pleading—the writ petition filed in August 2016—was apparently never ruled upon and therefore is not at issue in this appeal.
The only ruling properly before us is the denial of appellant's ex parte application for an injunction against the printing of the ballot materials, on the ground that they are false and misleading. Both respondents maintain that the issue is moot. We agree.
"[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for [the appellate] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever," the appeal is moot. (Consol. etc. Corp. v. United A. etc. Workers (1946) 27 Cal.2d 859, 863; City of Cerritos v. State of California (2015) 239 Cal.App.4th 1020, 1031; see also Simi Corp. v. Garamendi (2003) 109 Cal.App.4th 1496, 1503 ["A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief"].) "California courts have been reluctant to overturn the results of an election based on a procedural defect in placing a measure on the ballot once the election has been held and the voters have spoken." (Protect Our Benefits v. City and County of San Francisco (2015) 235 Cal.App.4th 619, 642; see also Lenahan v. City of Los Angeles (1939) 14 Cal.2d 128, 132 [once election was complete, plaintiffs' remedies no longer included injunctive relief to stop it]; Vargas v. Balz (2014) 223 Cal.App.4th 1544, 1550 ["Strictly speaking, there is no actual controversy in this case because the election has been held and the results have been certified"].)
These principles compel a finding of mootness in this case. The relief appellant sought below, an injunction against the printing of the ballot pamphlets, is no longer available, since the voters received the materials and acted on them by passing the challenged measures. Thus, even if we found an abuse of discretion in denying the requested injunction, such a result would "have no practical impact or provide [appellant] effectual relief." (Woodward Park Homeowners Assn. v. Garreks, Inc. (2000) 77 Cal.App.4th 880, 888.)
While acknowledging that "a writ of mandate would now be a meaningless remedy for appellant," he suggests that the constitutional issue he raised should still be considered here because "to date four such elections have been held without any relief to [appellant] from such unconstitutional actions." When a case is technically moot, appellate courts nonetheless have discretion to consider it if it raises "important questions of continuing public interest that may evade review." (California Cannabis Coalition v. City Of Upland (2017) 3 Cal.5th 924, 933; Peterson v. City of San Diego (1983) 34 Cal.3d 225, 227; see also Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 172 [finding question to be "of broad public interest and . . . likely to recur, if not in San Francisco elections, then in elections in other charter cities"].) In this case, however, there is no continuing question of broad public interest that is likely to recur. It is a personal issue—the deprivation of appellant's own "access to his medicine"—that is the foundation of his grievance over the expanded application of the taxes imposed by the voters. As appellant fails to show any important public concern arising from the printing of the ballot materials for the November 2016 election, no exception to mootness warrants addressing that issue. Dismissal of the appeal is therefore appropriate.
Disposition
The appeal is dismissed.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
BAMATTRE-MANOUKIAN, J. /s/_________
MIHARA, J.