Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Tulare County. Lloyd L. Hicks, Judge. Super. Ct. No. VCU219738
Law Office of Allen Broslovsky and Allen Broslovsky for Plaintiffs and Appellants.
Kahn, Soares & Conway, Jan L. Kahn, John V. Ohnstad, Jr., and Joshua J. Bettencourt for Defendant and Respondent.
OPINION
DAWSON, J.
Appellants challenged the election of Rita Woodard to the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County on the ground she did not meet the eligibility requirements for that office. The superior court considered various provisions of the Government Code and interpreted those provisions to mean that there were no eligibility requirements for the office other than the general requirement that a candidate be a registered voter.
Appellants contend the superior court erred because the Government Code and the related ordinances of Tulare County should be interpreted to require candidates for the office to meet the eligibility requirements the Government Code specifies for county auditors and county treasurers.
We conclude that the superior court correctly interpreted the statutory scheme. The Legislature established no specific eligibility requirements for candidates running for the new office of auditor-controller-treasurer-tax collector created by Government Code section 24304.2. Accordingly, judgment is affirmed.
All further statutory references are to the Government Code unless otherwise indicated.
FACTS
Appellant Robert Fatica is a resident of Tulare County who filed an affidavit of contest in superior court on June 30, 2006, to contest the election of Woodard to the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County.
Appellant Ron Medlock also filed an affidavit of contest challenging the election of Woodard. He was a candidate for the same office and, at the time of the election, held the position of Chief Auditor Appraiser of Tulare County. He is a certified public accountant.
Respondent Woodard was elected to the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County in the June 6, 2006, election. At the time of the election, Woodard was Chief Deputy Treasurer-Tax Collector for Tulare County. Woodard’s trial brief asserted that she received over 61 percent of the vote.
The Tulare County Candidate’s Guide for the June 6, 2006, Primary Election (Guide) was compiled by the Office of the Tulare County Registrar of Voters and was dated December 2005. The second page of the Guide stated that it was “intended to provide general information about the nomination and election of candidates, and does not have the force and effect of law, regulation or rule.” The Guide also stated that (1) anyone interested in elective office should not rely solely on the booklet, (2) it was not intended as a substitute for legal counsel, and (3) in case of a conflict between it and the law, the law would apply.
Page 13 of the Guide set forth the eligibility requirements for the office of auditor-controller-treasurer-tax collector. The Guide stated that candidates were required to be a citizen of the United States and a registered voter in Tulare County at the time nomination papers were issued. The Guide also stated that candidates must meet at least one of four criteria applicable to the position of auditor and at least one of five criteria applicable to the position of treasurer-tax collector. The Guide identified the source of these criteria as section 26945 (auditor) and section 27000.7 (treasurer).
Legislative History for Section 24304.2
On June 22, 2005, Assembly Bill No. 1318 (2005-2006 Reg. Sess.) (Assembly Bill 1318) was amended in the Senate to add section 24304.2. The proposed section 24304.2 authorized the Board of Supervisors of Sonoma County to consolidate, by ordinance, the duties of the offices of auditor-controller and treasurer-tax collector into the elected office of auditor-controller-treasurer-tax collector. (<http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_1301-1350/ab_1318_bill_20050622_amended_sen.html> [as of Oct. 10, 2007].)
On August 16, 2005, the Tulare County Board of Supervisors passed Ordinance No. 3313, adding section 1-03-2085 to the Ordinance Code of Tulare County (Ordinance 3313):
“Pursuant to the provisions of section 24300.5 … and effective January 7, 2006, the duties of the offices of Auditor, Controller, Treasurer and Tax Collector shall be consolidated and the budgets of said offices shall be consolidated pursuant to the provisions of section 24305 ….”
Eight days later, on August 24, 2005, Assembly Bill 1318 was amended to include Tulare County as the second county authorized to create the elected office of auditor-controller-treasurer-tax collector. (<http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_1301-1350/ab_1318_bill_20050824_amended_sen.html> [as of Oct. 10, 2007].)
On September 29, 2005, Assembly Bill 1318 was approved by the Governor and chaptered by the Secretary of State. (<http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_1301-1350/ab_1318_bill_20050929_history.html> [as of Oct. 10, 2007].)
Section 24304.2 and the other provisions of Assembly Bill 1318 became operative on January 1, 2006. (Stats. 2005, ch. 407, § 6.) As a result, section 24304.2 became operative before the effective date of Ordinance 3313.
PROCEEDINGS
The affidavit of contest filed by Fatica on June 30, 2006, states: “Office being contested: Tulare County Auditor-Controller-Treasurer-Tax Collector.” The ground for the challenge was Woodard’s eligibility for the office. Specifically, Fatica asserted he possessed documents that “appear to indicate that Rita Woodard was not legally qualified to run for office according to the requirement of California G[overnment] Code Section 26945.”
On July 3, 2006, Medlock filed an affidavit contesting Woodard’s election to the office of Tulare County Auditor-Controller-Treasurer-Tax Collector. Medlock contended Woodard did “not meet the minimum qualifications as required by California Government Code Sections 26945 and 27000.7 which were adopted by the County of Tulare in County Ordinances Code 01-03-2060 & 01-03-2061.”
Woodard filed answers to both affidavits of contest that raised procedural defenses, denied the allegations, and asserted that she met the minimum qualifications for the office to which she was elected.
The superior court issued an order stating it would treat the contests as contests of a general election because Woodard received a majority of the votes and was deemed elected in the primary election. The order also set the matter for trial on August 11, 2006. Subsequently, the matter was continued to October 6, 2006.
Woodard’s trial brief presented the position that she was qualified for office if she met the requirements of either section 26945 or 27000.7. Woodard also presented the alternative position that she met the requirements of both sections. In addition, page seven of Woodard’s trial brief pointed out that the Government Code contained no express qualifications for the office created by section 24304.2.
The superior court issued a tentative ruling prior to the hearing on October 6, 2006, that stated the only qualification for the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County was that the candidate be a registered voter. A statement of decision was filed a week later.
Appellants filed a motion for reconsideration on the ground that the superior court’s interpretation of the relevant statutory provisions, which was not an interpretation asserted by Woodard, created new and different circumstances because that interpretation conflicted with the Guide published by Tulare County. This motion was denied.
On October 16, 2006, the superior court entered a judgment that confirmed Woodard as the elected candidate and awarded her costs. Appellants filed a timely notice of appeal.
DISCUSSION
I. Standard of Review
A. Questions of Law
The main issues in this appeal concern (1) the scope of issues that a court has the authority to consider in an election contest and (2) the eligibility requirements applicable to candidates seeking the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County. Both issues pose questions of statutory construction. Issues of statutory construction are questions of law that are subject to independent review by the court of appeal. (E.g., Twedt v. Franklin (2003) 109 Cal.App.4th 413, 417.)
Woodard argues, without citation to authority, that appellants “had the burden to establish what minimum qualifications are required for the newly combined office, and that they failed in that burden.” We reject this argument and the idea that an issue of statutory construction should be decided based on the failure of one side or the other to carry its burden. The concepts of a burden and of the failure to carry that burden have no role in the analysis of a question of statutory construction, which is a pure question of law.
B. Principles of Statutory Construction
The general principles of statutory construction have been set forth by this court in a number of opinions. (E.g., Coburn v. Sievert (2005) 133 Cal.App.4th 1483, 1494-1496; People v. Haynie (2004) 116 Cal.App.4th 1224, 1228-1229; California Teachers Assn. v. Governing Bd. of Hilmar Unified School Dist. (2002) 95 Cal.App.4th 183, 191.) We will not restate those principles in detail here.
To summarize those principles, the goal of statutory construction is to effectuate the purpose of the statute. (See Day v. City of Fontana (2001) 25 Cal.4th 268, 272.) The first step is to look to the words used by the Legislature and give them their usual, ordinary meaning. (Garcia v. McCutchen (1997) 16 Cal.4th 469, 476.) Generally, the analysis of statutory language is near its end once a court has determined that the words used are clear and unambiguous. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 775.) The end is reached if the court determines that a literal construction would not frustrate the purpose of the statute or produce absurd consequences. (Coburn v. Sievert, supra, 133 Cal.App.4th at p. 1495.)
II. Grounds Upon Which an Election May Be Contested
The grounds for an election contest are limited by statute. “Except for challenges alleging misconduct rising to the level of a constitutional violation, ‘the court’s authority to invalidate an election is limited to the bases for contest specified in Elections Code section 16100 and that section is exclusive ….’ [Citation.]” (California Family Bioethics Council v. California Institute for Regenerative Medicine (2007) 147 Cal.App.4th 1319, 1347.)
In this case, the affidavits of contest filed by appellants challenged the election of Woodard on the ground set forth in Elections Code section 16100, subdivision (b)—eligibility for office.
To establish the statutory context for appellants’ contest, we set forth Elections Code section 16100 in its entirety: “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. Challenge Based on Ordinance that Improperly Consolidated Offices
On appeal, appellants contend that (1) the consolidation of the offices of auditor-controller-treasurer-tax collector attempted by Tulare County was not done properly; (2) Ordinance 3313 is null and void because the board of supervisors did not have the power or authority to approve the consolidation at the time the ordinance was approved; and (3) pursuant to section 24303, each office should be filled in the manner required by law. Based on these contentions, appellants conclude that the offices were not combined and that filling them as required by law means that the qualifications specified in section 26945 for the auditor and in section 27000.7 for the treasurer should take effect.
First, Elections Code section 16100 plainly does not include the asserted nullity of an ordinance as a ground for setting aside an election. The plain language of this section cannot be expanded to include other bases for contesting an election because, among other things, such an expansion would contradict (1) the basic principles of statutory construction and (2) precedent concerning the strict limitations on election contests recognized by the California Supreme Court. (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192-194.)
Second, our conclusion regarding the limited nature of an election contest does not mean that invalid ordinances are not subject to challenge. The California Supreme Court has described the procedures that may be used to assert an ordinance related to an election is invalid. “Assertedly invalid statutes or ordinances may be challenged on constitutional grounds in an election contest, which leads to an order setting aside the result of the election, or on constitutional or other grounds by actions for declaratory relief or, where authorized, by a petition for writ of mandamus, each of which results in a judicial determination that the measure is invalid.” (Friends of Sierra Madre v. City of Sierra Madre, supra, 25 Cal.4th at p. 192, fn. 17.)
In this case, the affidavits of contest filed by appellants in the superior court did not challenge the validity of Ordinance 3313 on constitutional grounds. Nor did appellants file an action for declaratory relief or a petition for writ of mandamus.
Accordingly, the election of Woodard may not be set aside based on the asserted invalidity of Ordinance 3313.
B. Errors in the Candidate’s Guide Published by Tulare County
Appellants contend that, if the superior court’s ruling is correct, then Tulare County acted improperly to narrow the field of potential candidates for the office. Specifically, appellants point out that the superior court’s ruling regarding the eligibility requirements directly contradicts the Guide that Tulare County published.
The Guide stated that a potential candidate for the office of auditor-controller-treasurer-tax collector needed to meet the requirements of both section 26945 (auditors) and section 27000.7 (treasurers). Appellants argue that, “in light of the County[ of Tulare]’s improper action in denying otherwise qualified citizens the right to run for the combined office, the election for that office should be annulled so that the County [of Tulare] can allow ALL interested persons who meet the requirements as articulated by the [superior c]ourt in its decision, to run for that office.”
The plain language of Elections Code section 16100 does not authorize courts to set aside an election because of inaccuracies in material published by a county before the election. As stated ante, we will not expand the scope of Elections Code section 16100 to include grounds for contesting an election that are not expressed in the statute. In short, the Legislature has not allowed purported errors of this type to be held in reserve and asserted after an election by those unhappy with the results.
Furthermore, the Guide contained a disclaimer and, among other things, advised readers that in case of a conflict between it and the law, the law would control.
Accordingly, we must reject this ground for setting aside the election of Woodard.
III. Eligibility Requirements for the Office
A. Contentions of the Parties
Appellants contend that the eligibility requirements for both the auditor-controller office (§ 26945) and the treasurer-tax collector office (§ 27000.7) apply to the consolidated position.
Woodard asserts two different statutory interpretations are possible. First, she argues that the superior court correctly determined that sections 26945 and 27000.7 did not apply to the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County and that all registered voters were eligible. As a second, alternative statutory construction, Woodard argues that she was eligible for the office if she met a criterion in either section 26945 or 27000.7.
B. The Superior Court’s Statutory Interpretation and Ruling
The superior court undertook a detailed statutory analysis and concluded that the Legislature did not specify any eligibility criteria for the newly created office. The superior court, cognizant of the separation of powers between the three distinct branches of government, stated it was for the Legislature, not the courts, to fill any gap in the enactment.
As a result, the superior court concluded that the only eligibility requirement was contained in section 24001, which requires candidates be registered as voters in the county in which the duties of office are to be exercised. Because the parties had stipulated that Woodard was a registered voter in Tulare County, the superior court concluded that she was eligible to hold the office of Auditor-Controller-Treasurer-Tax Collector of Tulare County.
C. Statutory Basis for the Office of Auditor-Controller-Treasurer-Tax Collector
Before we address the eligibility requirements for the position of Auditor-Controller-Treasurer-Tax Collector of Tulare County, we must determine whether the position was created pursuant to section 24300.5 or 24304.2 because specific eligibility requirements have been enacted for positions created pursuant to section 24300.5.
1. Statutory text
Section 24300.5, which was added to the Government Code in 1969, provides in full: “In addition to the duties of the county offices which may be consolidated under the provisions of Section 24300, the board of supervisors may by ordinance consolidate the offices of auditor, controller, treasurer, tax collector, and director of finance.”
Section 24304.2, which was enacted in 2005, provides in full: “Notwithstanding Section 24300, in Sonoma County and Tulare County, the board of supervisors, by ordinance, may consolidate the duties of the offices of Auditor-Controller and Treasurer-Tax Collector into the elected office of Auditor-Controller-Treasurer-Tax Collector.”
Both sections 24300.5 and 24304.2 mention section 24300. Section 24300 states that “[b]y ordinance the board of supervisors may consolidate the duties of certain of the county offices in one of more of these combinations …” and lists in subdivisions (a) through (r) the combinations authorized. For example, subdivision (g) of section 24300 refers to the combination of treasurer and tax collector.
2. Authority for Ordinance 3313
Ordinance 3313 identifies section 24300.5 as the basis for consolidating the duties of the offices of auditor, controller, treasurer and tax collector. The problem created is that section 24300.5 authorizes the consolidation of five offices. It does not authorize explicitly the consolidation of fewer than the five offices listed. Thus, a literal reading of section 24300.5 leads to the conclusion that it did not authorize the consolidation of only the four offices referenced in Ordinance 3313.
The limited nature of the authority granted by section 24300.5 led to the enactment of section 24304.2 as part of Assembly Bill 1318. The legislative history for Assembly Bill 1318 recognized the limited scope of existing law as a reason for enacting section 24304.2. In particular, a third reading analysis prepared for the Senate Rules Committee stated:
“Sonoma County has created the offices of the Auditor-Controller and the Treasurer-Tax Collector and wants to create one consolidated office of the Auditor-Controller-Treasurer-Tax Collector, without the inclusion of the director of finance. This bill allows the Sonoma County Board of Supervisors and the Tulare County Board of Supervisors to consolidate the offices of the Auditor-Controller and the Treasurer-Tax Collector.” (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill. No. 1318 (2005-2006 Reg. Sess.) as amended Aug. 24, 2005, p. 2.)
Assembly Bill 1318 was amended eight days after the Board of Supervisors of Tulare County adopted Ordinance 3313 and empowered the board of supervisors to do what Ordinance 3313 attempted—namely, consolidate the offices of auditor-controller-treasurer-tax collector. The provisions of Assembly Bill 1318 had become operative before Ordinance 3313 took effect in early January 2006. Thus, Ordinance 3313 did not exceed the authority conferred on the board of supervisors under section 24304.2.
In summary, section 24300.5 did not authorize consolidating the offices of auditor, controller, treasurer and tax collector without the inclusion of the director of finance. Therefore, Ordinance 3313’s reference to section 24300.5 was erroneous. That error, however, does not provide a basis for invalidating the ordinance. (See part II.A., ante.) Because we cannot treat Ordinance 3313 as invalid for purposes of this election contest, and because section 24304.2 provides the sole statutory authority for the creation of the elected office of auditor-controller-treasurer-tax collector, we will presume the office was created in accordance with section 24304.2.
D. Section 24304.2 Created a Single Office, Not Combined Offices
A fundamental disagreement between appellants and the superior court concerns whether section 24304.2 created a new office or, alternatively, created a combination of four offices.
Appellants argue that “the Legislature was not creating a new office, but consolidating already existing offices” and, therefore, the candidate was elected to fill four offices and had to satisfy the eligibility requirements of each office.
In contrast, the superior court examined the language of section 24304.2 that stated the duties of four offices were consolidated “into the elected office of Auditor-Controller-Treasurer-Tax Collector” and determined it plainly referred to an “office,” which is singular. Therefore, the superior court concluded that the statute created a new, single office with a single officer at its head. The superior court also determined that the Legislature did not specify any eligibility requirements for the new office.
As a result, the superior court concluded that the only applicable qualification for the new office was the general requirement stated in section 24001 that the candidate be a registered voter.
The superior court adopted a literal interpretation of section 24304.2 and the provisions of the Government Code that contain eligibility requirements. First, section 24304.2’s use of the words “the elected office” clearly refer to a single office, not a combination of offices. Second, the Government Code does not contain any specific eligibility requirements for the newly created office.
As stated ante, our analysis does not end when the literal reading of a statute is identified. We test that literal construction to determine if it would frustrate the purpose of the statute by, among other things, producing absurd consequences. (Coburn v. Sievert, supra, 133 Cal.App.4th at p. 1495.)
Appellants argue that the foregoing interpretation “is an absurd result that leaves the public fisc unprotected and could not have been the import of the Legislature’s action on section 24304.2” We disagree.
First, this argument gives too little credit to the voters of Sonoma and Tulare Counties. Those counties’ finances are protected by the voters when they exercise their right to vote on who should fill the office of auditor-controller-treasurer-tax collector.
Second, the connection or link between the purported lack of protection and the Legislature’s intent is not strong enough. Another reasonable inference about legislative intent is that the Legislature determined the voter’s interest in electing a competent officer was enough protection for the two counties involved. We recognize other inferences are possible, but the fact that there are conflicting possibilities is a reason why a court should not revise the words used by the Legislature. Courts should rewrite legislation only if it is necessary to effectuate the Legislature’s clear intent or purpose.
Third, the argument would be more persuasive if the Legislature made the eligibility criteria mandatory. For example, the eligibility requirements for treasurers and tax collectors apply only in counties where the board of supervisors has adopted those requirements by enacting an ordinance. (See § 27000.6; Elec. Code, § 13.5, subd. (b)(6).) By appellants’ reasoning, the public finances are left unprotected in counties where the boards of supervisor have not enacted such an ordinance. The fact that the eligibility requirements are not mandatory for all counties illustrates that the Legislature believes the absence of requirements is tolerable.
Appellants also argue that our interpretation of section 24304.2 cannot be correct because it would mean that “12 of the 18 combinations of consolidations listed under … section 24300 and the 20 of 26 combinations consolidated under … section 24304 would have no requirements for the position other than to be a registered voter when the offices where [sic] consolidated. Clearly, this could not have been the intent of the Legislature.” We reject this argument because the language used in sections 24300 and 24304 is different from the language used in section 24304.2. Specifically, sections 24300 and 24304 do not refer to consolidating duties in an “elected office” like section 24304.2
Our interpretation of section 24304.2 is bolstered by the wording of section 27000.7. That section states that no person shall be eligible for election to the office of county treasurer, county tax collector, or county treasurer-tax collector unless one of the listed criteria is met. For example, a person who is a certified public accountant is eligible under subdivision (a)(3) of section 27000.7.
Subdivision (b) of section 27000.7 provides in full: “This section shall only apply to any person duly elected or appointed as a county treasurer, county tax collector, or county treasurer-tax collector on or after January 1, 1998.”
Appellants’ position that the eligibility requirements of section 27000.7 should be applied to the office of auditor-controller-treasurer-tax collector directly contradicts subdivision (b) of section 27000.7 because that office is not among those listed. Furthermore, we are unable to perceive any ambiguity in the phrase “shall only apply.” Had the Legislature intended the eligibility criteria in section 27000.7 to apply to the new office, it would have added that office to the list in subdivision (b) of section 27000.7 or expressly referenced the requirements of that section elsewhere. (E.g., § 26980, subd. (c).) This court may not insert that which the Legislature has omitted from subdivision (b) of section 27000.7. (Code Civ. Proc., § 1858 [when construing a statute, judges may not insert what Legislature has omitted].)
F. Conclusion
We conclude that the Legislature created the office of Auditor-Controller-Treasurer-Tax Collector for the Counties of Sonoma and Tulare without also creating any specific eligibility requirements. Therefore, the only applicable eligibility requirement is the general requirement contained in section 24001 (registered voter).
DISPOSITION
The judgment is affirmed. Respondent shall recover her costs on appeal.
WE CONCUR:
HARRIS, Acting P.J., HILL, J.
“(a) That the precinct board or any member thereof was guilty of malconduct.
“(b) That the person who has been declared elected to an office was not, at the time of the election, eligible to that office.
“(c) That the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000).
“(d) That illegal votes were cast.
“(e) That eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote.
“(f) 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.
“(g) That there was an error in the vote-counting programs or summation of ballot counts.”