EAST BAY MUNICIPAL UTILITY DISTRICT v. KAHN

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Court of Appeal, First District, Division 4, California.

EAST BAY MUNICIPAL UTILITY DISTRICT, a body corporate and politic of the State of California, Petitioner, v. The APPELLATE DEPARTMENT OF the SUPERIOR COURT of the State of California, for the COUNTY OF ALAMEDA, Respondent, Robert KAHN, Stanley Naparst, and Noel A. Perry, as Individuals, Real Parties in Interest.

Civ. 42284.

Decided: April 04, 1978

John B. Reilley, Gen. Counsel, Robert C. Helwick, East Bay Municipal Utility Dist., Oakland, for petitioner. No appearance on behalf of respondent. Glen L. Moss, Hayward, for real parties in interest.

In the “Petition For Writ Of Certiorari And/Or . . . Mandamus” with which it commenced this proceeding, petitioner East Bay Municipal Utility District seeks an appropriate writ which would in effect set aside an appellate decision of respondent court.

At relevant times in and after 1974, Elections Code section 10012.5 provided that a candidate for elective office in any “local agency . . . or district” might prepare and file a written statement of his qualifications for the office, subject to specified editorial limitations; that a voter's pamphlet, including all such statements prepared and filed, was to be sent to the affected electors with the sample ballot required by law; and that “(t)he local agency may bill each candidate availing himself of these services” for his share of certain prorated costs actually incurred by the agency in providing them.1

In Knoll v. Davidson (1974) 12 Cal.3d 335, 116 Cal.Rptr. 97, 525 P.2d 1273, the Supreme Court held (among other things to be described) that constitutional guaranties of equal protection precluded a local agency from requiring a candidate to prepay his share of these costs as a condition of his statement of qualifications being included in the voter's pamphlet. (Id., at p. 352, 116 Cal.Rptr. 97, 525 P.2d 1273.) The reasons for this holding, as expressed in its context (also to be described), were that the statute did not “authorize” the exaction of prepayment, that it compelled the local agency to include in the voter's pamphlet all candidates' statements which met its editorial requirements, and that it “permits the local agency to bill, at its option, each candidate” who has had a statement included. (Id., at pp. 352-353, 116 Cal.Rptr. at p. 108, 525 P.2d at p. 1284 (original italics).)

Petitioner is a municipal utility district organized and functioning pursuant to statute (Pub.Util.Code, s 11501 et seq.) under the management of elected directors. (Id., ss 11821-11866.) For purposes of their election, it is both a “local agency” and a “district” within the meaning of Elections Code section 10012.5. (See fn. 1, ante.) We hereinafter refer to it as the “ District.”

At least one seat on the District's board of directors was contested at an election which was consolidated with the statewide general election conducted on November 4, 1974. (See Pub.Util.Code, ss 11825, 11829.) The candidates included real parties in interest Kahn, Naparst and Perry. Each of them filed a statement of his qualifications pursuant to section 10012.5. The statement of each was included in the voter's pamphlet sent to the electors in the District. Prepayment of the incidental costs was not required of any of the three, and the District subsequently billed each for his share of the costs. This procedure was followed upon the authority of the holding in Knoll v. Davidson, supra, and in accordance with a pre-election board resolution which said so.

Each of the three real parties declined to pay his bill. The District thereupon brought a collection action against all three, and recovered a money judgment against each, in an Alameda County municipal court. Real parties appealed the judgment to respondent court, which reversed it with one judge dissenting. The majority held, upon the basis of their interpretation of the Knoll holding, that section 10012.5 could not constitutionally permit enforced collection of the costs for which it authorized the local agency to “bill” affected candidates. In the present proceeding, which followed (among others) and has reached this court for disposition, the District contends that respondent misinterpreted the Knoll holding and that its decision should accordingly be annulled, as an excess of its jurisdiction, pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.2 We are required to examine Knoll in some detail, as follows:

The Knoll court granted relief in a mandamus proceeding which had been commenced in the Court of Appeal by a petitioner who challenged the constitutionality of two separate requirements of law which frustrated her desire to become a candidate for elective office in Alameda County. (12 Cal.3d at pp. 338-339, 116 Cal.Rptr. 97, 525 P.2d 1273.) She first contended that she was denied equal protection of the laws by the system (then prescribed in Elections Code sections 6551 through 6555) which required, as the exclusive prerequisite to her becoming an official candidate, the payment of a filing fee she could not afford. (Pp. 338-339, 344, 116 Cal.Rptr. 97, 525 P.2d 1273.) Sustaining this contention in part II of its opinion (pp. 344-349, 116 Cal.Rptr. 97, 525 P.2d 1273), the court analyzed two decisions of the United States Supreme Court (Bullock v. Carter (1972) 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 and Lubin v. Panish (1974) 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702) and held, under the “compulsion” of both, that in the acknowledged absence of provisions for “a reasonable alternative means of access to the ballot” the system and the underlying statutes were unconstitutional upon equal protection grounds as claimed. (P. 349, 116 Cal.Rptr. p. 106, 525 P.2d p. 1282.)

In part III of its opinion (12 Cal.3d at pp. 350-353, 116 Cal.Rptr. 97, 525 P.2d 1273), the court considered the petitioner's contention that she was also denied equal protection of the laws by an Alameda County requirement that she prepay, in accordance with a schedule of prescribed “fees,” her estimated share of section 10012.5 costs (which she was also unable to pay) as a condition precedent to having her statement of qualifications included in the voter's pamphlet to be printed and distributed by the county. (Pp. 339, 351, 116 Cal.Rptr. 97, 525 P.2d 1273.) The court resolved this contention in four successive passages. Because the issue in the present proceeding turns upon an interpretation of the precise language used in these passages, we summarize and quote them as follows (12 Cal.3d at pp. 351-353, 116 Cal.Rptr. at pp. 107-108, 525 P.2d at pp. 1283-1284):

(1) “It appears clear that the county need not be compelled to pay the cost of providing this (section 10012.5) service . . . and that, as indicated in Bullock, the county has a legitimate state interest in collecting the actual cost of providing such a service.” (Italics added.) (2) “However, it appears equally clear that the county cannot constitutionally make this service available only to affluent candidates, while denying it to less affluent ones. (Citations.)”

(3) The quasi-official nature of a candidate's statement of qualifications, as printed under the ostensible “imprimatur” of the voter's pamphlet, gives the candidates who have their statements included “a clear advantage over (those) who do not.” “It is impermissible for the state or local agency involved to deny this opportunity solely on the basis of wealth, thereby giving an unfair advantage to the affluent and invidiously discriminating against those unable to afford the substantial fees.” For this reason, the agency “cannot constitutionally require that a candidate pay . . . his pro rata share of the printing and handling costs as a condition to having his statement of qualifications included in the voter's pamphlet.” (Italics added.)

(4) “However, we do not deem it necessary to strike down section 10012.5, because, as we read the statute, it does not authorize such a prepayment system, but only permits the county to subsequently bill the actual cost of providing the services once . . . (they) . . . have been provided. . . . Nowhere does it compel the local agency to collect the actual cost. . . .” (Italics added.) It “compels the local agency to include in the voter's pamphlet each candidate's statement of qualifications which conforms to . . . (its editorial standards) . . . and permits the local agency to bill, at its option, each candidate . . . for his pro rata share of the actual costs of printing and handling, after the voter's pamphlet has been printed and distributed.” (Original italics.)

In passage no. (3), which reiterated some of the substance of no. (2), the Knoll court stated in effect that a requirement that candidates prepay their estimated shares of section 10012.5 costs, as a condition to having their statements of qualifications included in the voter's pamphlet, would be constitutionally void as a denial of equal protection to those who could not afford the prepayment. In passage no. (4), the court nevertheless declined “to strike down” section 10012.5, as denying equal protection, because it “does not authorize” the exaction of prepayment and “compels” the local agency to include the statements of all candidates in the pamphlet without collecting the estimated cost as a condition precedent to their inclusion. The question in this proceeding is whether the statute is void to the extent that, by the District's interpretation, it permits imposition of the condition subsequent that candidates must pay the actual cost after the fact. We conclude that it would be void as the District interprets it; and that it must be construed otherwise.

As the Knoll court indicated in passage no. (3), the payment of section 10012.5 costs by any candidate is the price of the “advantage” he derives from having his statement of qualifications included in the pamphlet. As expressly stated in the same place, it is constitutionally “impermissible” for a local agency to permit the advantage to accrue to “affluent” candidates who can afford to pay the price, thus “invidiously discriminating” against those who cannot.

The agency is no less “invidiously discriminating” against poor candidates if it collects the price from them after the voter's pamphlet has been printed and distributed. The District would draw the distinction that requiring candidates to prepay the price is constitutionally impermissible because it would deny them the advantage of having their statements included, whereas subsequent collection by the agency is constitutional because it does not have this effect. The distinction fails because section 10012.5, as interpreted by the Knoll court in passage no. (4), quoted above, does not permit the agency to withhold the advantage from anyone.

The distinction also fails in light of the authorities, followed by the Knoll court in part II of its decision (12 Cal.3d at pp. 344-349, 116 Cal.Rptr. 97, 525 P.2d 1273), which define the evil of the filing fee requirement as its exclusionary effect in “tending to limit the field of candidates from which voters might choose” (Bullock v. Carter, supra, 405 U.S. 134 at p. 143, 92 S.Ct. 849, at p. 856, 31 L.Ed.2d 92) because “impecunious but serious candidates may be prevented from running.” (Lubin v. Panish, supra, 415 U.S. 709, at p. 717, 94 S.Ct. 1315 at p. 1320, 39 L.Ed.2d 702). The cost of having a statement of qualifications included in a voter's pamphlet is no less a deterrent to “impecunious but serious candidates” if its collection is deferred.3 Mandatory “postpayment” of the price therefore suffers from the same constitutional infirmity as mandatory prepayment.

The District contends that the constitutional problem is avoided because the “option” feature of section 10012.5, as interpreted by the Knoll court in no. (4), quoted above, means that “local agencies have discretion in this area and are under no mandate to pursue collection from the indigent candidate.” This argument (the afterpart of which we quote from the memorandum filed in support of the petition) invokes the prospect of uncontrolled judgments as to who is indigent and who is not. The prospect is disquieting in itself. More importantly, the constitutional guaranty of equal protection may not be conferred or withheld by such judgments.

The argument that “indigent candidates” need not pay section 10012.5 costs suggests the further prospect that any one of them who is sued for collection must plead and prove his inability to pay. This prospect, and the attendant feature of public inquisition into the resources of a candidate who resists collection, would aggravate the deterrent effect of a postpayment requirement in any case.

In all events, the filing-fee holding in part II of Knoll (12 Cal.3d at pp. 344-349, 116 Cal.Rptr. 97, 525 P.2d 1273) does not permit a constitutional distinction between “indigent candidates” and others; it establishes that the requirement of a prepaid filing fee is unconstitutional, in the absence of “a reasonable alternative means of access to the ballot, available to all candidates indigent and nonindigent alike.” (Italics added.) (Knoll v. Davidson, supra, 12 Cal.3d at p. 349, footnote 10, 116 Cal.Rptr. at p. 106, 525 P.2d at p. 1282 ibid. (citing Donovan v. Brown (1974) 11 Cal.3d 571, 115 Cal.Rptr. 41, 524 P.2d 137).) If a candidate is required to finance the inclusion of his statement of qualifications in the voter's pamphlet, he must pay cash at one time or another; there is no “reasonable alternative means” of financing it.

For the various constitutional reasons stated, we agree with respondent court that section 10012.5 does not permit a local agency to recover from any candidates (“indigent and nonindigent alike”), at any time, the cost of including their statements of qualifications in a voter's pamphlet. This issue was not presented in Knoll, which involved only the feature of mandatory prepayment of the costs as a condition precedent to inclusion. (See passage no. (4), quoted above.) As respondent court consequently did not deviate from Knoll in the decision before us, we affirm it. (See, and compare, Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450 at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

We reach the same conclusion relative to section 10012.5 upon examination of its language as a matter of statutory interpretation short of constitutional dimensions. We describe this result as an alternative ground of our decision.

As the Knoll court construed the statute in passage no. (4) quoted above, it does not “compel the local agency to collect the actual cost” of including candidates' statements in the voter's pamphlet; it merely “permits” the agency “to bill” the candidates “at its option.” We find in the permissive language a deliberate statutory scheme whereby a candidate may voluntarily pay his share of the cost upon being informed, through a “bill” from the agency, of the precise amount which is attributable to his individual statement of qualifications.4 To this extent, the scheme serves the “legitimate state interest in collecting the actual cost” to which the Knoll court referred in passage no. (1).

At the same time, we do not interpret the permissive language as imposing upon a candidate the legal liability for the costs which would be indispensable to their recovery in a collection action brought against him by the agency. The concept that he might be legally liable for his “share” is dispelled by the Knoll construction of the statute, also expressed in passage no. (4) quoted above, that he may be billed by the agency “at its option.” His liability for the costs would be to the public personified by the agency, and the enforcement of money liability to the public may not plausibly be left at the “option” of public officials.

Additionally, and although the Legislature has been explicit in authorizing actions and special proceedings in other contexts involving the election laws,5 section 10012.5 does not expressly authorize a local agency to sue affected candidates for the recovery of the costs contemplated by the statute. The authority to do this may not be found in conventional principles of restitution. The costs are not collectible in an action brought by the agency upon any common law theory, because all election laws section 10012.5 included are exclusively the creatures of statute and have no common law origins. (Taylor v. Beckham (1900) 178 U.S. 548, 577, 20 S.Ct. 1009, 44 L.Ed. 1187; cf. People ex rel. McKune v. John B. Weller (1858) 11 Cal. 49, 61.)

An action to recover the costs from candidates may not be maintained by the agency upon the broad authority of Civil Code section 1428, which permits the enforcement of “(a)n obligation arising from operation of law . . . by civil action or proceeding” not defined by statute (see Paxton v. Paxton (1907) 150 Cal. 667, 670, 89 P. 1083, 1084), because its language is coextensive with the statutory maxim, stated in Civil Code section 3523, that “(f)or every wrong there is a remedy.” (2 Witkin, Procedure, op. cit. supra, Actions, ss 3-5, pp. 881-883.) There is no “wrong” involved, and no “remedy” lies, if a candidate need not pay the cost of having his statement of qualifications printed in the voter's pamphlet distributed by the local agency. The only consequence is that the cost must be paid by the agency. It is entirely reasonable that the financial burden of elections be borne by the taxpaying voters who participate in them. (Cf. Bullock v. Carter, supra, 405 U.S. 134 at pp. 148-149, 92 S.Ct. 849, 31 L.Ed.2d 92.) We conclude, apart from the constitutional considerations discussed above, that section 10012.5 may not be interpreted as permitting a local agency to bring an action for recovery of the costs it incurs under compulsion of the statute.

The judgment of respondent court is affirmed.

FOOTNOTES

1.  In 1974, the pertinent context of the statute read as follows:“10012.5. Each candidate for elective office in any local agency, city, county, city and county or district may prepare a statement of qualifications on an appropriate form provided by the clerk. Such statement may include the name, age and occupation of the candidate and a brief description of no more than 200 words, of the candidate's education and qualifications expressed by the candidate himself . . . . Such statement shall be filed in the office of the clerk when his nomination papers are returned for filing. . . .“The clerk shall send to each voter together with the sample ballot, a voter's pamphlet which contains the written statements of each candidate's qualifications that is prepared pursuant to this section. . . .“The local agency may bill each candidate availing himself of these services a sum not greater than the actual prorated costs of printing, handling, and translating, if any (,) incurred by the agency as a result of providing this service. Only those charges may be levied and each candidate using these services shall be charged the same. . . .” (Italics added.)This language appeared in the statute as amended in 1971. (Stats.1971, ch. 1298, s 1, p. 2546.) Since 1974, it has been amended again and renumbered as section 10012 of the Elections Code. (Stats.1975, ch. 1158, s 19, p. 2854.)

2.  Respondent court initially certified the cause to this Court of Appeal pursuant to section 911 of the Code of Civil Procedure and Rule 63, California Rules of Court. Another division of this court denied certification. The District thereupon filed its present “Petition For Writ of Certiorari And/Or . . . Mandamus” in the Supreme Court, seeking in effect (and among other things) a writ directing respondent court to certify the cause to this Court of Appeal again. The Supreme Court transferred the petition to this court, it reached this division in due course, and we denied it. The Supreme Court granted the District's petition for hearing and ordered the cause retransferred to this court (and this division) “with directions to issue a writ of review.” We complied. Since we issued a “writ of review” as directed, the parties are now before us in a certiorari proceeding. (See Code Civ.Proc., ss 1067, 1071.) The question is whether the appellate decision of respondent court, treated as its “judgment,” is to be affirmed or annulled. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d 450 at pp. 455, 462, 20 Cal.Rptr. 321, 369 P.2d 937; 5 Witkin, California Procedure (2d ed. 1971) Extraordinary Writs, s 10, p. 3787.)

3.  It is also more than a de minimis amount by any measure. In the present case, the District recovered a judgment against each real party, for printing and handling costs incurred pursuant to section 10012.5, in the principal amount of $650. The amount of costs involved in Knoll was $497.90. (12 Cal.3d at p. 351, 116 Cal.Rptr. 97, 525 P.2d 1273.)

4.  This interpretation makes the “bill” a call to honor rather than to account, but the concept is no means implausible as a matter of legislative intent. Many candidates will pay the “bill” as a matter of honor. Others may be motivated to pay by the political realities of their situation. This is true of winners in any case, and it is equally true of losers who may wish to try again. The record before us supports the inference that one 1974 candidate paid a $650 “bill” sent her by the District.

5.  See, e.g., Elections Code sections 407-408, 709, 3576, 10015, 11603, 11605, 11709, 20080-20086, 20331-20338, 20364-20376.

RATTIGAN, Acting Presiding Justice.

CHRISTIAN and RAGAN (Assigned by the Chairperson of the Judicial Council), JJ., concur.