STIRLING v. JONES (1998)

Dave Stirling is the Republican Party nominee for the office of Attorney General.   He appeals from a judgment denying his petition for a writ of mandate.   Through his petition, Stirling sought to direct the Secretary of State to accept “Chief Deputy Attorney General” as his proposed ballot designation, under Elections Code section 13107, subdivision (a)(3).¹  The Secretary of State rejected the proposal on the ground that it violates the statutory requirement that such a designation be “[n]o more than three words.”   Stirling contends the trial court erred in failing to grant the requested relief because the Secretary of State was bound to accept the designation as three words under the doctrine of collateral estoppel or under the principle that the words “Attorney General” embody one concept and therefore can be considered one word.   Stirling also contends the limitation to three words violates his constitutional rights to equal protection and freedom of speech.

In the course of the appeal two additional questions have arisen:  (1) whether a hyphenated spelling of Stirling's requested ballot designation “Chief Deputy Attorney General,” i.e., “Chief Deputy Attorney-General,” complies with section 13107, subdivision (a)(3)'s three-word limit, and (2) whether a request for that spelling made a short time after the deadline specified in section 13107, subdivision (e), has passed, warrants directing use of that ballot designation under the doctrine of substantial compliance.

We reject Stirling's arguments on collateral estoppel, the principle of one concept/one word, and the constitutional violations.   However, we conclude that the hyphenated spelling of Stirling's requested ballot designation, i.e., “Chief Deputy Attorney-General” complies with the three-word limit of section 13107, subdivision (a)(3).   We also conclude that the doctrine of substantial compliance applies to the “designation” provision of section 13107, subdivision (e);  and that Stirling substantially complied with this provision by timely requesting the unhyphenated spelling of his title, “Chief Deputy Attorney General,” while maintaining that “Attorney General” was one word, and shortly thereafter requesting as an alternative that his title be spelled with a hyphen.   Therefore, Stirling can use the description “Chief Deputy Attorney-General.”   We elect to treat this appeal as a petition for a writ of mandate to grant this relief to Stirling.

BACKGROUND

Stirling was appointed Chief Deputy Attorney General by Attorney General Dan Lungren and has served in that position since 1991.   The Chief Deputy Attorney General is the second highest official in the Department of Justice and is responsible for managing the department, including, among others, the approximately 900 assistant and deputy attorneys general.

Stirling became a candidate for the Republican Party nomination for Attorney General at the June 1998 primary election.   He requested a ballot designation as “Chief Deputy Attorney General.”   The Secretary of State notified Stirling that the designation violated section 13107, subdivision (a)(3)'s requirement of “[n]o more than three words.”

Stirling filed a petition for a writ of mandate to direct the Secretary of State to accept the requested ballot designation.   He alleged, among other things, the following: In 1982 George Nicholson, now a justice of this court, had been a candidate for the same nomination, and had requested a ballot designation of “Senior Assistant Attorney General.” The Secretary of State, March Fong Eu, rejected that ballot designation, finding it exceeded the three-word limit.   Justice Nicholson filed a petition for a writ of mandate in the superior court, Nicholson v. Eu (Super. Ct. Sacramento County, 1982, No. 302471), and obtained a judgment directing the Secretary of State to accept that designation.   The Secretary of State in this proceeding, Bill Jones, admitted these allegations.

At some point before Stirling's petition was heard, Michael Capizzi, another Republican candidate for the Attorney General nomination, was permitted to intervene and appeared as a party in these proceedings.

The matter was tried on March 18, 1998.   Stirling presented the pleadings, moving papers and judgment in Nicholson v. Eu, supra.   In that suit, Justice Nicholson had claimed that the statutory three-word limit violated his constitutional rights of freedom of speech and equal protection of the laws, and that, under the doctrine of substantial compliance, “Attorney General” can be considered as one word.   There was no statement of decision in Nicholson v. Eu, supra.   The judgment directs the Secretary of State to accept the proposed ballot designation and “to treat, for purposes of the case at bar, the words ‘Attorney General’ as one word embodying a single concept.”

At the trial of the present matter, the parties argued whether the judgment in Nicholson v. Eu, supra, governed here, and whether the statutory limitation of three words under section 13107, subdivision (a)(3), is unconstitutional.   After the matter was submitted, the trial court announced that it would deny the petition.   Stirling then filed a petition for a writ of mandate with this court which was denied summarily.   Stirling appeals from the ensuing judgment.²

DISCUSSION

1. Collateral Estoppel

 Stirling contends that “principles of res judicata and collateral estoppel ․ barred the Secretary of State from rejecting [his] proposed ballot designation.”   Stirling argues that the judgment in Nicholson v. Eu, supra, precludes the Secretary of State from rejecting his proposed ballot designation.   The Secretary of State replies that res judicata or collateral estoppel should not apply because Nicholson v. Eu, supra, was moot before the time that an appeal could have been efficacious, because the matter concerned different parties and a different issue, and because the case would fall under the public interest exception to the res judicata or collateral estoppel doctrine.   We find no error in the judgment on the ground of failure to apply the doctrines of res judicata or collateral estoppel.

Stirling was not a party to Nicholson v. Eu, supra, and this action arises out of a different controversy.   Thus, the question here concerns collateral estoppel, or, in the preferable terminology of the Restatement Second of Judgments, “issue preclusion.”  (See Rest.2d Judgments, §§ 27-29.)   The general rule is stated in Restatement Second of Judgments section 27:

“When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.”

The issue claimed subject to preclusion is whether “Attorney General” may be counted as one word for purposes of section 13107, subdivision (a)(3)'s three-word limit.   Although Stirling was not a party to Nicholson v. Eu, supra, he may raise issue preclusion against the Secretary of State, who was a party to that action.  “A party precluded from litigating an issue with an opposing party, in accordance with §§ 27 and 28, is also precluded from doing so with another person unless [there is an applicable exception to the general rule under § 28 or 29].”  (Rest.2d Judgments, § 29.)

The arguments of the Secretary of State concerning absence of issue preclusion invoke exceptions to the general rule listed in the Restatement Second of Judgments sections 28 and 29.   The argument which receives the most attention in the parties' briefs is whether this case falls under the so-called “public interest” exception.

We need not determine whether the application of the public interest exception, or other exceptions to the general rule of issue preclusion,³ should be applied to the Secretary of State in the circumstances of this case.

Stirling's contention fails at the threshold.   As the Secretary of State notes in his reply brief on appeal, there is no identity or privity between Capizzi and the Secretary of State as to Nicholson v. Eu, supra.   If we assume for the sake of discussion that issue preclusion (see Rest.2d Judgments, § 27) would apply to the Secretary of State, it is nevertheless unavailing here.   There is no issue preclusion error in the judgment against Stirling unless all of his adversaries were subject to issue preclusion.

As Capizzi noted at trial there could be no issue preclusion bar as to his claim that section 13107, subdivision (a)(3) precluded Stirling's use of “Chief Deputy Attorney General” as his ballot designation.  (See, e.g., Rest.2d Judgments, § 34;  7 Witkin, Cal. Procedure (4th ed.   1997) Judgment, § 405, pp. 980-981.)   Thus, the trial court was compelled to reach the merits of the issue whether “Attorney General” may be counted as one word for purposes of section 13107, subdivision (a)(3)'s three-word limit.

2. Equal Protection

Stirling contends that applying the three-word limit of section 13107, subdivision (a)(3), to bar his use of the ballot designation “Chief Deputy Attorney General” unconstitutionally denies him equal protection of the laws.   He argues that an equal protection violation inheres in two unjustifiable discriminations called for by section 13107.   The first discrimination is that under section 13107, subdivision (a)(1), elected officials are permitted to use as a ballot designation the name of their elective office without a limitation to three words.⁴  The second discrimination is that the chief deputies of elected constitutional officers whose title is one word, e.g., Controller, could use their title as a ballot designation.   Neither claim has merit.

a. The Elected Official Discrimination

 “The equality guaranteed by the Equal Protection Clause is equality under the same conditions, and among persons similarly situated.   The Legislature may make a reasonable classification of persons and businesses and other activities and pass special legislation applying to certain classes.   The classification must not be arbitrary, but must be based upon some difference in the classes having a substantial relation to a legitimate object to be accomplished.”  (8 Witkin, Summary of Cal. Law (9th ed.   1988) Constitutional Law, § 599, p. 51.)   However, in some instances the equal protection precept calls for a more exacting justification, strict scrutiny.  “[T]he idea of strict scrutiny acknowledges that other political choices-those burdening fundamental rights, or suggesting prejudice against racial or other minorities-must be subjected to close analysis in order to preserve substantive values of equality and liberty.”  (Tribe, American Constitutional Law (1978) p. 1000.)

 At the outset of his argument, Stirling asserts that because the statute imposes no limit on the number of words elected officials may use to describe their office while limiting all other persons to three words to describe their professions, vocations, or occupations, it is subject to the strict scrutiny test of equal protection clause jurisprudence.   The assertion is unpersuasive.

“As our numerous recent decisions establish, a court must determine at the threshold of any ‘equal protection’ analysis the ‘level of scrutiny’ or ‘standard of review’ which is appropriate to the case at hand.  [Citations.]  The classification scheme at issue here directly relates to the electoral process, and in recent years both this court and the United States Supreme Court have had frequent occasion to reiterate that the ‘fundamental’ nature of the right to vote and the importance of preserving the integrity of the franchise require that the judiciary give close scrutiny to laws imposing unequal burdens or granting unequal advantages in this realm.  [Citations.]  [However], not every classification established by an ‘election law’ need be subjected to this ‘strict’ judicial scrutiny;  innumerable election provisions detailing the mechanisms of the election process may have only minimal, if any, effect on the fundamental right to vote, and classifications of this nature may properly be judged under the ‘rational basis' equal protection standard.   [Citations.]”  (Gould v. Grubb (1975) 14 Cal.3d 661, 669-670, 122 Cal.Rptr. 377, 536 P.2d 1337.)

The threshold question is whether the classification scheme of the election law provision at issue “imposes a very ‘real and appreciable impact’ on the equality, fairness and integrity of the electoral process.  (See Bullock v. Carter [1972] 405 U.S. 134, 143 [92 S.Ct. 849, 856, 31 L.Ed.2d 92, 99-100].)”   (Gould, supra, at p. 670, 122 Cal.Rptr. 377, 536 P.2d 1337;  also see, Choudhry v. Free (1976) 17 Cal.3d 660, 664, 131 Cal.Rptr. 654, 552 P.2d 438;  cf., e.g., Burdick v. Takushi (1992) 504 U.S. 428, 434 [ 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245, 253-254], “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights;” Green Party of California v. Jones (1995) 31 Cal.App.4th 747, 752-753, 37 Cal.Rptr.2d 406.)

Stirling suggests that his challenge to section 13107 is analogous to Gould and other cases which have applied strict scrutiny to statutes “which protect incumbency.”   In Gould the challenge was to a city charter provision which automatically afforded an incumbent seeking reelection to a top position on the election ballot.   The evidence showed that the top positions on the ballot conferred an advantage.   The Supreme Court decided that this presented a real and appreciable impact on the equality, fairness and integrity of the electoral process.   A rule “which reserves such an advantage for a particular class of candidates inevitably dilutes the weight of the vote of all those electors who cast their ballots for a candidate who is not included within the favored class.”  (Gould, supra, 14 Cal.3d at p. 670, 122 Cal.Rptr. 377, 536 P.2d 1337.)

The court found the advantage abhorrent:  “we emphatically reject the notion that the government may consciously choose to favor the election of incumbents over nonincumbents in a manner which distorts the preferences of participating voters.”  (Gould, supra, 14 Cal.3d at p. 673, 122 Cal.Rptr. 377, 536 P.2d 1337.)  Gould and other cases closely analyzing rules favoring incumbents, are consistent with the rationale that strict scrutiny by the nonmajoritarian judicial branch is justified in aid of maintaining the openness of the majoritarian political processes.  (See Tribe, American Constitutional Law, supra, at p. 1001.)

This case has several significant differences from Gould.   There is no evidence showing that the ability to use the title of the office of an elected official as a ballot designation when it exceeds three words confers an advantage over an opponent who is not an elected official.   In many, if not most cases, the title of an elected official is three words or less in any event.   If there were an advantage, it is not one conferred on the incumbent and against a nonincumbent.   There is no significant advantage to an incumbent in using the job title of the office in question exceeding three words, since the incumbent may use the one or two word terms “incumbent” or “appointed incumbent” to designate his or her identity as the present officeholder.  (See § 13107, subds. (a)(2), (a)(4).)

The advantage, if any, is conferred upon a candidate who is a nonincumbent elected official if the official has a title exceeding three words.   There is no showing that there is such a candidate in this contest, nor, unlike the presence of an incumbent, that the appearance of such a candidate is a common occurrence.

These differences are significant because they belie an implication that the purpose or effect of the three-word limitation is to favor incumbency and thereby impede the majoritarian principle which is a central tenet of our polity.   For these reasons, the discrimination in the number of words available for a ballot designation between elected public officials in section 13107, subdivision (a)(1) and other persons in section 13107, subdivision (a) (3) does not impose a very real and appreciable impact on the equality, fairness and integrity of the electoral process.

The other argument Stirling makes in support of the strict scrutiny standard is that it is warranted because the ballot designation limitation of three words is a content-based restraint on speech.   He cites Loza v. Panish (1980) 102 Cal.App.3d 821, 162 Cal.Rptr. 596 and several opinions of the United States Supreme Court in support of this assertion;  however, he makes no effort to show any analogy between the cases cited and this case.   In view of this, we discuss only Loza, since it is the least remote of the precedents cited, and the only one that is connected with restrictions on speech in elections.

In Loza, the Court of Appeal found unconstitutional a portion of former Elections Code section 10012 (Stats.1978, ch. 1288, § 1) which provided that the clerk was to reject any proposed candidate's statement containing “any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of sex, race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress.”  (Loza, supra, 102 Cal.App.3d at pp. 823-826, 162 Cal.Rptr. 596.)   This restriction plainly involves the content of a candidate's speech.   However, Stirling does not explain and we do not discern how a restriction on the number of words that may be used restricts the content of his speech.

Loza suggests nothing about the viability of a limitation on the number of words available to a candidate.   The aspect of section 13107, subdivision (a)(3) which addresses the content of the speech is the restriction that the words designate principal professions, vocations, or occupations within the preceding year.   However, Stirling makes no complaint concerning this aspect of the statute, nor does such an attack seem tenable.  (See Clark v. Burleigh (1992) 4 Cal.4th 474, 14 Cal.Rptr.2d 455, 841 P.2d 975, local judicial candidate's statement in voter pamphlet is a nonpublic forum and may be limited to a recitation of the candidate's own personal background and qualifications.)

 In sum, Stirling makes no persuasive argument for the application of strict scrutiny in this case.   Accordingly, we employ the ordinary standard of equal protection scrutiny.

As related, to pass this test, a statutory classification must not be arbitrary, but must be based upon a difference in the classes having a substantial relation to a legitimate statutory purpose.   The purpose of a ballot designation is to identify the candidate.  (See 26 Am.Jur.2d, Elections, § 311;  cf.  Gould, supra, 14 Cal.3d at pp. 672-673, 122 Cal.Rptr. 377, 536 P.2d 1337;  Salinger v. Jordan (1964) 61 Cal.2d 824, 826, 40 Cal.Rptr. 361, 395 P.2d 49.)   In our society, profession, vocation, or occupation is a central mark for purposes of identity:  Mary the butcher, John the baker, Francis the candlestick maker.

The ostensible purpose of the three-word limitation in section 13107, subdivision (a)(3), is that most employment may be described succinctly within that restriction;  the more words available, the greater the temptation to stretch the ballot designation beyond its intended purpose of identifying the candidate into the realm of describing comparative experience, virtue, or qualifications.  (See § 13107, subd. (b)(2) prohibiting use of a designation if:  “It would suggest an evaluation of a candidate, such as outstanding, leading, expert, virtuous, or eminent.”)   Of course, employment in and of itself may tend to indicate experience, virtue, or qualification for elected office-were it otherwise, we would not be presented with this controversy.   However, within the three-word limitation prescribed and the other limitations of section 13107, that prospect is fair game for all candidates.⁵

The question, then, in light of the purposes of the ballot designation statute, is whether there is a difference between elected officials and persons holding other employment which warrants granting the former a dispensation from the three-word limitation.   There is a reasonable basis for the distinction.   As to the electorate, elective public office is unique in its tendency to precisely identify the officer.   Elective public office is also generally less susceptible to descriptive manipulation for purposes of self-aggrandizement than the myriad of appointive positions in the public and private sectors as to which job titles are both less likely to be familiar to the electorate and more likely to be within the sway of a prospective candidate.   For these reasons, the claim that a candidate who is not an elected officeholder is denied equal protection of the laws by the absence of a three-word limitation in section 13107, subdivision (a)(1), has no merit.

b. The One-Word Chief Deputy Discrimination

 Stirling's second claim is that he is denied equal protection of the laws because the three-word limitation of section 13107, subdivision (a)(3), allows the use of the description “chief deputy” when applied to a one-word constitutional office but bars it when applied to a two-word constitutional office.   He submits this is an unconstitutional discrimination between chief deputy appointees to a constitutional officer.   The claim is unpersuasive.

Stirling makes no claim that the strict scrutiny standard applies here.   The restriction limits the candidate to three words.   Thus, for example, a deputy sheriff can use his or her title but a deputy municipal court clerk cannot, and deputy corporate controller passes muster but deputy corporate chief executive officer does not.   The limitation has no particular application to the second in command to constitutional officers-it applies to everyone except elected public officials.   Some persons may be able to indicate their placement in the organization hierarchy in one word and thus satisfy the limitation even though the organization requires two.   Others may lose out on both counts.   The discrimination that results is neither invidious nor unreasonable;  it inheres in having any fixed limitation of the number of words.

3. Accuracy of Designation

 In addition to his constitutional claims, Sterling contends he should be allowed to use “Chief Deputy Attorney General” because all three-word designations of his vocation, profession, or occupation are misleading.   He suggests that an accurate description of his position is the highest purpose of section 13107 and that when a three-word ballot designation is inaccurate the three-word limit must be suspended.   The Secretary of State responds that the statute does not require the most accurate available job title and that various descriptions are available which are not misleading.

Stirling submits that his employment as the second in command in the office of the Attorney General is unique.   He suggests that the alternative designation which he used in the primary election, “Deputy Attorney General,” is inaccurate and misleading because it suggests that he is one of the nine hundred or so deputy attorneys general who are his subordinates.   He suggests that the only other prospect, “Assistant Attorney General,” will not do because there are around 30 of those in his department.

The Secretary of State replies that the statute does not require the most specific job description available but merely one which is serviceable.   He notes this court took a similar view to his in Andal v. Miller (1994) 28 Cal.App.4th 358, 34 Cal.Rptr.2d 88.   In that case, the candidate's opponent argued that “peace officer” was misleading as a ballot designation because it encompasses “too broad a category, encompassing as it does everyone from the Attorney General to the local litter control officer.”  (Id. at p. 365, 34 Cal.Rptr.2d 88.)   This court responded as follows:

“But as counsel for the Secretary of State correctly observes, there is nothing in [former] Elections Code section 10211 which mandates the selection of the more specific over the more general, so long as the designation chosen does not mislead the voters.  ‘The term “businessman,” ’ counsel notes, ‘could encompass anything from a door-to-door magazine salesman to the president of IBM, but it is routinely accepted as a ballot designation without the requirement of further elaboration.’   Just as the president of IBM could select the designation ‘businessman,’ so too could a regular deputy sheriff use ‘peace officer.’   Accordingly, we hold that the position of a paid ‘peace officer’ is a profession, vocation or occupation within the meaning of [former] Elections Code section 10211.”  (Andal, supra, at p. 365, 34 Cal.Rptr.2d 88.)

The Secretary of State's reasoning is persuasive.   The statute only requires that the ballot designation describe the candidate's vocation, profession, or occupation in a way that does not “mislead the voter.”  (See § 13107, subd. (b)(1).)   In Andal, we decided that a generic description is not misleading.   This is consistent with the limited purpose of the ballot designation to identify the candidate.   If we were to accept the claim that generality is misleading, this would engender an endless number of highly subjective controversies concerning how many words are required to specifically describe the myriad “unique” employment in our society.  (See generally, e.g., Luke v. Superior Court (1988) 199 Cal.App.3d 1360, 245 Cal.Rptr. 594, in which the trial court permitted a court commissioner to use the term “acting judge” because “commissioner” was believed to be unfamiliar to the electorate.)

We note a single example.   One of Stirling's opponents was the President Pro Tempore of the Senate during the year preceding the filing of nomination documents.   He might well ask for the four-word ballot designation “Senate President Pro Tempore,” on the theory that the position is unique, distinct from that of the other forty Senators.   Permitting the case-by-case resolution of such claims on the “accuracy” rationale suggested by Stirling would allow the substitution of ad hoc judicial judgments for the Legislature's policy determination that three words is enough.

4. The Hyphenated Spelling of Stirling's Requested Ballot Designation-An Introduction

We have concluded that the Secretary of State did not have to accept Stirling's ballot designation under the doctrine of collateral estoppel arising from the Nicholson v. Eu judgment.   We have concluded that section 13107, subdivision (a)(3)'s, three-word limit does not violate Stirling's constitutional rights to equal protection and freedom of speech.   We have also dismissed Stirling's claim that his requested ballot designation must be accepted because it is the only accurate designation.

There remains the position Stirling has been pressing for from the outset of these lengthy proceedings;  that his job title and requested ballot designation is three words with “Attorney General” as one of the three.   In so doing, Stirling contends that regardless whether his title is spelled “Chief Deputy Attorney General” or “Chief Deputy Attorney-General,” the designation complies with section 13107, subdivision (a)(3)'s three word limit.   His alternative request for the hyphenated spelling of his title compels us to address whether the doctrine of substantial compliance applies to section 13107, subdivision (e);  and, if that doctrine does apply, whether Stirling substantially complied here.

 Before addressing these substantive issues, however, we must address procedural matters:  First, the substantive issues surrounding the hyphenated spelling of Stirling's title have been presented to us on appeal.   They were not presented to the trial court.   Nevertheless, an appellant may change his theory on appeal, to support or attack judicial action, when a question of law alone is presented on uncontested facts.  (Green v. Obledo (1984) 161 Cal.App.3d 678, 683, fn. 3, 207 Cal.Rptr. 830.) These substantive issues fall within this principle.

Secondly, we must resolve whether this appeal should be treated as a petition for a writ of mandate.   Any legal challenges to ballot designations must be resolved by the certification deadline of August 27, 1998.   After that, the designation “Chief Deputy Attorney-General” is moot.   An appellate opinion in this case will not be final by that date.  (Cal. Rules of Court, rule 24(a);  hereafter referred to as Rules.)   If Stirling is to be awarded relief in this action under the designation “Chief Deputy Attorney-General,” this appeal must be treated as a petition for a writ of mandate.   In that context, we have the power to make our decision final immediately.  (Rule 24(d) [notwithstanding Rule 24(a), a Court of Appeal “may order that a decision granting a peremptory writ within its original jurisdiction shall become final as to that court ․ immediately if early finality is necessary to prevent mootness or to prevent frustration of the relief granted”];  Cal. Const., art.   VI, § 10 [Courts of Appeal “have original jurisdiction in proceedings for extraordinary relief in the nature of mandamus, certiorari, and prohibition”];  PH II, Inc. v. Superior Court (Ibershof) (1995) 33 Cal.App.4th 1680, 1683, 40 Cal.Rptr.2d 169.)   We now turn to the issue of whether this appeal properly can be treated as a petition for a writ of mandate.

5. Treating Appeal as a Petition for Writ of Mandate

 The basic substantive requirements for granting mandate are a clear, present and usually ministerial duty on the part of the respondent;  a clear, present and beneficial right in the petitioner to performance of that duty;  an inadequate remedy at law;  and an irreparable injury to petitioner if the writ is not granted.  (Code Civ. Proc., §§ 1085-1086;  Barnes v. Wong (1995) 33 Cal.App.4th 390, 394-395, 39 Cal.Rptr.2d 417.)

As we see it, a ministerial duty exists on the Secretary of State's part to accept Stirling's title as his ballot designation if his claim of three-word status is legally acceptable.   As we explain later, this claim of three-word status is legally acceptable.

In recognizing this duty on the part of the Secretary of State, we do not suggest that the Secretary of State must comb the law books and the dictionaries to see if a purported designation is legally acceptable.   That is the job of the person requesting the designation.  (Cal.Code Regs., tit. 2, § 20717;  see D'Agostino v. Superior Court (1995) 33 Cal.App.4th 107, 118, 39 Cal.Rptr.2d 112.)   The Secretary of State here was free to initially reject the unhyphenated spelling of Stirling's requested ballot designation because it viewed the designation as containing four words, and not three as maintained by Stirling.   If, however, Stirling showed that his requested designation is acceptable as one word under the governing law (§ 13107, subd. (a)(3), and Cal.Code Regs., § 20714(f)(2))-i.e., “Chief Deputy Attorney-General”-then the Secretary of State would have a duty to accept the designation.

The duty aspect in this matter is distinguishable from that discussed in Barnes v. Wong, supra, 33 Cal.App.4th 390, 39 Cal.Rptr.2d 417.   There, the court concluded that mandate would not issue to compel a registrar of voters to accept a ballot argument submitted after the filing deadline, where the applicable ordinance did not permit discretionary acceptance of late filings.   (Id. at pp. 394-397, 39 Cal.Rptr.2d 417.)   As we explain later in this opinion, while the substantial compliance doctrine does not apply to the filing deadline set forth in the applicable law here (§ 13107, subd. (e), 98-day deadline), the doctrine does apply to another aspect of that statute that pertains to Stirling's requested ballot designation.

As Witkin recognizes, the alleged duty or corresponding right in mandate proceedings may be “abstract, inchoate or so lacking in substantiality that the ‘extraordinary’ remedy of mandamus is not warranted.”  (8 Witkin, Cal. Procedure (4th ed.   1997) Extraordinary Writs, § 73, p. 855.)   This passage in Witkin also quotes from Clementine v. Board of Civ. Ser. Commrs.  (1941) 47 Cal.App.2d 112, 114, 117 P.2d 369, as follows:  “A writ of mandate will not issue to enforce an abstract right, when the occurrence of an event subsequent to the commencement of the proceeding makes the issuance of the writ of no practical benefit to the petitioner.”   From this principle it is arguable that a writ of mandate can issue to enforce what was an abstract right, and is now a concrete one, because the occurrence of an event subsequent to the commencement of the proceeding makes the issuance of the writ of great practical benefit to the petitioner.   We conclude that the “duty” and “right” requirements of mandate are satisfied here.

The other substantive requirements of an inadequate legal remedy and irreparable harm are easily met here.   As noted, the legal remedy of an appeal would be fruitless because the ballot certification deadline is August 27.   Similarly, there is no way for Stirling to change his ballot designation to “Chief Deputy Attorney-General” unless the writ of mandate is granted.

Besides these substantive requirements, there are procedural aspects to consider in determining whether we should treat this appeal as a petition for writ of mandate.  (Olson v. Cory (1983) 35 Cal.3d 390, 401, 197 Cal.Rptr. 843, 673 P.2d 720.)   As in Olson, the “records and briefs before us include in substance the elements necessary to a proceeding for writ of mandate.”   (Ibid.;  see Rule 56.)   The appendix is subject to the certification and sanctions requirements of Rule 5.1(i).  (Olson, supra.)   The functional equivalents of verifications are supplied by the verified pleadings and the certification of the reporter's transcript.  (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 745-746, 29 Cal.Rptr.2d 804, 872 P.2d 143.)

All the necessary parties, including the Secretary of State, are present in the instant appeal.   These parties have not only briefed the issues, but so has an amicus curiae, the California Democratic Party (Democratic Party), which is the party of Stirling's principal election opponent.   Moreover, the Secretary of State informs us that Elections Code section 8121 requires him to notify other candidates in the same race of the “occupations” of their opponents;  no such requirement exists for the general election.   As a courtesy, however, the Secretary of State sent similar notices to general election candidates on August 12, 1998, in an attempt to advise candidates of new ballot designations known as of that time.   Anyone who has cared to listen is well aware that Stirling has repeatedly and continuously maintained, since well before the primary election, that the designation “Chief Deputy Attorney General” is a three-word designation with “Attorney General” being one word.   The remaining candidates in the Attorney General race have never indicated any interest in this matter, notwithstanding that the primary election was an “ open” one.   There is no indication that the trial court as respondent or other candidates as interveners would wish to appear separately or become more than a nominal party to a writ proceeding.  (Olson v. Cory, supra, 35 Cal.3d at p. 401, 197 Cal.Rptr. 843, 673 P.2d 720;  Morehart v. County of Santa Barbara, supra, 7 Cal.4th at p. 746, 29 Cal.Rptr.2d 804, 872 P.2d 143.)

Thus, we have the power to treat this appeal as a petition for writ of mandate.  (Olson v. Cory, supra, 35 Cal.3d at p. 401, 197 Cal.Rptr. 843, 673 P.2d 720.)   Although Olson cautions that we should not exercise that power except under “unusual circumstances,” (ibid.) such circumstances are present here.   The ballot certification deadline of August 27, 1998, looms large.   Once certified, the ballots go to print and no change will be possible at that point.  “Unusual circumstances” can arise from the need for immediate disposition of the issues presented.  (Bailey v. County of El Dorado (1984) 162 Cal.App.3d 94, 97, fn. 1, 210 Cal.Rptr. 237.) This matter also presents issues of first impression for an appellate court.   The issues have been thoroughly briefed and they present questions of law.  (Rogers v. Municipal Court (1988) 197 Cal.App.3d 1314, 1317, 243 Cal.Rptr. 530.)

 The final obstacle in treating this appeal as a petition for writ of mandate is Elections Code section 13314.   That section specifies in pertinent part:  “(a)(1) Any elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of any name on, or in the printing of, a ballot, ․ or that any neglect of duty has occurred, or is about to occur.  [¶] (2) A peremptory writ of mandate shall issue only upon proof of both of the following:  (A) that the error, omission, or neglect is in violation of this code or the Constitution, and (B) that issuance of the writ will not substantially interfere with the conduct of the election.”

The term “elector” in section 13314 replaced the term “voter” in 1996.   (Stats.1996, ch. 724, § 18.)  “Elector” is defined along the lines of “voter.”  (Elec.Code, §§ 321, 359.)   So section 13314, by its terms, sets forth limitations on the mandate power as to voters.  (See 8 Witkin, Cal. Procedure, supra, Extraordinary Writs, § 86, p. 874, March 1998 Supp., p. 66.)   Such limitations make sense.   Because there are so many voters, it is natural to place some limits on their mandate power to ensure they raise genuine problems and not simply disruptions.   Along these lines, candidates can be distinguished from voters and such limitations are largely unnecessary.

The briefs indicate that Stirling has previously relied on section 13314 in seeking mandate.   As we explain later in this opinion, if the Secretary of State were to reject the designation “Chief Deputy Attorney-General,” that could be deemed a neglect of duty in violation of section 13107, subdivisions (a)(3) and (e).   Moreover, as we will also explain, issuing a writ here will not substantially interfere with the conduct of the election.

We conclude that this appeal properly can be treated as a petition for a writ of mandate.   We turn now to whether Stirling's title and requested ballot designation complies with section 13107, subdivision (a)(3)'s three-word limit;  whether the doctrine of substantial compliance applies to section 13107, subdivision (e);  and, if that doctrine does apply, whether Stirling substantially complied here.

6. Is Stirling's Title Three Words for Purposes of Section 13107, Subdivision (a)(3)?

Stirling contends that we can construe section 13107 “in a manner that would consider the title ‘Attorney General’ ” to constitute one word.   The Secretary of State replies that the statute cannot be so construed.   In this regard, the Secretary's reply brief makes the following point:  “[Secretary] can find no standard reference dictionary10 declaring either ‘Attorney General’ or ‘Chief Deputy’ to be one word.”   The Secretary's brief then notes:

In the course of its research, the court became aware that I The Oxford English Dictionary (OED) (1933), page 554, contains a subordinate entry to the main word “Attorney” for the word “Attorney-general.”   The court inquired of the parties whether in light of this the ballot designation of “Chief Deputy Attorney-General” would comply with section 13107.   The parties and amicus curiae, the California Democratic Party (Democratic Party), have filed briefs on this question and related issues.

Stirling contends that the entry for “attorney-general” in the OED as well as the same entry in the current version of the OED, The Oxford English Dictionary (2d ed.1989) page 772 (OED2d),⁷ satisfies the requirement of section 20714(f)(2) that “use of a hyphen is called for in the spelling of a word as it appears in a standard reference dictionary of the English language.”   He further contends that he is entitled to use the ballot designation “Chief Deputy Attorney-General” for the impending general election.

The Secretary of State replies that the entry for “attorney-general” in the OED does not suffice for use of that term as one word in a ballot designation for three reasons.   The first is that Stirling did not request the use of the ballot designation “Chief Deputy Attorney-General” “at least 98 days prior to the general election” under section 13107, subdivision (e).⁸  The second is that, “Although [the OED is] appropriately described as a standard reference dictionary of the English Language,” it should not be used to satisfy section 20714(f)(2) because it addresses English language words on an international basis and is not confined to American spelling.   The third is that since the OED gives two forms of spelling, “attorney-general” and “attorney general” the use of the regulation is not “called for” within the meaning of the regulation.

The Democratic Party, in support of the Secretary of State, adds that the OED is not a “standard reference dictionary” under the regulation because it is not widely available.   It also suggests that the term “attorney-general” is limited to British usage and that, under a common-sense view, Stirling in view of his long employment in the Attorney General's office, should be chargeable with knowledge “that the term [‘Attorney General’] is not hyphenated and has never been hyphenated.”   Finally, the Democratic Party argues that it would be inequitable at this late date to require the Secretary of State to print the ballot designation “Chief Deputy Attorney-General” and it would be unfair to his opponents.

a. Hyphen Principles

 The hyphen problem arises because of the uncontroverted rule of grammar that a hyphenated combination of separate words is one word.⁹  Accordingly, we would count a properly hyphenated word as one “word” within the meaning of that term in section 13107, subdivision (a) (3).  (See Evid.Code, § 451, subd. (e).)  On the other hand, under equally noncontroversial rules of compound word grammar, an open compound, “a combination of separate words that are so closely related as to constitute a single concept,” is more than one word.   Hence, the same rules that might allow use of the hyphenated compound “Attorney-General” as one word apply with equal force to destroy any claim that the statute is subject to a construction under which “Attorney General” could be counted as one word because it embodies, in the language of the Nicholson v. Eu judgment, “a single concept.”   Construction requires ambiguity, and “word” is not ambiguous.

The confusion and the inherent indeterminacy of proper use of hyphenated compound words, presents a problem in the application of section 13107, or any other law which prescribes a limit on the number of words that can be used.   If temporary hyphenated compounds are within the meaning of “word” then the writer has the power, at least within broad limits, to create novel formulations.   The possibilities for evading the spirit of a word-limit rule are obvious, particularly, a limit of a small number of words.   For example, one might elect to hyphenate “chief-deputy” as a parallel to the usage “chief-engineer” (I Supp. (1972) OED p. 499) or even say, “attorney-specializing-in-prosecuting-heinous-criminals.”   Moreover, difficult questions of proof of usage would doubtless arise with some frequency as to whether a claimed permanent hyphenated compound “has been accepted into the general vocabulary of English.”   This prospect is enhanced by the ebb and flow of usage, e.g., the modern trend away from hyphenation, and the varying opinions of lexicographers and grammarians on correct use of hyphenation.¹⁰

Avoidance of these potential difficulties is the apparent purpose of laws limiting the possible scope and delineating the means of proof of a “word” as to hyphenated words for purposes of counting statutes.  Elections Code section 9, subdivision (5), provides that, for the purpose of counting words, with the exception of counting words under section 13107, subdivision (a)(3), “Hyphenated words that appear in any generally available dictionary shall be considered as one word.   Each part of all other hyphenated words shall be counted as a separate word.”   And, of course, the Secretary of State's regulation, section 20714(f)(2) similarly limits the use of hyphens to that called for in a standard reference dictionary of the English language.   With these considerations in mind we turn to the arguments of the parties and amicus curiae.

b. The OED is a “Standard Reference Dictionary of the English Language” as Required Under Section 20714(f)(2)

 Stirling insists that the OED is a “standard reference dictionary of the English language” under section 20714(f)(2).   The Secretary of State concedes that the OED can be appropriately described as “a standard reference dictionary of the English language,” perhaps even “the standard reference dictionary of the English language.”   However, he argues it should not be so considered for purposes of the regulation because it encompasses international English language usage, e.g., in both the British Isles and America.

The Secretary of State submits that because of the international character of the OED, deeming it a “standard reference dictionary of the English language” conflicts with the announced purpose of the Secretary's regulations to “ensure the accurate designation of the candidate upon the ballot in order that an informed electorate may intelligently elect one of the candidates.”   (Cal.Code Regs., tit. 2, § 20710, subd. (a).)  He argues that if the OED is a “standard reference dictionary of the English language” international or British spellings would become available with a “potential for misleading voters through clever manipulation of words” not otherwise available.

 The Democratic Party argues in addition that the OED is not a “standard reference dictionary of the English language” because, by that dictionary's own admission (I OED (1933) p. v.), it includes within its entries “technical vocabulary” as well as “the standard language of literature and conversation” and even in that “standard language” is included usage whether it is “current at the moment, or obsolete, or archaic.”   The Democratic Party also suggests that the OED should not be considered a standard reference dictionary because it is not widely available.

 The question of the meaning of terms in a regulation is a question of law for the court.   We are constrained, in doubtful cases, to defer to the construction of an administrative regulation which is urged by the agency which has promulgated it.   However, the degree of appropriate deference is least when, as here, the construction is proposed in the course of litigation by the agency.  (See Culligan Water Conditioning v. State Bd. of Equalization (1976) 17 Cal.3d 86, 92-93, 130 Cal.Rptr. 321, 550 P.2d 593, esp. fn. 4.)

The arguments of the Secretary of State and the Democratic Party concerning the application of the term “standard reference dictionary of the English language” as used by section 20714(f)(2) are unpersuasive.   Neither the Secretary of State nor the Democratic Party presents a viable claim of ambiguity concerning the term, affording the Secretary of State the right to possible deference in selecting between candidate meanings.

Dictionaries published in the United States, e.g., Webster's Third New International Dictionary, Unabridged (1971) (hereafter Webster's), published in Springfield, Massachusetts, contain numerous “international,” obsolete, or archaic word entries, e.g., “gaol,” “chiefly Brit var of JAIL” at page 935 and at page 934, “gang-there-out,” “archaic Scot:  VAGRANT.”   Webster's is also replete with a myriad of definitions, e.g., “Chondroitinsulfuric acid,” “a white amorphous acid found esp. in cartilage that is a derivative of glucuronic acid and chondrosamine and constitutes one class of mucoproteins,” which can only be characterized as technical vocabulary.   These inclusions do not mean that Webster's is not a “standard reference dictionary of the English language” within the compass of the regulation.

There is no indication in section 20714(f)(2) that a reference dictionary must be “widely available” in order to be considered a “standard reference dictionary of the English language.”   The term “standard” rules out specialized dictionaries of which there are many;  however, it does not distinguish between “standard dictionaries” based on popularity or circulation, data that is itself not “widely available.”   If “widely available” were a criterion, it would lead to problematic distinctions:  is Webster's Third New International Dictionary, Unabridged (1971), or any other such tome “widely available?”   What is the dividing line of “wide availability?”

As to the argument concerning the purpose of the regulations to advance accurate designation of the candidate on the ballot, in this particular instance, one might conclude that use of “attorney-general” would result in a more “accurate” designation.   More to the point, the Secretary of State is empowered and adjured to reject any proposed ballot designation which is in fact misleading on a case-by-case basis, and we are offered no persuasive reason to invent an ambiguity in the language of the regulation in order to prevent an otherwise unavoidable class of harms.

We conclude, as the Secretary of State candidly acknowledged, that the OED is “appropriately described as a standard reference dictionary of the English language” and no sufficient reason is demonstrated to avoid the ordinary application of that language.

c. The “Called For” Issue

 The Secretary of State and the Democratic Party contend in the alternative that, regardless of the meaning of “standard reference dictionary of the English language,” “attorney-general” cannot be used as a ballot designation because it is not “called for in the spelling of a word as it appears” in such dictionary.   The Secretary of State argues that “called for” means demanded or required.   He submits that the hyphen in “attorney-general” is not “called for in the spelling of a word as it appears” in the OED because in the OED there are “two forms of spelling, one with and one without the hyphen.”   The argument is unpersuasive and the contention is not meritorious.

The Secretary of State relies on one definition of “called for” in The American Heritage Dictionary of the English Language (3d ed.1992) page 273.   The full entry is as follows:

“call for. 1. To appear, as on someone else's premises, in order to get:  My chauffeur will call for you at seven. 2. To be an appropriate occasion for:  This news calls for champagne. 3. To require;  demand:  work that calls for patience.”  (Italics in original.)

The Secretary of State submits that “called for” in the regulation is used in the lattermost sense of required.   He argues that where a dictionary lists two stylings of a compound it does not require either one, since each is optional.

This is implausible.   Dictionaries do not “require” the stylings or definitions that they display.   They only warrant use of their listed stylings and definitions, as appropriate usage, analogous to:  “This news calls for champagne.” ¹¹

Under the logic of the Secretary of State's argument, if “attorney-general” were the predominant spelling in the United States, but standard reference dictionaries listed as an alternative a less usual spelling of the compound “attorney general” then the predominant spelling in the United States would be unavailable, because an alternative spelling was provided.   There is no reason to suppose that “called for” was intended to screen out equally acceptable stylings, since there is nothing inimical on its face in the fact a word may sometimes be hyphenated and other times presented as a closed or open compound.

Moreover, even under the nice definition of “called for” proffered by the Secretary of State, a hyphen is called for “in the spelling of [the] word [attorney-general] as it appears in” the OED. The open compound variant “attorney general,” as the Secretary of State has maintained throughout this litigation, is a combination of two separate words.   There is only one way to spell the word “attorney-general,” hence that spelling is required.

Accordingly, we find the argument unpersuasive that the use of a hyphen is not “called for” in the spelling of the word “attorney-general” as it appears in the OED.

d. The Issue of Disuse

 The Secretary of State and the Democratic Party suggest that it is improper to permit “attorney-general” to be used in a ballot designation because it has fallen into disuse as to English usage in the United States.¹²  The implicit factual predicate of this argument is that “attorney-general” has passed out of the usage in this country.   The implicit legal predicate is that continued usage in the British Isles alone is insufficient.   The arguments are unpersuasive.

The suggestion that “attorney-general” is in disuse in the United States is based on the gradual substitution of the open compound for the hyphenated compound in the entries in dictionaries published in the United States.¹³  However, as Webster's article on its selection of styling of compounds demonstrates, the presence or absence of one styling or another from dictionaries may have little or nothing to do with the disappearance of that styling from usage.

English is an international language.   We are loath to entertain the premise that for purposes of official use the English language should be run through a parochial filter of its usage in the United States.   The task would be arduous and the results inherently problematic.   We discern no profit in preventing mischief by this means that could not be averted by other means, more economically and directly.   Our codes consistently call for “the English language.”  (See, e.g., Elec.Code, § 7.) There is never an implication that this means the English language as spoken in California, or the United States.

No sufficient reason is indicated to open the question of usage.   As related, an apparent purpose of laws such as section 20714(f)(2) is to avoid putting usage in issue.   The standard reference dictionaries currently in print provide the ruler for the determination of usage.   If such a work “calls for” a hyphenated styling of a compound, that is the end of the matter.

We conclude that the designation “Chief Deputy Attorney-General” satisfies the three-word limit of section 13107, subdivision (a)(3), as interpreted by the regulation, section 20714(f)(2).   We turn to the substantial compliance issues since Stirling requested “Chief Deputy Attorney General” before the 98-day deadline of section 13107, subdivision (e) ran, and requested “Chief Deputy Attorney-General” shortly after that deadline passed.

7. Substantial Compliance

The Secretary of State and the Democratic Party contend that regardless whether “Chief Deputy Attorney-General” is a lawful ballot designation under section 13107, subdivision (a)(3), it is too late to be of any use to Stirling.   They argue that Stirling is foreclosed from using that ballot designation because he did not request it as a different designation at least 98 days prior to the general election as required under section 13107, subdivision (e).  (See fn. 8, ante ).   Stirling argues that he should be permitted to use the ballot designation under the doctrine of “substantial compliance.”

The Secretary of State argues there can be no claim of substantial compliance here because there was no compliance at all.   The Secretary argues that Stirling has never requested in writing to use the hyphenated spelling of his title, i.e., “Chief Deputy Attorney-General,” and suggests that any request now would be too late.   Within the time prescribed in section 13107, subdivision (e), however, Stirling did request in writing the ballot designation, “Chief Deputy Attorney General.”   In that written request, Stirling referred to the litigation over the designation “Chief Deputy Attorney General,” litigation premised on the claim that this designation was three words with “Attorney General” as one of the three.   The requested designation “Chief Deputy Attorney General” is almost identical to the ballot designation at issue, “Chief Deputy Attorney-General.”   In his briefing served on the Secretary of State, Stirling has urged the validity and use of the designation “Chief Deputy Attorney-General.”   This is tantamount to a written request asking the Secretary of State to alternatively use the hyphenated spelling of his previously requested ballot designation.

Against this backdrop, two issues arise:  (1) does the doctrine of substantial compliance apply to section 13107, subdivision (e);  and (2) if so, did Stirling substantially comply here.

a. The Applicability of the Substantial Compliance Doctrine

 Absent a statutory direction permitting a substantial compliance claim (e.g., Elec.Code, § 10200) or forbidding it (e.g., Bus. & Prof.Code, § 7031, subd. (d)), the question of whether the doctrine of substantial compliance applies to a given statute calls for judicial interpretation of the statute.  (See 3 Sutherland, Statutory Construction (5th ed.   1992) § 57.01, p. 3;  see also Cal-Air Conditioning, Inc. v. Auburn Union School Dist. (1993) 21 Cal.App.4th 655, 667, 26 Cal.Rptr.2d 703.)   This presents a question of law that can be raised for the first time in an appeal (or in a mandate proceeding in an appellate court).   (Cal-Air Conditioning, Inc. v. Auburn Union School Dist., supra, 21 Cal.App.4th at p. 667, 26 Cal.Rptr.2d 703.)

The doctrine of substantial compliance is an important tool with which to soften the consequences of textual rigidity in statutory law.  (3 Sutherland, Statutory Construction, supra, § 57.26, p. 67.)   Nevertheless, finding the doctrine applicable cannot be a standardless exercise-that would incite litigation and invite judicial abrogation of statutes.

 The issue of whether the doctrine of substantial compliance applies is generally evaluated in light of the principles governing the mandatory and directory interpretation of statutes.  (D'Agostino v. Superior Court, supra, 33 Cal.App.4th at p. 117, 39 Cal.Rptr.2d 112;  Daniels v. Tergeson (1989) 211 Cal.App.3d 1204, 1207-1209, 259 Cal.Rptr. 879;  see 3 Sutherland, Statutory Construction, supra, § 57.01, p. 3.) “[T]he ‘directory’ or ‘mandatory’ designation ․ simply denotes whether the failure to comply with a particular [statutory] step will or will not have the effect of invalidating the ․ action to which the [statutory] requirement relates.”   (Cal-Air Conditioning, Inc. v. Auburn Union School Dist., supra, 21 Cal.App.4th at p. 670, 26 Cal.Rptr.2d 703, some internal quotation marks omitted, quoting People v. McGee (1977) 19 Cal.3d 948, 959, 140 Cal.Rptr. 657, 568 P.2d 382, and Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606.)

 In evaluating whether a statutory directive is to be accorded mandatory or directory effect, courts look to the directive's purpose or function.  (Cal-Air Conditioning, Inc. v. Auburn Union School Dist., supra, 21 Cal.App.4th at p. 673, 26 Cal.Rptr.2d 703.)   If the directive is essential to promote the statutory design, it is “mandatory” and less than full compliance is not acceptable.  (See ibid.)   If not, it is “directory.”   (Ibid.) “If a statutory directive does not go to the essence of the particular object sought to be obtained, or the purpose to be accomplished, and a departure from the statute will cause no injury to any person affected by it, the provision will be deemed directory.”  (Ibid., internal quotation marks omitted.)   Thus, the principles of mandatory and directory interpretation help to determine if “less than full compliance with particular provisions [of the statute] is permitted․”  (3 Sutherland, Statutory Construction, supra, § 57.01, p. 3.)

In the specific context of election statutes, it has been similarly stated that “[w]hether a provision is mandatory or directory depends on the character of the act prescribed.   If [the provision] goes to the substance or necessarily affects the merits or results of an election, the provision is mandatory.   Provisions relating to the time and place of holding elections, the qualifications of voters and candidates and other matters of that character are mandatory.”  (Daniels v. Tergeson, supra, 211 Cal.App.3d at p. 1208, 259 Cal.Rptr. 879;  D'Agostino v. Superior Court, supra, 33 Cal.App.4th at p. 117, 39 Cal.Rptr.2d 112;  Atkinson v. Lorbeer (1896) 111 Cal. 419, 422, 44 P. 162.)

 As noted, under section 13107, subdivision (e), a candidate's ballot designation “shall remain the same for all purposes of both primary and general elections, unless the candidate, at least 98 days prior to the general election, requests in writing a different designation which the candidate is entitled to use at the time of the request.”

Undoubtedly, the 98-day deadline of section 13107, subdivision (e), is mandatory and not subject to substantial compliance.  “Cases specifically dealing with statutory deadlines for election filings that are couched in language requiring documents to be filed ‘not less' than or ‘not later’ than a given number of days before a designated time have insisted on strict compliance with the deadlines.”  (Barnes v. Wong, supra, 33 Cal.App.4th at pp. 391-392, 396, 39 Cal.Rptr.2d 417 [doctrine of substantial compliance did not apply to person who tried to file ballot argument about five hours after filing deadline];  Steele v. Bartlett (1941) 18 Cal.2d 573, 574, 116 P.2d 780 [candidates were omitted from the ballot who filed nomination papers on the 32d day before the election (a Monday) when the statute required that such papers be filed no later than the 31st day before];  Griffin v. Dingley (1896) 114 Cal. 481, 482-483, 46 P. 457 [prospective candidate could not file his certificate of nomination 28 days before the election because the statute required it to be filed not less than 30 days before];  Foote v. Hite (1960) 179 Cal.App.2d 762, 764, 4 Cal.Rptr. 101 [prospective candidate denied relief because he did not meet the three-month statutory requirement of being registered with the political party whose nomination he sought];  Sinclair v. Jordan (1920) 183 Cal. 486, 487-488, 191 P. 910 [prospective candidate denied relief because he missed the deadline for filing his affidavit of candidacy];  Daniels v. Tergeson, supra, 211 Cal.App.3d at pp. 1206-1210, 259 Cal.Rptr. 879 [winning candidate's election nullified because he was a registered voter in his district for only 28 days before the statutory deadline for filing nomination papers instead of the required 30 days;  substantial compliance doctrine held inapplicable];  D'Agostino v. Superior Court, supra, 33 Cal.App.4th at pp. 115-118, 39 Cal.Rptr.2d 112 [statute required 500 valid signatures on nominating petition;  candidate denied relief who had obtained 486;  substantial compliance doctrine held inapplicable].)

These cases make a lot of sense.   They all concern statutory deadlines for filing candidacy papers, or statutory requirements for qualifying as a candidate.   They encompass nominating papers, affidavits of candidacy, residency requirements, and political affiliation requirements.   Thus, they all involve “mandatory requirements of the law essential to ․ candidacy.”  (Sinclair v. Jordan, supra, 183 Cal. at pp. 487-488, 191 P. 910, italics added.)   If a deadline is not construed in a mandatory, strict way, it ceases to be a deadline.   There is no room for construing a deadline involving a legal requirement essential to candidacy in any fashion but strictly.   In the parlance of the mandatory-directory principles noted above, these decisions involve statutory provisions that go to the substance of an election and the qualifications of candidates.  (Daniels v. Tergeson, supra, 211 Cal.App.3d at p. 1208, 259 Cal.Rptr. 879;  D'Agostino v. Superior Court, supra, 33 Cal.App.4th at p. 117, 39 Cal.Rptr.2d 112.)   Accordingly, these provisions are mandatory and are not subject to the doctrine of substantial compliance.  (Ibid.)

In line with these principles, the 98-day deadline in section 13107, subdivision (e), is just that-a deadline that must be strictly observed.   But the provision in that section about the candidate requesting “a different designation which the candidate is entitled to use at the time of the request” (what we will refer to as the “designation” provision of section 13107, subdivision (e)) is not a provision inherently mandatory, like a deadline.   Nor is it a provision specifying a requirement “essential to ․ candidacy.”  (See Sinclair v. Jordan, supra, 183 Cal. at pp. 487-488, 191 P. 910.)   It is simply a provision concerning an already-qualified candidate's ballot designation concerning his occupation.   A deadline can come in only one form, but an occupational designation can come in many.

Most significantly, the “designation” provision of section 13107, subdivision (e), does not go to the substance or necessarily affect the merits or results of an election.  (Daniels v. Tergeson, supra, 211 Cal.App.3d at p. 1208, 259 Cal.Rptr. 879;  D'Agostino v. Superior Court, supra, 33 Cal.App.4th at p. 117, 39 Cal.Rptr.2d 112.)   The “designation” provision does not relate to the time and place of holding elections, or to the qualifications of voters and candidates or other matters of that character.  (Ibid.) From these observations, one can conclude that the “designation” provision is directory, and thereby subject to the substantial compliance doctrine.

Of course, a deadline does not exist in a vacuum.   A deadline specifies that “something” must be done by a certain time.   That “something” here was a written request to the Secretary of State requesting “a different designation which the candidate is entitled to use at the time of the request.”   Before the 98-day deadline ran here, Stirling submitted a written request to the Secretary of State requesting “Chief Deputy Attorney General,” based on the belief that “Attorney General” was one word as determined in the Nicholson v. Eu judgment.   As these facts illustrate, construing the “designation” provision of section 13107, subdivision (e), as subject to the doctrine of substantial compliance does not eviscerate the mandatory nature or the substance of the 98-day deadline.

Applying the general principles concerning mandatory or directory effect supports the conclusion that the doctrine of substantial compliance applies to the “designation” provision of section 13107, subdivision (e).   As noted, if the statutory provision at issue is essential to promote the statutory purpose or function, the provision is mandatory and anything less than full compliance is unacceptable.  (Cal-Air Conditioning, Inc. v. Auburn Union School Dist., supra, 21 Cal.App.4th at p. 673, 26 Cal.Rptr.2d 703.)   If the provision is not essential in this way, it is directory.  (Ibid.) For example, if one submits a written request of a designation change after the 98-day deadline, that action defeats the purpose or function of the deadline.   Consequently, less than full compliance with the deadline will not do and the doctrine of substantial compliance does not apply in this respect.   By contrast, if one submits a written request within the 98-day deadline that specifies an occupational designation change that is entirely correct in substance but defective in only minor respects in form, this action does not defeat the purpose or function of the designation provision-which is to disclose the requested change in designation.   Consequently, less than full compliance with the “designation” provision in this regard will do and the doctrine of substantial compliance can apply in this respect.

As noted in the Sutherland treatise, a statute may contain both mandatory and directory provisions.  (3 Sutherland, Statutory Construction, supra, § 57.11, p. 31.)   As that treatise also explains, “[p]rovisions of statutes governing the conduct of elections are mandatory when their purpose is to secure a complete and enlightened vote or prevent fraud and where failure to comply may influence the outcome of the election.   However, a directory construction is applied to provisions where inconsequential deviations will not affect the result of the election.”  (Id. at § 57.21, p. 57, fn. omitted;  see Atkinson v. Lorbeer, supra, 111 Cal. at pp. 420-422, 44 P. 162.)   A directory construction can be applied to the “designation” provision of section 13107, subdivision (e), because an inconsequential deviation regarding that provision will not affect the result of the election.

California decisions have applied the doctrine of substantial compliance to election statutes almost entirely though in the realm of the initiative and referendum.   In California Teachers Assn. v. Collins (1934) 1 Cal.2d 202, 34 P.2d 134, the court ordered the registrar of voters to file a section of an initiative petition even though the title was set out in 12-point rather than 18-point type and contained 27 rather than the maximum 20 words.   Substantial compliance was sufficient, said the court, so long as “such compliance does no violence to a reasonable construction of the technical requirement of the law.”  (Id. at p. 204, 34 P.2d 134.)   In a referendum case, the court in Assembly v. Deukmejian (1982) 30 Cal.3d 638, 180 Cal.Rptr. 297, 639 P.2d 939 expressed similar sentiments.  “[T]echnical deficiencies in referendum and initiative petitions will not invalidate the petitions if they are in ‘substantial compliance’ with statutory and constitutional requirements.”  (Id. at p. 652, 180 Cal.Rptr. 297, 639 P.2d 939.)   Significantly, there is a judicial policy to construe liberally the power of initiative and referendum “to permit the exercise by the electors of this most important privilege[.]”  (Chase v. Brooks (1986) 187 Cal.App.3d 657, 663, 232 Cal.Rptr. 65;   Assembly v. Deukmejian, supra, at p. 652, 180 Cal.Rptr. 297, 639 P.2d 939;   Daniels v. Tergeson, supra, 211 Cal.App.3d at p. 1210, 259 Cal.Rptr. 879;  see also Hayward Area Planning Assn. v. Superior Court (1990) 218 Cal.App.3d 53, 56-60, 266 Cal.Rptr. 745;  Committee For Sewer Referendum v. Humboldt Bay Wastewater Authority (1978) 77 Cal.App.3d 117, 122-124, 143 Cal.Rptr. 463.)   Because of this policy, which does not apply here, these cases are of little use in determining whether the substantial compliance doctrine applies to the “designation” provision of section 13107, subdivision (e).

One decision that is of more use-because it involves an ordinary election statute rather than a referendum-is Atkinson v. Lorbeer, supra, 111 Cal. 419, 44 P. 162.   The court in Atkinson construed as directory a statutory provision specifying that “ ‘[a]s soon as the polls are finally closed the [election] judges must immediately proceed to canvass the votes given at such election’ ” and the “ ‘canvass must be public.’ ”  (Id. at p. 421, 44 P. 162.)   The canvass of the votes in Atkinson was done in public but did not take place until one-half hour after the polls closed as one of the election judges was absent during this period.  (Id. at pp. 420-421, 44 P. 162.)   Said Atkinson:  “This provision ․ is merely directory.   Provisions concerning the time and place of holding the election and officers holding the same, the legal qualifications of voters, and other matters of that character, are of substance and mandatory.”  (Id. at p. 422, 44 P. 162.)   This brings us full circle to the principle stating that whether a provision is mandatory or directory depends on the character of the act prescribed.  (Daniels v. Tergeson, supra, 211 Cal.App.3d at p. 1208, 259 Cal.Rptr. 879.)   The character of the act prescribed by the “designation” provision of section 13107, subdivision (e), is a requested change in essentially an occupational designation.   The provision does not go to the substance of or necessarily affect an election.   It does not relate to the time and place of holding elections, or to the qualifications of voters and candidates, or to other matters of that character.  (Daniels v. Tergeson, supra, at p. 1208, 259 Cal.Rptr. 879;  D'Agostino v. Superior Court, supra, 33 Cal.App.4th at p. 117, 39 Cal.Rptr.2d 112.)   Full compliance with the “designation” provision of section 13107, subdivision (e), is not essential to promote the statutory purpose or function of designation.  (Cal-Air Conditioning, Inc. v. Auburn Union School Dist., supra, 21 Cal.App.4th at p. 673, 26 Cal.Rptr.2d 703.)   The “designation” provision of section 13107, subdivision (e), is therefore directory, and thereby subject to the doctrine of substantial compliance.  (D'Agostino, supra.)

We now turn to the question of whether Stirling substantially complied with this provision.

b. Did Stirling Substantially Comply?

 “Substantial compliance ․ means actual compliance in respect to the substance essential to every reasonable objective of the statute.  [Citation.]  Where there is compliance as to all matters of substance technical deviations are not to be given the stature of noncompliance.  [Citation.]  Substance prevails over form.   When [a party] embarks on a course of substantial compliance, every reasonable objective of the statute at issue has been satisfied.”  (Cal-Air Conditioning, Inc. v. Auburn Union School Dist., supra, 21 Cal.App.4th at p. 668, 26 Cal.Rptr.2d 703, quoting Southern Pac. Transportation Co. v. State Bd. of Equalization (1985) 175 Cal.App.3d 438, 442, 221 Cal.Rptr. 12, italics in original, internal quotation marks and some brackets omitted;  Assembly v. Deukmejian, supra, 30 Cal.3d at p. 649, 180 Cal.Rptr. 297, 639 P.2d 939.)   In short, the doctrine of substantial compliance asks whether the purpose of the statutory requirement is frustrated by the defect.  (Assembly v. Deukmejian, supra, at p. 652, 180 Cal.Rptr. 297, 639 P.2d 939.)   If the purpose is frustrated in this way, the party has not substantially complied.

The apparent purposes of section 13107, subdivision (e), are (1) to afford a timely disclosure of a “different designation” so the designation can be evaluated and challenged if necessary, and (2) to ensure that the preparation of ballots proceeds in an orderly way.

As for the first purpose, Stirling timely requested in a July 20, 1998 letter to the Secretary of State a change in designation to “Chief Deputy Attorney General”;  in that letter Stirling referenced the current litigation.   Starting before the primary election and repeatedly and continuously to the present, Stirling has always maintained, including within the public forum of this litigation proceeding, that “Attorney General” is one word.   This position was not snatched from thin air;  Stirling relied on an unappealed superior court judgment in Nicholson v. Eu stating as much.   Within a few days of the 98-day deadline (the deadline ran on July 28, 1998), Stirling, through his briefing, which was served on the Secretary of State, in effect requested in writing that the Secretary alternatively use the hyphenated spelling of the ballot designation he requested before the July 28 deadline passed.   The propriety of this hyphenated designation has been fully litigated.   That litigation has included the participation of the political party of Stirling's principal election opponent.

These are strong facts supporting a conclusion that Stirling substantially complied with the disclosure/evaluation/challenge purpose of section 13107, subdivision (e).   Although the other candidates in the Attorney General race-American Independent, Libertarian, and Peace and Freedom-have not participated in these proceedings, it is not for lack of an opportunity.   As we noted in the discussion on mandate relief, Stirling has repeatedly, continuously, and publicly maintained, since well before the primary election, that he was requesting to be designated by his title, “Chief Deputy Attorney General,” and that such designation is a three-word designation with “Attorney General” being one word.   A suggestion that these other candidates lacked sufficient notice and opportunity is implausible.   The primary election was an “open” one-that is, the candidates were not restricted to seeking votes from their fellow party members but could seek votes anywhere.   These litigation proceedings have been protracted and public, garnering even prominent display in legal newspapers.   Moreover, the Secretary of State has stated that he sent notices to general election candidates on August 12, 1998, in an attempt to advise them of new ballot designations known as of that time.   Against this backdrop, there is no indication that other candidates or challengers seek to enter this fray.   It is difficult to imagine what they could add to these already exhaustive proceedings.

We conclude that Stirling has substantially complied with the disclosure/evaluation/challenge aspect of section 13107, subdivision (e).

Stirling has also substantially complied with the purpose of orderly ballot preparation.   The letter Stirling attached to his motion for expedited disposition contains a calendar of “several dates of importance to you.”   The most significant entry is the following:

“Aug 27 Certified List of Candidates and Rotation List. Any legal challenges to ballot designations or candidate status must be resolved in the Sacramento Superior Court by this certification deadline.”  (Emphasis in original.)

This entry implies that if it is judicially determined by August 27, 1998, that the designation “Chief Deputy Attorney-General” is lawful, orderly preparation of the ballots can be accomplished.

Two other matters related to the substantial compliance question deserve mention.   First, the Secretary of State has asserted that Stirling was not “entitled to use” the four-word designation “Chief Deputy Attorney General” “at the time of [his July 20 written] request,” as called for by section 13107, subdivision (e).   However, since we have concluded that the doctrine of substantial compliance applies to the “designation” provision of section 13107, subdivision (e), this assertion becomes irrelevant because the assertion recognizes only full compliance for that provision.

Secondly, the Democratic Party argues that changing Stirling's ballot designation to “Chief Deputy Attorney-General” at this late date is inequitable, citing Andal v. Miller, supra, 28 Cal.App.4th 358, 34 Cal.Rptr.2d 88.   In Andal, a candidate sought to change his ballot designation from “Peace Officer” to “Senator/Retired Undersheriff.”   The candidate sought to make this change in proceedings in the appellate court.   The court noted that it would be inequitable to allow the belated change because the Secretary of State had previously found it defective and the candidate's opponent had never had a chance to challenge it.  (Id. at pp. 367-368, 34 Cal.Rptr.2d 88.)   By contrast, Stirling's principal opponent, through his political party, has had a chance to fully challenge the designation “Chief Deputy Attorney-General,” and that designation has been found proper.

We conclude that Stirling has substantially complied with the “designation” provision of section 13107, subdivision (e).   When all is said and done, Stirling simply failed to designate the term “Attorney General”-in his timely written request of July 20-in its legally proper one-word form, “Attorney-General.”   Stirling has always maintained that his title and requested ballot designation is three words with “Attorney General” as one of the three.

DISPOSITION

Let a peremptory writ of mandate issue directing the Secretary of State to accept Stirling's ballot designation of “Chief Deputy Attorney-General.”   Under Rule 24(d), we order that this decision granting the peremptory writ of mandate is final immediately as to this court.   The parties to pay their own costs.

I dissent.

I dissent from the issuance of a writ of mandate to compel the Secretary of State to place the unrequested, hyphenated designation “Chief Deputy Attorney-General”, first raised by this court, on the general election ballot as the occupation of the Republican nominee for Attorney General, David Stirling, in patent violation of the clear mandate of the laws governing elections and appellate remedies.   My colleagues, on their own, have engaged in an extraordinary effort to resurrect the dead claim of the nominee.   In doing so they cut through a thicket of laws governing elections and judicial remedies.

Four simple, statutory commands, binding on this court, govern this case.   The first is the candidate must submit a timely, valid ballot designation of his current occupation to the Secretary of State.  (Elec.Code, § 13107, subds. (a) & (e).) ¹  The second is the designation must not exceed three words.  (§ 13107, subd. (a)(3).)   The third is that in the absence of a timely request for a valid designation the Secretary of State must use the primary ballot designation on the general election ballot.  (§ 13107, subd. (e).)  The fourth is that we may issue relief by way of mandate only to “compel the performance of an act which the law specially enjoins” (Code Civ. Proc., § 1085) or to cure a “violation of [the Election] code or the Constitution” by the Secretary of State (§ 13314, subd. (a)(2)).

The root fact is that Stirling submitted but one ballot designation to the Secretary of State, “Chief Deputy Attorney General.”   It was rejected for the obvious reason that four words are not three words.   Accordingly, the Secretary properly listed Stirling on the primary election ballot by the more general, three word designation “Deputy Attorney General.”   Stirling sought relief in the trial court on the grounds “Attorney General” should be treated as one word or that the doctrines of collateral estoppel or equal protection compel a different result.   The trial court denied relief and rejected the alternative claims.   On appeal the majority conclude the trial court was correct.   With this much I agree.

That is all that the parties tendered this court on appeal.   To this date Stirling has never requested any other ballot designation.   At best, he claims, in response to a question by this court, that his “extant request” ² , i.e., the four word request we find invalid, constitutes substantial compliance with section 13107, subdivision (e).   In this circumstance we are governed by the statutory command that, “unless the candidate, at least 98 days prior to the general election [here July 28th], requests [of the Secretary of State] in writing a different designation which the candidate is entitled to use at the time of the request ”, the “designation shall remain the same for all purposes of both primary and general elections․”  (§ 13107, subd. (e);  emphasis added.)

The majority would escape these mandates by directing the placement of a designation of its own making on the general election ballot, the hyphenated designation “Chief Deputy Attorney-General,” on the theory Stirling substantially complied with the law when he asked the Secretary of State in his original (and only) submission to count two words, “Attorney General”, as one word.   This goes nowhere.   Even if “Attorney-General” is a proper use ³ and can be counted as one word, the measure of substantial compliance is what was submitted and Stirling never submitted any designation to the Secretary of State other than a concededly invalid one.   And, under section 13107, subdivision (e), the time of compliance, substantial or otherwise, is “the time of the request”;  hence even on the majority's strained theory that Stirling's response to the court's question counts as a request to the Secretary of State, it comes too late since his answer to the question was dated August 13, 1998, well after the deadline for submitting the request for an alternate designation, July 28, 1998.

When faced with the language of section 13107, subdivision (e), the majority say that while the 98 day requirement is mandatory, what is mandated is only directory.   This defies belief.   By what strange logic can the mandate be separated from what is mandated with the consequence that a mandate to submit a valid, alternate designation by July 28th, can be “substantially complied” with by the submission of an invalid designation before that date?

In any event, the majority can point to no duty, statutory or otherwise, which the Secretary of State has violated, the prerequisite to relief by way of mandamus directing him to change Stirling's ballot designation.  (See e.g., § 13314, subd. (a)(2).)   The only action the Secretary took was to deny the use of a concededly invalid designation.   He is under no duty to file a designation invented by this court.

Nor can a writ of mandate be issued without notice to the other candidates for Attorney General, along with an opportunity to be heard.   The majority brush these requirements aside on the grounds that the “necessary” parties are before the court, meaning the Secretary of State and the Democratic Party and not the three other qualified candidates, and that, in any event, they were appraised (in what manner is unclear) of the issues of the possibility of a hyphenated designation because Stirling had always claimed that the two words “Attorney General” should be counted as one word.   These are unusual claims to notice in view of the fact that Stirling never thought of the hyphenated claim (nor anyone else) until it was raised by this court.

Section 13107 is evenhanded in barring the nominee and his opponents from using more than three words.   Stirling is the only nominee who seeks relief from the command.  “[H]ard and fast enforcement of filing deadlines avoids uneven and inconsistent administration of preelection procedures and is the most reliable way to ensure that everyone is treated fairly and equally.”   (Barnes v. Wong (1995) 33 Cal.App.4th 390, 396, 39 Cal.Rptr.2d 417.)   The purpose of a ballot designation is not to set forth the candidate's qualifications for office but to give the best description possible in three words of the candidate's occupation.   Every candidate is under the same disability.   Candidates have a myriad of other, proper opportunities to inform the electorate of their respective qualifications.   The marginal advantage, if any, that accrues to the candidate from a more desirable ballot designation is that it may sway voters who cast their ballot based on the happenstance of what they last read in the voting booth.   It is evidently Stirling's view that his four word submission might sway these voters.

The nub of this case is captured in the following statement by the Secretary of State.  “By converting an appeal that does not appear defective into a writ of mandate in order to give extraordinary relief to a single individual who failed in his own responsibility to support a contention that should have been timely and properly made to the Secretary of State, or at least to the trial court Judge by the time of the hearing, but wasn't, the Court enters onto a slippery slope and endangers the integrity of the elections process in California.”

This case raises an additional concern.   We as judges have an institutional stake in the rigorous application of the electoral law.   To avoid the rigors of that law, where the possible effect is benefit one candidate, casts fuel on the fires of the cynics who attribute judicial decisionmaking to activist judges, perceived as engaging in partisan or factional self-interest.   Judicial indulgences on a case-by-case basis present the appearance of judicial favoritism for or against the candidates to whom relief was granted or denied.

This unfortunate prospect is heightened here, for, as I next show in detail, my colleagues are patently wrong on the law of appellate remedies and the law of substantial compliance.

I

Appellate Jurisdiction

As the majority opinion concedes, in order to reach the question whether “Chief Deputy Attorney-General” satisfies the three word limit one must first decide there is a warrant for a judicial remedy in this case.   That question arises because the matter comes before us on appeal and Stirling did not request the use of the ballot designation “Chief Deputy Attorney-General” “at least 98 days prior to the general election” as required by section 13107, subdivision (e).

The question of remedy has two components.   The first concerns the availability of judicial relief in light of the present procedural posture of this case.   The second is whether, if relief is otherwise available, Stirling could obtain relief, under the judicial doctrine of substantial compliance, from the requirement of section 13107, subdivision (e) that a ballot designation different from that used in the primary be requested at least 98 days before the general election.

The question of judicial relief arises from the procedural posture of the case.   The case is presented on appeal from a judgment denying Stirling's petition for a writ of mandate directing the Secretary of State to accept his request to use the ballot designation “Chief Deputy Attorney General.”   As explained in the earlier portions of the majority opinion, Stirling's appellate contentions of error in that judgment are not meritorious.   The consideration that a similar but unrequested ballot designation could meet the criteria of section 13107, subdivision (a)(3) has no bearing on whether the trial court erred in denying the petition to command the Secretary of State to accept the request for “Chief Deputy Attorney General.”   Accordingly, in the ordinary course of affairs, we would simply affirm the judgment.

In light of this, and the consideration that our decision in an appeal would not be final until 30 days after we rendered an opinion, we asked the parties and amicus curiae to consider whether it was necessary or appropriate to treat the appeal as a petition for writ of mandate.

The Secretary of State and the Democratic Party respond that a writ would be inappropriate in these circumstances for several reasons.   Among other things, the Secretary of State suggests in his brief that mandate is inappropriate because Stirling had never made a request under section 13107, subdivision (e), to use the ballot designation “Chief Deputy Attorney-General.” ⁴  In effect, he questions how the present appeal could be “ treated” as a writ of mandate to compel him to grant a request that has not yet been made.

The majority opinion asserts that because Stirling “[i]n his briefing served on the Secretary of State [August 5, 1998], Stirling has urged the validity and use of the designation ‘Chief Deputy Attorney-General.’   This is tantamount to a written request asking the Secretary of State to alternatively use the hyphenated spelling of his previously requested ballot designation.”   There are manifest problems with this logic.

A request is a performative utterance.   One asks another to do something within his or her volition.   A request is different from an observation, a threat, or a command.   The only request in Stirling's aforementioned letter brief is a request to this court to “reverse the erroneous decision of the Superior Court, and order the Respondent to accept the ballot designation ‘Chief Deputy Attorney General’ or ‘Chief Deputy Attorney-General’ as an appropriate ballot designation for Appellant.”   As noted (see fn. 2, supra ), the only request Stirling made was to treat his only submission, his “extant request”-the invalid four word designation, as substantial compliance of his obligation to proposed a hyphenated designation.

The view that this was meant to be and should have been taken as a request to the Secretary of State is belied by the following exchange at the conclusion of the oral argument of Stirling's counsel before this court, August 17, 1998.

Justice Davis:  “What authority is there for this court at this point in time to order the Secretary of State to create a ballot designation that to this point you have yet to request.   Or have you requested it and I'm missing something.”

Stirling's Atty:  “Well I think we made the point throughout the process that there was a collateral estoppel issue here.   And our reliance was upon that collateral estoppel.   The court in 1982, and in circumstances that I think invokes the collateral estoppel doctrine․”

Justice Davis:  “․ are you suggesting that ․ because ․ we should not order the Secretary of State to create this ballot designation of hyphenated Attorney General?   Rather, collateral estoppel in light of the hyphen being acceptable, if we so conclude, requires us to direct the Secretary of State to order a ballot designation of Attorney General with a space?   Is that what you are suggesting?”

Stirling's Atty:  “I'm suggesting that the court could conclude, either on principles of collateral estoppel or usage that it's appropriate to consider the words “Attorney General” as one word for purposes of this statute.”

Justice Davis:  “Well are you requesting Attorney General with a hyphen?   Or have you ever, or are you today?”

Stirling's Atty:  “We have not.   We would accept it, but we believe the court could conclude that collateral estoppel applies and allow it to be listed on the ballot unhyphenated.”

Justice Davis:  “So you are not requesting Attorney General with a hyphen, is that what you are saying for the record?”

Stirling's Atty:  “We will request it, uh․”

Justice Davis:  “I'm not asking whether or not you will acquiesce if this court orders the Secretary of State to spell Attorney General that way.   I'm asking you whether you now, because you're suggesting that we can construe these proceedings as a petition for extraordinary relief, are you requesting pursuant to that construction, a petition for extraordinary relief, that this court direct the Secretary of State to designate your client on the ballot as “Chief Deputy Attorney-General” with a hyphen or not?”

Stirling's Atty:  “Yes, this court can do that based on Secretary's regulation.”

Justice Callahan:  “OK, but then that takes it to the issue of you obviously have to address substantial compliance in that there's nothing before the 98 days.

Stirling's Atty:  “We believe we raised the issue as a concept and that that is a substantial compliance.   There is no case which deals with ballot designation substantial compliance.”  (Emphasis added.)

Despite this prodding at oral argument, as the italicized remarks in the foregoing transcription show, Stirling's counsel continued to maintain that he was entitled to an unhyphenated Attorney General designation and never voiced a present request to the Secretary of State to permit him to use the hyphenated designation.   Until there is a request, there is no duty of the Secretary of State to grant the request which could be enforced in mandate.

“[A writ of mandate] may be issued ․ to any ․ person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office․”  (Code Civ. Proc., § 1085.)   Thus, in this case, a writ of mandate must be predicated upon a finding the Secretary of State has a duty to grant a belated request to use the ballot designation “Chief Deputy Attorney-General.”   Moreover, that duty must either be a ministerial duty, or one so plain that failure so to act presents an abuse of discretion.  “Substantial compliance ․ is not an appropriate consideration in mandamus where the predicate inquiry is whether there is (1) a present ministerial duty on the part of the officer in question that must be exercised or (2) an official abuse of discretion ripe for correction.”  (Barnes v. Wong, supra, 33 Cal.App.4th at p. 397, 39 Cal.Rptr.2d 417.)

Moreover, as amicus curiae the Democratic Party adds, it would not be appropriate to treat the appeal as a writ because there are real parties in interest, Stirling's opponents in the general election contest, who have not been served with process on the case and afforded an opportunity to be heard in opposition.   The Democratic Party notes that there are at least three such candidates other than the nominee of the Democratic Party.

Our authority to “treat” an appeal as a writ is subject to all of the ordinary constraints that attend the exercise of our original writ jurisdiction.   An applicant who asks that an appeal be “treated” as a writ should not be better off than an applicant who has actually complied with the requirements of filing a petition for such a writ.   If Stirling had filed an original petition for writ of mandate in this court, he would be required to identify the real parties interest and to serve his petition and his memoranda on those real parties in interest.   They would be permitted to file returns, and if the matter were ordered on calendar, they would be permitted to appear and argue on their own behalf.  (E.g., Cal. Rules of Court, rule 56.)

It is legally inappropriate to dispense with these safeguards, grounded on fairness and basic precepts of due process in this case.   To evade this troublesome consideration, the majority opinion imposes a duty upon these other candidates to monitor these proceedings to determine whether a different ballot designation might ensue herein.   This imposes an obligation of prescience.   Assuming that it was somehow appropriate to radically shift the ordinary obligation of notice and process, the only ballot designation of which another candidate would have been notified by the appeal in this case is “Chief Deputy Attorney General,” a ballot designation which the majority correctly conclude the Secretary of State and the trial court properly found impermissible.

The majority opinion adverts to the Secretary of State's representation that on August 12, 1998, he sent a notice of the ballot designations “known at that time.”  This does overcome the failure of service of process.   It notified the candidates only of the then-proposed ballot designations.   It did not notify them of the issues or relief proposed by the court in this case subsequent to July 29, 1998.   If anything, the notification would tend to lead the opposing candidates to believe that the ballot designations were final and that Stirling's ballot designation would be “Deputy Attorney General.”

Finally, the Secretary of State argues that a writ would not be appropriate because mandamus relief is limited by Elections Code section 13314.   Section 13314 provides that any voter may file a writ of mandate alleging that an error or omission has occurred or is about to occur in the printing of a ballot, prescribes for expedited resolution, and specifies conditions for the issuance of the writ.

“A peremptory writ of mandate shall issue only upon proof of both of the following:  (A) that the error, omission, or neglect is in violation of this code or the Constitution, and (B) that issuance of the writ will not substantially interfere with the conduct of the election.”  (Elec.Code, § 13314, subd. (a)(2).)

The Secretary of State submits that under this statute a writ may not issue addressing a claim that ballot designation must be accepted under the doctrine of substantial compliance, because refusal is not “in violation of this code or the Constitution.”   The majority opinion seeks to evade the argument by claiming the statute only pertains to writs of mandates sought by mere voters.   I find this unpersuasive, because I do not see under what language of the statute judicial relief should turn on the identity of the petitioner.   Since Stirling's claims fail on other grounds, I imply no final view upon it.

For all the forgoing reasons, I conclude that this is not a case in which it is appropriate or necessary to treat the appeal as a writ.

II

Substantial Compliance

Two admixed candidates underlie the substantial compliance claim.   The first is that in requesting that the open compound “Attorney General” be considered as one word, Stirling requested that it be hyphenated if that became necessary to achieve the three word maximum.  (See fn. 2, supra.)   The second is that the “at least 98 days” before the election requirement for requesting a change in a ballot designation may be satisfied by a request made less than 98 days before the election.   Both suggestions founder on the root fact that Stirling never made a timely request for a lawful ballot designation and it was his burden to do so.  (See fn. 4, supra.)

In Assembly v. Deukmejian (1982) 30 Cal.3d 638, 649, 180 Cal.Rptr. 297, 639 P.2d 939, the Supreme Court applied the classic formulation for the term “substantial compliance” to an Elections Code violation claim:  “ ‘[it] means actual compliance in respect to the substance essential to every reasonable objective of the statute.’  (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [22 Cal.Rptr. 657, 372 P.2d 649].)”  (Orig.emphasis.)

Stirling's only claim of substantial compliance is that his only submission, the unhyhenated “Attorney General”, can be treated as one word because the words are conceptually related.   This goes nowhere because “Attorney General” is an open compound composed of separate words.   It cannot be said that a request that two words count as one word “actually complies” with the substance of the law.

The majority necessarily agree with this conclusion in ruling that “Attorney General” is two words.   Rather, they propound a different theory, that Stirling in asking that “Attorney General” be counted as one word the court can change two words into one word by adding a hyphen.   This mistakes the nature of a claim of substantial compliance.   The measure of the substantial compliance claim is what is submitted, not what could have been submitted.   An analysis of the substantial compliance cases will demonstrate this fact.  (See e.g., Hayward Area Planning Assn. v. Superior Court (1990) 218 Cal.App.3d 53, 266 Cal.Rptr. 745;  California Teachers Assn. v. Collins (1934) 1 Cal.2d 202, 34 P.2d 134.)

This leads to the problem posed by section 13107, subdivision (e), which mandates the use of the primary ballot designation on the general election ballot in the absence of a timely submission of an alternate request by the candidate which meets the requirements of the law.

“Closely related to the question whether a statute is mandatory or directory is the doctrine that in some instances substantial compliance with a statute's requirements may be sufficient to bring it into operation.”  (3 Sutherland, Statutory Construction (5th ed.   1992) § 57.26, p. 66;  see, e.g., Daniels v. Tergeson (1989) 211 Cal.App.3d 1204, 1208-1210, 259 Cal.Rptr. 879.)   A substantial compliance claim must be evaluated in light of the principles and precedents of the law of mandatory and directory construction to determine if “less than full compliance with particular provisions [of the statute] is permitted․”  (See, Sutherland, supra, § 57.01, p. 3;  see generally, County of Yolo v. Garcia (1993) 20 Cal.App.4th 1771, 1778, 25 Cal.Rptr.2d 681, “the range of judicial discretion is determined by analogy to the rules contained in the general law and in the specific body or system of law in which the discretionary authority is granted.”)

In the first instance, the determination whether a statutory provision is directory or mandatory turns on the language of the statute.

“Statutory requirements are mandatory, rather than directory, and exact strict compliance when such an intent is expressed or implicit in the statute.  (Edwards v. Steele (1979) 25 Cal.3d 406, 409-410 [158 Cal.Rptr. 662, 599 P.2d 1365].)   There is no simple, mechanical test for determining whether a provision should be given ‘directory’ or ‘mandatory’ effect;  as in all cases of statutory interpretation, the court must ascertain the legislative intent.  (Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910 [136 Cal.Rptr. 251, 559 P.2d 606].)  ‘ “In the absence of express language, the intent must be gathered from the terms of the statute construed as a whole, from the nature and character of the act to be done, and from the consequences which would follow the doing or failure to do the particular act at the required time.  [Citation.]  When the object is to subserve some public purpose, the provision may be held directory or mandatory as will best accomplish that purpose [citation]․” ’  (Id. at p. 910 [136 Cal.Rptr. 251, 559 P.2d 606];  quoting from Pulcifer v. County of Alameda (1946) 29 Cal.2d 258, 262 [175 P.2d 1].)” (People v. Wilson (1987) 191 Cal.App.3d 161, 166, 236 Cal.Rptr. 280.)

Various precepts animate the law concerning mandatory or directory effect of a statute.  (See 3 Sutherland, Statutory Construction, supra, ch. 57.)   The court must first look to the language of the statute and then to its legislative history.  (Ibid.) If the language is express that a particular consequence attends the violation of a statute, that consequence is mandated and it cannot be claimed that any other consequence may be allowed.   Thus, “[w]hen a statute directs things to be done by a private person within a specified time, and makes his rights dependent on proper performance, unless the failure to perform in time may injure the public or individuals, the statute is mandatory.”  (3 Sutherland, Statutory Construction, supra, § 57.19, p. 49, fn. omitted.)

As related, section 13107, subdivision (e), provides:

“The designation shall remain the same for all purposes of both primary and general elections, unless the candidate, at least 98 days prior to the general election, requests in writing a different designation which the candidate is entitled to use at the time of the request.”

The language of the provision is mandatory in form and effect.  (See 3 Sutherland, Statutory Construction, supra, §§ 57.08-57.10, pp. 23-30.)   It plainly says that if the candidate does not timely request a different designation, i.e., a “designation which the candidate is entitled to use at the time of the request ”, the “designation shall remain the same for all purposes of both primary and general elections․”  Nothing in its history countermands this.   If the candidate fails to meet these statutory requirements the Secretary of State is mandated to use the same ballot designation on the general election ballot as appeared on the primary election ballot.

Where a statutory direction is addressed to a private person and that person's “own rights depend upon his own compliance with statutory directions, so that there is no one to blame but himself for the loss of those rights by a failure to comply ․ those provisions are generally mandatory, and compliance therewith a condition precedent to the perfection of such rights.  (3 Sutherland, Statutory Construction, supra, § 57.15, p. 42, emphasis added, fn. omitted;  also see, e.g., id., § 57.19, p. 49, time requirements for acts of private persons generally mandatory.)

The adverse effect of the determination on the interests of others who are innocent, if any, of the shortcoming are important.  (See, e.g., Cal. Teachers Assn. v. Collins, supra, 1 Cal.2d at p. 205, 34 P.2d 134, directory construction of law concerning requirements for initiative petitions impelled interests of those who had already signed them.)   In this case the adverse effect of the decision that the section is mandatory falls solely upon Stirling, who failed to meet the requirements of the statute.   The adverse effect of deciding that the statute is directory would fall upon his opponents who are deprived of the opportunity to evaluate and challenge any belated request for a different ballot designation.

The general field of the law in which the issue arises may also be significant, either because of broad imperatives in favor of liberal or strict construction in favor or against certain classes of actors, or because of the pattern of precedents which has been developed.  (See, 3 Sutherland, Statutory Construction, supra, §§ 57.12, 57.20, 57.21.)   Hence, we attend with special interest to the precedents concerning the laws pertaining to elections.

As noted, in Assembly v. Deukmejian, supra, 30 Cal.3d at page 649, 180 Cal.Rptr. 297, 639 P.2d 939, the Supreme Court applied the classic formulation for the term “substantial compliance” to an Elections Code violation claim “ ‘[it] means actual compliance in respect to the substance essential to every reasonable objective of the statute.’  (Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23, 29 [22 Cal.Rptr. 657, 372 P.2d 649].)”  (Orig.emphasis.)   The occasion concerned a provision which required the signer of an initiative petition to also give his or her residence address.   The petitions in issue directed the signers to give the address at which they had registered.   The court decided there was not a viable substantial compliance claim, in essence because:

“Far from being a mere technical shortcoming, real parties' failure to comply with the requirements of section 3516, subdivision (c), goes to the very heart of that section's purpose - to enable the clerk to ensure that petitions have been signed by those entitled to do so - and prevents that purpose from being effectuated.”  (Assembly v. Deukmejian, supra, 30 Cal.3d at p. 648, 180 Cal.Rptr. 297, 639 P.2d 939.)

However, later in the opinion, the court did uphold several other shortcomings in the petition under a substantial compliance theory (citing Cal. Teachers Assn., supra ).   The opinion explains that the key inquiry in case of noncompliance with a “technical” requirement is whether the nature of the error is such that it has interfered with the statutory purpose behind the requirement.  (Assembly v. Deukmejian, supra, 30 Cal.3d at pp. 652-653, 180 Cal.Rptr. 297, 639 P.2d 939.)

As the Democratic Party points out, Daniels v. Tergeson, supra, distinguishes Assembly v. Deukmejian and Cal. Teachers Assn. in the case of Government Code section 25041, which provides that a candidate for the office of county supervisor must have been a registered voter in the district at least 30 days preceding the deadline for filing nomination documents.   The Daniels opinion decided, based on the mandatory grammar of section 25041, the fact that it provides a qualification for office, and the fact that, unlike the aforementioned cases, it does not deal with a topic subject to a preference for liberal construction, that it was not susceptible to a substantial compliance claim, i.e., that the candidate registered 28 days before the nomination deadline.

The Democratic Party also cites case law holding that the number of prescribed signatures for nominating petitions is not susceptible to a claim of substantial compliance based upon almost enough signatures.  (D'Agostino v. Superior Court (1995) 33 Cal.App.4th 107, 115-118, 39 Cal.Rptr.2d 112.)   Finally, the Democratic Party cites several cases declining to find substantial compliance in cases of failure of compliance with requirements for municipal initiative and referendum measures on the ground that some statutory purpose was disserved.  (See Myers v. Patterson (1987) 196 Cal.App.3d 130, 138, 241 Cal.Rptr. 751;  Creighton v. Reviczky (1985) 171 Cal.App.3d 1225, 1231-1233, 217 Cal.Rptr. 834;  Billig v. Voges (1990) 223 Cal.App.3d 962, 969, 273 Cal.Rptr. 91;  Chase v. Brooks (1986) 187 Cal.App.3d 657, 664, 232 Cal.Rptr. 65.)   The party does not cite, however, Hayward Area Planning Assn. v. Superior Court, supra, 218 Cal.App.3d at page 55, 266 Cal.Rptr. 745, which upheld a substantial compliance claim for a referendum petition failing to carry the title set forth in Elections Code section 4052;  since the heading of the petition contained the same information as the title would have and did so briefly and clearly, the lack of the title did not invalidate the petition.

The manifest purposes of the requirements of section 13107, subdivision (e) are to afford the Secretary of State and the candidate's opponents an adequate opportunity to evaluate the proposed “different designation” for compliance with the other requirements of section 13107 and to insure that there is no disruption of the orderly logistical preparation of the ballots, i.e., drafting, printing, etc.

In view of these considerations I conclude, as does the majority opinion, that section 13107, subdivision (e) is mandatory.   The language of the subdivision is mandatory.   The central requirement is a time deadline pertaining to the elections process.   The candidate is a private party acting on his own behalf.   There are no innocent third parties whose rights are prejudiced.   The consistent rule of the case law is that such a deadline is not amenable to substantial compliance.  (E.g., Sinclair v. Jordan (1920) 183 Cal. 486, 191 P. 910;  Barnes v. Wong, supra, (5 hours);  Daniels v. Tergeson, supra, (2 days).)

Therefore, if no request for a different ballot designation is submitted within the time allotted under section 13107, subdivision (e), a candidate who subsequently discovers a new and helpful formula in compliance with the other criteria of section 13107 is, sympathetic or not, out of luck.   The hapless candidate cannot be heard to argue that the purposes to be served by the deadline can nonetheless be attained in the time that remains.

It would not matter that such a candidate could show that the belated ballot designation was entirely unexceptionable, that all of the opponents and the Secretary of State received actual notice of the new designation with sufficient time in fact to evaluate and challenge it, or that if the new ballot designation were accepted by the Secretary of State it could be integrated into the ballot with no disruption of the logistics of the electoral process.

Compliance with a mandatory time requirement of a statute cannot be predicated upon acts to cure the noncompliance after the deadline, nunc pro tunc.   A substantial compliance claim must stand or fall on the sufficiency of the acts before the deadline to satisfy the substance essential to the reasonable objectives of the time requirement of the statute.

This is not a case of a typographical or draftsman's error.   Stirling's counsel conceded the obvious at oral argument:  the earlier timely request was not intended to be a request for “Chief Deputy Attorney-General”;  there was no mistake in the earlier request.   If such a case warrants a finding of substantial compliance, it is because the mistake and the intention are manifested on the face of the timely submission, hence that submission is sufficient.   In this case, there was no manifest, evident, or actual mistake.   The defective timely request for “Chief Deputy Attorney General” itself cannot suffice because it does not comply with the criterion of three words.

The majority suggest that section 13107, subdivision (e) can be broken apart into a “deadline provision”, the 98 day requirement, and a “designation provision,” what must be requested.   They argue that the former is mandatory and the latter directory.   This convenient hermetic division is untenable.

A “deadline” provision always pertains to some obligation that must be done before the deadline.   But the portion of the statute specifying “what” cannot be viewed independently from the portion specifying “when.”   The statute must be read as a whole and the question is whether “what” was done before the deadline satisfies the substance essential to every reasonable objective of the statute, the whole statute, including the “what” component melded with the “when” component.

For example, if the deadline pertained to submission of a form and one requirement for the form was a “technical” requirement that the form be submitted on 8 by 11 inch paper, it might be held that a timely submission of the form on slightly larger paper was substantial compliance.   However, it would be immaterial whether the person subject to the obligation filed another form on the correct sized paper after the deadline.   You cannot cure a default in a mandatory requirement.   If the claim of substantial compliance were accepted it would be because the timely submission was in substantial compliance with the “when” “what” tandem requirements of the statute.

The reasonable objective of the aggregate the “when”/“what” tandem in section 13107, subdivision (e) is to insure the legislatively prescribed period is available to the Secretary of State and derivatively, the candidate's opponents to evaluate and challenge the different ballot designation that is requested.   Stirling's only timely submission, the request for “Chief Deputy Attorney General”, is not substantial compliance because that term is not a lawful ballot designation and it was not intended to and does not in fact disclose an intention to request “Chief Deputy Attorney-General.”   The consideration that Stirling later requests a different ballot designation “ Chief Deputy Attorney-General” cannot cure the lack of substantial compliance before the deadline.

In other words, the question is whether Stirling is in a materially different position concerning substantial compliance than he would be if he simply failed to request any different designation.   If a candidate made a timely request for a different ballot designation before the deadline, the request was denied, and the candidate then asked for an unrelated new ballot designation, he or she would be no better off than the candidate who simply failed to request any different ballot designation within the time allowed.

The purposes to be served by requiring a timely submission would be disserved to the same extent as if no different ballot designation was requested at all within the deadline.  (See generally, Andal v. Miller (1994) 28 Cal.App.4th 358, 367-368, 34 Cal.Rptr.2d 88.)   The Secretary of State and the candidate's opponents would be deprived of the prescribed statutory period to evaluate and challenge it to the same extent as if no timely submission of any different ballot designation were made at all.   Once again, the candidate would not be permitted to argue or attempt to prove that the time actually remaining would in fact suffice to allow a fair opportunity to evaluate and challenge it and to avert disruption of the logistics of the ballot preparation process.

Thus, the only claim that Stirling can tender for different treatment here is that the similarity between the different ballot designation proposal he did request and the new ballot designation “Chief Deputy Attorney-General” makes the situation materially different than the foregoing cases.

To be materially different, means to differ in a way that is significant with respect to the purposes and objects of the statute.   There is no such material difference.

Despite the similarity in appearance of “Chief Deputy Attorney General” and “Chief Deputy Attorney-General” they are essentially different with respect to an evaluation and challenge under section 13107.  “Chief Deputy Attorney General” does not comply with the requirements of section 13107, subdivision (a)(3), a legally correct conclusion embodied in the existing judgment of the trial court.  “Chief Deputy Attorney-General,” on the other hand, may comply.

Whether “Chief Deputy Attorney-General” does comply with section 13107, subdivision (a)(3), depends upon the resolution of the significant legal questions developed in the briefs of the parties and amicus curiae.   Although they have not come to light in the course of the frenetic process of resolving this matter under the deadline imposed by the majority's misguided impulse to grant relief, there may be other legal arguments concerning the issue of compliance.   It would be a curiosity, suggesting the hyphenated form is inappropriate, if a candidate for Attorney General, who works for the Attorney General could identify himself as Chief Deputy Attorney-General.  (See fn. 3, supra.)

In any event, the novel ballot designation “Chief Deputy Attorney-General” raises entirely new and significantly different prospects for evaluation and challenge than were presented by the different ballot designation requested before the deadline of section 13107, subdivision (e).   Since the Secretary of State was never asked to consider this as an alternate designation, it cannot count as a “request[ ] in writing [for] a different designation which the candidate is entitled to use at the time of the request.”  (§ 13107, subd. (e);  emphasis added.)

This means there is no material difference between this case and one where a candidate has made a timely request for an unrelated ballot designation.   Both claims of substantial compliance fail because the Secretary of State and the candidate's opponents are deprived of the period prescribed by the Legislature for the evaluation of and challenge of proposed ballot designations.

It is not the prerogative of the court to reconsider the statutory rule that the appropriate period for this process commences “at least 98 days prior to the general election” and entertain argument or proof that some lesser period in fact is sufficient.   To do so would be fraught with peril.   Judicial indulgences on a case-by-case basis present the appearance of judicial favoritism for or against the candidates to whom relief was granted or denied.

As related, despite the sincerity of my colleagues, the appearance of judicial favoritism could taint the elections process and fuel corrosive cynicism concerning the independence of the courts.   For all the foregoing reasons, the claim of substantial compliance in this case has no merit.

I would not treat this appeal as a petition for an original writ;  I would affirm the judgment.

FOOTNOTES

1.   Hereafter, Elections Code section 13107 will be referred to as section 13107.  Section 13107, subdivision (a)(3), in pertinent part, is as follows:“[I]mmediately under the name of each candidate, and not separated from the name by any line, may appear at the option of the candidate only one of the following designations:“․“(3) No more than three words designating either the current principal professions, vocations, or occupations of the candidate, or the principal professions, vocations, or occupations of the candidate during the calendar year immediately preceding the filing of nomination documents.”

2.   Stirling's opening brief on appeal was filed June 23, 1998.   Capizzi informed the court by letter of June 29, 1998, that he would not be filing a brief.   The Secretary of State filed a reply brief on July 23, 1998.   On July 24, 1998, Stirling filed a motion for calendar preference or expedited hearing, on the ground that only if the matter were resolved in his favor before August 27, 1998, would he be able to use the ballot designation “Chief Deputy Attorney General” for the November 3, 1998 general election.   In view of the imminent deadline for efficacious relief, this court granted the motion and placed the matter on its calendar for August 17, 1998.  (See Warren v. Schecter (1997) 57 Cal.App.4th 1189, 1199, 67 Cal.Rptr.2d 573.)

3.   The subject of issue preclusion is largely governed by common law.   The doctrine of exceptions to the general rule of issue preclusion has a degree of flexibility to permit the accommodation of novelty.  (See, e.g., Rest.2d Judgments, § 29, subd. (8), “Other compelling circumstances make it appropriate that the party be permitted to relitigate the issue.”)   We note that applying issue preclusion here could be to bind the Secretary of State to refuse to enforce Elections Code section 13107 based on a trial court determination that the application in issue would be unconstitutional.   This would be contrary to the policy manifested in California Constitution, article III, section 3.5.  (Also see, e.g., Rest.2d Judgments, § 29, com. i;  Arcadia Unified School Dist. v. State Dept. of Education (1992) 2 Cal.4th 251, 257-258, 5 Cal.Rptr.2d 545, 825 P.2d 438.)

4.   In pertinent part, Elections Code section 13107, subdivision (a)(1) is as follows.“(a) ․ [I]mmediately under the name of each candidate, and not separated from the name by any line, may appear at the option of the candidate only one of the following designations:“(1) Words designating the elective city, county, district, state, or federal office which the candidate holds at the time of filing the nomination documents to which he or she was elected by vote of the people, or to which he or she was appointed, in the case of a superior, municipal, or justice court judge.”

5.   The requirement here is to conform to the somewhat arbitrary three-word limitation.   The context calls to mind the observation of Justice Learned Hand, in Helvering v. Gregory (2d Cir.1934) 69 F.2d 809, 810:  “We agree with the Board and the taxpayer that a transaction, otherwise within an exception of the tax law, does not lose its immunity, because it is actuated by a desire to avoid, or, if one choose, to evade, taxation.   Any one may so arrange his affairs that his taxes shall be as low as possible;  he is not bound to choose that pattern which will best pay the Treasury;  there is not even a patriotic duty to increase one's taxes.”   In this situation, if the candidate succeeds in complying with that limitation he or she is not obliged in so doing to mute any favorable implication attributable to the accurate description of a profession, vocation, or occupation.

FOOTNOTE.  FN“10 2 [California Code of Regulations] § 20714(f) governs application of the three-word limitation.   Subsection (f)(2) calls for use of a ‘standard reference dictionary’ for clarification of proper use of a hyphen to determine proper spelling as one word or two.   A hyphenated word is a single word.” 6

FN6. Title 2, California Code of Regulations, section 20714, subdivision (f)(2) (hereafter section 20714(f)(2)) is as follows:“(f) Pursuant to Elections Code § 13107, subdivision (a)(3), the candidate's ballot designation shall be limited to not more than three (3) words.   The following rules shall govern the application of the three word limitation:“․(2) Punctuation shall be limited to the use of a comma (e.g., District Attorney, Los Angeles County) and a slash (e.g., Legislator/Rancher/Physician), pursuant to subdivision (e) of this section.   A hyphen may be used if, and only if, the use of a hyphen is called for in the spelling of a word as it appears in a standard reference dictionary of the English language.”.  FN6. Title 2, California Code of Regulations, section 20714, subdivision (f)(2) (hereafter section 20714(f)(2)) is as follows:“(f) Pursuant to Elections Code § 13107, subdivision (a)(3), the candidate's ballot designation shall be limited to not more than three (3) words.   The following rules shall govern the application of the three word limitation:“․(2) Punctuation shall be limited to the use of a comma (e.g., District Attorney, Los Angeles County) and a slash (e.g., Legislator/Rancher/Physician), pursuant to subdivision (e) of this section.   A hyphen may be used if, and only if, the use of a hyphen is called for in the spelling of a word as it appears in a standard reference dictionary of the English language.”

7.   The OED2d entry for “attorney-general” is as follows.“attorney-general.“†1. gen.   A legal representative or deputy acting under a general commission or ‘power’ of attorney, and representing his principal in all legal matters;  opposed to attorney special or particular.   Plural:  attorneys general.   Obs.[Examples of usage omitted.]“2. spec. Attorney-General, Attorney General:  a legal officer of the state empowered to act in all cases in which the state is a party.   In England, Ireland, Isle of Man, most of the British Colonies and settlements, and in the United States, the title of the first ministerial law-officer of the government, also of his or her Majesty's attorney in the duchies of Lancaster and Cornwall, and county palatine of Durham.   Plural (better):  Attorney-Generals.“The designation began in England, where this officer was at first merely the king's attorney (see above 6), called from the reign of Edward IV, ‘the king's general attorney,’ to distinguish him from those appointed to act on special occasions, or in particular courts.   The descriptive designation seems to have grown into a title during the 16th c. The A.G. is now a member of the Ministry (but not of the Cabinet), and usually has a seat in the House of Commons.“1533-4 Act 25 Hen. VIII, xvi.   § 2 The Kinges generall attorney, and general Solicitour, which for the time is. 1585 in Somers Tracts ( 1809) I. 214 Then began John Popham Esq. her Majestys Attorney-general, as followeth.   1614 SELDEN Titles Hon. 31 S t John Dauis Knight, his Maiesties Attorney Generall for Ireland.   1708 Lond. Gaz. No. 4482/3. a 1733 NORTH Life Bar. Guildf.   (1742) 18 His admission into the Conversation of Mr. Attorney-General Palmer.. proved of great use to him.. For Mr. Attorney.. was a very great Book Lawyer.   1812 Examiner 25 May 334/1 Attorneys-General, Judges, and Hangmen.   1812 L. HUNT ibid.   24 Aug. 529/1 Attorney-Generals should be restricted.”

8.   Section 13107, subdivision (e) is as follows:“(e) The designation shall remain the same for all purposes of both primary and general elections, unless the candidate, at least 98 days prior to the general election, requests in writing a different designation which the candidate is entitled to use at the time of the request.”

9.   For purposes of background and because we will use its definitions we set forth at some length excerpts from the exposition on the topic of compound words in The Chicago Manual of Style (14th ed.1993) pages 202-204, as follows:“Compound Words“6.32 Probably nine out of ten spelling questions that arise in writing or editing concern compound words.   Should it be selfseeking or self-seeking?   Is the word spelled taxpayer, tax-payer, or tax payer-closed, hyphenated, or open?   Most such questions are readily answered by the dictionary.   If the compound is used as a noun, the chances are good that it will appear in an unabridged dictionary, in one of the three possible spellings.   If it is used as an adjective, the chances of finding it are still fair.   But there will be some noun forms and a great many adjective forms for which no “authoritative” spelling can be found.   It is then that general principles must be applied.   Before these are outlined, however, some definitions are in order.“DEFINITIONS“6.33 An open compound is a combination of separate words that are so closely related as to constitute a single concept.   Examples:  settlement house, lowest common denominator, stool pigeon.“6.34 A hyphenated compound is a combination of words joined by one or more hyphens.   Examples:  kilowatt-hour, mass-produced, ill-favored, love-in-a-mist.“6.35 A closed ( or solid) compound is a combination of two or more elements, originally separate words, now spelled as one word.   Examples:  henhouse, typesetting, makeup, notebook.“6.36 Not strictly compounds but often discussed with them are words bearing prefixes or suffixes.   Some of these words are closed and some are hyphenated.   They will also be included in this discussion.“6.37 In addition to such classification by form, compounds are also classified by function as permanent or temporary.   A permanent compound is one that has been accepted into the general vocabulary of English and can (or should) be found in dictionaries.   A temporary compound is a joining of words, or words and particles, for some specific purpose.   A writer may employ the term quasi-realistic, for example, assigning it some specific meaning appropriate to the work in hand.   The term quasirealistic is not to be found in Webster, and probably not in other dictionaries either, and so would be considered a temporary compound.   If it were to be picked up and used by other writers, it might acquire the currency and status of a permanent compound.“GENERAL PRINCIPLES“6.38 For some years now, the trend in spelling compound words has been away from the use of hyphens.   There seems to be a tendency to spell compounds solid as soon as acceptance warrants their being considered permanent compounds, and otherwise to spell them open.   This is a trend, not a rule, but it is sometimes helpful, when deciding how to spell some new combination, to remember that the trend exists.“․“6.42 There are scores of other rules for spelling compound words, but many of these are almost useless because of the multitude of exceptions.   Some of the more dependable rules are presented in table 6.1 at the end of this chapter.   When a dependable rule is lacking, a comprehensive dictionary may offer help.   Should all else fail, the writer or editor is advised to employ the tests, admittedly somewhat subjective, of ambiguity and readability.”  (Italics in original.)

10.   Webster's Third New International Dictionary, Unabridged (1971) at page 30a contains the following caveat:“To show in a dictionary all of the stylings that are found for English compounds would necessitate excluding other information much more likely to be sought by the dictionary user.   This dictionary therefore limits itself almost without exception to a single styling for a compound.   When a compound occurs frequently and one styling predominates, this styling is used.   When a compound is rare or when the examples indicate that two or three stylings are approximately equal in frequency, the choice is based on the analogy of parallel compounds or is made arbitrarily.”This arbitrariness is also nicely illustrated in the following excerpts from Fowler, A Dictionary of Modern English Usage (2d ed.1965) at pages 255-256:“hyphens. No attempt will be made here to describe modern English usage in the matter of hyphens;  its infinite variety defies description.   No two dictionaries and no two sets of style rules would be found to give consistently the same advice.   There is, however, one principle that seems to command at least lip service from all authorities.   This is that the hyphen is not an ornament but an aid to being understood, and should be employed only when it is needed for that purpose․“․“Compounds in which the attribute follows the noun (e.g. court martial, heir apparent) can ordinarily do without hyphens, though a precisian will hyphen or consolidate them when they are used as verbs or in the possessive case (he will be courtmartialled:  the heir-apparent's death).   Nor, on the principle suggested in this article, is there any need for the hyphens often used in compound designations of rank or office such as Attorney General, Lord Lieutenant, Vice Admiral, Under Secretary, and scores of others.   Here both practice and precept are chaotic.   Even if we pin our faith to a single current work of reference, it is not easy to discover a uniform principle underlying such decisions as that we must hyphen Field-Officer but not Field Marshal, Quartermaster-General but not Attorney General, Commander-in-Chief but not Secretary of State, Lieutenant-Governor but not Lieutenant Colonel, Lord-Lieutenant but not Lord Mayor.   And if we try to get more light by turning to another no less authoritative work of reference it is discouraging to be told that, on the contrary, we must hyphen Field-Marshal but not Field Officer, and that, in general, the advice there given has little in common with that of the first except its apparent arbitrariness.”  (Italics in original.)

11.   In this sense “called for” can be accounted for as distinguishing between hyphenated spellings which are warranted for use by the dictionary entry, and others, which are not.   For example, an entry which lists a word as archaic or obsolete could be viewed as not calling for the use of the word, e.g., in present writing not warranting the archaic or obsolete spelling of the word.   However, there is nothing in the OED entry which indicates any such restriction on usage of “attorney-general.”   Accordingly, the entry “calls for” the hyphenated spelling.

12.   The Democratic Party originally suggested that “attorney-general” never made it across the Atlantic, or at least that it never has been hyphenated in usage as to the California Attorney General.   However, Stirling pointed out in subsequent letter brief, at least one presently operative statute, albeit one amended most recently in 1907, Code of Civil Procedure section 803, employs the term “attorney-general.”   The Democratic Party graciously concedes the point, and commendably notes that the usage is no anomaly, pointing out the term “attorney-general” was consistently used in the official California reports through 1941.  (See, e.g., People v. Thurman (1941) 17 Cal.2d 873, 110 P.2d 395; 18 Cal.2d iii;  14 Cal.2d iii, even lists a “Chief Deputy Attorney-General.”)   Other exemplars of usage in the United States are given in I A Dictionary of American English (1938) 95.

13.   The Secretary of State informs us that the most recent hyphenated compound styling of “attorney-general” in a dictionary published in the United States is Funk & Wagnalls New Standard Dictionary of the English Language, Encyclopedic Edition (1959) copyright 1962.

1.   All references to a section are to the Elections Code, unless otherwise specified.

2.   In his letter brief in response to a question from this court Stirling states:  “Appellant's Failure to Request the Specific Hyphenated Term ‘Attorney-General’ Before July 28, 1998 Is Immaterial, As His Extant Request Constitutes ‘Substantial Compliance with Elections Code Section 13107(e)․”  (Emphasis added.)

3.   This usage is at odds with the fact the office Stirling seeks is designated in the unhyphenated form “Attorney General”, in accord with the usage of the State Constitution (see e.g., art.   V, § 13.), and the position he holds in that office is designated as Chief Deputy Attorney General, also unhyphenated.   That, I suppose, is why Stirling never sought an unhyhenated ballot designation.   However, for the reasons advanced I need not resolve the question of the legal propriety of a hyphenated designation.

4.   The regulations of the Secretary of State afford candidates the opportunity to submit alternative ballot designations.  “At the option of the candidate, the candidate may submit one or more proposed alternate ballot designations ranked in order of the candidate's preference.”   (Cal.Code Regs., tit. 2, § 20711, subd. (c)(5).)   The candidate must submit:  “A brief statement identifying the factual basis upon which the candidate claims the proposed ballot designation and each proposed alternate ballot designation․”  (Cal.Code Regs., tit. 2, § 20711, subd. (c)(6).)   In addition, “[t]he candidate may attach or append any supporting documents or other exhibits to his or her Ballot Designation Worksheet which he or she believes support his or her proposed ballot designation.”  (Cal.Code Regs., tit. 2, § 20711, subd. (d).)The regulations also provide that the Secretary of State may request additional supporting documentation or evidence to justify proposed ballot designations, that “[t]ime is of the essence regarding all matters pertaining to the review of proposed ballot designations submitted,” and that “[t]he candidate shall have the burden of establishing that the proposed ballot designation that he or she has submitted is accurate and complies with all provisions of Elections Code § 13107 of this Chapter.”  (Cal.Code Regs., tit. 2, § 20717.)

DAVIS, Associate Justice.

CALLAHAN, J., concurs.