Cummings v. Stanley

Subject Matter Jurisdiction.

Defendants also present the related argument that the trial court had “no subject matter jurisdiction” over the election contest brought by plaintiff. Defendants offer several reasons for the court’s lack of subject matter jurisdiction in the case, all based on the premise that section 16100 does not authorize any challenge to an election to the Committee. First, they claim that section 16100 does not apply to an “ ‘election’ to a county central committee,” but rather only to elections in which all “ ‘electors’ may participate, that is, only to nonpartisan elections.” Defendants further argue that the Committee is neither a “public office” nor a “political subdivision of Alameda County or any city therein,” as required by section 16100.

As with the standing argument, defendants’ failure to raise the issue in the trial court is no obstacle to our consideration of it here. “Jurisdictional issues are never waived and may be raised at any time.” (Briggs v. Resolution Remedies (2008) 168 Cal.App.4th 1395 , 1400 [ 86 Cal.Rptr.3d 396 ].) “ ‘Lack of jurisdiction in its most fundamental or strict sense means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties. [Citation.]’ [Citation.] ‘The adequacy of the court’s subject matter jurisdiction must be addressed whenever that issue comes to the court’s attention.’ [Citation.]” (Totten v. Hill (2007) 154 Cal.App.4th 40 , 46 [ 64 Cal.Rptr.3d 357 ].)

“ ‘Lack of jurisdiction’ is a term used to describe situations in which a court is without authority to act.” (Wozniak v. Lucutz (2002) 102 Cal.App.4th 1031 , 1040 [ 126 Cal.Rptr.2d 310 ]; see also Bank of America v. Jennett (1999) 77 Cal.App.4th 104 , 118-119 [ 91 Cal.Rptr.2d 359 ].) “Subject matter jurisdiction is conferred by constitutional or statutory law. [Citations.] The California Supreme Court has defined subject matter jurisdiction thusly: ‘Subject matter jurisdiction ... is the power of the court over a cause of action or to act in a particular way.’ [Citations.] By contrast, the lack of subject matter jurisdiction means the entire absence of power to hear or determine a case; i.e., an absence of authority over the subject matter.” (Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32 , 42 [ 12 Cal.Rptr.3d 711 ].) “Thus, acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are described as acts in ‘excess of jurisdiction.’ [Citations.]” (Wozniak v. Lucutz, supra, at p. 1040.)

We find nothing in section 16100 that imposes the limitations and prohibitions on the authority of the courts to hear election contests that defendants have suggested. First, while we may agree with defendants that

The Timeliness of Plaintiff’s Election Contest.

We proceed to the substance of the present appeal, necessitating an assessment of the statutory distinction between general and primary elections and the respective time limits governing the filing of contests to them. Section 16100 furnishes the grounds for contesting “any election,” while section 16101 delineates the grounds for contesting a “primary election.” Both statutes specify that lack of eligibility for the office constitutes a ground for an election contest. The time constraints for filing a contest to “any election” are found in division 16, chapter 5, article 1, of the code, which states in section 16400 that an elector must “file with the clerk of the superior court having jurisdiction a written statement” setting forth the name of the defendant, the office and the grounds for the contest. Section 16401, subdivision (d), provides that the statement of contest must be filed within 30 days “after the declaration of the result of the election by the body canvassing the returns thereof.” Article 2 of chapter 5 of division 16 of the code governs a “primary election,” and provides in section 16421 that the affidavit of contest must be filed “within five days after the completion of the official canvass by the board of supervisors of the county last making the declaration.” Hence, a contest to a primary election must comply with the five-day time limit of section 16421; contests to any other elections are governed by section 16401, which imposes a 30-day time limit.

To find that the election of defendants as members of the Committee was a primary election the trial court relied almost exclusively upon section 316, which states: “ ‘Direct primary’ is the primary election held on the first Tuesday after the first Monday in lune in each even-numbered year, to nominate candidates to be voted for at the ensuing general election or to elect members of a party central committee.” (Italics added.) The language of section 316 thus specifically provides that a “direct primary” is comprised of the election of party central committee members, along with the primary election to nominate candidates for the general election, and is held on a particular date. The more difficult task before us is to determine if an election to a party central committee is also a “primary election” for purposes of the election contest provisions of sections 16401, subdivision (d), and 16421.

“When we interpret the meaning of statutes, our fundamental task is to ascertain the aim and goal of the lawmakers so as to effectuate the purpose of the statute.” (McAllister v. California Coastal Com. (2008) 169 Cal.App.4th 912 , 928 [ 87 Cal.Rptr.3d 365 ].) “We take a three-step sequential approach to interpreting statutory language. [Citation.] First, we will examine the language at issue, giving ‘the words of the statute their ordinary, everyday

meaning.’ [Citations.] If we conclude that the statutory meaning is free of doubt, uncertainty, or ambiguity, the language of the statute controls, and our task is completed. [Citations.] Second, if we determine that the language is unclear, we will attempt to determine the Legislature’s intent as an aid to statutory construction. [Citation.] In attempting to ascertain that intent, ‘we must examine the legislative history and statutory context of the act under scrutiny. [Citations.]’ [Citation.] Third, if the clear meaning of the statutory language is not evident after attempting to ascertain its ordinary meaning or its meaning as derived from legislative intent, we will ‘apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable [citations], . . . practical [citations], in accord with common sense and justice, and to avoid an absurd result [citations].’ [Citation.]” (Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386 , 1411 [ 60 Cal.Rptr.3d 719 ].) “The interpretation of statutes presents a question of law for our independent review. [Citation.] ‘As the matter is a question of law, we are not bound by evidence on the question presented below or by the lower court’s interpretation. [Citations.]’ [Citation.]” (Katz v. Los Gatos-Saratoga Joint Union High School Dist. (2004) 117 Cal.App.4th 47 , 53 [ 11 Cal.Rptr.3d 546 ]; see also Amdahl Corp. v. County of Santa Clara (2004) 116 Cal.App.4th 604 , 611 [ 10 Cal.Rptr.3d 486 ].)

When examined superficially and in isolation, the language of section 316 classifies the election of members of a party central committee as part of a direct primary election. When we engage in a more thorough analysis of the statutes that govern the filing of election contests, however, the meaning of the statutory language becomes far from obvious. To the contrary, to discern the meaning of the law we must proceed through the thicket of a statutory scheme that is hardly a model of clarity or cohesiveness.

To begin with, although section 316 defines the election of members of a party central committee “held on the first Tuesday after the first Monday in June in each even-numbered year” as a direct primary, an election held on the same date is also defined elsewhere as a general election. According to section 324, subdivision (a)(2), a “General election” means, any “statewide election held on a regular election date as specified in Section 1000.” In turn, section 1000 explicitly includes an election held, “The first Tuesday after the first Monday in June in each year.” (§ 1000, subd. (c).) “ ‘A regular or general election is one which recurs at stated intervals as fixed by law; it is one which occurs at stated intervals without any superinducing cause other than the efflux of time. ... In application of the foregoing rules, it is held that the term “general election” embraces a primary election occurring at regular

intervals . . . [.]’ [Citation.]” (County of Alameda v. Sweeney (1957) 151 Cal.App.2d 505 , 511-512 [ 312 P.2d 419 ].)

Further, section 341 provides: “ ‘Primary election’ includes all primary nominating elections provided for by this code.” (Italics added.) As plaintiff has consistently pointed out, the election of party central members is just that, a final election, not a nominating process. The clash of these provisions creates an ambiguity unresolved by the first step of statutory construction, and compels us to ascertain the meaning of the statutes by undertaking a commonsense examination of legislative intent through scrutiny of the statute’s purpose, history, and public policy considerations. (Coalition of Concerned Communities, Inc. v. City of Los Angeles (2004) 34 Cal.4th 733 , 737 [ 21 Cal.Rptr.3d 676 , 101 P.3d 563 ]; Sisemore v. Master Financial, Inc., supra, 151 Cal.App.4th at p. 1412; Ailanto Properties, Inc. v. City of Half Moon Bay (2006) 142 Cal.App.4th 572 , 583 [ 48 Cal.Rptr.3d 340 ].)

We commence by observing that a “direct primary” as described in section 316 is not also necessarily a “primary election” as defined in section 341. The term “direct primary” encompasses both the June primary election to nominate candidates and the election on the same date to “elect members of a party central committee.” (§ 316, italics added.) Section 341 defines a “primary election” in a more limited sense to include only “nominating elections.” (Italics added.) Thus, a direct primary is not exclusively a primary election; the definitions are distinct. A direct primary serves to both nominate candidates for general elections and to elect party central committee members, whereas a primary election is one that results in nominations rather than final elections to office. Had the Legislature intended to incorporate the election of party central committee members into the definition of primary elections, the same language added to section 316 could also have been specifically included in section 324. That it was not, and that primary election is distinctly defined to include nominating elections, is indicative to us of legislative intent. “ ‘ “[W]hen the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.” ’ [Citations.]” (Wasatch Property Management v. Degrate (2005) 35 Cal.4th 1111 , 1118 [ 29 Cal.Rptr.3d 262 , 112 P.3d 647 ].) The disparate language of the two statutes leads us to conclude that a primary election may be a component of a direct primary as described in section 316, but a direct primary is not equated with a primary election as defined in section 341. We are not inclined to imply into the definition of “primary election” in section 341 the election of party central committee members, when the Legislature has not seen fit expressly to do so. (See

People v. Bland (2002) 28 Cal.4th 313 , 337 [ 121 Cal.Rptr.2d 546 , 48 P.3d 1107 ]; State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402 , 417 [ 57 Cal.Rptr.3d 156 ]; Dunn-Edwards Corp. v. Bay Area Air Quality Management Dist. (1992) 9 Cal.App.4th 644 , 658 [ 11 Cal.Rptr.2d 850 ].)

We are also convinced that the election of party central committee members does not have the essential characteristics of a primary election as defined in section 341. The consideration of foremost consequence to us is that the election of Committee members constitutes the elector’s final choice among candidates in a single ballot proceeding. The successful candidates are not selected for further consideration, they are elected. (See County of Alameda v. Sweeney, supra, 151 Cal.App.2d at pp. 510-511; Bigelow v. Board of Supervisors (1912) 18 Cal.App. 715 , 719 [ 124 P. 554 ].) “Members of county central committees” of the qualified political parties “are to be elected at every direct primary election.” (Moore v. Panish, supra, 32 Cal.3d at p. 542, italics omitted.) The code does not provide for nomination of committee candidates. (Ibid.) In contrast, the “effect of [a] primary election” is “not to ‘elect’ any person to the office . . . but merely to nominate persons who should be candidates at the ensuing election” at which the office holder “would actually be chosen and elected.” (MacDonald v. Neuner (1935) 5 Cal.App.2d 751 , 752 [ 43 P.2d 813 ].) The purpose of a primary election under California law “is to provide [the] machinery for the selection of candidates to be voted for in the ensuing general election. To that extent, and in so far as it appears from that law itself and no other, an election held pursuant to its provisions is a primary and not a general election. The election of a candidate to office is not contemplated by that act.” (McClintock v. Abel (1937) 21 Cal.App.2d 11 , 13 [ 68 P.2d 273 ] (McClintock).) A primary election is transmuted in legal effect into a general election for a nonpartisan office where a candidate receives a majority of the votes cast, and is then declared elected to office. (§ 8140, formerly Cal. Const., art. II, § 2 3/4; Fields v. Eu (1976) 18 Cal.3d 322 , 325, fn. 1 [ 134 Cal.Rptr. 367 , 556 P.2d 729 ]; Pollack v. Hamm (1970) 3 Cal.3d 264 , 268, fn. 3 [ 90 Cal.Rptr. 181 , 475 P.2d 213 ]; County of Alameda v. Sweeney, supra, at pp. 510-511; Donnellan v. Hite (1956) 139 Cal.App.2d 43 , 46 [ 293 P.2d 158 ], disapproved on another ground in Knoll v. Davidson (1974) 12 Cal.3d 335 , 343 [ 116 Cal.Rptr. 97 , 525 P.2d 1273 ].) The election of party central committee members need not be transmuted to a general election; it is in nature and effect a final general election from the outset.

Thus, in Doran v. Biscailuz (1954) 128 Cal.App.2d 55 , 56 [ 274 P.2d 691 ] (Doran), the plaintiff and defendant were both candidates whose names appeared on the ballot at the June direct primary election for the office of

sheriff. The defendant received a majority of all the votes cast at the election, and was declared elected by reason of the provisions of former article II, section 2 3/4 of the California Constitution. The plaintiff, who received the second greatest number of votes cast, instituted contest proceedings by filing an affidavit with the superior court, on the ground that the defendant was not qualified to be a candidate for the office of sheriff. On appeal from a judgment entered in his favor, the defendant presented the argument that the plaintiff should have brought his action under the provisions of the code that describe “the procedure to be followed in contesting a nomination not an election to office.” (Doran, supra, at pp. 59-60.) Citing the decision in McClintock, supra, 21 Cal.App.2d at page 16, the court in Doran agreed that “the procedure for contest of a nomination prescribed by the then applicable statute, the Direct Primary Law, did not control the situation where a candidate was elected to office at the primary election.” (Doran, supra, at p. 60.) In such a case, the plaintiff’s remedy was to proceed under the code sections “describing the procedure for contest of general elections. The Legislature could not have intended that a contestant to an election where a candidate was elected to office at the primary election be without remedy. On the contrary, the Legislature has demonstrated its intent to provide a comprehensive system for the contest of elections. In McClintock[, at page] 16 ... , the court stated that: ‘The effect of section 2 3/4 of article II of the Constitution has been to transmute a primary election held for the purpose of nominating candidates, into a general election of those nonpartisan officers receiving in the primary a majority of all votes cast for their respective offices.’ ” (Ibid.) The allegations of the plaintiff’s contest petition relating to the primary election were found to be “surplusage” that “should have been stricken.” (Id. at p. 61.)

The principle that an election contest must be pursued in accordance with the general procedures enumerated in sections 16400 and 16401 where the result contested was an election rather than nomination for office was illustrated in a context more persuasive to this appeal in the McClintock case. The plaintiff and defendant in McClintock were the “only candidates for the office of supervisor whose names appeared on the ballot” in an August direct primary in Kern County. (McClintock, supra, 21 Cal.App.2d at p. 12.) After the defendant was found to have received the majority of votes cast for the office and “a certificate of election was issued to him,” the plaintiff filed a contest to the election. (Ibid.) The defendant sought to dismiss the contest on the ground that it was “filed after the time allowed by law.” (Ibid.)

The court in McClintock categorically declared that the summary legislative machinery provided for the judicial determination of contests of “nominations . . . does not concern itself with elections.” (McClintock, supra,

Both the history and objectives of the election contest laws are furthered by finding that only a contest to a nomination for office—that is, a primary election under section 316—must be filed within the five-day time limit. To exclude the election of central committee members from the reach of the primary election contest requirements also properly harmonizes the specific definition of primary election in section 316 with the purpose and distinct requirements of the competing election contest statutes (§§ 16100, 16101, 16400, 16401 & 16421). (See Bighorn-Desert View Water Agency v. Verjil (2006) 39 Cal.4th 205 , 218 [ 46 Cal.Rptr.3d 73 , 138 P.3d 220 ] [provisions that are related “ ‘should be read together and construed in a manner that gives effect to each, yet does not lead to disharmony with the others’ ”]; Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 , 1387 [ 241 Cal.Rptr. 67 , 743 P.2d 1323 ] [“[Statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.”].) And finally, in our interpretation of the statutes we are guided by the directive to accomplish common sense to make the statutes workable and reasonable. (Wasatch Property Management v. Degrate, supra, 35 Cal.4th 1111 , 1122; Regents of University of California v. Superior Court (1970) 3 Cal.3d 529 , 536-537 [ 91 Cal.Rptr. 57 , 476 P.2d 457 ]; O.W.L. Foundation v. City of Rohnert Park (2008) 168 Cal.App.4th 568 , 589 [ 86 Cal.Rptr.3d 1 ].) Common sense is achieved in the present case by imposing the election contest requirements of sections 16400 and 16401 upon the action filed by plaintiff to challenge the eligibility of defendants for final election to the Committee. We therefore conclude that while the election of defendants as Committee members may have occurred as part of a “direct primary” pursuant to section 316, and whatever that entails—primarily, the timing of the election—it was not a “primary election” as separately defined in section 341 for the purpose of imposing the primary election contest provisions of sections 16101 and 16421.

In summary, a “primary election” is defined in section 341 to include only nominations for office, not final elections. Defendants were elected as Committee members during the course of a “direct primary” conducted pursuant to section 316, but the final election of defendants cannot be defined as a “primary election” under section 341. The election of defendants as Committee members must be classified as other than a primary election, and therefore plaintiff was not required to file his contest within the five-day time limit of section 16421 applicable only to primary elections. Plaintiff’s election contest is governed by the requirements delineated in sections 16400 and 16401 for the filing of a contest to “any election,” and his contest was timely filed within the 30-day time limit of section 16401, subdivision (d).

Disposition

Accordingly, the judgment is reversed and the case is remanded to the trial court to conduct further proceedings consistent with the views expressed herein. Costs on appeal are awarded to plaintiff.

Marchiano, P. J., and Margulies, J., concurred.