SupplementalCal. Super. - 6th Dist.May 5, 202110 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381463 Santa Clara - Civil S.\ JAMES R. WILLIAMS, County Counsel (SB. #271253) Electronically Filed DOUGLAS M. PRESS, Assistant County Counsel (S.B. #168741» Superior Court Of CA, MARCELO QUINONES, Lead Deputy County Counsel (S.B. m691W of Santa Clara, GABRIEL MARKOFF, Deputy County Counsel (S.B. #29165Qn 6/1 1 [2021 4:38 pM OFFICE OF THE COUNTY COUNSEL 70 West Hedding Street, East Wing, Ninth Floor San José, California 95 1 10-1770 Telephone: (408) 299-5900 Facsimile: (408) 292-7240 2abriel.markoff@cco.sccgov.or2 Attorneys for Respondents DR. MARY ANN DEWAN AND SANTA CLARA COUNTY OFFICE OF EDUCATION Reviewed By: S. Vera Case #21 CV381463 Envelope: 6635943 EXEMPT FROM FILING FEES PURSUANT TO GOV. CODE, § 6103 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA David Kissner and Shahryar Rokni, Petitioners, V. Santa Clara County Superintendent of Schools Dr. Mary Ann Dewan; Santa Clara County Office of Education; Loma Prieta Joint Union School District; Santa Clara County Registrar of Voters Shannon Bushey; Santa Cruz County Clerk Tricia Weber; and DOES 1-10, Respondents. N0. 21CV381463 RESPONDENTS DR. MARY ANN DEWAN AND SANTA CLARA COUNTY OFFICE OF EDUCATION’S SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION TO PETITION FOR WRIT OF MANDATE Date: June 17, 2021 Time: 3:00 pm. Dept: 12 Judge: The Honorable Audra Ibarra Date of First Filing: May 5, 2021 Respondents Dr. Mary Ann Dewan and SCCOE’s Supplemental BriefISO Opposition t0 Petition for Writ of Mandate 21CV381463 era 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page I. PRELIMINARY STATEMENT .................................................................................. 4 II. ARGUMENT .............................................................................................................. 6 A. The District’s Demurrer Should Be Sustained .................................................. 6 B. Petitioners’ Argument That the Election Cannot Be Held in November is Both Incorrect and Legally Irrelevant, as it is the Type 0f Election, not the Date, That is Dispositive as t0 Costs ..................................................... 7 C. The Petition Fails Under Either the Strict or Substantial (Actual) Compliance Standard ....................................................................................... 9 D. An In-Person Election is the Default Election Type, and That is Dispositive t0 This Case ................................................................................... 10 E. The Elections Code Gives the District’s Elected Governing Board Discretion Whether t0 opt Into an All-Mail Ballot Election .............................. 12 F. A Ruling for Petitioners Would Convert the County Superintendent’s Ministerial Duty Into a Discretionary One, Creating Troubling Consequences ................................................................................................... 1 3 G. Because Education Code Section 5091(f)(1) Requires A11 Listed Requirements to be Met, the Court Must Consider the Cost Estimate Issue and Campaign Finance Issues Independently ........................................... 14 H. It Is Irrelevant t0 the Disposition of the Case that Education Code Section 5091 Uses the Phrase “The Estimate 0f the Elections Official” Instead of “The Estimates of the Election Official” .......................................... 15 III. CONCLUSION ........................................................................................................... 17 1 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page(s) Cases Alliancefor a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123 (collecting cases) ............................................................................ 13 Assembly v. Deukmejian, (1982) 30 Cal.3d 638 .................................................................................................................... 9 Barnes v. Wong, (1995) 33 Cal.App.4th 390 ........................................................................................................... 6 California Teachers Ass ’n v. Collins, (1 934) 1 Ca1.2d 202 .................................................................................................................... 10 Clark v. Jordan, (1936) 7 Ca1.2d 248 .................................................................................................................... 10 County ofLos Angeles v. City ofLos Angeles, (2013) 214 Ca1.App.4th 643 .............................................................................................. 6, 12, 13 Hebard v. Bybee, (1998) 65 Cal.App.4th 1331 ............................................................................................... 5, 9, 10 Ibarra v. City 0f Carson, (1989) 214 Cal.App.3d 90 ...................................................................................................... 5, 16 Mervyn ’s v. Reyes, (1 998) 69 Cal.App.4th 93 ........................................................................................................... 10 Ruiz v. Sylva, (2002) 102 Ca1.App.4th 199 ....................................................................................................... 10 San Francisco Forly-Niners v. Nishioka, (1999) 75 Cal.App.4th 637 ......................................................................................................... 10 Statutes Code CiV. Proc, § 1085, subd. (a) ..................................................................................................... 6 Education Code, § 5091 ........................................................................................................... passim Elections Code, §100 ...................................................................................................................... 14 Elections Code, §101 ...................................................................................................................... 14 Elections Code, §104 ................................................................................................................ 10, 14 2 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Elections Code, §107 ...................................................................................................................... 14 Elections Code, § 4004 ...................................................................................................... 6, 7, 11, 12 Elections Code, § 4005 ............................................................................................................... 7, 11 Elections Code, § 12286 ................................................................................................................. 11 Executive Orders Order N-67-20 ................................................................................................................................ 1 1 3 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. PRELIMINARY STATEMENT Respondents Dr. Mary Ann Dewan (“Dr. Dewan” or the “County Superintendent”) and Santa Clara County Office 0f Education submit this supplemental brief as requested by the Court, and request that the petition for writ 0f mandamus be denied. Education Code section 5091 (“Section 5091”) mandates that the Special Election Petition “shall” contain the entire “estimate 0fthe elections oficial 0f the cost 0f conducting the special election.” (Education Code, § 5091, subd. (f)(1)(A) (emphasis added).) The estimate provided by the Santa Clara County Registrar 0f Voters (“Registrar”) stated that the election would cost between $350,963.20 - $570,3 15.20 if held with in- person vote centers, the legal default, but only $167,905.60 - $272,846.60 if the School District’s governing board used its discretion t0 opt into holding an all-mail ballot election. Despite the more expensive vote center election being the legal default, Petitioners only listed the latter, cheaper half of the estimate 0n their Special Election Petition, misrepresenting t0 the voters that the highest possible cost 0f the election would be less than $300,000, when in the fact the true figure was almost $600,000. This omission rendered the petition legally insufficient ab initio, and Dr. Dewan correctly rejected it. Worse still, at this point in the calendar there is n0 longer time t0 authorize an all-mail ballot election on September 21, 2021 (which Petitioners have claimed is the latest possible election date), which would thus need to be held with the more expensive vote centers at an actual cost of up t0 almost $600,000, more than twice the amount presented t0 the voters in the petition.1 Petitioners now argue that they could lawfully omit the higher figure fiom their Special Election Petition because it was a legal impossibility (not true) 0r because they were misled by the imprecise language contained in the Registrar’s estimate (also not true). As explained further below, these arguments have n0 merit. “Where a petition does not comply with the reasonable objectives of 1 Because this Court’s order Will not issue until June 17, 2021, there is no longer time for the School District’s governing board t0 issue a formal resolution opting into an all-mail ballot election 0n September 21, 2021. (See Registrar’s Statement ofNon-Opposition in Response to Petition for Writ 0f Mandate, at 3 (“The Registrar would need t0 know Whether the election is an all-mail ballot election 0r a polling place election. . .no later than 97 days [i.e. June 16, 2021] before the election, in order to publish the Notice 0f Election at least 90 days before the election.”).) Thus, far from it being legally impossible for the higher portion 0f the Registrar’s cost estimate ($350,963.20 - $570,315.20) t0 come t0 pass, by legal default, that will be the actual cost offhe election. 4 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 statutes designed t0 protect electors from confusing or misleading information, its deficiencies threaten the integrity 0f the election process, warranting a refusal t0 file the petition.” (Hebard v. Bybee (1998) 65 Ca1.App.4th 133 1, 1338.) As the courts have long stated, “[t]echnical defects of form may be excused if the petitions substantially comply with the requirement, but actual compliance is required in respect t0 the substance essential t0 the objective 0fthe statute. Where the purpose of the statutory requirement is t0 give information t0 the public t0 assist the voters in deciding Whether t0 sign 0r oppose the petition, the substantial compliance argument is often rejected and strict compliance held essential.” (Ibarra v. City 0fCarson (1989) 214 Ca1.App.3d 90, 99 (emphasis added).) Although Petitioners claim to be unsophisticated parties Who were deceived by imprecise wording regarding dates in an email provided by the Registrar’s Office, this Court should rej ect their cynical argument. For one thing, Petitioners Withheld critical information regarding the potential date of the Election from the Registrar (who has no authority t0 set election dates 0r types), leading the Registrar’s employees to guess what election dates might be in play. More fundamentally, this case is not about Whether Petitioners were confused-this case is about Whether Petitioners, highly engaged political activists Who had been planning their Special Election Petition for months and whom the Registrar had advised to retain legal counsel, improperly withheld informationfrom members offhe voting public. Dr. Dewan correctly fulfilled her ministerial duty t0 protect the voters from the misleading misinformation Petitioners listed in the Special Election Petition, and thus this Court should uphold her decision and deny the writ. Finally, if this Court rej ects these arguments, grants the writ petition, and orders Dr. Dewan to verify the sufficiency 0f the Special Election Petition and set the date of a special election (the only possible mandamus relief it can grant), it should stay its decision pending an emergency appeal t0 the Sixth District Court 0f Appeal and, if necessary, t0 the Supreme Court. Under Section 5091(c)(2), verifying the Special Election Petition automatically terminates the provisional appointment 0f the interim board member Who currently holds the seat that would be filled in a special election. But if Dr. Dewan appeals and this Court’s decision were later to be overturned, that board member would then need to resume her office. Thus, a stay pending an emergency appeal is 5 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 necessary t0 avoid irreparable harm and preserve the status quo if this Court grants the writ. II. ARGUMENT A. The District’s Demurrer Should Be Sustained The first issue this Court asked the parties t0 address in supplemental briefing is whether the demurrer filed by Respondent Loma Prieta Joint Union School District (the “School District”) should be sustained. The County Superintendent believes that the demurrer is meritorious and should be sustained. Even if the Court grants mandamus relief, the only action it can order is for Dr. Dewan t0 verify the petition signatures and set a date for a special election. There is n0 mandamus relief this Court can grant against the School District, Whose governing board has discretionary authority regarding the election type. Accordingly, the demurrer should be sustained. Code 0f Civil Procedure section 1085 only allows a writ t0 be brought “to compel the performance 0f an act Which the law specially enjoins, as a duty resulting from office, trust, or station, or t0 compel the admission 0f a party t0 the use and enjoyment of a right or office to which the party is entitled, and from Which the party is unlawfully precluded [. . . .]” (Code CiV. Proc, § 1085, subd. (a).) A party seeking a writ (in this case, Petitioners) has the burden of establishing two elements: “(1) a clear, present, and usually ministerial duty 0n the part 0f the respondent, and (2) a clear, present and beneficial right in the petitioner to the performance of that duty.” (Barnes v. Wong (1995) 33 Cal.App.4th 390, 394.) “A ministerial duty is one Which is required by statute. . .. Discretion, on the other hand, is the power conferred on public functionaries to act officially according t0 the dictates 0f their own judgment. Normally, mandate Will not lie t0 control a public agency’s discretion, that is t0 say, t0 force the exercise of discretion in a particular manner.” (County ofLos Angeles v. City ofLos Angeles (2013) 214 Ca1.App.4th 643, 654 (citations 0mitted).) In this case, all parties agree that the issue t0 be decided by the Court is whether Dr. Dewan had a ministerial duty t0 reject the Special Election Petition as legally insufficient (Dr. Dewan’s position) or t0 instead accept the Special Election Petition as legally sufficient (Petitioners’ position). By contrast, the School District’s only potential role in this case is that, if the writ is first granted and an election date is then set by Dr. Dewan, its elected board has the discretion t0 issue a resolution opting into an all-mail ballot election. (Elections Code, § 4004, subd. (c)(l).) Because 6 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the School District’s governing board is made of “public functionaries” and the decision whether to opt into an all-mail ballot election is a discretionary one, this Court cannot grant mandamus relief against the School District (or set the election type itself). Thus, the School District is not a proper party, and its demurrer should be sustained Without leave t0 amend. B. Petitioners’ Argument That the Election Cannot Be Held in November is Both Incorrect and Legally Irrelevant, as it is the Type 0f Election, not the Date, That is Dispositive as t0 Costs The second issue the Court asked the Parties t0 address is the impact, if any, of Petitioners’ argument that a special election legally cannot be held after September 21, 2021, i.e., that it cannot be held 0n the established election date in November 2021 that was referenced in the cost estimate provided by the Registrar. Petitioners argue that the higher, $350,963.20 - $570,315.20 portion of the Registrar’s cost estimate was properly omitted from the Special Election Petition because it was supposedly legally impossible for the higher costs to come t0 pass-an argument based on their subj ective belief that a special election could not be held in November 2021. They also argue that they were confused by the email transmitting the estimate, sent by an employee of the Registrar, Which referred t0 a “2021 Nov Vote-By-Mail and Vote Center Election.” But these arguments fly in the face of the statute and Petitioners’ own evidence, Which shows that they failed t0 respond When the Registrar’s employees asked for clarification as t0 When the election might be held. Petitioners’ argument first fails 0n a fundamental level because, all else being equal, the date 0fthe special election has nothing t0 d0 with the estimated cost 0f that election-What matters is the election type, whether the election Will have the more expensive in-person vote centers or will instead be a cheaper all-mail ballot election. While the legal default under Elections Code section 4005 is that any election in Santa Clara County Will contain in-person vote centers and thus be more expensive, Elections Code section 4004 (“Section 4004”) gives the School District’s governing board discretion t0 opt into a cheaper all-mail ballot election. This means that any School District special election-regardless 0f the date it is held-will be held as the more expensive vote center election unless the governing board opts into an all-mail ballot election (as noted above, it is now too late for the governing board t0 opt into an all-mail ballot election for September 21, 2021). Because it was legally possible (and, in fact, the legal default) for the higher cost estimates to 7 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 come t0 pass, Petitioners were required t0 include the Registrar’s entire cost estimate on the Special Election Petition and could not simply jettison the more expensive half of it based on their own flawed judgment. (See Education Code, § 5091, subd. (f)(1) (“If a petition calling for a special election is circulated, the petition shall meet all 0f the following requirements: (A) The petition shall contain the estimate 0fthe elections oficial 0f the cost of conducting the special election”) (emphasis added).) At oral argument, Petitioners appeared to argue that this clear requirement should be waived because they were purportedly confused by an email sent by the Registrar’s Office, Which seemed t0 tie an all-mail election t0 August 2021 and a vote center election t0 November 2021. But any confusion Petitioners may have experienced was their own fault. When the Registrar’s employees specifically asked Petitioners if they were asking for an estimate for a November 2021 election, Petitioners failed t0 respond, leaving the Registrar’s employees t0 guess What dates might be in play. (Kissner Dec., EXh. E, at pp. 8 [January 7, 2021 email].) It is crucial to remember that the Registrar has no authority t0 set election dates 0r election types (Dr. Dewan sets the election date, while the School District’s governing board can set the election type) and does not keep track 0f vacancies 0n the 31 school district governing boards Within Santa Clara County. Petitioners, who had more information about the possible election dates than the Registrar did, cannot first withhold this important information from the Registrar’s employees, later blame the Registrar’s employees for using imprecise language about dates When conveying her cost estimate, and finally use their purported confusion as a basis for a writ against the County Superintendent, who was not even part 0f that interaction. In essence, Petitioners are demanding they be given a free pass t0 put misleading information in front 0f the voters, simply because they claim (without evidence) t0 have been confused and not sophisticated enough to understand the statutory disclosure requirements. But ignorance of the law is n0 excuse, particularly not an excuse for a failure t0 comply with an unambiguous statutory requirement. Indeed, this Court should look skeptically at Petitioners’ claim t0 have simply been confused-their own evidence shows they asked for ways t0 reduce the estimated costs shown t0 the voters and even conceded t0 the Registrar “the question will certainly come up about the cost.” 8 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Kissner Dec., EXh. E, at pp. 11-12 [February 4, 2021 email, emphasis added].) Furthermore, the Registrar properly informed Petitioners to seek legal counsel if they had any questions about the legal sufficiency 0f their petition, but they apparently failed to d0 so. (Kissner Dec., Exh. E, at pp. 13-14 [February 23-24, 2021 emails]). Petitioners cannot simply claim an inability to afford counsel as a trump card to avoid a mandatory statutory requirement, particularly not When they were quickly able to retain one 0f the Bay Area’s most experienced elections attorneys to file a lawsuit t0 force a special election that would cost the School District up to $600,000-a11 despite the fact that, according to Petitioners’ own evidence, the School District is already being forced to make $428,000 in budget reductions and “can’t afford t0 incur the costs 0f a special election.”2 (Kissner Dec., EXh. E, at p. 19 [March 2021 Mountain News Network column].) C. The Petition Fails Under Either the Strict 0r Substantial (Actual) Compliance Standard The third issue the Court asked the parties to address is What the applicable legal standard for compliance is and Whether the Special Election Petition met it. The answer is that the Special Election Petition did not meet any potentially applicable standard for compliance with Section 5091(f)(1)(A). Even under the more lenient “substantial compliance” standard, actual compliance is required. Only “technical deficiencies” may be excused, as “[s]ubstantia1 compliance. . .means actual compliance in respect t0 the substance essential t0 every reasonable requirement of the statute.” (Hebard, supra, 65 Cal.App.4th at p. 1339 (emphasis original, quoting Assembly v. Deukmejian (1982) 3O Cal.3d 638, 649).) The cases have uniformly required actual compliance with substantive disclosure requirements, While excusing only technical deficiencies. For example, in Hebard, the Sixth District Court 0f Appeal held that a petition was insufficient for failure t0 substantially comply With a statute requiring it t0 include a complete ordinance title. As that court held, “the complete title 0f the ordinance would have told voters that two changes were being made t0 the general plan designation. . .. The incomplete title, however, 2 If this Court considers the costs 0f the special election process as Petitioners requested at oral argument, it should do so by erring 0n the side 0f denying the writ in order to protect the students and taxpayers of a small rural school district Which may well need t0 make further budget reductions as a result of Petitioners’ lawsuit. 9 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 failed to provide this information. Voters Who relied 0n the accuracy 0f the title. . .were not clearly informed that the Ordinance allowed for the development of a four-acre park.” (Hebard, supra, 65 Ca1.App.4th at p. 1440 (emphasis original).) Similarly, substantial compliance could not save a petition which omitted 17 pages of a general plan that it would affect. (Mervyn ’s v. Reyes (1998) 69 Ca1.App.4th 93, 104.) And there was n0 substantial compliance Where the short title 0f an initiative measure petition failed t0 reveal it would affect taxes. (Clark v. Jordan (1936) 7 Cal.2d 248.) By contrast, petitions have been held sufficient under the doctrine 0f substantial compliance in cases Where the petitioners have conveyed all required information t0 the voters, albeit in a technically deficient manner-generally, if the petition conveys all required information but has a font 0r formatting error. (See, e.g., California Teachers ASS ’n v. Collins (1934) 1 Cal.2d 202, 203- 04 (full, correct information printed in 12-point font instead of 18-point font); Ruiz v. Sylva (2002) 102 Cal.App.4th 199, 214-16 (full, correct information printed in the wrong typeface).) In this case, the Special Election Petition completely omitted a portion 0f the required information: the complete “estimate 0f the elections official of the cost of conducting the special election.” (Education Code, § 5091(f)(1)(A).) This was a substantive, actual omission of required information, not a technical deficiency. Thus, even under the doctrine 0f “substantial” or “actual” compliance, the Special Election Petition was legally insufficient, and Dr. Dewan was required t0 rej ect it: “Where the information is mischaracterized the electorate is misled, and the voter is unable t0 intelligently exercise his or her right to vote, the sword 0f democracy. . .. The law is clear that election officials have a ministerial duty t0 rej ect initiative petitions which suffer from a substantial, as opposed to a technical, statutory defect Which directly affects the quality 0f information provided t0 the voters.” (Ruiz, supra, 102 Ca1.App.4th at p. 214 (quoting San Francisco Forly-Niners v. Nishioka (1999) 75 Ca1.App.4th 637, 643-44).) D. An In-Person Election is the Default Election Type, and That is Dispositive t0 This Case The fourth issue the Court asked the Parties t0 address is Whether the special election would have t0 be held in person by default under the law, including Whether that issue is dispositive to the outcome of this case. The answer is “yes” 0n both points. In California, the law still requires in-person elections as the default rule, even under the 1 0 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2016 Voter’s Choice Act. Under that Act, counties may mail ballots to all voters if they establish “vote centers,” physical locations Where voters may return mail ballots, register t0 vote, vote provisional ballots, 0r vote using voting equipment that meets the disability-access standards 0f the Americans with Disabilities Act and other laws protecting voting access. (See Elections Code, § 4005, subd. (a)(2).) Counties Who have not opted into the vote center system are still required to establish traditional in-person precinct polling places. (See e.g., Elections Code, § 12286.) Santa Clara County uses vote centers, while Santa Cruz County still uses traditional polling places. By contrast, the use of “all-mail ballot” elections, i.e., elections conducted Wholly by mail without polling places 0r vote centers, is strictly limited and generally requires the agency 0r entity in question t0 opt into holding the election wholly by mail. Relevant here, Elections Code section 4004 allows school districts to opt into holding all-mail ballot elections by a formal resolution of the governing board. (See Elections Code, § 4004; see also, e.g., id. § 4000 (all-mail ballot elections allowed 0n certain established election dates with governing board authorization in certain elections With less than 1,000 eligible registered voters, or relating to certain water districts).) California law’s default requirement to have physical, in-person locations is demonstrated by the fact that, even for the November 2020 election that was conducted during the height of the COVID-19 pandemic, Governor Newsom’s executive orders merely limited the number 0f in-person polling places 0r vote centers that counties had t0 offer. In Executive Order N-67-20, issued June 3, 2020, Governor Newsom ordered that counties could restrict the number 0f in-person voting locations to one election-day polling place per 10,000 residents (for counties using traditional polling places) and stated that counties subj ect to the Voter’s Choice Act could wait t0 open vote centers until three days before the November 3, 2020 election. (See EXECUTIVE ORDER N-67-20, June 3, 2020, https://www.gov.ca.gov/Wp-content/uploads/Z020/06/6.3.20-EO-N-67-20.docx.pdf.) The fact that establishing in-person voting locations is still the legal default is dispositive in this case. While Petitioners claim it would be legally impossible for the higher portion 0f the Registrar’s cost estimate ($350,963.20 - $570,315.20) t0 come to pass, by legal default, that will be the actual cost 0fthe election. Indeed, as a matter 0f law, by the time this Court issues its decision on June 17, 2021, it will be too late for the district t0 even have a chance t0 opt into having an 1 1 Respondents Dr. Mary Ann Dewan and SCCOE’s Supplemental 21CV38 1463 BriefISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 election 0n September 21, 2021 as a cheaper all-mail ballot election. (See Registrar’s Statement of Non-Opposition in Response to Petition for Writ of Mandate, at 3 (“The Registrar would need to know Whether the election is an all-mail ballot election 0r a polling place election. . .no later than 97 days [i.e. June 16, 2021] before the election, in order t0 publish the Notice of Election at least 90 days before the election.”).) Accordingly, because a September 21, 2021 election will cost the School District and its taxpayers as much as $600,000, the writ should be denied. E. The Elections Code Gives the District’s Elected Governing Board Discretion Whether t0 opt Into an All-Mail Ballot Election The fifth, related issue that the Court asked the parties t0 address is Whether Section 4004 gives the School District discretion t0 have an all-mail ballot election, and Whether that is dispositive. As explained above, for the same reason the School District’s demurrer should be sustained, the decision whether to opt into holding an all-mail ballot special election is within the discretion 0f the School District’s governing board. (See Elections Code, § 4004, subd. (c)(l) (a11- mail ballot election may only be held if the board “by resolution, authorizes the use of mailed ballots for the election”).) This is a specific grant 0f discretion to an elected public body; it is different from the County Superintendent’s ministerial duty, under Education Code section 5091, t0 evaluate the legal sufficiency 0f a special election petition and either rej ect it as insufficient 0r accept it as sufficient. (See County ofLos Angeles, supra, 214 Cal. App. 4th at pp. 653-54.) In contrast t0 how the use 0f the phrase “may be conducted Wholly as an all-mail ballot election” in Section 4004 implies political discretion, Section 5091(c)(2) uses mandatory language t0 state that the County Superintendent “shall” verify the petition signatures unless she deems the petition legally insufficient, in Which case she “shall not verify the signatures, nor shall any further action be taken With respect t0 the petition.” (Education Code, § 5091, subds. (c), (f) (emphasis added).) Accordingly, because the School District governing board’s authority to opt into an all-mail ballot election under Section 4004-the only means by which the (cheaper) $167,905.60 to $272,846.60 portion 0f the estimate that Petitioners listed 0n the Special Election Petition could theoretically come t0 pass-is fully discretionary, the writ must be denied. The doctrine of separation of powers prevents this Court from substituting its own judgment for that of the School 1 2 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 District’s governing board. (County ofLos Angeles, supra, 214 Cal. App. 4th at p. 654 (“N0rma11y, mandate will not lie to control a public agency’s discretion, that is t0 say, t0 force the exercise 0f discretion in a particular manner. . .. Deferential review of quasi-legislative activity minimizes judicial interference in the interests 0f the separation 0fpowers doctrine.”).) F. A Ruling for Petitioners Would Convert the County Superintendent’s Ministerial Duty Into a Discretionary One, Creating Troubling Consequences The sixth issue the Court asked the parties to address is Whether a ruling for Petitioners could lead to absurd results by giving the County Superintendent too much discretion in evaluating the legal sufficiency 0f special election petitions. It would indeed, converting her ministerial duty into a discretionary one, giving her Wide latitude to second-guess cost estimates and reject or accept petitions according to her own preferences. Under the law, Dr. Dewan must use her best judgment in determining Whether a special election petition is legally sufficient. But, befitting her role as an objective neutral, once she makes that determination, her role is entirely ministerial: Assuming all other requirements are met, if the election official’s full cost estimate is properly included, the petition is legally sufficient and must be accepted; however, if the estimate is not included, the petition is legally insufficient and must be rejected. (Education Code, § 5091, subds. (c), (f).) It is settled law that California officials charged With evaluating voter petitions for compliance With procedural requirements exercise a ministerial duty, without room for the exercise of discretion. (See Alliancefor a Better Downtown Millbrae v. Wade (2003) 108 Cal.App.4th 123, 132-134 (collecting cases).) In this case, Petitioners concede they failed to include the more expensive, $350,963.20 - $570,315.20 portion of the cost estimate provided by the Registrar, due t0 their (incorrect) purported belief that this portion of the estimate was legally impossible. That concession is dispositive and requires this Court t0 deny the writ. Because the Special Election Petition did not meet the requirements of Section 5091(f)(1)(A), Dr. Dewan was required t0 reject it. To d0 otherwise would be to hold that Dr. Dewan-an educator, who has n0 role or expertise in administering elections- has wide latitude to second-guess the Registrar’s cost estimate and approve petitions that are missing required cost estimate information. By this same logic, county superintendents would have authority 1 3 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 t0 reject petitions that include all required information, simply because they disagree Whether the estimates are legally possible. For instance, if Petitioners had properly included all cost estimate information, under their interpretation 0f the statute Dr. Dewan could have still rejected the Special Election Petition if she thought (to give just one example) that the estimate provided by the Santa Cruz County Clerk was artificially low. Accordingly, the Court should deny the writ and rej ect Petitioners’ implausible argument that a county superintendent must independently analyze the correctness of the cost estimate provided by the election official. G. Because Education Code Section 5091(i)(1) Requires All Listed Requirements t0 be Met, the Court Must Consider the Cost Estimate Issue and Campaign Finance Issues Independently The seventh issue the Court asked the Parties t0 address is whether, if Dr. Dewan was incorrect that the Special Election Petition failed t0 meet the campaign finance requirements 0f Elections Code 101, 104, and/or 107, that affects the Court’s analysis 0f the separate cost estimate issue. The answer is that the cost estimate issue and the campaign finance issues are entirely independent. Indeed, as the undisputed evidence shows, Dr. Dewan did not base her decision denying the Special Election Petition 0n the campaign finance issues: “My determination that the Special Election Petition was legally insufficient was not based 0n these issues, as I had already determined it was insufficient for failure t0 include the full required cost estimate. However, I believed it was important for me to identify these issues to help explain that the petition did not allow voters the opportunity to ask for other important information they are entitled t0 under the Elections Code.” (Dewan Declaration, 1] 25.) Dr. Dewan correctly understood that, under Section 5091(f)(1), the Special Election Petition had to meet all listed requirements, and failure to meet any single requirement mandates the petition be denied: “If a petition calling for a special election is circulated, the petition shall meet all 0f the following requirements: (A) The petition shall contain the estimate 0f the elections official 0f the cost 0f conducting the special election. . .. (D) The petition shall be prepared and circulated in conformity With Sections 100 and 104 0f the Elections Code.” (Education Code, § 5091(f)(1) (emphasis added.) 14 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thus, even if this Court rules that the Special Election Petition satisfied the campaign finance requirements of Section 5091(f)(1)(D), that has no bearing on its independent analysis of the cost estimate requirements 0f Section 5091(f)(1)(A). If the Court holds that the Special Election Petition failed t0 meet any 0f these requirements, the requested writ must be denied. H. It Is Irrelevant to the Disposition of the Case that Education Code Section 5091 Uses the Phrase “The Estimate of the Elections Official” Instead of “The Estimates 0f the Election Official” The eighth issue the Court asked the parties t0 address is whether the fact that Section 5091(f)(1)(A) refers to “the estimate of the elections official” in the singular, rather than “estimates” in the plural, has any effect 0n the disposition of the case. It does not. Petitioners’ argument that the statute’s requirement the petition contain “the estimate 0f the elections official” means that “the law explicitly calls for only one cost estimate in the petition” is misguided 0n multiple levels. (See Petitioners’ Reply, at pp. 3-4.) First, the text of the law contains no such explicit limitation, and it would presumably be news t0 the Registrar that the law forbids her fiom providing multiple estimates 0r multi-part estimates if that is What is needed. The phrase “the estimate” nowhere states 0r implies that the election official’s cost estimate cannot be broken down into multiple sections (whether or not framed as separate estimates) in order to address different election contingencies. Indeed, this phrase must be flexible enough to include all contingencies, particularly given that election types vary by county under the Voter’s Choice Act, as well as the fact that each county retains discretion in determining what election administration costs it Will seek t0 recover from its local school districts. Particularly in this case, Where the Registrar estimated that the election would cost either $167,905.60 - $272,846.60 0r $350,963.20 - $570,315.20, depending on the election type used, the statute cannot possibly contemplate that the Registrar can only provide one 0f these ranges. That would artificially constrain election officials’ ability to provide information t0 petition proponents, creating traps for the unwary but well-intended official and degrading the quality 0f the information listed on petitions. To the extent this Court has any concerns, it should defer to the Registrar’s standard practice 0f providing as much information as possible, rather than requiring that the Registrar provide less information to petition proponents and voters. 1 5 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Indeed, the only authority Petitioners cite for this absurd argument in their brief is an inapposite, fact-bound immigration law decision from the United States Supreme Court, which dealt With different language clearly indicating a single document (“a notice t0 appear”) in an entirely different context: When a non-citizen is providing a formal notice t0 appear for removal proceedings in the immigration law context. (See Petitioners” Reply, at pp. 3-4 (citing Niz-Chavez v. Garland, U.S. Supreme Court Case No. 19-863, April 29, 2021).) The inapposite nature 0f their cited authority simply confirms that their argument has no merit. Finally, even if Petitioners are correct that they were required to include only one 0f the two ranges provided by the Registrar, it is clear that they should have at least included the high end 0f the vote-centerportion 0fthe estimate t0 cover allpossible contingencies and avoid underestimating the possible costs. The objective 0f Section 5091(f)(1)(A) is to provide full cost information t0 the voters; that is, t0 provide them With the total potential cost of the election. (Cf. Ibarra v. City 0f Carson (1989) 214 Cal.App.3d 90, 99 (citations 0mitted).) Accordingly, even if Petitioners were required or able to include only one estimate for Santa Clara County as they argue, the writ should still be denied as Petitioners should have instead included the higher, $350,963.20 - $570,?) 1 5.20 range on the petition, or at very least they should have listed the total costs for a Santa Clara County election as $167,905.60 - $570,315.20 t0 cover all possible contingencies. That is the only logical outcome, given that the legal default is that the election will be held as the more-expensive vote center election-in particular because there is no longer time for the School District’s governing board t0 opt into an all-mail ballot election for September 21, 2021. /// /// /// /// /// /// /// /// 1 6 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION For the foregoing reasons as well as those raised in Respondents’ Opposition and at oral argument, this Court should deny the petition for writ 0f mandate. In the alternative, if this Court does grant the writ, it should stay its decision pending appeal t0 allow Respondents time to file an expedited appeal t0 the Sixth District Court of Appeal. Dated: June 11, 2021 Respectfully submitted, JAMES R. WILLIAMS County Counsel By: /s/ Gabriel Markoff GABRIEL MARKOFF Deputy County Counsel Attorneys for Respondents DR. MARY ANN DEWAN AND SANTA CLARA COUNTY OFFICE OF EDUCATION 2426741 1 7 Respondents Dr. Mary Ann Dewan and SCCOE’S Supplemental 21CV38 1463 Brief ISO Opposition t0 Petition for Writ of Mandate 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA PROOF OF SERVICE BY ELECTRONIC MAIL Case No.3 21CV381463 I, Camie Bowling, declare: I am now and at all times herein mentioned have been over the age of eighteen years, employed in Santa Clara County, California, and not a party t0 the Within action 0r cause; that my business address is 70 West Hedding Street, 9th Floor, San José, California 951 10-1770. My electronic service address is: camie.bowling@cco.sccgov.org. On June 11, 2021, I electronically served copies of the following: RESPONDENTS DR. MARY ANN DEWAN AND SANTA CLARA COUNTY OFFICE 0F EDUCATION’S SUPPLEMENTAL BRIEF IN SUPPORT OF OPPOSITION TO PETITION FOR WRIT OF MANDATE to the people listed below at the following electronic service address: James R. Sutton, Esq. JP Fisher, Esq. jsuttonfiQcampaingylawyerscom jpfisher@camp_aignlawyers.com Ruby Marquez, Esq. Rubv.marquez@santacruzcountv.us Mary Hanna-Weir, Esq. Mag.hanna-weir@cco.sccgov.org Brian Bock, Esq. brian roactivebl .com I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct, and that this declaration was executed 0n June 11, 2021. /s/ Camie Bowling Camie Bowling 1 8 Respondents Dr. Mary Ann Dewan and SCCOE’s Supplemental 21CV38 1463 BriefISO Opposition t0 Petition for Writ of Mandate