Filed 2/28/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Trinity)
----
FIRENZA PINI, C082963
Plaintiff and Appellant, (Super. Ct. No. 16CV068)
v.
JOHN FENLEY,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Trinity County, Elizabeth W.
Johnson, Judge. Reversed with directions.
Benbrook Law Group, Bradley A. Benbrook and Stephen M. Duvernay for
Plaintiff and Appellant.
Churchwell White, Steven G. Churchwell, Barbara A. Brenner, and Nubia I.
Goldstein for Defendant and Respondent.
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Defendant John Fenley was elected to the Trinity County Board of Supervisors by
obtaining a majority of votes in the June 7, 2016 election. Contestant Firenza Pini filed a
contest in the superior court 20 days after certification of the final canvass, alleging
mistakes, errors, and misconduct in counting the ballots. The superior court, treating the
contest as involving a primary election, summarily dismissed the contest because it was
filed more than five days after certification of the final canvass. We reverse. Because
Fenley was elected by a majority of votes, and not merely nominated, Pini had 30 days
after certification of the final canvass to file her contest.
BACKGROUND
John Fenley ran for the District 5, Trinity County Board of Supervisors seat on
June 7, 2016. According to the official canvass, Fenley received 380 votes, which was
28 more votes than his opponent. Having received a majority of votes cast in the June
election, the “body canvassing the returns” declared Fenley the winner on June 27, 2016,
without a runoff. The official canvass was certified on July 6, 2016.
Pini, representing herself and acting as an elector in the supervisorial district, filed
a verified statement of election contest on July 26, 2016. She cited sections 16400,
16401, subdivision (d), and 16460 of the Elections Code and alleged that there was
“mistake, error or misconduct in the counting of the ballots in the elections” because
(1) “[u]p to 110 ‘vote-by-mail’ and/or provisional ballots received by the Registrar of
Voters were not processed and counted and should have been processed and counted in
the contested election,” (2) “[a]n unknown number of ballots[] of qualified, ‘permanent
vote-by-mail voters’ were not processed and[/]or counted,” (3) “the precinct board in
conducting the election or in canvassing the returns, made errors sufficient to change the
result of the election as to any person who has been declared elected by denying adequate
observation and right to list of vote-by[-]mail ballots and provisional ballot electors in
order to effect a challenge by the observers and representatives of candidates,” and
(4) “there was an error in the vote-counting programs or summation of ballot counts due
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to changed programs of some voter machines after publicly interrogating voter
machines.”
The verified statement of election contest did not state a remedy sought. Instead,
it concluded: “For the foregoing reasons, Contestant Firenza Pini alleges that mistake,
error or misconduct has occurred in the counting of the ballots in the election which were
so incorrectly counted as to change the result of the election, and, if counted, the number
of legal votes case for Contestant [sic] will exceed the number of legal votes for
Defendant [Fenley] in said election.” (Pini is the contestant in this action, but she was
not Fenley’s opponent in the election.)
On August 1, 2016, six days after the filing of the verified statement of election
contest, the superior court, on its own motion, summarily dismissed the election contest.
The court determined that, because the June 2016 vote was a primary election, the
deadline for filing a statement of election contest was five days after certification of the
final canvass by the Board of Supervisors, which occurred on July 6, 2016, according to
the trial court. (The July 6 certification was not mentioned in the verified statement of
election contest.) (Elec. Code, § 16421.) Since Pini’s statement was filed after the
statutory deadline, her statement was too late.
Pini requested reconsideration, arguing that a primary election is transmuted into a
general election if a candidate obtains a majority of the vote. The trial court denied the
request.
Pini, now represented by legal counsel, appeals. She moved for “summary
reversal” of the trial court’s order, which motion we denied. However, we granted
calendar preference.
DISCUSSION
In her opening brief on appeal, Pini argues the trial court erred by relying on the
five-day deadline for contesting primary elections. (See Elec. Code, § 16421 [five-day
deadline for contesting primary elections].) She asserts that, because Fenley obtained a
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majority of votes in the official canvass and was declared the winner without a runoff, the
election was transmuted into a general election, for which there is a 30-day deadline.
(See Elec. Code, § 16401, subd. (d) [30-day deadline for contesting general elections];
Cummings v. Stanley (2009) 177 Cal.App.4th 493, 510-514 (Cummings) [deadline for
contesting general election applies when electing rather than nominating]; McClintock v.
Abel (1937) 21 Cal.App.2d 11, 13 (McClintock) [same].)
In his respondent’s brief, Fenley argues that, regardless of whether this was a
primary or general election, any contest seeking a recount had to be filed within five days
after the results were certified, under Elections Code section 16462. Fenley apparently
abandons the distinction made by the trial court between contests to primary elections
(Elec. Code, § 16421 [five-day deadline]) and general elections (Elec. Code, § 16401,
subd. (d) [30-day deadline]) and relies instead on the deadline in the recount statute (Elec.
Code, § 16462).
In her reply brief, Pini argues that the recount statute cited by Fenley (Elec. Code,
§ 16462) applies only to primary elections. Or, in the alternative, that statute does not
apply because Pini’s statement did not request a recount.
We conclude: (1) Fenley’s election was a general election under Cummings and
McClintock, not a primary election, and (2) Elections Code section 16462, with its five-
day deadline for contesting an election, applies only to primary elections. Therefore, the
30-day deadline in Elections Code section 16401, subdivision (d) applies to this case.
I
General Election v. Primary Election
When a nonpartisan primary election results in the outright election of a candidate
because that candidate received a majority of votes, the election is transmuted into a
general election, and statutes relating to the contest of a general election are applied.
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“Any candidate for a nonpartisan office who at a primary election receives votes
on a majority of all the ballots cast for candidates for that office shall be elected to that
office.” (Elec. Code, § 8140.)
“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. ([Elec. Code,] § 8140; [citations].)” (Cummings, supra, 177
Cal.App.4th at p. 510; see also McClintock, supra, 21 Cal.App.2d at p. 13.) Fenley
claims that Cummings and McClintock do not apply to this case because, even if the
election was a general election, Pini is seeking a recount under Elections Code section
16462. As we explain in part II, Elections Code section 16462 does not apply to this
case.
Very simply, the election of Fenley to the Board of Supervisors was a general
election because he received a majority of votes and was declared the winner without a
runoff. Therefore, the trial court erred by treating the contest as involving a primary
election.
II
Applicable Contest Deadline
On their face, two different statutes appear to set a deadline for filing a contest to
the election of Fenley. Elections Code section 16401, subdivision (d) sets a 30-day
deadline after general elections, and Elections Code section 16462 sets a five-day
deadline for contests seeking a recount. By looking at the legislative history and the
structure of the Elections Code, however, it becomes clear that Elections Code section
16462 applies only to contests seeking a recount in a primary election.
A. Elections Code section 16401
Any elector (meaning, generally, those who may cast ballots in a particular
election (Elec. Code, § 321)) may contest an election by filing a written statement with
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the clerk of the superior court. (Elec. Code, § 16400.) The grounds on which an elector
may contest an election are limited by statute.1 (Elec. Code, § 16100.)
Chapter 5 of division 16 of the Elections Code covers “Form of Contest
Statement” and includes deadlines or statutes of limitations for filing statements
contesting elections. Article 1 of chapter 5 relates to general elections, and, within article
1, Elections Code section 16401 (1) requires the contestant to verify the statement of
contest and (2) provides the deadlines for contests of a general election in the case of a
tie, in cases involving presidential electors, and “[i]n all other cases.” The last situation
exists here, “[i]n all other cases,” and the deadline provided is “30 days” “after either the
declaration of the result of the election or the declaration of the results of any postcanvass
1 Elections Code section 16100 provides:
“Any elector of a county, city, or of any political subdivision of either may contest
any election held therein, for any of the following causes:
“(a) That the precinct board or any member thereof was guilty of malconduct.
“(b) That the person who has been declared elected to an office was not, at the
time of the election, eligible to that office.
“(c) That the defendant has given to any elector or member of a precinct board
any bribe or reward, or has offered any bribe or reward for the purpose of procuring his
election, or has committed any other offense against the elective franchise defined in
Division 18 (commencing with Section 18000).
“(d) That illegal votes were cast.
“(e) That eligible voters who attempted to vote in accordance with the laws of the
state were denied their right to vote.
“(f) That the precinct board in conducting the election or in canvassing the
returns, made errors sufficient to change the result of the election as to any person who
has been declared elected.
“(g) That there was an error in the vote-counting programs or summation of ballot
counts.”
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risk-limiting audit conducted pursuant to Section 15560 by the body canvassing the
returns thereof.”2 (Elec. Code, § 16401, subd. (d).)
If Elections Code section 16401 governs the deadline for filing a contest in this
case, then Pini’s contest was timely because she filed it within 30 days after the body
canvassing the returns declared Fenley the winner.
B. Elections Code section 16462
But that does not end the matter because another statute that Fenley argues applies
in this contest provides for a five-day deadline, and Pini did not file her contest within
five days after completion of the official canvass.
Chapter 5, “Form of Contest Statement,” also includes article 4, “Contests
Involving a Recount.” Elections Code section 16462 is included in article 4 and
provides, in part: “The affidavit shall be filed in the office of the clerk of the superior
court within five days after the completion of the official canvass.”3 Fenley argues that
2 Elections Code section 16401 provides:
“The contestant shall verify the statement of contest, as provided by Section 446
of the Code of Civil Procedure, and shall file it within the following times after either the
declaration of the result of the election or the declaration of the results of any postcanvass
risk-limiting audit conducted pursuant to Section 15560 by the body canvassing the
returns thereof:
“(a) In cases other than cases of a tie, where the contest is brought on any of the
grounds mentioned in subdivision (c) of Section 16100, six months.
“(b) In all cases of tie, 20 days.
“(c) In cases involving presidential electors, 10 days.
“(d) In all other cases, 30 days.”
3 Elections Code section 16462 provides: “No service other than as provided in this
section need be made upon the defendant. The affidavit shall be filed in the office of the
clerk of the superior court within five days after the completion of the official canvass.
Upon the filing of the affidavit the county elections official shall forthwith post, in a
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Pini is asking for a recount, and, therefore, Elections Code section 16462 required her to
file her affidavit within five days after completion of the official canvass. We conclude
that Elections Code section 16462 does not apply to general elections.
Pini argues that she has not requested a recount. We need not determine whether
her statement requests a recount under the applicable statutes because that determination
is not material in this case.
As noted, Elections Code section 16462 does not, on its face, limit itself to
primary elections. Nonetheless, our overarching objective in construing the statute is to
determine what the Legislature intended. (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1386.) “The words of the statute must be
construed in context, keeping in mind the statutory purpose, and statutes or statutory
sections relating to the same subject must be harmonized, both internally and with each
other, to the extent possible. [Citations.] . . . Both the legislative history of the statute
and the wider historical circumstances of its enactment may be considered in ascertaining
the legislative intent. [Citations.]” (Id. at p. 1387.)
Two circumstances reveal that the Legislature meant for Elections Code section
16462 to apply only to primary elections, even though that intent is not stated in that
section. First, the former statute superseded by Elections Code section 16462 applied
only to primary elections and the Legislature expressly disclaimed an intent to change the
law. And second, article 4 relates only to a ground for contest that may be asserted by a
candidate vying for nomination, not an elector.
conspicuous place in his or her office, a copy of the affidavit. Upon the filing of the
affidavit and its posting, the superior court of the county shall have jurisdiction of the
subject matter and of the parties to the contest. The contestant on the date of filing the
affidavit shall send by registered mail a copy thereof to the defendant in a sealed
envelope, with postage prepaid, addressed to the defendant at the place of residence
named in the affidavit of registration of the defendant, and shall make and file an
affidavit of mailing with the county elections official, which shall become a part of the
records of the contest.”
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Previously, the statutory language concerning recounts was found in Elections
Code former section 20362. (Stats. 1961, ch. 23, § 3, p. 838.) The wording of the former
section was virtually identical to current Elections Code section 16462. It provided, in
pertinent part, identically: “The affidavit shall be filed in the office of the clerk of the
superior court within five days after the completion of the official canvass.” (Stats. 1961,
ch. 23, § 3, p. 838.) That provision was found in “Chapter 3. Contesting Primary
Elections.” (Ibid.) This placement in the Elections Code made it clear that the statute
applied only to primary elections, even though the language of the statute itself did not so
state.
In 1994, the Legislature repealed and replaced the Elections Code. (Stats. 1994,
ch. 920, §§ 1-2, p. 4690.) In doing so, it enacted Elections Code section 16462, using the
language from former Elections Code section 20362. (Id. at § 2.) However, instead of
putting the new statute in a chapter relating only to primary elections, the Legislature
placed it in a more general chapter, “Chapter 5. Form of Contest Statement,” in division
16 of the Elections Code. Within that chapter, the Legislature placed four articles:
(1) General Elections, (2) Primary Elections, (3) Contests Other than Recount, and
(4) Contests Involving a Recount. Elections Code section 16462 is found in article 4,
“Contests Involving a Recount,” of chapter 5, “Form of Contest Statement.” Unlike the
case of the former statute, the placement of the current statute does not make it clear that
the statute applies only to primary elections.
Normally, we would be constrained to determine the significance of the change in
placement of this statute within the new 1994 statutory scheme. “We presume the
Legislature intends to change the meaning of a law when it alters the statutory language
[citation] . . . .” (Dix v. Superior Court (1991) 53 Cal.3d 442, 461.) Analogously, when
the Legislature changes the placement of a statute within the statutory scheme, it may
alter the effect of the statute. Nonetheless, we need not speculate concerning what the
change in placement means because the Legislature expressly disclaimed an intent to
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alter the effect of the statute. In its official statement of legislative intent in connection
with the 1994 repeal and replacement of the Elections Code, the Legislature declared: “It
is the intent of the Legislature in enacting this act to reorganize and clarify the Elections
Code and thereby facilitate its administration. The Legislature intends that the changes
made to the Elections Code, as reorganized by this act, have only technical and
nonsubstantive effect. Hence, no change made by this act shall be construed to create
any new right, duty, or other obligation that did not exist on the effective date of this act,
or result in the limitation or termination of any right, duty, or other obligation that existed
on the effective date of this act.” (Stats. 1994, ch. 920, § 3, p. 5163.)
This declared intent not to change the law prohibits any speculation on our part
into why the placement changed because the Legislature declared, in effect, that the
placement did not change the law. We therefore conclude that, consistent with former
Elections Code section 20362, current Elections Code section 16462 applies only to
contests involving primary elections.
Supporting that conclusion is that Elections Code section 16462 applies only to
contests filed by a contestant who challenges the nomination of another candidate on a
ground that only candidates, not electors, may assert. Article 4, “Contests Involving a
Recount,” applies by its own terms to “contests on the ground that due to mistake, error,
or misconduct the votes in any precinct were so incorrectly counted as to change the
result.” (Elec. Code, § 16460.) That ground appears, verbatim, in the list of grounds a
losing candidate in a primary election may assert to contest the nomination of another
candidate. (Elec. Code, § 16101, subd. (e).) That ground does not appear in the list of
grounds “[a]ny elector” may assert in a contest. (See Elec. Code, § 16100.) The
language of the article (article 4, “Contests Involving a Recount”) therefore limits
Elections Code section 16462 to primary elections only.
We recognize that, in her verified statement of election contest, Pini asserted that
very ground—that is, she asserted that her statement was filed “on the grounds that
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mistake, error or misconduct has occurred in the counting of the ballots in the election
which were so incorrectly counted as to change the result of the election . . . .” She also
cited Elections Code section 16460, which, as noted above, applies only to contests by
candidates in primary elections. But we need not be concerned with this language in the
statement because (1) the trial court summarily dismissed the contest based on the statute
of limitations (without any consideration of the substance of the statement) and (2) courts
construe election contests liberally in favor of contestants.
Elections Code section 16403 provides: “A statement of the grounds of contest
shall not be rejected nor the proceedings dismissed by any court for want of form, if the
grounds of contest are alleged with such certainty as will advise the defendant of the
particular proceeding or cause for which the election is contested.” The grounds stated in
Pini’s verified statement of election contest probably fall within the general grounds
available to any elector, as stated in Elections Code section 16100. For example, one
ground in the statute is that “eligible voters who attempted to vote in accordance with the
laws of the state were denied their right to vote.” (Elec. Code, § 16100, subd. (e).)
In any event, Pini’s verified statement of election contest was not filed late.
Accordingly, the trial court erred by dismissing the contest on that ground.
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DISPOSITION
The order dismissing the election contest is reversed, and the action is remanded
for further proceedings. Pini is awarded her costs on appeal. (Cal. Rules of Court, rule
8.278(a).)
NICHOLSON , Acting P. J.
We concur:
ROBIE , J.
HOCH , J.
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