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Thomas C. Kunde v. Deborah Seiler

July 13, 2011


(Super. Ct. No. 37-2010-00089266-CU-WM-CTL) APPEAL from a judgment of the Superior Court of San Diego County, Jeffrey B. Barton, Judge. Affirmed.

The opinion of the court was delivered by: Irion, J.


Elections Code*fn1 section 13305 permits the county central committee of a qualified political party to include a party contributor envelope or a one-page letter in the official mailing of the sample ballot sent to registered members of its own party in a direct primary election, provided that the central committee (1) pays all associated expenses; (2) does not include words critical of another political party; (3) provides a space for the name and address of the contributor; and (4) informs the contributor how contributions will be spent. In this appeal from a ruling on a petition for a writ of mandate filed shortly before the June 2008 direct primary election, we consider whether, as petitioner Thomas C. Kunde contends, the Republican Party of San Diego (the Party) should not have been permitted to include a one-page letter pursuant to section 13305 that -- along with a request for contributions -- contained electioneering materials stating the Party's positions on various local election contests and one statewide ballot measure.

As we will explain, we agree with the trial court that section 13305 permits the inclusion of the electioneering material proposed by the Party. We further reject Kunde's contention that, so interpreted, section 13305 violates the First Amendment and equal protection rights of groups and persons not permitted by section 13305 to insert their own electioneering materials in the sample ballot mailing. We accordingly affirm the judgment.



In the June 2010 direct primary election, the Party made a request to San Diego County Registrar of Voters Deborah Seiler (the Registrar) that a ballot insert from the Party (the proposed insert) be included in the sample ballots sent to registered Republican voters in San Diego County supervisorial districts 1, 4 and 5.*fn2

The request was made pursuant to section 13305, which at the time provided:

"(a) In each county, the county central committee of each qualified political party[*fn3 ] may supply to its county elections official, not less than 83 days prior to the direct primary election, a party contributor envelope or a one-page letter, in which both sides may be utilized, to be included in the mailing of the sample ballot to each of that political party's registered voters in the county. In lieu of supplying the elections official with a sufficient number of copies of the one-page letter, a county central committee may supply the elections official, not less than 83 days before the direct primary election, with the text of the letter and request the elections official to print, or cause to be printed, a sufficient number of copies of the letter to accommodate the mailing. The elections official shall notify the respective county committee of, and the committee shall reimburse the county for, any actual costs incurred by the inclusion or printing, or both. The elections official may, prior to acting pursuant to this subdivision, require the county committee to post a bond to ensure the reimbursement.

"(b) Each envelope or letter shall contain a space for the name and address of the contributor, and shall contain language which informs the contributor of the manner in which the money received shall be spent. The language on the envelope or letter shall not contain words critical of any other political party.

"(c) All funds received by the return of the party contributor envelopes or in response to the letters shall be kept separate from all other funds and shall be kept in a fund (account) to be established in each county. Any funds which are prohibited under federal law from being used for candidates for federal office shall be further segregated and any portion allocated to candidates shall be disbursed only to candidates for state office."

The proposed insert was set forth on two sides of a standard-size piece of paper, with each side of the paper split into two columns, apparently intended to be folded into a booklet. One of the four columns was a fundraising letter from the Party, signed by its chairman. The letter opened by stating that the Party "supports the candidates and ballot measures featured inside" as "[e]ach is committed to protecting taxpayers and stabilizing the finances of local government," and stated that "[y]our vote for these candidates and ballot measures can help get San Diego back on track." The letter also asked that contributions to the Party be made by phone or through the Internet to support "voter registration activities, Republican candidates for local and state office, voter education and member communication programs."

The other three columns of the proposed insert described candidates and ballot measures supported by the Party. One column was titled "Voter Guide for Local Propositions" and set forth the Party's position on one statewide proposition, local measures from San Diego County, the City of San Diego, the City of Chula Vista and the City of Oceanside, and included advocacy for the Party's position. The remaining two columns identified candidates that the Party supported for local nonpartisan offices:*fn4 (1) five candidates for San Diego County offices (county supervisor, district attorney, treasurer-tax collector and assessor-recorder); (2) a candidate for the San Diego Unified School District board; (3) a candidate for San Diego city council; (4) three candidates for Chula Vista city offices (mayor, city attorney, city council); and (5) a candidate for Oceanside city council. For each candidate, the proposed insert included at least two sentences describing their merits.

The Registrar posted the proposed insert for public comment. Kunde, who is a voter registered with the Democratic party and resides in San Diego County supervisorial district 4, filed a petition for writ of mandate on April 5, 2010, against the Registrar and named the Party as a real party in interest. The petition sought an order prohibiting the Registrar from including the proposed insert in the mailing of the sample ballot. Kunde argued that inclusion of the proposed insert was not permitted by section 13305 and would "violate the constitutional guarantees of equal protection of the law and freedom of speech."

The petition was set for hearing on April 13, 2010. Kunde argued in his memorandum of points and authorities in support of the petition that (1) the proposed insert did not comply with section 13305 because it did not contain "a space for the name and address of the contributor" as statutorily required (§ 13305, subd. (b)); (2) section 13305 does not authorize an insert containing electioneering material, such as political advertisements for candidates and measures; and (3) inclusion of the proposed insert containing electioneering material would violate constitutional guarantees of equal protection and free speech by excluding some persons from a government subsidized forum.

The Party opposed the petition. It did, however, concede that the proposed insert lacked a space for the name and address of the contributor as required by section 13305, subdivision (b), and it therefore submitted a revised proposed insert that contained a small form at the bottom of one of the columns which a contributor could cut out, complete and mail in with a contribution.

Evidence submitted to the trial court included an invoice that the Registrar sent to the Party, charging it approximately $23,000 for the expense of setting up and printing the proposed insert. It appears that the Party was not charged any postage costs by the Registrar because the one-page insert did not increase the cost of postage for the sample ballot.

The trial court granted the petition in part and denied it in part. Specifically, the trial court granted the petition insofar as it ruled that the Party would be required to use the revised proposed insert that contained a space for the contributor's name and address. It denied the petition in all other respects, concluding that section 13305 did not prohibit the Party from including endorsements of candidates and measures in the proposed insert. The trial court did not expressly discuss Kunde's constitutional arguments.*fn5



Kunde appeals from the judgment, asserting the same arguments that he did in the trial court -- namely that section 13305 does not permit electioneering materials, and that if section 13305 is interpreted to permit electioneering materials such as those included in the proposed insert, it would violate the equal protection and First Amendment rights of persons who are not given access to the electioneering forum created by section 13305. Both the Party and the Registrar have filed briefs in opposition.

A. We Will Consider the Appeal Even Though Effective Relief Can No Longer Be Granted

As an initial matter we discuss whether the dispute is moot. As the Party points out, the proposed insert was mailed with the sample ballots in May 2010, and the election was held in June 2010. Therefore, the relief sought in Kunde's petition is no longer available. "[A]ppellate courts as a rule will not render opinions on moot questions: '[W]hen, pending an appeal from the judgment of a lower court, and without fault of the [respondent], an event occurs which renders it impossible for [the reviewing court] if it should decide the case in favor of [appellant], to grant [appellant] any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.' " (Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178-1179.)

However, as the Party also notes, an exception to the doctrine of mootness exists where the issues presented "are of general public interest and likely to recur." (Clark v. Burleigh (1992) 4 Cal.4th 474, 481 (Clark).) This exception is often applied in election cases. " 'Under certain conditions, disputes concerning election procedures are properly reviewable by an appellate court even though the particular election in question has already taken place.' [Citation.] Even though the relief requested is no longer available, review may be appropriate if the contentions raised are of general public interest 'and are likely to occur in future elections in a manner evasive of timely appellate review.' " (Huening v. Eu (1991) 231 Cal.App.3d 766, 770; see also Unger v. Superior Court (1984) 37 Cal.3d 612, 614.)

We conclude that the exception is applicable here. The issue of whether an insert included pursuant to section 13305 may contain electioneering materials is a matter of general public interest that is likely to recur in subsequent elections. Further, because of the short time frame involved between the mailing of ...

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