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Heidi Fuller v. Debra Bowen

March 1, 2012

HEIDI FULLER, PLAINTIFF AND APPELLANT,
v.
DEBRA BOWEN, AS SECRETARY OF STATE, ETC., ET AL., DEFENDANTS AND RESPONDENTS; TOM BERRYHILL, REAL PARTY IN INTEREST AND RESPONDENT.



(Super. Ct. No. 34201080000452CUWMGDS) APPEAL from a judgment of the Superior Court of Sacramento County, Timothy M. Frawley, Judge. Affirmed.

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

CERTIFIED FOR PUBLICATION

In the 2010 primary election, Heidi Fuller and Tom Berryhill were both candidates for State Senator in the 14th Senate district. Prior to the primary election, however, Fuller asked the superior court to issue orders that would prevent Berryhill's name from being placed on the primary election ballot. Fuller alleged that Berryhill had not resided in the 14th Senate district for at least one year as required by the California Constitution.

The superior court declined to prevent Berryhill's name from being placed on the ballot, concluding that the one year residency requirement violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Fuller now contends on appeal that the superior court erred in ruling that the one year residency requirement is unconstitutional.

We do not address whether the one year residency requirement is unconstitutional, because a threshold jurisdictional issue resolves this case. The California Constitution vests in each house of the Legislature the sole authority to judge the qualifications and elections of a candidate for membership in that house, even when the challenge to the candidate's qualifications is brought prior to a primary election. Under the facts presented in this case, California courts lack jurisdiction to judge Tom Berryhill's qualifications to serve as a Senator for the 14th Senate district.

We will affirm the judgment.*fn1

BACKGROUND

Heidi Fuller and Tom Berryhill both sought to be the Republican nominee for State Senator in the 14th Senate district. But before the June 8, 2010 primary election took place, Fuller filed a petition for writ of mandate in the Sacramento Superior Court. To understand the basis for Fuller's court challenge, we begin with an overview of the relevant legal framework.

Article IV, section 2, subdivision (c) of the California Constitution*fn2 provides that "[a] person is ineligible to be a member of the Legislature unless the person is an elector and has been a resident of the legislative district for one year . . . immediately preceding the election." Elections Code section 8020*fn3 states that no candidate's name may be printed on the primary ballot unless a declaration of candidacy (§ 8040) and signed nomination papers (§ 8041) are delivered to the county elections official. The declaration of candidacy must substantially comply with the example set forth in the statute, which includes a declaration that the candidate meets the constitutional residency requirements. (§ 8040.)

After the signatures are verified, the nomination documents are forwarded to the Secretary of State, "who shall receive and file them." (§ 8082.) "At least 68 days before the direct primary, the Secretary of State shall transmit to each county elections official a certified list of candidates who are eligible to be voted for in his or her county at the direct primary." (§ 8120.) "Unless otherwise specifically provided, no person is eligible to be elected or appointed to an elective office unless that person is a registered voter and otherwise qualified to vote for that office at the time that nomination papers are issued to the person or at the time of the person's appointment." (§ 201.)

A candidate for State Senate must also file a statement of intention and a recipient committee statement of organization. (Gov. Code, §§ 85200, 84101.) The Secretary of State is the designated filing officer for these documents. (Gov. Code, § 85200.) The filing officer has a duty to determine whether the original documents conform on their face with the Political Reform Act (Cal. Code Regs., tit. 2, §§ 18110, 18410), but the filing officer is not required to seek or obtain other information to verify the entries. The filing officer must accept for filing any campaign statement which the Political Reform Act requires to be filed with the filing officer. (Cal. Code Regs., tit. 2, §§ 18110.)

Section 13314 permits an elector to obtain a writ of mandate concerning impending election error under specified circumstances. Section 13314 provides in pertinent part: "(a)(1) An elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of duty has occurred, or is about to occur. [¶] (2) A peremptory writ of mandate shall issue only upon proof of both of the following: [¶] (A) That the error, omission, or neglect is in violation of this code or the Constitution. [¶] (B) That issuance of the writ will not substantially interfere with the conduct of the election. [¶] . . . [¶] (4) The Secretary of State shall be named as a respondent or a real party in interest in any proceeding under this section concerning a measure or a candidate described in Section 15375," which includes a candidate for a member of the Senate.

Fuller filed a petition for writ of mandate pursuant to section 13314, subdivision (a), alleging that Berryhill had not met the one year residency requirement set forth in article IV, section 2, subdivision (c). Fuller acknowledged in her petition that prior opinions by the Attorney General concluded that the Secretary of State could not refuse to file a declaration of candidacy based on an alleged failure to meet the residency requirement (56 Ops.Cal.Atty.Gen. 365, 367 (1973)), and that the Secretary of State was not authorized to enforce the constitutional residency requirement (62 Ops.Cal.Atty.Gen. 365 (1979)). Nonetheless, Fuller argued that those prior Attorney General opinions were wrong.

Fuller asked the superior court to order the Attorney General "to direct the Secretary of State that proof of compliance with the residency requirements of [article IV, section 2] of the California State Constitution be satisfied before accepting a Statement of Intention to be declared a candidate for the Assembly or the Senate." Fuller also asked the superior court to compel the Secretary of State to reject Berryhill's statement of intention for candidacy, his statement of organization of a recipient committee, and his declaration of candidacy for the ...


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