GREENE v. MARIN COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT









Filed 3/11/09





CERTIFIED FOR PUBLICATION


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

FORD GREENE, Plaintiff and Appellant, v. MARIN COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, Defendant and Respondent; FLOOD MITIGATION LEAGUE OF ROSS VALLEY ET AL., Interveners and Respondents.

A120228 (Marin County Super. Ct. No. CV 073767)

STORY CONTINUE FROM PART I….

Before the passage of Proposition 218, no election or other form of voter approval was constitutionally required before an assessment or fee could be imposed on property owners. Due process required only that property owners be given notice and an opportunity to be heard on two issues: whether the land included within an assessment district would be benefited by the proposed improvements (the substantive basis for the assessment), and whether the assessment imposed on an individual property owner was accurately determined. (See Fallbrook Irrigation District v. Bradley (1896) 164 U.S. 112, 167, 174-175; In re Orosi Public Utility Dist. (1925) 196 Cal. 43, 50-51.)
When the Legislature chose to require voter approval, the Legislature determined how the voting or taxpayer approval would be conducted. State constitutional provisions governing elections, including the provision requiring voting to be secret, did not apply. (Tarpey v. McClure (1923) 190 Cal. 593, 606 (Tarpey) [citing cases].)[1] “[T]he state could accomplish this very work without organizing a district as such at all, and without giving the landowners within the district any voice in the selection of the managers or trustees. . . . It is in accord with the progressive spirit of our government to give to the people, or any part of them, the largest possible control in matters peculiarly affecting them and their interests. It is a concession to this spirit, and not the compulsion of the law, which prompts the legislature to give the landowners so large a voice in the management of these affairs.” (People v. Sacramento Drainage Dist. (1909) 155 Cal. 373, 382 (Drainage Dist.) [rejecting argument that former art. I, § 11, and former art. IV, § 25 (predecessor of current art. IV, § 16), prohibiting certain special laws, applied to assessment election] id. at pp. 381-382; see Potter v. Santa Barbara (1911) 160 Cal. 349, 355-356 (Potter) [following Drainage Dist. and rejecting argument that former art. I, § 24 (predecessor of current art. I, § 22), which prohibited property qualification for right to vote, applied to assessment elections]; see Tarpey, at p. 606 [following Potter and rejecting argument that constitutional secret voting requirement applied to assessment elections].)
In Alden v. Superior Court, for example, the court considered whether an election on the formation of a water district (a type of assessment district) was invalid because the paper used for the ballots was so thin that the votes were not kept secret. (Alden v. Superior Court (1963) 212 Cal.App.2d 764, 766-767.) The court held the constitutional requirement for secrecy in voting did not apply. “The creation of such a district is a legislative act, and the Legislature may enact conditions, upon the performance of which the district shall be regarded as organized. (Tarpey[, supra, 190 Cal. at p. 600].) The constitutional provisions which govern elections held in the ordinary course of civil government do not control such formation elections.” (Alden, at p. 770.)
Before the adoption of Proposition 218, the courts also held that legislative determinations on the substantive standards for assessments (i.e., whether the assessment would benefit the affected land) were subject only to very narrow judicial review. In so ruling, the courts relied on a similar rationale: “[T]he establishment of a special assessment district takes place as a result of a peculiarly legislative process grounded in the taxing power of the sovereign. . . . The scope of judicial review of such actions is accordingly quite narrow.” (Dawson v. Town of Los Altos Hills (1976) 16 Cal.3d 676, 683-684 (Dawson), italics added; see also Knox, supra, 4 Cal.4th at p. 147.)
2. Silicon Valley Changes the Landscape
In Silicon Valley, the California Supreme Court held that the passage of Proposition 218 undermined the legislative-function rationale for the deferential standard of review on the substantive requirements for assessments. (Silicon Valley, supra, 44 Cal.4th at pp. 450-451.) “Before Proposition 218 became law, special assessment laws were generally statutory, and the constitutional separation of powers doctrine served as a foundation for a more deferential standard of review by the courts. But after Proposition 218 passed, an assessment’s validity, including the substantive requirements, is now a constitutional question. ‘There is a clear limitation [ ] upon the power of the Legislature to regulate the exercise of a constitutional right.’ [Citation.].” (Silicon Valley, supra, 44 Cal.4th at p. 448.) The court concluded that an agency’s determination whether an assessment met the substantive requirements of article XIII D, section 4 is subject to independent rather than deferential judicial review. (Id. at p. 450.)
While the specific holding of Silicon Valley, supra, 44 Cal.4th 431 is not directly relevant to this appeal, the Court’s analysis provides a template for ours. The Tarpey line of cases held that article II, section 5 (now art. II, § 7) and other constitutional provisions governing elections were inapplicable to assessment elections because voter approval procedures for assessments were matters of legislative discretion and were not constitutionally compelled. (See Tarpey, supra, 190 Cal. at p. 606.) Under Proposition 218, however, voter approval procedures for assessments and fees now have constitutional status. (Art. XIII D.) The Legislature is no longer free to impose an assessment “without organizing a district as such at all, and without giving the landowners within the district any voice in the selection of the managers or trustees.” (Drainage Dist., supra, 155 Cal. at p. 382.) An election now takes place not because of the progressive spirit of the Legislature, but due to the “compulsion of the law.” (Cf. ibid.) Therefore, the rationale of the pre-Proposition 218 cases no longer applies.
The District argues that Proposition 218 adopted the Tarpey approach and thus confirms that assessment balloting and fee elections are different from ordinary elections and fall outside the scope of constitutional provisions such as article I, section 22, and article II, section 7. The District specifically relies on article XIII D’s requirement that assessment balloting (and authorization that fee elections) be limited to property owners, which ordinarily would violate article I, section 22. (See Potter, supra, 160 Cal. at p. 355 [approving property qualification despite constitutional prohibition]; Tarpey, supra, 190 Cal. at p. 606 [same].) These express article XIII D provisions limiting balloting or voting to property owners, however, expressly provide that article I, section 22 does not apply to article XIII D assessment balloting or fee elections despite the new constitutional status of the ballot and election requirements. Article XIII D is silent as to voting secrecy. Thus, the constitutional “election” requirement in article XIII D, section 6(c) is unqualified as far as voting secrecy is concerned. The Tarpey line of cases is irrelevant: the cases shed no light on whether nonsecret voting is constitutionally permissible in the new post-Proposition 218 context of constitutional voter approval requirements, just as the Dawson and Knox cases are no longer helpful in determining the appropriate standard of review on the substantive standard for assessments under Proposition 218. (See Silicon Valley, supra, 44 Cal.4th at p. 450.)
We conclude that article XIII D, section 6(c) and article II, section 7 are best harmonized by construing “election” in article XIII D, section 6(c) as a secret ballot election.
C. Liberal Construction to Further the Purposes of Proposition 218
Proposition 218 itself provides guidance for our construction of ambiguous provisions of the initiative. Section 5 (an uncodified section of the initiative measure) provides, “The provisions of this act shall be liberally construed to effectuate its purposes of limiting local government revenue and enhancing taxpayer consent.” (Prop. 218, § 5, Ballot Pamp., General Election, supra, text of Prop. 218, § 5, p. 109; see Silicon Valley, supra, 44 Cal.4th at p. 448 [relying in part on Prop. 218, § 5 for guidance in construing article XIII D].) Section 2 (also uncodified) elaborates on the measure’s purpose: “The people of the State of California hereby find and declare that Proposition 13 was intended to provide effective tax relief and to require voter approval of tax increases. However, local governments have subjected taxpayers to excessive tax, assessment, fee and charge increases that not only frustrate the purposes of voter approval for tax increases, but also threaten the economic security of all Californians and the California economy itself. This measure protects taxpayers by limiting the methods by which local governments exact revenue from taxpayers without their consent.” (Ballot Pamp., General Election, supra, text of Prop. 218, § 2, p. 108; Silicon Valley, at p. 446 [relying in part on Prop. 218, § 2 (“Proposition 218’s preamble” for guidance in construing article XIII D].)
As rephrased by the Supreme Court, “Proposition 218 was designed to: constrain local governments’ ability to impose assessments; place extensive requirements on local governments charging assessments; . . . and limit the methods by which local governments exact revenue from taxpayers without their consent. [ ] Proposition 218’s underlying purpose was to limit government’s power to exact revenue and to curtail the deference that had been traditionally accorded legislative enactments on fees, assessments, and charges . . . .” (Silicon Valley, supra, 44 Cal.4th at p. 448; see also Richmond v. Shasta Community Services Dist. (2004) 32 Cal.4th 409, 420 [“[T]he aim of Proposition 218 [is] to enhance taxpayer consent”].)
Requiring secret voting furthers Proposition 218’s twin purposes of limiting the government’s power to exact revenue and to enhance taxpayer consent. In an article XIII D, section 6(c) fee election, the agency conducting the election is a proponent of the proposed fee. Conflict is not unlikely between public officials’ desire to finance costly services and taxpayers’ resistance to the financial burden of such fees. (See Ventura Group Ventures, Inc. v. Ventura Port Dist. (2001) 24 Cal.4th 1089, 1103 [“Proposition 13 put local government on a strict budget and thus required it to make painful choices”]; Apartment Assn., supra, 24 Cal.4th at pp. 838-839 [“Proposition 218 is Proposition 13’s progeny . . . [and] must be construed in that context”].) Secrecy in voting enhances free taxpayer consent to approve or reject a proposed fee in the face of local controversy about its merits and it makes it more difficult for government to extract revenue from unwilling taxpayers. Therefore, in liberally construing Proposition 218 to further its purposes, we construe the terms “election” and “voting” to mean secret voting.
D. Ballot Pamphlet
If the words of a constitutional provision are ambiguous, we may consult the provision’s legislative history for evidence of the enacting party’s intent, which in the case of a voter initiative is the ballot pamphlet. (Silicon Valley, supra, 44 Cal.4th at pp. 444-445; City and County of San Francisco v. County of San Mateo, supra, 10 Cal.4th at p. 563; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245-246 (Amador Valley).)
In the ballot pamphlet for Proposition 218, both the Legislative Analyst’s analysis and the ballot arguments communicated to voters that the initiative implicated their voting rights and there was no indication that the right to a secret ballot would be impaired.
The Legislative Analyst’s analysis of the initiative used the words “election” and “vote” for both the assessment balloting procedure prescribed by article XIII D, section 4, and for the fee election required by article XIII D, section 6(c). (Ballot Pamp., General Election, supra, analysis of Prop. 218 by the Legislative Analyst, pp. 73-74.) In contrast to existing law, which “generally require[d] local governments to reject a proposed assessment if more than 50 percent of the property owners protest[ed] in writing,” Proposition 218 would require local governments to “hold a mail-in election for each assessment. Only property owners and any renters responsible for paying assessments would be eligible to vote. Ballots cast in these elections would be weighted . . . .” (Id. at p. 73-74, italics added.) On fees, the issue directly relevant here, the analyst wrote that under Proposition 218 local governments would first have to “mail information about the fee to every property owner, reject the fee if a majority of the property owners protest in writing” and, if not, “hold an election on the fee . . . .” (Id. at p. 73, italics added.) In sum, the Legislative Analyst contrasted “written protest” procedures, which were applicable to assessments before Proposition 218 and that would be applicable to initial fee approval under Proposition 218, to the “election” and voting that would be required for final approval of assessments and fees (with some exceptions) under the initiative. That is, the initiative would establish taxpayer voting rights with respect to assessments as well as fees.[2]
The overwhelming focus of the arguments in support of and in opposition to the initiative was also on the issue of voting rights. Proponents of the measure argued that the initiative would “guarantee[] your right to vote on local tax increases—even when they are called something else, like ‘assessments’ or ‘fees’ . . . .” (Ballot Pamp., General Election, supra, argument in favor of Proposition 218, p. 76.) After describing how local politicians had used assessments to create loopholes in Proposition 13’s requirement of voter approval for taxes, the proponents argued, “TAXPAYERS HAVE NO RIGHT TO VOTE ON THESE TAX INCREASES AND OTHERS LIKE THEM [i.e., assessments] UNLESS PROPOSITION 218 PASSES!” (Ibid.) The proponents repeatedly argued that the initiative “gives taxpayers the right to vote on taxes.” (Id. at p. 77.) Opponents of the measure also focused on voting rights, but alleged that those rights would be infringed because of the property qualification for voting on assessments and the weighting of assessment ballots. The opponents did not suggest that voting rights would be further infringed by the absence of a secret ballot. Neither did the proponents. Voters reading these ballot arguments would reasonably conclude that “voting rights” were at issue and that those rights arguably were infringed by limiting one’s voting rights according to property qualifications and weighted ballots. In other respects, however, voting rights were preserved or enhanced.
In sum, the ballot pamphlet strongly suggested to voters that the impact of Proposition 218 was to enhance the voting power of taxpayers, with the sole qualification that votes on property assessments and fees could be limited to property owners and weighted by the impact of the exaction on each individual voter. The pamphlet gave no indication that the right to a secret ballot would be infringed and consequently suggested it would be preserved. The ballot pamphlet, therefore, supports a construction of article XIII D, section 6(c) to require secret voting.
E. Proposition 218 Implementation Legislation
Generally, legislative implementation of constitutional amendments adopted by initiative are traditionally accorded considerable weight by courts construing the amendments. Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 693; Delaney v. Lowery (1944) 25 Cal.2d 561, 568-569.[3] Yet a cornerstone of this deference is evidence that the construction by the Legislature is “contemporaneous” with the initiative. (Amador Valley, supra, 22 Cal.3d at pp. 245-246 (citing cases).)
Significantly, the passage of Proposition 218 entrusts to the courts heightened obligations to assess whether a “local agency acting in a legislative capacity . . . exercise[s] its discretion in a way that violates constitutional provisions or undermines their effect.” (Silicon Valley, supra, 44 Cal.4th at p. 448, italics added.) Since Silicon Valley, courts cannot “ ‘ “ ‘ “lightly disregard” ’ ” ’ ” this “ ‘ “ ‘ “clear constitutional mandate.” ’ ” ’ ” (Ibid.) Therefore, Proposition 218 and the lead case evaluating it, Silicon Valley, present a fundamental shift in the role of courts vis a vis real property fees passed by local government.
With these principles in mind, we now review the Proposition 218 Omnibus Implementation Act (Act) and the District’s analysis of its impact. The District argues that the Legislature interpreted article XIII D, section 6(c) not to require secret voting when it enacted and subsequently amended Government Code section 53753 as part of the Proposition 218 Omnibus Implementation Act (Act). (Stats. 1997, ch. 38, Legis. Counsel’s Digest, § 1.) We disagree. Government Code section 53753 addresses only assessment procedures, not fee elections under article XIII D, section 6(c), and the Act otherwise is either silent on the conduct of such elections or it suggests they should be conducted with secret voting.
As relevant here, the Act amended section 4000 of the Elections Code and added two articles to the Government Code: article 4.3 (section 53739), and article 4.6 (sections 53750, 53753, and 53753.5). (Stats. 1997, ch. 38, §§ 2, 4, 5.) Effective January 1, 2008, a new section was added to Government Code article 4.6 (section 53755).
Government Code section 53750 defines many terms “[f]or purposes of Article XIII C and Article XIII D of the California Constitution and this article [4.6].” (Gov. Code, § 53750.) The statute refers to taxes, assessments, and fees. (Ibid.) Some of its subdivisions are expressly applicable to taxes and fees (id., subds. (e), (h)(2)), some to taxes, assessments, and fees (id., subds. (h)(1), (h)(3)), and some to assessments and fees (id., subds. (g), (i)). All three subdivisions of Government Code section 53739 expressly apply to taxes, assessments, and fees. (Gov. Code, § 53739, subds. (a), (b)(1), (b)(2).)
In contrast, Government Code sections 53753 and 53753.5, which address the notice, protest, and hearing requirements for assessments under article XIII D, section 4, expressly apply only to assessments. (Gov. Code, §§ 53753, 53753.5.) They do not refer to fees at all. The logical conclusion is that the Legislature did not intend these sections to apply to fees in addition to assessments. If the Legislature believed the assessment balloting procedure was sufficient for the conduct of an article XIII D, section 6(c) fee election, we would have expected the Act to say so.
Moreover, Elections Code section 4000 draws a distinction between “election[s]” and “assessment ballot proceeding[s]” conducted under Proposition 218. (Elec. Code, § 4000, subd. (c)(8), italics added.) It provides that an “election or assessment ballot proceeding required or authorized by Article XIII C or XIII D of the California Constitution” may be conducted by mail. (Ibid.) The quoted phrasing is significant for two reasons. First, it confirms that the Legislature intended the ballot proceeding described in section 53753 to apply only to assessments.[4] In case there were any doubt about this intent, the amendment further provides: “when an assessment ballot proceeding is conducted by mail pursuant to this section, the following rules apply: [¶] (A) The proceeding shall be denominated an ‘assessment ballot proceeding’ rather than an election. [¶] (B) Ballots shall be denominated ‘assessment ballots.’ ” (Elec. Code, § 4000, subd. (c)(8), italics added.)
Second, the phrasing of Elections Code section 4000, subdivision (c)(8) acknowledges two types of procedures that are required or authorized under Proposition 218 and might be conducted via a mailed ballot: elections and assessment ballot proceedings. It emphasizes the fact that those procedures are different because it imposes requirements on an “assessment ballot proceeding” that do not apply to an “election.” Moreover, the very purpose of those additional requirements appears to expressly distinguish an “assessment ballot proceeding” from an election to voters. A subdivision of Government Code section 53753 likewise distinguishes an assessment ballot proceeding (there denominated a majority protest proceeding) from an election: “The majority protest proceedings described in this subdivision [i.e., the tabulation of the ballots] shall not constitute an election or voting for purposes of Article II of the California Constitution or of the California Elections Code.” (Gov. Code, § 53753, subd. (e)(4).)
Both at the time the Act was first passed and at the time of the District fee election at issue, the only voter approved procedure discussed in the Act relating to Proposition 218 real property fees was an “election.” (Elec. Code, § 4000, subd. (c)(8).) In sum, the conduct of an article XIII D, section 6(c) fee election is not addressed in the Act, other than to provide that it may be conducted by mail. (Elec. Code, § 4000, subd. (c)(8).)
F. Legal Principles Compel Our Conclusion the Secret Ballot is Part of a Fee Election
The plain language of Proposition 218 requires an “election” and voting for approval of new or increased property-related fees (with exceptions not relevant here). (Art. XIII D, § 6(c).) “Election” is used in other parts of Proposition 218 and its predecessor Proposition 13 to refer to voting by the general electorate that inferentially is conducted by secret ballot. A secret ballot election is also the meaning of “election” that is most familiar to the voters who passed the initiative.
In an important qualifying statement, article XIII D, section 6(c) permits agencies to use “procedures similar to those for increases in assessments in the conduct of elections under this subdivision.” “[P]rocedures . . . for increases in assessments” refers to the assessment procedures in article XIII D, section 4, subdivisions (c) to (e), and those procedures do not clearly require or permit nonsecret balloting. Section 6(c) authorizes procedures “similar to,” not “the same as,” those in section 4 and it authorizes such procedures not only for property owner fee elections but also for general electorate fee elections. We determine this language permits the use of procedures such as mail balloting and vote weighting that are not inconsistent with the “election” requirement of section 6(c), and not to authorize nonsecret voting.
A coequal provision of the constitution, article II, section 7 provides, “Voting shall be secret,” and is most reasonably harmonized with article XIII D, section 6(c) by construing “election” in article XIII D, section 6(c) to require secret voting. The initiative itself directs us to construe the statute liberally to further its purposes, which include enhancing taxpayer consent and restricting government’s ability to extract revenue from property owners. These interpretive aids support a construction of section 6(c) to require secret voting. The ballot materials also support that interpretation. They emphasized the fact that the initiative implicated voting rights and qualified the ordinary understanding of those rights only by explaining that voting in some circumstances could be limited to property owners and weighted by the burden of an exaction on those property owners. No mention was made of a nonsecret ballot. Finally, the implementing legislation for Proposition 218 does not authorize the use of nonsecret voting in an article XIII D, section 6(c) fee election.
Having considered the plain language of the initiative, a coequal provision of the California Constitution, and extrinsic aids to our interpretation of the constitutional provisions, we conclude the voters who approved Proposition 218 intended the voting in an article XIII D, section 6(c) fee election to be secret.
III. Greene’s Election Contest
Greene contested the election results on the ground 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).) He asked for a recount and an order annulling and setting aside the election results. (Elec. Code, §§ 16500, 16601, 16603.)
“ ‘It is a primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal. [Citations.] . . . The contestant has the burden of proving the defect in the election by clear and convincing evidence. [Citations.]” (Wilks v. Mouton, supra, 42 Cal.3d at p. 404.) On the other hand, “ ‘preservation of the integrity of the election process is far more important in the long run than the resolution of any one particular election.’ [Citation.]” (Gooch, supra, 5 Cal.4th at p. 278.) “ ‘[T]o uphold an election in the face of illegalities which affected the result [creates] a situation in which the will of the people may be thwarted by upholding an election.’ [Citation.]” (Ibid.) “[A] court must not ‘sacrifice the integrity of the [elective] process on the altar of electoral finality.’ [Citation.]” (Id. at p. 282.)
Greene initially framed his election contest claim as a challenge to the signature requirement on the ballot. He speculated that voters who did not sign their ballots did so in order to preserve the secrecy of the ballot. However, even without a signature the ballots were printed with the address of the parcel and name and address of the record owner of the parcel. Greene does not explain why a voter who wanted to vote secretly would submit such a ballot, signed or unsigned. Greene clarified at oral argument, and his appellate briefs, and the record of the trial court proceedings confirm, that his central legal argument in this litigation has always been that article II, section 7’s secret voting requirement applies to an article XIII D, section 6(c) fee election. We have concluded this argument is correct.
The District argues that a lack of secrecy in the election is not a ground for setting aside the election results pursuant to Elections Code section 16100, subdivision (e), which was the basis for Greene’s election contest. However, “[t]he power of the court to invalidate a ballot measure on constitutional grounds is an exception to [the statutory] limitation on election contest proceedings.” (Friends of Sierra Madre v. City of Sierra Madre (2001) 25 Cal.4th 165, 192 & fn. 17; Canales v. City of Alviso (1970) 3 Cal.3d 118, 131 (Canales).) The grounds for invalidating an election that are enumerated in Elections Code section 16100 must be construed to include violations of citizens’ constitutional secret voting rights “if the judiciary is to remain available for the vindication of the fundamental rights at stake.” (Canales, at p. 131.)
Because the trial court held that secret voting was not required under article XIII D, section 6(c), it never reached the factual issue of whether the election as conducted by the District preserved secrecy in voting. We note that the District’s Election Procedures provided that only designated persons would have access to the ballots, required the ballots to remain under seal until tabulation, and expressly barred the disclosure of any individual’s vote absent a court order. These procedures, if followed, might have been sufficient to preserve the secrecy of the voting. However, insofar as the record indicates, voters were not provided any assurances that their votes would remain confidential both before and after tabulation of the ballots. Although the Election Procedures were public documents, they were not mailed to voters and the materials provided to voters to describe the election procedures (and included in the record) did not assure them of voting secrecy.[5] Voters who are required to cast their votes on ballots that disclose their names and identify the property they own and that must be signed to be counted, and who are not provided assurances that their votes will be kept permanently confidential, may reasonably be said to have been “denied their right to vote” (Elec. Code, § 16100, subd. (e)) as that right is protected by article II, section 7. That is, they have been denied their right to vote freely with the confidence that their votes will remain secret before and after tabulation of the ballots.
“An election shall not be set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result.” (Elec. Code, §§ 16204, 16402.5 [identical statutes].) In Gooch, the Supreme Court construed similar language and concluded, “In utilizing the phrase ‘it appears,’ we think the Legislature contemplated circumstances, such as those at hand, in which illegal votes cannot be attributed to any one candidate, but nevertheless ‘appear’ sufficient in number or effect to have altered the outcome of the election.” (Gooch, supra, 5 Cal.4th at pp. 282-283 [construing former Elec. Code, § 20024].)[6] In Gooch, the Court concluded that 930 illegal ballots had been cast in five school board races and as to each race the illegal ballots could have affected the outcome of the election. (Id. at pp. 270, 276.) Because the illegal ballots had been mixed in with the legal ballots, however, it was impossible to identify them and determine if those specific ballots had actually changed the results of the election. (Id. at p. 276.) The Court nevertheless concluded that in light of “widespread illegal voting practices that permeated th[e] election” on behalf of the winning candidates, the election results should be set aside. (Id. at p. 285; see also id. at p. 282; see also Canales, supra, 3 Cal.3d at pp. 126-128 [relying on circumstantial evidence that illegalities affected outcome to set aside an election].)
Here, the lack of secrecy in the District’s fee election was a widespread violation of a constitutional safeguard of free elections. Although the record does not demonstrate that particular votes were affected by the lack of secrecy in a manner that changed the outcome, such a showing is unnecessary under Gooch. (Gooch, supra, 5 Cal.4th at p. 282.) Our conclusion is consistent with a long line of cases recognizing that violations of mandatory provisions of election laws vitiate an election, and even violations of merely directory provisions vitiate an election where it can be shown that the violation affected the outcome or “injuriously affected” the “rights of the voters” or where the violation was so severe as to allow unfairness to be presumed. (Rideout v. City of Los Angeles (1921) 185 Cal. 426, 430, 432; Tebbe v. Smith (1895) 108 Cal. 101, 111-112; Atkinson v. Lorbeer (1896) 111 Cal. 419, 422; see Gooch, at p. 278, fn. 7 [explaining that Rideout principle has been incorporated into Election Code as to statutory violations].) The constitutional violation at issue here is analogous to a mandatory statutory requirement (see Atkinson, at p. 422 [Australian ballot system is in many respects mandatory]; Burson, supra, 504 U.S. at pp. 202-203 [explaining Australian system was designed to secure secrecy in voting]), and it deprived every voter of his or her right to vote freely with the knowledge that his or her vote would remain confidential.
We set aside the District’s fee election because the voters were instructed to cast signed ballots with their names and addresses printed on the face of the ballots and were given no assurances that the ballot would be kept confidential. The votes cast were not a reliable expression of the popular will. (See Canales, supra, 3 Cal.3d at p. 127; Gooch, supra, 5 Cal.4th at p. 284.)[7]
Disposition
We reverse the judgment and direct the trial court to enter judgment for Greene and to set aside and annul the July 25, 2007 election on whether to approve a storm drainage fee for Zone 9 of the Marin County Flood Control and Water Conservation District. The District shall pay Greene’s costs.



_________________________
DONDERO, J. *


We concur:


_________________________
JONES, P. J.


_________________________
NEEDHAM, J.






* Judge of the Superior Court of San Francisco City and County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Trial Court	Marin County Superior Court
Trial Judge	Honorable Lynn Duryee
For Plaintiff and Appellant	Ford Greene In propria persona
For Defendant and Respondent For Interveners and Respondents Friends of the Corte Madera Creek et al.	Patrick K. Faulkner, County Counsel Sheila Shah Lichtblau, Deputy County Counsel Ogletree, Deakins, Nash, Smoak & Stewart Thomas M. McInerney

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