Filed 1/18/18 Cassar v. Vu CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA


RICHARD CASSAR,

Petitioner and Appellant,

v.

MICHAEL VU, as Registrar of Voters, etc.;

Respondent;
D071396



(Super. Ct. No.
37-2016-00027737-CU-WM-CTL)


MARK B. WYLAND,

Real Party in Interest and Respondent.



APPEAL from an order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Dismissed.
Ochoa Law and Ricardo Ochoa for Petitioner and Appellant.
Thomas E. Montgomery, County Counsel, Timothy M. Barry and Stephanie Karnavas, Deputy County Counsel, for Respondent.
The Sutton Law Firm, James R. Sutton, and Bradley W. Hertz for Real Party in Interest and Respondent.
As a candidate for the San Diego County Board of Education in the 2016 elections, Mark Wyland sought to change his ballot designation from "President Education Nonprofit" in the primary elections to "Education Foundation President" in the general elections. Taxpayer Richard Cassar brought an action in the superior court successfully challenging the proposed designation as not being Wyland's "principal profession, vocation, or occupation" at the time of the request nor in the "calendar year immediately preceding" the request. (Elec. Code, § 13107, subd. (a)(3).) Wyland then requested "Educator" as his ballot designation, which Cassar unsuccessfully challenged on the same grounds via an emergency ex parte motion. Now, more than a year after the election, Cassar seeks to pursue an appeal from the summary denial of his request for ex parte relief. Because we can no longer grant Cassar any effective relief, and because his challenge presents no clearly-defined legal issue on a well-developed factual record, we dismiss his appeal as moot.
FACTUAL AND PROCEDURAL BACKGROUND
Wyland ran for the San Diego County Board of Education in the 2016 elections. When he advanced from the primary elections to the general elections, he submitted a request to the Registrar of Voters for San Diego County (Registrar) to change his ballot designation from "President Education Nonprofit" to "Education Foundation President." Ten days after this request, on August 12, 2016, Cassar filed a petition for writ of mandate in the superior court challenging Wyland's new ballot designation as false, misleading and unlawful in violation of section 13107. In his petition, Cassar contended that "Education Foundation President" was not then or at any prior point Wyland's "principal profession, vocation, or occupation." (§ 13107, subd. (a)(3).)
On August 23, Cassar requested expedited briefing as the general election ballots were to be sent to the printers on September 9. The trial court held a hearing on September 1, and ultimately issued the writ of mandate directing the Registrar to notify Wyland that "Education Foundation President" was an unacceptable designation. The court declined to consider Wyland's proposed alternative designation of "Educator."
The Registrar notified Wyland accordingly, and on September 7 he requested "Educator" or "Education Consultant" as his ballot designation. Wyland claimed to provide the Registrar "substantially more information" than was previously available to the court. Among other things, the second change request claimed to provide support indicating that Wyland's education-related activities continued into 2016. On September 8, "Educator" was approved by the Registrar. The Registrar relied on the information Wyland provided in his second change request, as well as materials he included with his original nomination papers, and concluded that "much of the documentation" supported the "Educator" label. In particular, the Registrar noted that Wyland's fellowship activity in the January to December 2015 period showed "substantial and direct participation with the instructional process."
Cassar immediately requested an ex parte hearing to challenge Wyland's "Educator" designation. On September 9, the trial court denied Cassar's request for ex parte relief, finding that the Registrar did not abuse his discretion in allowing Wyland to use "Educator." Wyland used the designation "Educator" in the general election on November 8, but lost the race.
DISCUSSION
On appeal, Cassar requests reversal of the trial court's order denying ex parte relief. He acknowledges that since the elections have already passed, the matter is technically moot. He nevertheless contends this court should consider two issues of statutory interpretation because they raise "important legal questions under circumstances 'capable of repetition, yet avoiding review,' " and are therefore exceptions to the mootness doctrine. (Ferrara v. Belanger (1976) 18 Cal.3d 253, 259 (Ferrara).) Specifically, Cassar argues (1) that the "calendar year immediately preceding the filing of nomination documents" language of section 13107, subdivision (a)(3) should be interpreted to mean the preceding twelve months, as opposed to January 1 to December 31 of the preceding calendar year; and (2) the "different designation" a candidate can request for the general election under section 13107 subdivision (e) must reflect his or her "principal profession, vocation, or occupation" in the year immediately preceding the change request, not the year preceding the filing of nomination documents.
Generally, the courts will decide actual controversies rather than moot questions or academic propositions. (Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 636–637.) However, a court has the discretion to consider the merits of an issue, even if the issue has become moot by subsequent events, if the issue is one of broad public interest and is likely to recur. (In re William M. (1970) 3 Cal.3d 16, 23.) Indeed, California courts have previously concluded that the interpretation of election statutes can present issues of significant public importance which, because of strict election scheduling requirements, are often difficult to review in a timely fashion. (See, e.g., Ferrara, supra, 18 Cal.3d at p. 259; Kunde v. Seiler (2011) 197 Cal.App.4th 518, 528.)
Cassar argues the interpretation of section 13107, subdivisions (a)(3) and (e) presents issues of broad public interest that should be reviewed notwithstanding that Wyland lost the election and is no longer a candidate. He relies on statements made by the Registrar in a letter to Wyland approving the "Educator" designation. Cassar believes the Registrar misapplied the statute. (But see Andal v. Miller (1994) 28 Cal.App.4th 358, 366, fn. 5.)
Were we to decide this appeal on the merits, however, our task would not be to critique the reasoning employed by the Registrar of Voters. Rather, we would need to decide if the trial court acted properly in denying Cassar's ex parte relief. If the court's ruling were firmly based on a clear error of law, that might be grounds to decide what would otherwise be a moot appeal. Here, however, the abbreviated order denying ex parte relief merely stated that the Registrar did not "abuse[] his discretion in allowing [Wyland] to have his second choice of ballot designation." The court may have simply concluded there was sufficient conflicting evidence such that the Registrar's decision to allow Wyland's use of the designation "Educator" was not an abuse of discretion. Certainly the opposing parties do not concede that accepting Cassar's interpretational arguments would necessarily result in a decision in his favor. We would thus be required to engage in a fact-specific evaluation of the evidence submitted by Wyland to support the designation. That evidence in this case was unique. Resolution of the issue on the facts of this case would offer little guidance in future cases where the evidence presented by other candidates requesting different designations would be entirely different.
So even appreciating the narrow time constraints that often accompany election cases, we believe the better course is to await an active dispute clearly presenting a contested interpretational issue on concrete facts arising out of something more substantial than a request for ex parte relief.
DISPOSITION
The appeal is dismissed as moot. Each party shall bear its own costs on appeal.



DATO, J.

WE CONCUR:



HUFFMAN, Acting P. J.



NARES, J.