Filed 8/14/18 Padilla v. County of Santa Clara CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ALEX PADILLA, as Secretary of State, etc.,

Plaintiff and Respondent,

v.

COUNTY OF SANTA CLARA, et al.,

Defendants and Respondents;

JONATHAN PADILLA,

Real Party in Interest and Appellant.

H044174

(Santa Clara County

Super. Ct. No. 16-CV-293166)
Appellant Jonathan Padilla seeks review of an order granting a petition brought by the Secretary of State for writ of mandate, which upheld the removal of Padilla’s name from the ballot in the 2016 presidential primary. The central question debated by the parties on appeal is whether Elections Code section 100 can be applied broadly enough to permit a document nominating a candidate for public office to be placed on the ballot when the signatures of voters approving his nomination have been obtained through a “remote pen” technology developed by Allpoint Voter Services, Inc. The superior court had ruled that the signatures on Padilla’s nomination papers were insufficient because some of them had not been personally affixed within the meaning of section 100, subdivision (b). Padilla, however, has not complied with the jurisdictional prerequisite of a timely notice of appeal. (California Rules of Court, rule 8.104.) We are therefore compelled to dismiss the appeal.

Background

On March 11, 2016, the Santa Clara County Registrar of Voters received 31 signatures on a paper nominating Padilla as a Democratic candidate for the position of Member of the County Central Committee, 27th Assembly District. In order for Padilla to be placed on the ballot for the June 2016 primary, the nomination paper had to list at least 20 valid signatures from registered voters. (§ 8062, subd. (a)(3); 7227.) The Registrar verified 24 of the 31 signatures.

Shortly after Padilla submitted his nomination papers, Michael Marubio, cofounder and chief executive officer (CEO) of Allpoint Voter Services, Inc., wrote to Steven J. Reyes, Chief Counsel for the Secretary, advising him that of the 31 voter signatures on the nomination papers, 19 were obtained using a traditional pen, while 12 were derived from a “remote pen” technology developed by Allpoint. All of those 12 signatures, Marubio said, were “ ‘wet’ signatures” because they were made on paper by the remote pen in ink. Marubio added that on some of the forms the circulator and petitioner were the same person.

On March 24, 2016, the Secretary filed a petition for writ of mandate to prohibit the Registrar from placing Padilla’s name on the ballot for the June 7 primary election. The next day the superior court granted the Secretary’s ex parte request to enjoin the Registrar from placing Padilla on the ballot for the June 7 primary election. The Registrar complied with that directive by removing Padilla’s candidacy information from the Election Information Management System database.

In support of his writ petition, the Secretary urged the court to find that the use of Allpoint’s remote-pen technology was unauthorized by section 100 and inconsistent with the state’s concern for “voter privacy, fraud prevention, and integrity of the electoral process.” By using the Allpoint mechanism, 12 voters did not “personally affix” their signatures on the nominating paper, as required by section 100. Thus, the Secretary argued, those signatures were invalid, making Padilla’s nomination ineligible for placement on the ballot.

In opposition, Padilla explained that the Allpoint system was more likely to attract young voters, who otherwise might be apathetic about voting, elderly voters who have limited mobility, and voters who live in rural areas without circulators. Padilla represented that the Allpoint pen was developed in response to Ni v. Slocum (2011) 196 Cal.App.4th 1636 (Ni), in which the First Appellate District, Division One, held invalid an electronic signature system used in 2010 to gather signatures for an initiative. Padilla maintained that Allpoint’s system complied with section 100 because it involved a pen, using ink, on a paper petition, and “the signer controls the pen just as she would a ballpoint pen.” (Emphasis omitted.) Thus, he argued, this technology was not an electronic signature as in Ni; it provided a “hand-drawn ink signature” in the voter’s own handwriting, which could be (and was) verified by the Registrar in the traditional way.

In its June 24, 2016 order the superior court first noted that the issues raised by the Secretary were clearly moot, as Padilla’s name had been removed from the ballot and the June primary had “come and gone.” The court nevertheless suggested, “in an abundance of caution,” that it had discretion to decide the merits of the matter as one raising “ ‘important issues [of continuing public interest and] capable of repetition but likely to evade review.’ ”

The court ruled that the Allpoint-derived signatures on Padilla’s nomination papers did not comply with section 100 because they were not “personally affixed” to the papers, as required by the statute, along with the voter’s “personally affixed” printed name and address. Comparing this case to Ni, the court first found, “The legislators who enacted the relevant language in the Elections Code intended that voters would write directly on a paper copy of the nomination papers . . . There is no evidence whatsoever that the Legislature contemplated electronic images of signatures being sent over the internet and recreated at a remote location by a robotic mechanical arm. Because there is no evidence that the Legislature has ever considered the use of such technology, let alone affirmatively endorsed it, this Court will not mandate its acceptance by judicial fiat.” The court further found that by allowing a signer to submit the paper without the witnessing of his signature by a separate circulator, the remote pen technology was inconsistent with the language and purpose of section 104. “While the Elections Code does not preclude a signer from serving as his or her own circulator, use of Allpoint’s ‘remote pen’ technology bypasses the circulator because it permits voters to gain access to nomination papers from the internet and execute them without the assistance or intervention of a circulator. . . . [¶] Additionally, Allpoint’s ‘remote pen’ technology eliminates from the signature collection system one of its primary protections against fraud because the circulator does not witness the actual application of the signature to the paper copy of the nomination papers.”

Timeliness of the Appeal

Under California Rules of Court, rule 8.104(a)(1), a notice of appeal must generally be filed on or before the earliest of: “(A) 60 days after the superior court clerk serves on the party filing the notice of appeal a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, showing the date either was served; [¶] (B) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a filed-endorsed copy of the judgment, accompanied by proof of service; or [¶] (C) 180 days after entry of judgment.”

As noted, the superior court filed its order granting the Secretary’s petition on June 24, 2016. Padilla filed his notice of appeal more than 60 days later, on September 1, 2016. Padilla’s Appellant’s Appendix included the order, but no document indicating when the file-stamped order was served on the parties. The Civil Case Information Statement likewise did not include that information; in the space for date of service, Padilla’s counsel wrote “N/A.” However, we obtained a copy of the superior court’s order with the clerk’s proof of service attached, and that document has been added to the appellate record and forwarded to the parties. It indicates that the order granting the Secretary’s petition was filed and served on June 24, 2016.

Neither the Secretary nor the Registrar challenged the timeliness of the appeal. However, because the time to appeal a judgment is jurisdictional (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56), and because “no court may extend the time to file a notice of appeal,” (rule 8.104(b)), we requested supplemental briefing on that issue.

Both the Secretary and the Registrar declined to file a supplemental brief. Padilla’s counsel, however, did submit a letter complying with our request. He stated that “On June 29, 201[6], Appellant received a file-endorsed copy of the judgment[;] however, no proof of service was received nor was there any indication of when the judgment was served.” He therefore maintained that the notice of appeal was timely, as it was filed well before the alternative deadline of December 21, 2016 (180 days after entry of judgment). (Rule 8.104(a)(1)(C).) Counsel submitted no declaration attesting to the asserted fact that “no proof of service was received.” Even if there had been such a declaration, it would make no difference: “The 60 days begins on the date of mailing and does not depend upon the party’s actual receipt of the document.” (InSyst, Ltd. v. Applied Materials, Inc. (2009) 170 Cal.App.4th 1129, 1134-1135; cf. Sharp v. Union Pacific R.R. Co. (1992) 8 Cal.App.4th 357, 360 [“the sender [of notice of entry of judgment] does not have the burden of showing the notice was actually received by the addressee”].)

In any event, Padilla does not dispute that he received a filed-endorsed copy of the judgment. That document, showing the filing date of June 24, 2016, was enough to trigger the 60-day period under rule 8.104. It is immaterial that he did not receive the proof of service itself.

“[T]he filing of a timely notice of appeal is a jurisdictional prerequisite. ‘Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.’ [Citations.]” (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) Because the applicable deadline was not met in this case, we lack jurisdiction to hear it and therefore must dismiss the appeal. (Rule 8.104(b).)

Disposition

The appeal is dismissed.

_________________________________

ELIA, ACTING P. J.

WE CONCUR:

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BAMATTRE-MANOUKIAN, J.

_______________________________

MIHARA, J.