BENBROOK LAW GROUP, PC
BRADLEY A. BENBROOK (SBN 177786)
STEPHEN M. DUVERNAY (SBN 250957)
Attorney for Petitioner
CHERIE L. RAFFETY
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF EL DORADO COUNTY
|CHERIE L. RAFFETY,|
WILLIAM E. SCHULTZ,
in his capacity as El Dorado County Registrar
VERIFIED PETITION FOR WRIT OF MANDATE
[Elections Code § 13314]
IMMEDIATE ACTION REQUIRED
ELECTION MATTER ENTITLED TO CALENDAR PREFERENCE PURSUANT TO CODE CIV. PROC. § 25 AND ELECTIONS CODE § 13314(a)(3)
Hearing Date: March ___, 2014
Petition Filed: March 24, 2014.
Real Party in Interest
Petitioner Cherie L. Raffety (“Petitioner”) by this Verified Petition for Writ of Mandate, hereby alleges as follows:
1. This petition for writ of mandate is brought to prevent the El Dorado County Registrar of Voters from placing an ineligible candidate on the ballot for the June 3, 2014 primary election. Specifically, the Registrar has placed Ron Briggs on its local candidate list for the office of El Dorado County Treasurer and Tax Collector (“County Treasurer”) even though Briggs is not eligible for that office under California law.
2. Petitioner is entitled to mandamus relief under Elections Code section 13314, which permits voters to “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 . . . or any neglect of duty has occurred, or is about to occur.” Id., subd. (a)(1). A writ “shall issue” when the petitioner gives “proof of both of the following: (A) That the error, omission, or neglect is in violation of [the Elections Code], and (B) That issuance of the writ will not substantially interfere with the conduct of the election.” Id., subd. (a)(2). Petitioner satisfies this standard, and she is entitled to immediate relief.
3. Petitioner Cherie Raffety is a qualified, registered voter in the state of California, residing in El Dorado County. Petitioner is the Treasurer/Tax Collector for El Dorado County.
4. Respondent William E. Schultz is the El Dorado County Registrar of Voters (“Registrar”), and is the county official charged with the duty of conducting elections. The Registrar has the duty to “verify that all declared candidates for the office of county treasurer-tax collector qualify” under the El Dorado County Ordinance Code (“County Code”). County Code § 2.12.040(B).
5. Real Party in Interest Ron Briggs is an individual residing in El Dorado County who has submitted nomination papers in support of his candidacy for El Dorado County Treasurer/Tax Collector.
6. Following the high-profile bankruptcy of Orange County in 1994, the California Legislature significantly changed the eligibility requirements for serving as a county treasurer. Whereas there had previously been no special eligibility requirements, the Legislature imposed new criteria with the express goal of limiting eligibility to a relatively narrow class of persons. In order to be eligible for election to the office of county treasurer after the change in the law, California law requires a person meet one of the following criteria:
(1) The person has served in a senior financial management position in a county, city, or other public agency dealing with similar financial responsibilities for a continuous period of not less than three years, including, but not limited to, treasurer, tax collector, auditor, auditor-controller, or the chief deputy or an assistant in those offices.
(2) The person possesses a valid baccalaureate, masters, or doctoral degree from an accredited college or university in any of the following major fields of study: business administration, public administration, economics, finance, accounting, or a related field, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance.
(3) The person possesses a valid certificate issued by the California Board of Accountancy pursuant to Chapter 1 (commencing with Section 5000) of Division 3 of the Business and Professions Code, showing that person to be, and a permit authorizing that person to practice as, a certified public accountant.
(4) The person possesses a valid charter issued by the Institute of Chartered Financial Analysts showing the person to be designated a Chartered Financial Analyst, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance.
(5) The person possesses a valid certificate issued by the Treasury Management Association showing the person to be designated a Certified Cash Manager, with a minimum of 16 college semester units, or their equivalent, in accounting, auditing, or finance.
Gov. Code § 27000.7.
7. El Dorado County has adopted section 27000.7 as its eligibility qualification standard, and gives the Registrar authority to verify that candidates meets the eligibility standard. County Code § 2.12.040(A), (B). See also Elec. Code § 13.5(b)(6) (“[N]o person shall be considered a legally qualified candidate for” county treasurer unless the candidate files documentation “sufficient to establish . . . that the person meets each qualification established for service” under § 27000.7).
8. Candidates for Treasurer/Tax Collector must “submit a letter signed and executed under penalty of perjury listing the one or more candidate eligibility criteria of this chapter that they possess along with the other necessary candidate filings.” County Code § 2.12.040(B).
Briggs Fails To Satisfy Gov. Code § 27000.7’s Eligibility Requirements
9. Briggs submitted a qualification statement to the Registrar on or about March 6, 2014, a true and correct copy of which is attached as Exhibit A to this petition. Briggs claims to be qualified under section 27000.7(a)(1) based on his service as an elected member of the El Dorado County Board of Supervisors.
10. Briggs fails to satisfy section 27000.7’s eligibility requirements. A supervisor is not a “senior financial management position,” which the statute specifies to include specialized financial positions such as “treasurer, tax collector, auditor, auditor-controller, or chief deputy or assistant.” The fact that the board often deals with the county’s financial affairs does not turn a supervisor position into a specialized “financial management position.” Political oversight is not the equivalent of specialized experience. Multiple examples demonstrate the point. Dealing with a county’s public safety issues does not transform a supervisor position into a “senior law enforcement management position.” Likewise, overseeing a county hospital does not turn a supervisorial seat into a “senior health care management position.” Allowing Briggs to bootstrap his position as supervisor to meet section 27000.7’s heightened qualification requirements is thus inconsistent with the plain language of the statute.
11. The structure of section (a)(1) confirms that the “senior financial management position” to which the statute refers involves “similar financial responsibilities” to those responsibilities imposed on officers in the enumerated list: treasurer, tax collector, auditor, or auditor-controller. Boards of supervisors may have some degree of oversight of, and interaction with, these enumerated financial offices, but no one pretends that supervisors, simply by virtue of being elected to the board, necessarily gain the type of financial experience involved in doing the day-to-day work in these financial offices. But that is precisely the import of Briggs’ argument. “[A] specific statutory provision relating to a particular subject controls over a more general provision,.” Schelb v. Stein, 190 Cal.App.4th 1440, 1448 (2010); Code Civ. Proc. § 1859 (“In the construction of a statute the intention of the Legislature, and in the construction of the instrument the intention of the parties, is to be pursued, if possible; and when a general and particular provision are inconsistent, the latter is paramount to the former. So a particular intent will control a general one that is inconsistent with it.”).
12. Thus, the term “senior financial management position” must be understood to mean a position in a subject-matter-specific type of public office that deals only or primarily with public finance matters. Briggs’ position, by contrast, is that any “senior management position” that involves some oversight of financial matters qualifies him – or any other senior manager – to be a treasurer. That is not the test. Indeed, every senior management position in government deals to some extent with financial matters. The Legislature could not have possibly meant to open eligibility to all “senior management positions” in state or local government with the language of 27000.7(a)(1). Rather, eligibility here turns on having experience in a “senior financial management position.” Such experience is necessary given the substantial authority delegated by the board of supervisors to the County Treasurer, namely, the “fiduciary authority to invest or reinvest county funds deposited in the county treasury” and the application of the “prudent investor standard” to such investments. County Code § 3.38.030. Indeed, the fact that the County Treasurer – and not the board of supervisors – is responsible for county investments undercuts Briggs’s argument that his work as supervisor suffices to meet the heightened qualification requirements.
13. The maxim expressio unius est exclusio alterius further supports this result. The Legislature’s exclusion of “supervisor” from the list of enumerated positions is telling, particularly since SB 863 concerned the scope of county boards of supervisors’s authority in investment matters. “Ordinarily, the enumeration of one item in a statute implies that the Legislature intended to exclude others.” Int’l Fed. of Prof. and Technical Engineers, Local 21, AFL-CIO v. Super. Ct., 42 Cal.4th 319, 343 (2007).
14. Allowing such bootstrapping would also undermine the purpose of the statute, namely, to ensure that county coffers are not turned over to candidates that lack substantial training and experience. The treasurer qualification standards were enacted as “part of a seven-bill package sponsored by the California Association of Treasurers and Tax Collectors to cure weaknesses in local agency investment laws” in the wake of Orange County’s 1994 bankruptcy. Sen. Local Gov’t Comm., Bill Analysis, Sen. Bill No. 863 (1995-1996 Reg. Sess. 995) at 5 (Feb. 23, 1995). “[T]o improve their breed, county treasurers want the Legislature to establish the same kind of professional and training standards for treasurers as current law requires for auditors. Recognizing the important and complicated financial role county treasurers serve, SB 863 ensures that future county fiscal officers, whether they’re a county treasurer or county finance director, will have the minimum professional qualifications.” Id. at 3.
15. As a public servant herself, Petitioner does not denigrate Briggs’ service to the County. The simple point of this Petition is that service as a member of the Board of Supervisors does not, in and of itself, mean that a politician automatically satisfies the Legislature’s specific eligibility requirements in Section 27000.7.
Petitioner’s Timely Request for Relief Should Be Granted.
16. For the reasons set forth above, Petitioner alleges that Briggs is ineligible for election to County Treasurer. Elections Code section 13314 permits a voter to “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 . . . or that any neglect of duty has occurred, or is about to occur.” Id. at (a)(l). A writ “shall issue” when the petitioner gives “proof of both of the following: (A) That the error, omission, or neglect is in violation of [the Elections Code], and (B) That issuance of the writ will not substantially interfere with the conduct of the election.” Id. at (a)(2).
17. Petitioner demonstrates above that the Registrar has committed an “error, omission, or neglect” in violation of the Elections Code. And while a postelection contest is available to challenge the winner’s eligibility, Elec. Code § 16100(b), a preelection writ of mandate is the preferred method to challenge a candidate’s eligibility. McKinney v. Super. Ct., 124 Cal.App.4th 951, 957-59 (2004). The Registrar’s error will be compounded if Briggs appears on the June 3, 2014 primary ballot. Allowing an ineligible candidate to campaign and appear on the ballot leads to a host of unsavory consequences that compromise the integrity of the election.
18. Issuance of a writ will not “substantially interfere with the conduct of the Election.” Petitioner is informed and believes that March 28, 2014 is the last day for the Registrar to send sample ballot materials to the printer. This request is therefore timely, and the issuance of a peremptory writ of mandate on or before March 26, 2014 will not substantially interfere with the printing of the ballots or the conduct of the election.
19. Petitioner has no other adequate or speedy remedy at law and will suffer severe and irreparable injury if the Court does not order the Registrar to review Briggs’s qualifications and strike his name from the list of candidates because he does not qualify.
WHEREFORE, Petitioner prays for relief as follows:
1. For issuance of a peremptory writ of mandate directing the Registrar to review Briggs’s qualifications for County Treasurer and strike Briggs from the candidate list and ballot because he is not eligible to hold the office;
2. For an award of costs and attorney’s fees; and
3. For such other and further relief as this Court deems proper.
Dated: March 24, 2014 BENBROOK LAW GROUP, PC
Bradley A. Benbrook
Attorney for Petitioner Cherie L. Raffety
 Orange County’s bankruptcy resulted from its treasurer-tax collector (Robert Citron) sinking much of the county’s investment pool in highly leveraged, risky investments in derivatives and various securities. Rising interest rates caused the county to suffer losses; Citron chased his losses, borrowing $600 million, and by doubling-down based on his certainty that interest rates would recede. Citron was wrong. The net result? Over $1.5 billion in losses in funds that belonged not only to the county but money from cities and other local agencies, chief among them school districts that were required to invest through the county’s investment pool. Public Policy Institute of California, When Government Fails: The Orange County Bankruptcy 2-4 (March 18, 1998); New York Times, Orange County’s Bankruptcy: The Overview; Orange County Crisis Jolts Bond Market (Dec. 8, 1994), available at http://www.nytimes.com/1994/12/08/business/orange-county-s-bankruptcy-the-overview-orange-county-crisis-jolts-bond-market.html (visited March 23, 2014).
 While Briggs’ statement refers to his service on various boards, he does not appear to rely on those positions, and he does not in any event state whether he served on any of the boards “for a continuous period of not less than three years.” Nor do any of the boards listed on the statement qualify as similar to the designated positions in section 27000.7(a)(1).
 See March 20, 2014, Declaration of William E. Schultz, Registrar of Voters of County of El Dorado in Opposition to Petition for Writ of Mandate, ¶¶ 4, 10, Sullivan v. Schultz, Placer Cnty. Super. Ct. Case No. S-CV-0034346, a true and correct copy of which is attached as Exhibit B to this petition.