BILL NUMBER: SB 61	CHAPTERED
	BILL TEXT

	CHAPTER  450
	FILED WITH SECRETARY OF STATE  OCTOBER 3, 2005
	APPROVED BY GOVERNOR  OCTOBER 3, 2005
	PASSED THE SENATE  SEPTEMBER 8, 2005
	PASSED THE ASSEMBLY  SEPTEMBER 6, 2005
	AMENDED IN ASSEMBLY  SEPTEMBER 2, 2005
	AMENDED IN ASSEMBLY  AUGUST 31, 2005
	AMENDED IN ASSEMBLY  JULY 6, 2005
	AMENDED IN ASSEMBLY  JUNE 23, 2005
	AMENDED IN SENATE  APRIL 12, 2005
	AMENDED IN SENATE  MARCH 14, 2005

INTRODUCED BY   Senator Battin
   (Principal coauthor: Assembly Member Jones)

                        JANUARY 14, 2005

   An act to amend Section 1357.120 of, to amend the heading of
Article 2 (commencing with Section 1363.05) of Chapter 4 of Title 6
of Part 4 of Division 2 of, and to add Sections 1363.03, 1363.04, and
1363.09 to, the Civil Code, relating to common interest
developments.



	LEGISLATIVE COUNSEL'S DIGEST


   SB 61, Battin  Common interest developments: elections.
   Existing law creates and regulates common interest developments
and requires them to have a recorded declaration containing specified
information and permits them to levy assessments. Existing law
establishes, in certain situations, voting requirements for
amendments of the declaration and the levy of assessments. Existing
law establishes the Common Interest Development Open Meeting Act.
Existing law requires that a common interest development be managed
by an association. Existing law regulates a broad range of activities
associated with statewide, local, and special elections.
   This bill would require that an association adopt rules, pursuant
to specified procedures, to provide equal access to various
association media as part of election campaigns, as specified, and to
establish qualifications for candidates and voting, as specified,
among other things. The bill would also make a conforming change. The
bill would require that elections within a common interest
development regarding assessments, selection of members of the
association board of directors, amendments to the governing
documents, or the grant of exclusive use of common area property be
held by secret ballot, as specified. The bill would require that a
common interest development select an independent 3rd party, as
specified, as an inspector of election, who would be granted
specified powers, for these elections. The bill would require that
ballots and two preaddressed envelopes with instructions on how to
return ballots be mailed to each member at least 30 days prior to the
deadline for voting, be handled in a specified manner, and that
votes be counted and tabulated by the inspector in public at a
noticed meeting. The bill would establish additional procedures for
storage and review of election results. The bill would prohibit
association funds from being spent for campaign purposes, as
specified, in connection with an association board election or in
connection with any other association election, except as specified.
The bill would permit a member of an association to bring a civil
action, as specified, for violations of these provisions, and other
provisions regarding open meetings, by his or her association, and
would impose a civil penalty of up to $500 per violation.
   The provisions of this bill would be operative July 1, 2006, and
would become operative only if AB 1098 is enacted and becomes
effective, as specified.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1357.120 of the Civil Code is amended to read:

   1357.120.  (a) Sections 1357.130 and 1357.140 only apply to an
operating rule that relates to one or more of the following subjects:

   (1) Use of the common area or of an exclusive use common area.
   (2) Use of a separate interest, including any aesthetic or
architectural standards that govern alteration of a separate
interest.
   (3) Member discipline, including any schedule of monetary
penalties for violation of the governing documents and any procedure
for the imposition of penalties.
   (4) Any standards for delinquent assessment payment plans.
   (5) Any procedures adopted by the association for resolution of
disputes.
   (6) Any procedures for reviewing and approving or disapproving a
proposed physical change to a member's separate interest or to the
common area.
   (7)  Procedures for elections.
   (b) Sections 1357.130 and 1357.140 do not apply to the following
actions by the board of directors of an association:
   (1) A decision regarding maintenance of the common area.
   (2) A decision on a specific matter that is not intended to apply
generally.
   (3) A decision setting the amount of a regular or special
assessment.
   (4) A rule change that is required by law, if the board of
directors has no discretion as to the substantive effect of the rule
change.
   (5) Issuance of a document that merely repeats existing law or the
governing documents.
  SEC. 2.  The heading of Article 2 (commencing with Section 1363.05)
of Chapter 4 of Title 6 of Part 4 of Division 2 of the Civil Code is
amended to read:

      Article 2.   Elections and Meetings

  SEC. 3.  Section 1363.03 is added to Article 2 (commencing with
Section 1363.05) of Chapter 4 of Title 6 of Part 4 of Division 2 of
the Civil Code, to read:
   1363.03.  (a) An association shall adopt rules, in accordance with
the procedures prescribed by Article 4 (commencing with Section
1357.100) of Chapter 2, that do all of the following:
   (1) Ensure that if any candidate or member advocating a point of
view is provided access to association media, newsletters, or
Internet Web sites during a campaign, for purposes that are
reasonably related to that election, equal access shall be provided
to all candidates and members advocating a point of view, including
those not endorsed by the board, for purposes that are reasonably
related to the election. The association shall not edit or redact any
content from these communications, but may include a statement
specifying that the candidate or member, and not the association, is
responsible for that content.
   (2) Ensure access to the common area meeting space, if any exists,
during a campaign, at no cost, to all candidates, including those
who are not incumbents, and to all members advocating a point of
view, including those not endorsed by the board, for purposes
reasonably related to the election.
   (3) Specify the qualifications for candidates for the board of
directors and any other elected position, and procedures for the
nomination of candidates. A nomination or election procedure shall
not be deemed reasonable if it disallows any member of the
association from nominating himself or herself for election to the
board of directors.
   (4) Specify the qualifications for voting, the voting power of
each membership, the authenticity, validity, and effect of proxies,
and the voting period for elections, including the times at which
polls will open and close.
   (5) Specify a method of selecting one or three independent third
parties as inspector, or inspectors, of election utilizing one of the
following methods:
   (A) Appointment of the inspector or inspectors by the board.
   (B) Election of the inspector or inspectors by the members of the
association.
   (C) Any other method for selecting the inspector or inspectors.
   (b) Notwithstanding any other law or provision of the governing
documents, an election within a common interest development regarding
assessments, selection of members of the association board of
directors, amendments to the governing documents, or the grant of
exclusive use of common area property pursuant to Section 1363.07
shall be held by secret ballot in accordance with the procedures set
forth in this section.
   (c) (1) The association shall select an independent third party or
parties as an inspector of election. The number of inspectors of
election shall be one or three.
   (2) For the purposes of this section, an independent third party
includes, but is not limited to, a volunteer poll worker with the
county registrar of voters, a licensee of the California Board of
Accountancy, or a notary public.  An independent third party may be a
member of the association, but may not be a member of the board of
directors or a candidate for the board of directors or related to a
member of the board of directors or a candidate for the board of
directors. An independent third party may not be a person who is
currently employed or under contract to the association for any
compensable services unless expressly authorized by rules of the
association adopted pursuant to paragraph (5) of subdivision (a).
   (3) The inspector or inspectors of election shall do all of the
following:
   (A) Determine the number of memberships entitled to vote and the
voting power of each.
   (B) Determine the authenticity, validity, and effect of proxies,
if any.
   (C) Receive ballots.
   (D) Hear and determine all challenges and questions in any way
arising out of or in connection with the right to vote.
   (E) Count and tabulate all votes.
   (F) Determine when the polls shall close.
   (G) Determine the result of the election.
   (H) Perform any acts as may be proper to conduct the election with
fairness to all members in accordance with this section and all
applicable rules of the association regarding the conduct of the
election that are not in conflict with this section.
   (4) An inspector of election shall perform his or her duties
impartially, in good faith, to the best of his or her ability, and as
expeditiously as is practical. If there are three inspectors of
election, the decision or act of a majority shall be effective in all
respects as the decision or act of all. Any report made by the
inspector or inspectors of election is prima facie evidence of the
facts stated in the report.
   (d) Any instruction given in a proxy issued for an election that
directs the manner in which the proxy holder is to cast the vote
shall be set forth on a separate page of the proxy that can be
detached and given to the proxy holder to retain. The proxy holder
shall cast the member's vote by secret ballot.
   (e) Ballots and two preaddressed envelopes with instructions on
how to return ballots shall be mailed by first-class mail or
delivered by the association to every member not less than 30 days
prior to the deadline for voting. In order to preserve
confidentiality, a voter may not be identified by name, address, or
lot, parcel, or unit number on the ballot. The association shall use
as a model those procedures used by California counties for ensuring
confidentiality of voter absentee ballots, including all of the
following:
   (1) The ballot itself is not signed by the voter, but is inserted
into an envelope that is sealed. This envelope is inserted into a
second envelope that is sealed. In the upper left hand corner of the
second envelope, the voter prints and signs his or her name, address,
and lot, or parcel, or unit number that entitles him or her to vote.

   (2) The second envelope is addressed to the inspector or
inspectors of election, who will be tallying the votes.  The envelope
may be mailed or delivered by hand to a location specified by the
inspector or inspectors of election. The member may request a receipt
for delivery.
   (f) All votes shall be counted and tabulated by the inspector or
inspectors of election in public at a properly noticed open meeting
of the board of directors or members. Any candidate or other member
of the association may witness the counting and tabulation of the
votes. No person, including a member of the association or an
employee of the management company, shall open or otherwise review
any ballot prior to the time and place at which the ballots are
counted and tabulated.
   (g) The results of the election shall be promptly reported to the
board of directors of the association and shall be recorded in the
minutes of the next meeting of the board of directors and shall be
available for review by members of the association. Within 15 days of
the election, the board shall publicize the results of the election
in a communication directed to all members.
   (h)  The sealed ballots at all times shall be in the custody of
the inspector or inspectors of election or at a location designated
by the inspector or inspectors until after the tabulation of the
vote, at which time custody shall be transferred to the association.

   (i) After tabulation, election ballots shall be stored by the
association in a secure place for no less than one year after the
date of the election. In the event of a recount or other challenge to
the election process, the association shall, upon written request,
make the ballots available for inspection and review by association
members or their authorized representatives. Any recount shall be
conducted in a manner that shall preserve the confidentiality of the
vote.
   (j) The provisions of this section apply to both incorporated and
unincorporated associations, notwithstanding any contrary provision
of the governing documents.
  SEC. 4.  Section 1363.04 is added to Article 2 (commencing with
Section 1363.05 of Chapter 4 of Title 6 of Part 4 of Division 2 of
the Civil Code, to read:
   1363.04.  (a) Association funds shall not be used for campaign
purposes in connection with any association board election. Funds of
the association shall not be used for campaign purposes in connection
with any other association election except to the extent necessary
to comply with duties of the association imposed by law.
   (b) For the purposes of this section "campaign purposes" include,
but are not limited to, the following:
   (1) Expressly advocating the election or defeat or any candidate
that is on the association election ballot.
   (2) Including the photograph or prominently featuring the name of
any candidate on a communication from the association or its board,
excepting the ballot and ballot materials, within 30 days of an
election, provided that this is not a campaign purpose if the
communication is one for which subdivision (a) of Section 1363.03
requires that equal access be provided to another candidate or
advocate.
  SEC. 5.  Section 1363.09 is added to Article 2 (commencing with
Section 1363.05) of Chapter 4 of Title 6 of Part 4 of Division 2 of
the Civil Code, to read:
   1363.09.  (a) A member of an association may bring a civil action
for declaratory or equitable relief for a violation of this article
by an association of which he or she is a member, including, but not
limited to, injunctive relief, restitution, or a combination thereof,
within one year of the date the cause of action accrues. Upon a
finding that the election procedures of this article, or the adoption
of and adherence to rules provided by Article 4 (commencing with
Section 1357.100) of Chapter 2, were not followed, a court may void
any results of the election.
   (b) A member who prevails in a civil action to enforce his or her
rights pursuant to this article shall be entitled to reasonable
attorney's fees and court costs, and the court may impose a civil
penalty of up to five hundred dollars ($500) for each violation,
except that each identical violation shall be subject to only one
penalty if the violation affects each member of the association
equally. A prevailing association shall not recover any costs, unless
the court finds the action to be frivolous, unreasonable, or without
foundation.
   (c) A cause of action under Section 1363.03 with respect to access
to association resources by a candidate or member advocating a point
of view, the receipt of a ballot by a member, or the counting,
tabulation, or reporting of, or access to, ballots for inspection and
review after tabulation may be brought in small claims court if the
amount of the demand does not exceed the jurisdiction of that court.

  SEC. 6.  This act shall become operative only if Assembly Bill 1098
of the 2005-06 Regular Session is enacted and becomes effective on
or before January 1, 2006.
  SEC. 7.  This act shall become operative on July 1, 2006.