CA-50: Lawsuit challenging results of Bilbray/Busby election dismissed on jurisdictional grounds

Finds Rushed Swearing in of Presumed Winner Bilbray by U.S. House ”” Just 7 Days After Election and 16 Days Before Certification ”” Transferred Power to Decide Election Outcome to Congress
California Voters, Courts Left Powerless to Challenge Illegally Administered Election According to Ruling

A Judge in the San Diego challenge to the Francine Busby/Brian Bilbray case has found in favor of the defendents motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG has learned.

We have covered the defendants argument in several previous articles (here, here, and here) and will have more coverage of today’s ruling shortly.

The defendants attempts to force plaintiffs to cover their attorneys fees (a so-called “SLAPP back” motion) was denied by the judge based on the same jurisdicational arguments used to dismiss the case, according to the plaintiff’s attorney, Paul Lehto. Since the California court has no jurisdication to adjudicate an election contest for a California U.S. House election, it also has no jurisidiction to find against plaintiffs in the “SLAPP back” motion.

We will have extended comments here shortly from Lehto. is now collecting donations to help defray the cost of an appeal of this ruling.

Judge Yuri Hofmann’s tentative ruling, which is now the final ruling as of this afternoon, is posted in full below…

The following is a TENTATIVE ruling for 8/29/2006,
Department 60, the Honorable YURI HOFMANN presiding.

Case Number GIC870044


The Election Contest filed on behalf of Contestants Barbara Gail Jacobson and Lillian Ritt is hereby DISMISSED, as this Court has no jurisdiction over the 50th Congressional District Special Election which took place on June 6, 2006 and which resulted in the unconditional swearing in of Congressman Brian P. Bilbray before the United State House of Representatives on June 13, 2006.

Article I, section 5 of the California Constitution [ed note: this was a typo, the court meant United States Constition, not California Constitution]provides, in relevant part:

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . ..

(Cal. Const. Art. I § 5, cl. 1.) On its face, this language clearly confers exclusive jurisdiction on the legislature with respect to its elections, and does not provide the legislature with the power to delegate such power to the courts. As stated by the U.S. Court of Appeals for the District of Columbia, ”œ[i]t is difficult to imagine a clearer case of ”˜textually demonstrable constitutional commitment’ of an issue to another branch of government to the exclusion of the courts [citations] than the language of Article I, section 5, clause 1. . . . The provision states not merely that each House ”˜may judge’ these matters, but that each House ”˜shall be the Judge’ (emphasis added). The exclusion of others – and in particular of others who are judges – could not be more evident.” (Morgan v. U.S. (U.S. App. D.C. 1986) 801 F.2d 445, 447.) Citing to a dissenting opinion in a Seventh Circuit case, the U.S. Court of Appeals for the District of Columbia held: ”œOnce the House has asserted its exclusive jurisdiction under U.S. Const. art. I, § 5 to seat a particular candidate as a member of the House, no court in the land – State or federal – has jurisdiction to hear any dispute contesting the outcome of the election.” (Id. at p. 449, quoting Judge Swygert’s dissenting opinion in McIntyre v. Fallahay (7th Cir.1985) 766 F.2d 1078, 1081.)

In California War Veterans for Justice v. Hayden (1986) 176 Cal.App.3d 982, citing to the California Supreme Court’s holding in In re McGee (1951) 36 Cal.2d 592, the Court of Appeal discussed in detail the constitutional mandate requiring that the judiciary may not determine the qualifications of members of the legislative branch:

After the adoption of the present California Constitution in 1879, the Supreme Court continued to rule that the judicial branch does not have jurisdiction to determine the membership in the Legislature. In French v. Senate (1905) 146 Cal. 604, four members of the state Senate were expelled for malfeasance in office. They petitioned the Supreme Court for writ of mandate to compel the Senate to reinstate them. (Id., at p. 605.) The court sustained a general demurrer to the petition, holding that it had no jurisdiction over the dispute.

”œUnder our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution…. By article III of the constitution it is provided that one department of the state shall not exercise the functions of either of the other departments except as in that instrument, expressly directed and permitted. There is no provision authorizing courts to control, direct, supervise, or forbid, the exercise by either house of the power to expel a member. These powers are functions of the legislative department, and therefore in the exercise of the power thus committed to it the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do.” ( Id., at pp. 606-607.)

In Allen v. Lelande (1912) 164 Cal. 56, the court denied a petition for a writ of mandate to order the Los Angeles County Clerk to strike the name of the candidate for the state Assembly from the ballot because of alleged nonresidency, stating ”œ[f]or this court to undertake to try the question of eligibility and to deprive the candidate of any chance to be elected, would simply be to usurp the jurisdiction of the assembly.” (Id., at p. 57.)

The California Supreme Court’s last decision on the question of whether the judiciary has jurisdiction to determine the qualifications of members of the legislative branch is In re McGee (1951) 36 Cal.2d 592. In that case a Democratic candidate challenged the nomination of a Republican candidate who won the nomination of both parties for the Assembly. At that time then extant Elections Code sections 8600 and 8603 (later repealed) provided that any candidate in the primary could contest the nomination of another candidate for the same office by filing an action in the superior court. (Id., at pp. 592-593.)

The Supreme Court in deciding the conflict between the statutes and the Constitution held that the Constitution, under article IV, section 7, ”œconfers exclusive jurisdiction on the Legislature to judge the qualifications and elections of its members.” (In re McGee, supra, 36 Cal.2d at p. 594.)

The court in In re McGee, supra, 36 Cal.2d 592, also noted that ”œ[t]he overwhelming weight of authority under identical federal and state constitutional provisions is in accord.” (Id., at p. 595.)

The parallel provision of the United States Constitution is article I, section 5, which provides in pertinent part:

”œEach House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, …”

The United States Supreme Court in Reed v. County Commissioners (1928) 277 U.S. 376, held that under Article I, section 5, the Senate ”œis the judge of the elections, returns and qualifications of its members…. It is fully empowered, and may determine such matters without the aid of the House of Representatives or the Executive or Judicial Department.” (Id., at p. 388; see also Barry v. U.S. ex rel. Cunningham (1929) 279 U.S. 597.

Appellant Conroy petitioned the Assembly in 1983 to remove Assemblyman Hayden from office. Appellant did not receive the relief he sought. It is unequivocally clear that under article IV, section 5 of the California Constitution, appellants cannot successfully seek relief in the courts. [Citations.]

Under the same constitutional principle of separation of powers, appellants are foreclosed from attempts to prohibit the Attorney General or the Secretary of State or the County Registrar-Recorder from certifying the election results, swearing in, or disbursing money to Assemblyman Hayden or interfering in the Legislature’s determination of the qualifications, fitness and elections of its members.

Appellants, in somewhat incomprehensible language, seem to invite us to issue an advisory opinion. They state in their appellants’ opening brief:

”œThe court could grant declaratory relief on the issue of Assemblyman Tom Hayden perjured statements on his Affidavit of Nominee, Declaration Of Candidacy to inform the Attorney General that a crime may have been committed, inform the electorite [sic] that Tom Hayden is not qualified to hold office or employment in the State of California, or inform the legislature that Assembly [sic] Tom Hayden is not qualified to hold office and let the legislature take whatever action they deem appropriate.

”œCourts have tradionally [sic] operated with limits to their powers, merely because a court is subject to jurisdictional limits entirely emasculate the jurisdictional power of the court. There are no courts in the 51 jurisdictions that encompass these United States that are of unlimited jurisdictions. If the general rule is unlimited jurisdiction then the exception has devoured the rule.”

If that language constitutes an invitation to us to issue an advisory opinion to the Legislature, the executive branch or any one else, we must decline the invitation, for we have power only to adjudicate actual controversies, not to issue advisory opinions.

(California War Veterans for Justice v. Hayden (1986) 176 Cal.App.3d 982, 987-990, emphasis added)

In In re McGee, supra, the California Supreme Court explained the reasoning behind the rule that the courts do not have power over the legislature’s elections:

It is true that comprehensive powers are given to the legislature with regard to primary elections by the constitution as follows: ”˜The Legislature shall have the power to enact laws relative to the election of delegates to conventions of political parties; and the Legislature shall enact laws providing for the direct nomination of candidates for public office, by electors, political parties, or organizations of electors without conventions, at elections to be known and designated as primary elections; also to determine the tests and conditions upon which electors, political parties, or organizations of electors may participate in any such primary election. It shall also be lawful for the Legislature to prescribe that any such primary election shall be mandatory and obligatory.’ Cal. Const., Art. II, s 2 1/2. That power is not unlimited. Communist Party v. Peek, supra. We see nothing in it that purports to strip or relieve the assembly or senate of their duty and obligation to judge the qualifications, elections, and returns of their members. The anomalous results that would follow if a court could make a binding determination under s 8600 of the Elections Code are apparent. If the trial court gave its judgment, either favorable or unfavorable, to the candidate after the primary election but nevertheless the candidate at the ensuing election received the majority of the votes cast, there can be little doubt that he could present his credentials to the legislative house to which he was elected and that body would be required to pass upon any claimed defect in his selection, regardless of the conclusion reached by the court. Such could easily happen as it has in the instant case. The trial court judgment was favorable to defendant and it was affirmed on appeal by the District Court of Appeal in September. But a hearing by this court was granted and in the meantime his name was on the ballot at the November election and he received a majority of the votes. For this court to rule upon the question would be futile, for the binding and conclusive decision rests with the assembly. If the legislature may, by authorizing court review of primary election contests, prevent a candidate from being on the ballot at the ensuing election for various defects as to the elections or qualifications, it would, in many situations, achieve indirectly what it could not do directly, that is, delegate to the courts its prerogatives under s 7 of Article IV of the California Constitution.

(In re McGee, supra, 36 Cal.2d at pp. 597-598, emphasis added.) This reasoning applies equally to section 5 of Article I of the California Constitution, which is at issue here.

It is thus clear that this Court does not have the power to oust Bilbray of his congressional seat, or to seat Busby in his place. At the August 25, 2006 oral argument of this matter, Contestants’ counsel admitted this fact, and in their papers, Contestants state that ”œno relief is requested concerning an order of this court to unseat Bilbray and install Busby.” (Opp. to Defendant Haas’ Memo of Ps&As, 5:10-11.) Noteworthy, however, in apparent conflict with this statement, the ”œElection Contest” prays that the Court order a hand-count of the votes and thereafter ”œjudge[] elected” ”œthe candidate with the most votes.” (Election Contest, 12:20-21, emphasis added.) (Also noteworthy, the Contestants’ Trial Brief requests that the Court set aside the election and order ”œa new election held according to proof at trial.”) At the August 25, 2006 hearing, counsel for Contestants stated that the purpose of this litigation is to seek the truth with respect to the subject election. He explained that if a recount is ordered and the results are different than the initial count, those results will be presented to the House of Representatives, which will then have the power to decide what to do.

Like in McGee and California War Veterans for Justice, this Election Contest invites the Court to issue some sort of an advisory opinion to the Legislature. The Court declines that invitation, ”œfor [it] ha[s] power only to adjudicate actual controversies, not to issue advisory opinions.” (California War Veterans for Justice v. Hayden, supra, 176 Cal.App.3d at p. 990; see also Campbell v. Superior Court (1932) 126 Cal.App. 652, 653-654 [dismissing election contest regarding primary election on grounds of mootness, based on judicial policy that courts should not squander judicial resources and time in hearing evidence in cases where any decision would be purely ”œacademic”].) The Court agrees with the U.S. Court of Appeals in Morgan v. U.S. (U.S. App. D.C. 1986) 801 F.2d 445, 451, which held: ”œ[O]nce the outcome of the contest has been conclusively adjudged by the House there is no meaningful relief we can provide, and the dispute is therefore moot. See McIntyre v. Fallahay, 766 F.2d at 1082. Compelling compliance with the procedures post-judgment would be pointless and absurd; and damages cannot be awarded if failure to comply with the procedures caused no harm – which it did not if McCloskey was in fact entitled to be seated – which, in turn, is what the conclusive effect of the House’s decision to seat McCloskey compels us to assume.” The Court also agrees with the Seventh Circuit’s statement in McIntyre v. Fallahay, supra, 766 F.2d at p. 1087 that ”œ[t]here is something unsettling about the prospect of one person sitting in Congress while the other seeks an advisory declaration in state courts that he ”˜really’ won,” which is precisely what Contestants seek here. Although the Court in Morgan allowed for limited ”œjudicial interference” in cases where there was ”œa clear showing of such arbitrary and improvident use of the [legislature’s] power as will constitute a denial of due process of law,” as in a case where, for example, the House goes beyond its constitutional power to compel witnesses, this is not such a case.

Even if this Court had jurisdiction and this Election Contest were justiciable, the Contestants’ Verified Statements are insufficient. The Elections Code requires that elections shall not be set aside unless the result of the contested election would be changed if a recount were ordered. (See Cal. Elec. Code §§ 16203, 16204, 16300, 16402.5, 16460.) It appears Contestants are unable to make this showing. Contestants’ Statements are conclusory in nature, lacking in foundation, and largely based on ”œinformation and belief” and hearsay statements, rather than on personal knowledge. (See, e.g., Jacobson Decl., ¶¶ 14-19, 21-32, 36-38.) Although election contest provisions should be liberally construed in favor of contestants, ”œit remains true that the law contemplates that there shall be at least some definite particularity in the charge of malconduct by election officers. It is absurd to suppose that a single elector, without any information on which to base his complaint, is entitled to impose on the superior court the burden of recounting the entire vote cast by the electors, in a great city in which there are hundreds of thousands of voters.” (In re Cryer (1926) 77 Cal.App. 605, 609; see Bradley v. Perrodin (2003) 106 Cal.App.4th 1153, 1172 [where trial court found it impossible to determine in whose favor illegal votes had been cast, and where, even assuming all illegal votes cast were cast against the victor and in favor of his opponent, there would be no affect on the election results, judgment granting election contest was reversed].) The Contestants’ Statements and the Election Contest itself allege no more than that there was a possibility of security breaches and hacking of the voting machines used in this election. Such broad, unsubstantiated claims are not enough. (See Campbell v. Superior Court (1932) 126 Cal.App. 652, 654 [noting that ”œif loose and indefinite allegations, supported only by information and belief affidavits, are all that is needed to start a recount, very undesirable results may follow”], emphasis added.)


Oral Argument Policy

This ruling is a tentative ruling pursuant to California Rule of Court 324. Unless modified or vacated by oral argument, the tentative ruling will become the final order of the Court. [See California Rule of Court 324]. Parties appearing for oral argument must appear on the date and at time noticed for the hearing. Failure to appear will be deemed waiver of oral argument. Unless otherwise ordered, no further order is to be prepared after the hearing. The prevailing party is to prepare and serve notice of this ruling pursuant to CCP Section 1019.5.

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1 CommentLeave a comment

  • …were starting to think that Lampson was a shoo-in…..

    As a Californian, I find this judge’s cop-out to be one of the biggext piles of steaming, stinking excrement I’ve ever seen.

    As for you SA folks, beware the streetside shell-game Gov Perry is foisting on you…..the paranoiac in me is starting to note a pattern…..

    -5.75,-4.05 “The invisible hand of Adam Smith seems to offer an extended middle finger to an awful lot of people”—George Carlin

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