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
By Emily Levy on 8/29/2006, 4:37pm PT  

A judge in the San Diego challenge to the Francine Busby/Brian Bilbray U.S. House Special Election in California's 50th Congressional District has found in favor of the defendants' motion to dismiss the case based on jurisdictional grounds, The BRAD BLOG has learned.

We have covered the defendants' argument, that the swearing in of Bilbray --- just seven days after the election and a full 16 days prior to certification by San Diego County --- effectively transferred power to decide any election challenges from the California courts to the U.S. House of Representatives. Those arguments are discussed in detail in several previous BRAD BLOG articles (here, here, here and here.)

The defendants' attempts to force plaintiffs to cover the cost of attorneys fees (a so-called "SLAPP back" motion) was denied by Judge Yuri Hofmann based on the same jurisdictional arguments used to dismiss the case, according to the plaintiffs' attorney, Paul Lehto. Since the California court has no jurisdiction to adjudicate an election contest for a California U.S. House election, according to the court's opinion, it also has no jurisdiction to find against plaintiffs in the "SLAPP back" motion, explained Lehto. is now collecting donations to help defray the cost of an appeal of this ruling.

Extended EXCLUSIVE comments on the judge's ruling today, from attorney Paul Lehto are below, followed by Hofmann's ruling in its entirety...

The following comments come to us from the plaintiffs' attorney, Paul Lehto:

Today the court dismissed the election contest in San Diego's 50th Congressional District, holding that it had no jurisdiction or power to hear an election contest, administer a recount, or allow any evidence at all to be produced concerning a Congressional election, after a Representative has been sworn into the House of Representatives.

This powerlessness to protect the voters or the integrity of our elections on the part of the Superior Courts of California is due to the early, unilateral and premature swearing-in of Brian Bilbray to the House of Representatives on June 13th, only seven days after the election of June 6. The defendants claimed in briefing filed with the court on or about August 22, and the court held today, that the premature swearing-in resulted in the "exclusive jurisdiction" of Art. I, sec. 5 concerning elections to be transferred to the House of Representatives. After that point, this exclusivity means that nobody else has authority concerning any aspect of the election.

The swearing-in was indeed premature and an undemocratic transfer of power away from the People and in favor of politicians in Washington DC for numerous reasons. As of June 13th:

  1. By written admission of the Registrar of Voters in a letter there were thousands of votes were still uncounted on June 13th, the letter stating that 2,500 votes were still uncounted as of June 15 at 5 p.m. PST, Eastern Standard Time, which is slightly more than two days after the swearing-in on June 13th.
  2. Partial election totals indicated on June 13th that only a few thousand votes separated the candidates,
  3. As of June 13th, the defendants knew or should have known from news reports that the election would be disputed with recounts requested,
  4. As of June 13th, no manual audit had been started or completed as required by California law, and
  5. As of June 13th, it would still be 16 days or more before official certification of the election results - the only thing that makes an election complete, legal and official.
  6. Even as of today's date, no human being or combination of human beings have counted these votes even once; we've only been provided with totals to be taken on faith from reports of Diebold optical scan and touchscreen voting machines, with the possible exception of a 1% hand audit.
  7. On the level of the principles that our country was founded upon, the only legitimate political authority is that derived from the consent of the governed, and a fair election process. Given that elections are purely procedure and don't promise us substantive results that the best candidate will necessarily win, if the procedure of the elections is compromised, there is no political legitimacy. As it stood, the thousands of people and organizations concerned with this election all declared that based on all of the procedural irregularities ranging from sleepovers of voting machines, to precincts with turnouts that were thousands of percent higher than registered voters, there was simply NO BASIS FOR CONFIDENCE in the June 6 election.

Taken together, this partial list of circumstances means that the election was not finished when exclusive power was transferred to the House by the swearing-in on June 13th, and it terminated the democratic processes that we all expect to operate to their conclusion. In other words, if this was a sports game, it was as if the Speaker of the House terminated the "game" and declared victory with something like ten minutes left on the clock, instead of playing this closely contested game until the clock ran out as we would all expect. This denied due process (a complete election) to the voters, denied equal protection of the law to the 50th Congressional District (which does not have recount rights, while other Congressional districts and other election races do have recount rights) and, in fact, denies democracy to us all.

Today, the plaintiffs are declaring victory, having proven not only that an election was corrupted and invalid, but that democracy itself was denied. The House of Representatives denies that voters have any say whatsoever. They've exercised their absolute power to swear in Bilbray, and they've heard enough of this elections business, they deem a recount or investigation unwarranted. Checks and balances of elections have been eliminated, the public's right to supervise elections by witnessing vote counting and obtaining information about it has been denied, and in its place is an assertion of absolute uncheckable power, something that was clearly anathema to the people who wrote our Constitution and founded this country specifically in the context of elections, because elections were intended to be the People's primary if not sole protection against oppressive government, but if the House of Representatives can legally do this, then they can legally do anything, including ignoring elections entirely.

It is particularly troublesome that the Speaker and the Representative sworn in are members of the same political party. If only none of us knew which political party the Speaker of the House and Representative Bilbray were both affiliated with, I think all americans would agree that this was an improper action by the House, an abuse of elections, and a crime against democracy.

In fact, the decision to swear in Bilbray by the Speaker of the House of Representatives, was based on a fax of unofficial results sent by Suzanne Lapsley of the California Secretary of State's office to the House of Representatives. Presumably, the Speaker made an assessment that no further vote counting, auditing or certification would be necessary, and Bilbray was sworn in, with the intent that thereafter any and all actions taken by anybody would be void and without force and effect, due to the "exclusive jurisdiction" of the House concerning the Qualifications of its Members.

In summary, we set out to prove that a *particular* election in the 50th Congressional District in California was invalid and corrupted. What we in fact proved today, beyond any reasonable doubt, was that democracy itself was prematurely terminated and denied by the intentional actions of the defendants and the Speaker, and that they specifically intended this effect to occur, as they argue vociferously in their briefs that the plain and clear meaning of their premature swearing in was to render everyone else without power or jurisdiction to do anything. Under their interpretation of Art. I, sec. 5 of the US Constitution, everyone else except the House of Representatives is powerless to do anything about any election once a member is sworn. It is not within the legitimate sweep of this power, however, to exercise it before the election is over. Ironically, this tactic rendered the certification of the election null and void, so in this sense the defendants agree with the contestants that the election certification was not valid.

In dismissing this case on constitutional jurisdiction grounds, the court stating in its opinion in part, quoting another case with approval:

"Under 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 .... {...} 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.)

It may come as news to the voters of America that their Courts are powerles to "revise even the most arbitrary and unfair action of the legislative department...." The Court could have (as it was requested to do) assessed the Constitutionality of the premature action by the House given Roudebush v. Hartke, a US Supreme Court case stating that states have the right to perform the count, so therefore they have the right to perform a recount as well. But here again, the early swearing in was the defendants end-around this US Supreme Court case, as well as its end around democracy, the San Diego Superior Court, the rights of the contestants, and the requirement that all parts of the Constitution be upheld, not just Art. I, sec. 5.

Whether or not an appeal from this particular case is the vehicle, the contestants will fight on harder than ever before, because it is now clear that there are powerful forces in our country willing to exercise raw power to terminate elections.

Given the undeniable nature of the power grab that took place in San Diego's 50th Congressional District, the entire nature of the debate about the question of whether any elections officials might ever take advantage of less open methods of modifying or terminating election results via the opportunity of secret vote counting provided by electronic voting machines seems clearer than ever before.

Unless the people reassert their right, consistent with the 92% result in the recent Zogby poll, to supervise elections and obtain information regarding them, democracy itself will be lost.

The following is the text of a letter from the office of the Mikel Haas, Registrar of Voters of the County of San Diego. It was sent on June 15th (two days after the swearing-in of Brian Bilbray) in response to a request for information from a concerned citizen. You will notice that it confirms some of the statements made above by Mr. Lehto.

The tentative ruling, which is now the official ruling as of this afternoon, by Judge Yuri Hoffman, follows...

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, “[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: “Once 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.

Under 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 “[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, “confers 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 “[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:

“Each 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 “is 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:

“The 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.

“Courts 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 “no 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 “Election Contest” prays that the Court order a hand-count of the votes and thereafter “judge[] elected” “the 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 “a 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, “for [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 “academic”].) 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: “[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 “[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 “judicial interference” in cases where there was “a 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 “information 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, “it 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 “if 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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