Filed 5/21/19
                            CERTIFIED FOR PUBLICATION

                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                STATE OF CALIFORNIA



CITIZENS OVERSIGHT, INC., et al.,                  D073522

        Plaintiffs and Appellants,

        v.                                         (Super. Ct. No. 37-2017-27595-CU-
                                                   MC-CTL)
MICHAEL VU et al.,

        Defendants and Respondents.


        APPEAL from a judgment of the Superior Court of San Diego County, Hon.

Kenneth J. Medel, Judge. Affirmed.


        Care Law Group PC and Alan L. Geraci for Plaintiffs and Appellants.

        Thomas E. Montgomery, County Counsel, Timothy M. Barry, Chief Deputy

County Counsel and Stephanie Karnavas, Deputy County Counsel, for Defendants and

Respondents.

        Plaintiffs and appellants Citizens Oversight, Inc., a Delaware non-profit

corporation, and Raymond Lutz (collectively, "Citizens") filed an action against

defendants and respondents Michael Vu, the San Diego Registrar of Voters, and the

County of San Diego (County) (collectively the "Registrar") seeking a declaration that
Citizens could inspect and copy ballots cast by registered voters during the June 7, 2016,

California Presidential Primary Election (2016 Election) and a mandate requiring the

Registrar to produce those ballots for inspection and copying. The trial court ruled that

the ballots were exempt from disclosure under the California Public Records Act (CPRA

or Act; Gov. Code, § 6250 et seq.) because Elections Code section 153701 prohibited

disclosure. It granted the Registrar's demurrer to the complaint without leave to amend

and issued a judgment of dismissal.

       The Registrar has requested we take judicial notice of the judgment on the

pleadings in a separate case between Raymond Lutz and Michael Vu, San Diego Superior

Court case number 37-2016-23347-CU-PT-CTL. We grant this request pursuant to

Evidence Code sections 452, subdivision (a) and 459.

       Citizens has requested we take judicial notice of a case published by a New York

appellate court, Kosmider v. Whitney (N.Y.App. 2018) 75 N.Y.Supp.3d 305 (Kosmider).

We grant the request pursuant to Evidence Code section 451, subdivision (a).

                                      I. MOOTNESS

       The Registrar and the County state in their brief that the ballots from the 2016

Election have been recycled, in accordance with section 17301, subdivision (c).2 If so,

this case is moot because there are no longer any ballots from the 2016 Election that



1      Further statutory references are to the Elections Code unless otherwise specified.

2      As discussed more fully below, section 17301, subdivision (c) provides that
ballots in a federal election must be kept for 22 months, after which they shall be
destroyed or recycled.
                                             2
could be reviewed. Citizens could obtain no effective relief even if the appeal were

decided in their favor. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837,

848–849 (Saltonstall).)

          An appellate court retains discretion to decide a moot issue if the case presents an

issue of " 'substantial and continuing public interest' " and is capable of repetition yet

evades review. (Saltonstall, supra, 231 Cal.App.4th at p. 849.) This policy applies here.

Public disclosure of ballots is an important issue of public interest and the question of

access will likely recur with federal elections. Because the Registrar is authorized to

destroy or recycle ballots 22 months after each federal election (§ 17301, subd. (c)), this

issue is likely to recur yet to evade review, due to the time it takes to litigate a matter

through the trial court and into the appellate court. We therefore exercise our discretion

to resolve this issue even though the ballots from the 2016 Election no longer exist.

(Ibid.)

                                     II. SEALING OF BALLOTS

A. Standard of Review

          A demurrer tests the legal sufficiency of a complaint. We therefore exercise our

independent judgment when reviewing a ruling that sustained a demurrer. (People ex rel.

Harris v. Pac Anchor Transportation, Inc. (2014) 59 Cal.4th 772, 777.) We accept as

true all material facts properly alleged in the complaint, but not deductions, contentions,

or conclusions of law or fact. (Ibid.)

          Further, we conduct an independent review of a trial court's ruling under the

CPRA. When, as here, there are no disputed facts, the application of the Act to the facts

                                                3
is a question of law that is subject to de novo appellate review. (Associated Chino

Teachers v. Chino Valley Unified School Dist. (2018) 30 Cal.App.5th 530, 536 (Chino).)

B. Access to Records

       The California Constitution provides public access to information about

governmental operations. It states, "The people have the right of access to information

concerning the conduct of the people's business, and, therefore, the meetings of public

bodies and the writings of public officials and agencies shall be open to public scrutiny."

(Cal. Const., art. I, § 3, subd. (b)(1); City of San Jose v. Superior Court (2017) 2 Cal.5th

608, 615 (City of San Jose).) "Openness in government is essential to the functioning of

a democracy. 'Implicit in the democratic process is the notion that government should be

accountable for its actions. In order to verify accountability, individuals must have

access to government files. Such access permits checks against the arbitrary exercise of

official power and secrecy in the political process.' " (International Federation of

Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42

Cal.4th 319, 328–329.)

       Our Constitution also provides all Californians with a right to privacy. (Cal.

Const., Art. 1, § 1.) It provides, specifically, that "Voting shall be secret." (Cal. Const.,

Art. 2, § 7.) The privacy of the vote is a well-established social norm. (Chantiles v. Lake

Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 924.) Voters reasonably

expect that their personal voting decisions will not be known to others. (Ibid.)

       The CPRA balances the tension between open access to governmental records and

the constitutional right of privacy. It sets forth broad rules for access to public

                                              4
information, with exemptions that protect certain privacy rights. The Legislature has

declared that, "access to information concerning the conduct of the people's business is a

fundamental and necessary right of every person in this state," but it was also "mindful of

the right of individuals to privacy." (Gov. Code, § 6250.) In light of this balance, the

CPRA exempts from disclosure those public records that are expressly protected by

statute (Gov. Code, § 6254, subd. (k))3 and other categories of information when

balancing openness and privacy interests. (Gov. Code, §§ 6254–6254.33; City of

San Jose, supra, 2 Cal.5th at p. 616; Chino, supra, 30 Cal.App.5th at p. 536.)

       We interpret the Act by determining the Legislature's intent in order to effectuate

the law's purpose. " ' "We first examine the statutory language, giving it a plain and

commonsense meaning. We do not examine that language in isolation, but in the context

of the statutory framework as a whole in order to determine its scope and purpose and to

harmonize the various parts of the enactment. If the language is clear, courts must

generally follow its plain meaning unless a literal interpretation would result in absurd

consequences the Legislature did not intend." ' " (City of San Jose, supra, 2 Cal.5th at

p. 616.) Thus, we turn to the language of the Election Code statutes governing the

counting and maintaining of ballots, set within the context of the election procedures

created by the Legislature.




3       Section 6254, subdivision (k) provides:
        "(k) Records, the disclosure of which is exempted or prohibited pursuant to federal
or state law, including, but not limited to, provisions of the Evidence Code relating to
privilege."
                                             5
C. Election Procedure and Laws

       Ballots are counted in a central location in San Diego.4 When the polls close on

an election day, each precinct board bundles up and seals into a package or packages all

of that precinct's voted, spoiled, canceled and unused ballots. (§ 14431.) The precinct

board prepares another package or packages with the roster of voters, the index used as

the voting record, the challenge list, the assisted voters' list, and any tally sheets that were

used at the precinct. (§ 14432.) All the packages are taken to the central counting

location. (§ 12109.) The Registrar conducts a semiofficial canvass of the ballots and

then an official canvass at this central location. (§ 15150 [semiofficial canvass]; § 15300

[official canvass].) The Registrar must provide public notice of the counting location,

and members of the public may come and observe the counting. (§§ 12109 [notice],

15204 [observation].)

       Any registered California voter can request a recount after the official canvass is

completed and within five days beginning on the 31st day after a statewide election, or

within five days following completion of a post-canvass risk-limiting audit is performed.

(§ 15621.) The requestor must pay the cost of the recount. (§ 15624.) The recount must

be open to the public. (§ 15629.) The ballots may be publicly examined during the

recount but may be touched or handled only by an elections official or with the consent of

and supervised by the elections official. (§ 15630.)




4      The Registrar states that all ballots in San Diego are counted at a central counting
place, not at the polling locations.
                                               6
       After the count is completed, the Registrar must seal and maintain the packages of

voted, spoiled, cancelled and unused ballots, along with the identification envelopes for

vote by mail ballots and provisional ballots. For federal elections, these ballot packages

must be kept, unopened, for 22 months. After 22 months have passed the ballot packages

must be destroyed or recycled. (§§ 15370, 17301.) Section 15370, within the Article

entitled "Ballot Security and Reporting of Results" states, "After ballots are counted and

sealed, the elections official may not open any ballots nor permit any ballots to be opened

except as permitted in Sections 15303 and 15304, or in the event of a recount." Sections

15303 and 15304 pertain to questioning the members of a precinct board about defective

ballots. Section 17301 states that in federal elections, the ballot packages "shall be kept

by the elections official, unopened and unaltered, for 22 months from the date of the

election." (§ 17301, subd. (b).) Exceptions exist if the vote is contested or if there is a

criminal prosecution regarding election fraud. (§ 17301, subd. (c).) If there is no contest

or criminal prosecution within 22 months, the elections official "shall have the ballots

destroyed or recycled. The packages [of ballots] shall otherwise remain unopened until

the ballots are destroyed or recycled." (§ 17301, subd. (c).)

       The Registrar also maintains separate packages of the tally sheets, voting rosters,

challenge lists and assisted voters' lists for 22 months after federal elections. (§ 17303.)

Unlike the ballot packages, however, the packages of tally sheets, voting rosters,

challenge lists and assisted voters' lists may be inspected by all voters any time after the

commencement of the official canvass of the votes. Section 17303, subdivision (c) states,



                                              7
"All voters may inspect the contents of the package or packages at all times following

commencement of the official canvass of the votes."

D. Discussion

       The Legislature specified in clear language that after being counted, ballots "shall

be kept . . . unopened and unaltered." (§ 17301, subd. (b), emphasis added.) Further,

"[a]fter ballots are counted and sealed, the elections official may not open any ballots nor

permit any ballots to be opened." (§ 15370, emphasis added.) Both statutes have

exceptions not applicable here. In contrast, other election materials including tally

sheets, voting rosters, and other lists are specifically open for public inspection.

(§ 17303, subd. (c).) The language of the statutes could not be more clear. Ballots are

expressly protected from disclosure by statute. (Gov. Code, § 6254, subd. (k).)

       California courts have not addressed the issue of disclosure of ballots. Other states

have addressed this issue and in each case, the decision is based upon the particular

language of the statutes governing counting and maintenance of the ballots.5 In a split

decision in Kosmider, the two-justice plurality opinion closely parsed the language of a

New York election statute in determining that electronic ballots "shall remain sealed"

only until the information was transferred into permanent storage. The information was

open to public inspection after being transferred. (Kosmider, supra, 75 N.Y.Supp.3d at


5      See White v. Clark County (Wash.App. 2017) 401 P.3d 375; Sumner v. New
Hampshire Secretary of State (N.H. 2016) 136 A.3d 101; White v. Skagit County
(Wash.App. 2015) 355 P.3d 1178; White v. Clark County (Wash.App. 2015) 354 P.3d 38;
Price v. Town of Fairlee (Vt. 2011) 26 A.3d 26; Marks v. Koch (Colo.App. 2011) 284
P.3d 118; Smith v. DeKalb County (Ga.App. 2007) 654 S.E.2d 469; In re Decision v.
State Bd. of Elections (N.C.App. 2002) 570 S.E.2d 897.
                                              8
pp. 308–309.) A concurring justice interpreted the statute as not creating an exemption to

the freedom of information act, but as permitting inspection with a court order. (Id. at

pp. 310–311, conc. opn. of Aarons, J.) Two justices dissented, finding the statute created

an exemption from New York's freedom of information act, and created an exclusive

means of reviewing ballots by first obtaining a court order. (Id. at pp. 311–312, dis. opn.

of Rumsey, J.) New York has no common-law right of privacy and its Constitution

protects privacy only against state action. (Arrington v. New York Times (Ct.App. 1982)

55 N.Y. 2d 433, 440, 443.)

       We note that members of the public can observe the counting of ballots (§ 15204)

and can request a recount if not satisfied with the government's conduct of the counting

(§ 15621).6 It is also notable that the Voter's Bill of Rights, § 2300, gives the public a

right to observe the election process (§ 2300, subd. (9)(A)), but does not provide any

other right to inspect the ballots. (§ 2300.)

       Upon independent review, we conclude that the Legislature has exempted ballots

from disclosure under the CPRA by specific, clear language in sections 15370 and 17301.

We must follow the plain meaning a statute when, as here, the language is clear. (City of

San Jose, supra, 2 Cal.5th at p. 616.)




6       Citizens filed an action in the San Diego Superior Court contesting the election,
but the case was dismissed because the Sacramento County Superior Court has exclusive
jurisdiction for contests of presidential primary elections. (§ 16421.)
                                                9
                                  DISPOSITION

     Affirmed. Costs to be awarded to respondent Registrar.


                                                              BENKE, J.

WE CONCUR:



McCONNELL, P. J.



O'ROURKE, J.




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