Citizens Oversight, Inc. v. Vu
35 Cal. App. 5th 612
Cal. Ct. App. 5th2019Background
- Citizens Oversight, Inc. and Raymond Lutz sued the San Diego Registrar (Michael Vu and County of San Diego) seeking the right to inspect and copy ballots from the June 7, 2016 California Presidential Primary.
- Trial court sustained the Registrar's demurrer without leave to amend, holding ballots exempt from disclosure under the CPRA because Elections Code §15370 prohibited opening counted ballots; judgment of dismissal entered.
- The Registrar stated the 2016 ballots have since been recycled under §17301(c); the Court of Appeal nonetheless exercised discretion to decide the issue as capable of repetition yet evading review.
- Election procedures: ballots are centrally counted, sealed, and (for federal elections) must be kept unopened for 22 months, then destroyed or recycled; some election materials (tally sheets, rosters) are inspectable (§17303).
- Plaintiffs relied on CPRA access rights; defendants relied on explicit statutory provisions forbidding opening counted ballots (§15370) and requiring unopened retention (§17301), which the CPRA exempts from disclosure (Gov. Code §6254(k)).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counted ballots are public records subject to CPRA inspection | Ballots themselves are public records and should be inspectable under CPRA | Statutory scheme forbids opening or disclosing counted ballots; statutes exempt ballots from CPRA | Ballots are exempt from disclosure; statutes §15370 and §17301 bar inspection |
| Whether statutory language permits limited inspection (e.g., after transfer or under court supervision) | Public interest and existing recount procedures justify inspection or supervised review | Statutory text contains no such exception; other materials are explicitly open but ballots are not | Court reads plain statutory language; no implied inspection right absent statutory exception |
| Mootness due to destruction/recycling of 2016 ballots | Plaintiff argued issue remains important and recurring | Defendants noted ballots were recycled, making case factually moot | Court exercised discretion to decide issue despite mootness because issue is recurring and evades review |
| Whether other election records (tally sheets, rosters) affect ballot access | Plaintiffs pointed to public access to other election materials as precedent for ballot access | Defendants noted statute expressly distinguishes ballots from other inspectable materials (§17303) | Court distinguished ballots from other records; those other materials remain inspectable but ballots are statutorily protected |
Key Cases Cited
- City of San Jose v. Superior Court, 2 Cal.5th 608 (Cal. 2017) (principles for interpreting CPRA and constitutional access to governmental information)
- International Federation of Professional and Technical Engineers, Local 21 v. Superior Court, 42 Cal.4th 319 (Cal. 2007) (government openness and public access rationale)
- Saltonstall v. City of Sacramento, 231 Cal.App.4th 837 (Cal. Ct. App. 2014) (mootness and exception when issue is capable of repetition yet evades review)
- Associated Chino Teachers v. Chino Valley Unified School Dist., 30 Cal.App.5th 530 (Cal. Ct. App. 2018) (de novo review of CPRA application where facts undisputed)
- Kosmider v. Whitney, 160 A.D.3d 1151 (N.Y. App. Div. 2018) (different statutory reading in another jurisdiction regarding whether sealed electronic ballots remain sealed after transfer)