*1 Sept. 1970.] In Bank. No. 22724. [S.F. al., and et Plaintiffs Appellants, CANALES
JESUS ALVISO, OF Defendant Respondent; CITY JOSE, Intervener Respondent. CITY OF SAN *5 Counsel and C.
Ephraim for Plaintiffs Henry Krivetsky and Margolin Appellants. Horton, Halvonik, Neil Paul N. and Grace Stephen Manley M. Kubota as Amici Curiae on behalf of Plaintiffs and Appellants. Palla,
Ferdinand P. City Karren, Attorney, Richard K. Assistant City Atkinson, Attorney, Donald C. Deputy City Defendant Attorney, and Respondent. Johnston, Jr.,
Johnston Miller and Faber L. for Intervener and & Respond- ent.
Opinion PETERS, J.Petitioners to contest action an election held brought of Alviso City January determine whether that should city consolidate with the of San Jose. The City alleged petitioners were Alviso, electors of that consolidation carried because of votes, that offered valuable respondents consideration induce Alvisans to vote consolidation, in favor of and that the election board responsible for the conduct of the election committed various acts of misconduct. Code, (Elec. § (id.,
After a recount of ballots 20084), the was left at votes tally in favor of and 180 consolidation, votes intro- opposed petitioners duced evidence to their allegations. Some 21 voters support challenged *6 testified as to their Const., II, residence to the (Cal. election. prior art. 1; Code, Elec. § Ten were shown to be nonresi- by disqualified dence; an eleventh was to be a stipulated by felony conviction. disqualified It was consolidation, the felon voted stipulated in favor of and one witness, whose revealed testimony clearly his said he voted disqualification, against. The trial court sustained to objections respondents’ questions by as to posed how other petitioners witnesses voted. The in- petitioners troduced into voters, evidence signed by petitions, remaining which called for the consolidation to of putting issue the electors Alviso.
To consideration, of allegation offers of support the peti- tioners introduced evidence which tended to show of San City Jose center, Alvisans a promised a community swimming street pool, drains, storm lights, and street addition to local improvements—in typical evi- were These consolidation carried. promises services—if government Cor- and the Alviso Jose Improvement contract between San denced a by with in close was formed cooperation which organization poration, in Alviso. for consolidation office to City Manager’s campaign San Jose election litera- of a substantial proponents’ contract became part The ture. assistant, and the his administrative Manager,
The Jose City San at meetings in the by Jose took speaking of San Mayor part campaign electors to numbers of Alviso explain promises attended by varying 6 or 8 of wrote letters in the contract. The city manager embodied the City his guarantee giving Alviso’s to 15 “personal paid employees, of same a type San Jose will hire as Civil Service you employee aof day’s the loss single without work are now you engaged [in which] use their also and his assistant The wages.” manager promised city resolution calling “great Council City to effectuate a San Jose power enforcement in the of “unnecessary caution” and avoidance hardships” Jose’s code in Alviso. San building the Alviso Fire assistant informed manager’s
The administrative city on receive jobs firemen would Chief that six to Alviso’s eight unpaid carried, having if consolidation the San Jose Fire without Department this informa- relayed Fire Chief Perkins civil service examinations. pass called attended a volunteer firemen who meeting tion the 10 or 11 warning administrative assistant’s with the him for along purpose, con- fireman who was against —never denied him—that outspoken One Alviso little chance of job.” solidation would have “very getting for consolidation by $100 that he was offered work resident testified Santos, and one administrative assistant Tony the San Jose City Manager’s was in that he testimony an Alviso Councilman. Another resident’s City work for con- Jose if he would City essence offered a with the San job denied mak- The administrative assistant solidation was contradicted. a favor- offer ever conditioned anyone job $100 or offering ing able vote on the consolidation issue. on the misconduct
The evidence part petitioners’ purported that two voters were ballots election board included testimony denied election, to be ballots to the given when admitted moving prior *7 Santos, Councilman who demanded when returned they by accompanied allowed vote because owned in Alviso. Six they that be they property ballots of that did not live in they voters were admissions given spite were ballots in of the election board Alviso. Three voters given spite that did not reside in Alviso. All of these knowledge they judge’s personal list, of which were voters were two listed on challenge copies petitioner’s of voters was re- the election board None these presented inspector. Code, 14244.5) (Elec. to take the residence oath statutory § quired prior addition, In took the evidence tended to show that the board voting. consolidation, action Santos and no two of Councilman against proponents of who talked to voters Alviso president Corporation, Improvement caused There was no evi- some polls, apparently disruption. dence that from there was testimony anyone voting. Finally, prevented that a truck consolidation near the carrying sign urging parked steps the polls.
The trial court motion “in the nature of a motion granted respondents’ Proc., 631.8.) nonsuit” as to illegal (Code vote contention. Civ. voters, The court found that of the 21 challenged 10 were by disqualified conviction; nonresidence in Alviso and one virtue of of by felony votes, consolidation; these 11 one was cast for and one against “that it cannot be ascertained and there was no evidence how the remain- cast”; ballots ing were and that 9 votes should remaining taken half from each a final of 1S3V2 side—leaving votes in favor tally and 174Vis votes to consolidation. held that court opposed Although board misconduct election, or offers of consideration void an it found may that neither nor their made of valuable respondents agents offer con- any sideration to consolidation, induce electors to vote in favor of and that the election board was not of misconduct. guilty any
The held findings—prepared allegations respondents—also I paragraph petitioners’ statement of contest “not true” as to the except identity I petitioners. alleged that all of Paragraph “during petitioners the times were, herein mentioned are, and still electors City Alviso.” Petitioners’ objections respondents’ findings ex- proposed pressly that the requested I be found allegations true. paragraph
Judgment election was entered confirming 1968. April
Standing we Initially must deal with contention that hav- respondents’ petitioners, been found not ing to be court, electors the trial have no to con- standing test the election.
Elections Code section 20021 elector relevant provides “[a]ny part of a city, or of county, any subdivision of either contest political therein, election held . . (Italics added.) .”
The trial court’s were not finding electors of Alviso petitioners cannot be Petitioners upheld. averred in their second amended expressly statement of contest that all of the times herein mentioned they “during
126 are, evi were, offered in electors of the of Alviso.” Petitioners City and still electors, as but this dence the index their names containing precinct proof— as electors was out albeit status kept inconclusive—of qualified petitioners’ at trial. Had issues of evidence insistence materiality by respondents’ electors, the were ever denied averment respondents petitioners have been both and admissible. But evidence would material respondents contest, the of and never the never filed an answer to statement disputed at trial. their several motions to dismiss Accordingly, averment in respond (Doty ents must be to have admitted status as electors. deemed petitioners’ Jenkins, 497, 1104].) not raise v. 142 Cal. P. 499 Respondents [77 of fact for the trial court. the issue for the first time in findings prepared Illegal Votes a with of fact on motion Review of entered findings judgments is of section 631.8 governed by under Code Civil Procedure judgment (U. In S. any which on other following findings. same rules apply appeal Vadnais, 520, dustries, 44].) 524 Inc. v. 270 Cal.Rptr. Cal.App.2d [76 Code, the contestants must 20024 of the Elections Under section to ac votes were sufficient in number only make it appear cast such manner illegal votes were but also that count for the result contestants We are satisfied that determine the result. as in fact to of in the absence votes and that their burden as to the crucial nine met evidence, court to so find. refusing the trial erred contrary votes were cast as to how the nine illegal in the record evidence The only of which the on the virtue all nine voters signatures of petition circumstantial, such evidence is admissible. held. Although election was McAbee, 871].) 709, Re P. 64 718 v. (Robinson Cal.App. [222 votes were cast inconsistently that these no effort to show made spondents “that the of Alviso City which asked with the wording petition, Alviso Jose . . . that City Council] of San City [the with consolidated of such con submit the question election without delay call special do Alviso, city and that of City council] to the electors of [the solidation of Alviso City to consolidate necessary within things all other power [its] record leads reasonably .” Jose. . . Accordingly, San with City cast in favor con votes were that all nine illegal the conclusion solidation. votes, of the nine court’s allocation respondents the trial
In defending Los (Simpson City v. elections in favor of upholding invoke policy An- 464]; County Los 271, Davis P.2d 40 Cal.2d Angeles, [253 1034]; City Los Rideout v. P.2d 426-427 Cal.2d [84 geles, Prewett, Cal. 74]; People 426, 430 P. 185 Cal. Angeles,
127 619]), 10 P. and that the fact the argue illegal voters signed petition [56 for consolidation is insufficient of how voted—at least in view proof they of other methods of We have concluded allegedly proof open petitioners. that the trial court’s of the vote contention cannot be disposition illegal on either of these upheld grounds.
The in favor of elections in the cases in con policy upholding appears with the rule that errors in junction or irregularities arising “[t]echnical out which carrying do the result will not directory provisions affect avoid (Davis County Angeles, the v. Los 12 Cal.2d at supra, election.” of (italics added); 426 City Angeles, supra, Rideout v. Los 185 Cal. at p. of 430; Prewett, People v. supra, 124 Cal. at Both the p. p. policy “[cjourts and the rule manifest the fact that are reluctant to defeat the fair of will in (Simpson City elections. . . .” Los An- expression popular of geles, supra, 277); 40 Cal.2d at neither has been an invoked to p. uphold election in the face of which affected the illegalities result—a situation in which the will of the be thwarted election. people by upholding Hence, invocation of the in favor of elections respondents’ policy upholding begs whether were question irregularities incidental to the result merely inor fact “the fair will.” prevented expression popular merits,
On the contend that the respondents signatures voters on illegal does not voted in petition1 they favor of prove consolidation some later, three months and that should asked have how each petitioners directly voted. On witness conclude that there was sub theory, respondents no cast, stantial evidence to show how votes tending were and hence that illegal the trial court was correct in votes under the rule dividing illegal equally 72-7;4 McDowell, of Russell v. 183], 83 Cal. P. Single as applied tary Kelley, 682], Those cases Cal.App.2d [51 Cal.Rptr. call for a clearly division of votes in illegal votes when legal proportion there is no evidence doubt, how those votes were cast. 2There can be no illegal signatures 1 Five of nine voters whose appear petition on the testified they signed four, remaining they it. Of the two testified that were in favor of consolidation, voters, parents illegal one—whose they were also and testified that signed petition they registered by prominent the same time were proponents two registered consolidation—testified proponents. signature that he was those His appears immediately signature after those parents. of his Evidence of the remaining illegal itself, voter solely petition although comes from the he testified that Taylor gave Street registrar (and address he appears petition) which on the was fact the address of a “beer hall” he rented from Respond Councilman Santos. complain ents they would have signature demanded authentication on the petition had petition understood that the prove was offered to how voters record, however, voted. From the there can parties be no doubt that all understood petition that the was primarily offered and received purpose. for this 2 Respondents Singletary contend that the record in in fact contained evidence as probative of how case, votes were cast as is the evidence in the instant Singletary hence that stands proposition for the that such evidence is But insufficient. that an issue
however, on a signature urging put that a voter’s petition *10 evi circumstantial a certain result be obtained is on the ballot so that favor of that that he in fact voted in which is admissible to show dence McAbee, 718.) Accordingly, 64 at supra, v. (Robinson result. Cal.App. p. Rourke, Garrison 32 (Cf. v. Russell rule of no avail to the respondents. 430, 884].) Cal.2d 441 P.2d [196 If how voted. to ask voters they petitioners
Contestants are required his that a witness changed decision based fears either made a tactical upon of consolidation the that a strong mind after or signing proponent petition election, such a would lie to the result who voted illegally preserve counter the their obligation would not relieve decision respondents to show that the nine substantial evidence in fact introduced by petitioners 1*3 had the same consolidation.* votes were cast in favor of illegal Respondents voted, did how but not cross- they to ask voters problematical opportunity or favored that the signed the witnesses who testified they examine petition circumstantial showing to rebut to attempt petitioners’ consolidation on the the voted in accord with their signatures witnesses petition.4 have an elector who Although may subsequently signed petition that this ever oc- mind, made no effort to show his changed respondents substantial evidence a the record contains clearly curred in fact. As result of consolida- votes were cast in favor to show that all nine illegal tending tion, Accordingly, judgment and no evidence to contrary. absolutely Bechdolt, v. (Haines lack of evidentiary be reversed for any support. must 659, 53].) 231 665 Cal.Rptr. [42 Cal.App.2d here, reversal it is rules of review unnecessary
Since settled require any include such “It is axiomatic set the court do not evidence. the facts as forth Gilbert, (People authority propositions not considered.” v. that cases are not 724, 580].) 475, 482, “Questions merely Cal.Rptr. 462 which 1 7 P.2d Cal.3d fn. [82 record, brought upon, ruled are neither to the attention of the court nor lurk in the not to (Webster having precedents.” to constitute as been so decided as be considered 411, 413, 148].) (1925) 507, 45 266 511 L.Ed. S.Ct. v. Fall U.S. [69 finding illegal dispute only nine votes were in addition 3 Petitioners do not course, clearly accounted both sides are free to to those two which were for. Of Ry. challenged (E.g., Co. relitigate validity upon vote Atchison etc. retrial. Court, 549, 85].) Superior 554 v. 12 Cal.2d P.2d [86 retrial, problem pre can be handled purposes 4For it would seem that establishing legality procedure by which the court rules on the of a vote trial order evidence, opportunity present permits and after a full for both sides to then appears voters be asked voted. Where it that the evidence will come how exhibits, judge might previously witness and submitted a trial rule from the himself witness, legality on the after cross-examination or a voir dire of the and of each vote permit an voter to answer how cast his ballot on redirect or after the voir he legality testimony dire. If the of each vote must be determined from the of more than witness, subject being recalled court one the witnesses can be excused ruling after the trial (Cf. legality has made a as to the each all vote based the evidence. Code, Evid.
129 Union of North on the of amicus American Civil Liberties suggestion pass ern California that because of fundamental nature of the stake rights (Otsuka Hite, 284, 412], 596, 414 P.2d 64 Cal.2d 601 Cal.Rptr. [51 cited), review of cases courts must undertake independent appellate Angeles Los Board (cf., Angeles the evidence Los Teachers Union e.g., V. Education, 551, 723, 827]) 455 P.2d Cal.2d Cal.Rptr. void elections whenever the evidence reveals a “reasonable likelihood” contestants’ votes have been diluted and the result of unconstitutionally Court, Superior election Maine (cf. has been determined thereby 372]). Cal.2d 383-384 438 P.2d [66 Cal.Rptr.
Since offers and board misconduct alleged questions involving illegal job retrial, arise on we to consider those issues. proceed
Offers of Consideration Petitioners’ contention that the of election must be voided because offers of 20021, consideration is based Elections Code subdivision section (c), which contests when “the defendant has elector permits given any reward, . . . bribe or or has any offered bribe or reward for the any pur of election, his pose or has committed procuring other offense any against the elective franchise defined 12000) at Section Chapter (commencing 15, of Division 8 or Division of this code.” In relevant part, penal pro visions referred to in section 20021 for the of bribery proscribe purpose Code, voter in influencing any (Elec. 29130, his vote casting 12003), §§ offers of to induce a employment designed voter to vote or refrain from (id., 12004), voting loan, offer, making § “any gift, promise, to, for, or procurement, agreement with or any order to induce person, or endeavor person procure the . . . vote of voter procure any at any (Id., 12005.) election.” § contention
Respondents’ that offers of consideration cannot be the ground of an election contest must be rejected. Section 20021 an permits elector to election” challenge “any held in his subdivision “for political And, causes.” [enumerated] some of the although language (c) subdivision election”), candidate implies (“his election section 20089 that this and provides certain other of the code “shall also provisions apply to the recount of votes measure, cast on a ballot insofar as can be made they It is clear that applicable.” a “recount of votes cast” limited to the mechanical ballots, but process embraces at least the counting adjudica tion of whether a vote is reason of the nonresidence by of the voter. (Singletary v. Kelley, supra, 242 611.) Cal.App.2d
Thus (d) subdivision of section which contests permits votes,” con based on can be the basis of ballot measure election “illegal test, also (c) should not and no reason subdivision why apply appears must that the outcome of the such elections. A contestant establish of the defect which he if was determined virtue complains election (Elec. Code, such votes. No statu contest is based upon illegal on the basis when a candidate election is contested exists tory requirement bribes to secure his election. Whatever should of that candidate’s offer of acts,5 measure when a commits such a ballot is not the result candidate the misdeeds of its Il unworthy rendered proponents. passage not void election unless it is of consideration should shown offers legal influence—i.e., if would have been different without their that the result will. a contestant of a of majority By requiring expression prevented (c) subdivision to show that a de measure election who relies upon ballot consideration affected outcome of thereby fendant who offered valuable “can be made “the election,6 (c) recount of subdivision applicable” measure,” (d), a ballot as can subdivision cast on meaning votes within Venneman, (Cf. Williams 620- of section 20089. Cal.App.2d 757].) P.2d 621 [109
Moreover,
“a
a
it is settled that
voter has
constitutional
to
qualified
right
denied,
vote
elections without
debased
wrongfully
vote in
his
or
having
College
50,
(1970)
v. Junior
Dist.
U.S.
(Hadley
. . .”
397
52
diluted.
45, 49,
791],
cited),
and cases
that ballot box
90 S.Ct.
L.Ed.2d
stuffing
[25
(Reynolds
fundamental
v. Sims (1964)
a voter of this
right
may deprive
506, 522-523,
533,
1362];
L.Ed.2d
84 S.Ct.
Baker
554-555
U.S.
[12
377
680,
186,
663,
L.Ed.2d
131 with full force to exercises of state and that these principles apply power County (Avery such as v. Midland subdivisions cities through political 45,51,88 1114]). (1968) 481 is no 390 U.S. L.Ed.2d 8.0. There [20 basis issue elections from candidate elections on which logical distinguish Cipriano City (1969) Houma (cf. to an vote regard the right equal that a 1897]), and it would U.S. S.Ct. appear 701 L.Ed.2d 89 [23 inducing vote be as debased votes with citizen’s may unconstitutionally If of an election bribes as ballot boxes with votes. the result by stuffing means, it self-evident is determined either of these unlawful is of their con those have been losing least who voted side deprived section right construing stitutional to an vote. Accordingly, equal bribes on grounded 20021 to ballot election contests measure permit remain available to influence is essential if the is to voting designed judiciary for the of the at stake here. vindication fundamental rights elec
A
which
to the
countervailing
grounds
limitation
First
fundamental
tion—candidate or
issue—may
challenged
when
Amendment interests in full and free discussion
take
precedence
ever
conflict with
Code. Election-oriented
Elections
provisions
are,
course,
debates
to influence
and a campaign
designed
voting,
speech
jobs
of government
arguably
increase in
number
generally promising
vot
conflicts
to influence
with
proscribing offering employment
provisions
But First
immunize election
ers.
Amendment
undoubtedly
interests
speeches
on a certain vote.
fall
conditioned
which
short of promises
employment
(Cf.,
Commission,
v. Civil
Fort
Service
Cal.2d
e.g.,
Cal.Rptr.
625,
Viewed Jose’s most of San light, objections prom petitioners’ *13 of that the ises must be do not contend participation Petitioners rejected. is Jose officials which that city city San in a consolidation in campaign is must interested se and and other city officials improper, per proponents the fact be able to the merits of consolidation. Accordingly, argue that San Jose recreational and other promised municipal improvements, code, affect caution” in the its cannot “great building enforcement of such election, of consolidation advantages of the as validity purported issue. as these went to the heart debate on this of any meaningful Likewise, is certainly a consolidated city fate of of employees city’s fact that the consolidating to and the of interest those employees, and to communicate took losses of officials to minimize employment, steps of the considerations, not affect the validity view of relevant does their where, case, shown that job guarantees election—at it is not least as in XI, Article vote. favorable were conditioned employee’s upon con of that Charter employees section of San Jose City provides solidated cities shall “be deemed to have their names lists for eligible upon them, and held to be for of respective types positions qualified appoint letters, ment such The to San Jose City Manager’s respective positions.” his assurance that of Alviso would giving personal recipient employees carried, hired in fact be if consolidation went the charter beyond provision essence, to the extent of in that all would indicating, eligible applicants find A estimate of the effect of the charter openings. practical competent situation, in of San Jose’s would of provision, light employment clearly interest to and there is no that furnishing Alviso employees, impropriety estimate to the interested persons.
It would be that reality the San Jose who shirking deny City Manager, consolidation, favored that for Alviso’s clearly hoped ensuring employment would further the city chances of consolidation at the or employees polls, at that this was least one behind factor his letters and hope motivating Such offers be deemed in a appearances. might candidate election improper Head, (Bush 512]), 154 Cal. P. but the balance between First Amendment interests in full discussion Fourteenth Amendment interests in demands a different result equal voting rights here. Whatever when, result a candidate to retain his appropriate example, promises elected, if staff the fate of aof predecessor’s consolidated employees city too close the merits of the issue before the electors rele permit chilling vant discussion elections because of by voiding that discussion—especially when the motives is most purity indirectly relevant to promisor’s Moreover, voted merits the measure no upon. petitioners presented evidence of the six or eight who received the man employees city ager’s letters—or anyone else—was influenced and this thereby, ground contest must therefore fail for lack offers showing job affected the result of the election.
The jobs volunteer firemen was promises a matter of apparently some within Council, the San Jose controversy but a City majority determined body good faith that the charter should provision be applicable firemen who are interested in unpaid consolidation. paying positions upon hand,
On the other conditioning eligibility being outspoken *14 to opposition consolidation is Fort v. clearly Civil Serv (E.g., improper. Commission, ice supra, 331.) 61 Cal.2d Petitioners made no how showing, ever, that of the any volunteer firemen who heard this condition were deterred thereby consolidation, from or that opposing this impropriety contributed in to the any way result the election. the
Finally,
of one
testimony
Alviso resident that he was offered
consolidation” was directly
$100 to
the
“get
together”
people
“push
offeror, the
the
contradicted
the
administrative assistant to
San
by
purported
trial court’s
no
of San Jose
finding
Jose
and the
that
City
agent
Manager,
. . .
other
to
offered valuable consideration “to induce
any
person
procure
on
must be deemed
or endeavor to
a favorable vote
consolidation”
procure
that the administrative as
conclusive on this
Dr. Galarza’s testimony
point.
sistant asked him to
Mexican-Americans to vote for con
Alvisan
encourage
solidation,
a
and at the same time asked him if he would be interested in job
Jose,
decide,
with the
need not
how
San
was uncontradicted. We
City
ever, whether this
induce
constituted as a matter of law
illegal attempt
Code,
12005;
(Elec.
Dr. Galarza
endeavor
a
favorable vote
§
procure
Head,
Clark,
283;
Bush
supra,
Bradley
cf.
203-208 P. as no offer was alleged accepted, petitioners made no the of the election. such offer contributed to result showing any
Election Board Misconduct For the ballot must be all reasons measure election contests per (c) mitted under 20021 when it is that the subdivision of section alleged result was determined discussed in offers of consideration—as (a) subdivision on section—contests must be under previous permitted thereof was board or member grounds guilty precinct “[t]hat ,”7 statute, malconduct. . . be that misconduct affected it must shown By Code, (Elec. result. §§ merits, On the it was for election officials clearly per improper mit the voters to vote the oath of resi challenged without administering dence whenever a voter is on the basis of nonresidence. challenged required (Elec. Code, 14244.5.) it would have been Similarly, preferable had the officials for lawful cleared the who were present polls persons evidence, however, truck There is no purposes. presence to the attention of sign brought consolidation was carrying urging board. Since there was evidence that at the did not congestion prevent polls from that at most eight and since showed anyone voting, petitioners misconduct, votes) votes five of the were cast virtue of (including defeated but for there was no evidence that consolidation would have been (e) election apply to ballot measure 7 Subdivision of section 20021 should also contests, although provides it is It contest not now involved in case. ground conducting election or in precinct based on the board in “[t]hat returns, as canvassing change of the election made errors sufficient to the result any person who has been declared elected.” *15 134 the declined to void the misconduct and trial court
the alleged, properly 20022, 20023.) Code, (Elec. election on this §§ ground.
The is reversed. judgment J., Sullivan, Tobriner, J., Mosk, J., concurred. and clear dissent. Contestants had the burden of BURKE, J. I establishing illegal the voters in and that each of nine convincing question evidence evidence on this voted in favor of consolidation. direct Although actually voted, he each voter how issue was available to contestants readily by asking “circumstantial evi contestants exclusively nevertheless chose rely these voters several months dence” of a signed by prior consisting petition but this was not clear the election. Since instead convincing, evidence be the trial on the issue was conjectural sought proved, speculative found, so in contestants. clearly against Having court was justified finding for that of the trial should from its substituting this court refrain judgment court. it to election contests that
“It is the of law as applied primary principle the if That to say, is the court to validate election possible. the duty (Italics plainly illegal. unless the election be held valid must [Citations.]” 426, added; Angeles, 74]; 430 P. see City Los 185 Cal. Rideout v. [197 1925, 725, 38]; Cal. P. Bay In re etc. Water Bonds 196 744 East [239 Heusner, Prewett, 7, 619]; v. People v. 124 Cal. 10 P. Shinn 91 Cal. [56 248, 886].) 252 P.2d App.2d [204 has burden of rule that a contestant has
Accordingly, developed cast, but that cast votes were were illegal proving McDowell, 70, 183]; Singletary v. (Russell v. 83 Cal. P. contestee. 73 [23 Code, 682]; 20024.) In Kelley, 611 Elec. 242 Cal.Rptr. Cal.App.2d [51 election, herein, establish such as involved contestants must a noncandidate what votes were cast for ballot issue illegal manner the involved. contestants to furnish Kelley, supra.) The have (Singletary v. courts required Thomas, 533, (Smith 71]), 536 P. or clear” evidence v. 121 Cal. “very [54 (Hawkins Sanguinetti, evidence v. 98 “clear and convincing” Cal.App.2d 58]) 278, 283 and have insisted P.2d regard, uniformly [220 himself, if available voter he is such evidence adduced from Thomas, Estes, (Smith V. Lauer v. 120 Cal. supra; and willing testify. McDowell, 262]; Sanguinetti, supra; Hawkins v. P. Russell [53 McAbee, 871].) P. supra; Robinson Cal.App. cases, supra, Lauer and Hawkins use of rejected For example, disclose how voters extrajudicial writings particular purporting Smith, should be supra, court stated clear evidence “very voted. In
135 furnished to how one did vote before his vote can be deducted from as candidate,” that “if total voter Crabree’s statement rejecting thereby voted, (121 had at I I I would have voted for Cal. suppose p. [defendant].” Russell, 535.) supra, In the court affirmed that “there is but one means of vote; cast how the voter has his that is to own tes- say, his proving by rule.1 . . .” Cases have this timony. jurisdictions from other adopted cases, With so I frankly the rule well established am by foregoing astounded that the can conclude that are not majority required “Contestants (Ante, to ask exclu 128.) voters how voted.” The rely majority p. McAbee, 709, supra, Robinson v. 64 their sively upon Cal.App. support that the was evidence consolidation sufficient circumstantial theory petition to disclose how the voted. But Robinson voters held that “The court witness, voter, did not err in Miss requiring Waggoner, alleged illegal the name voted give testimony of the whom she disclosing person True, (64 for the office of at Rob justice p. peace.” Cal.App. inson to, noted that also “circumstantial be resorted neces evidence may if sary, to a voter has his a cast ballot or voted for prove disqualified added, at a at (italics candidate election” 64 particular particular Cal.App. 718), a on Elections. voter p. citing McCrary states “where McCrary disclose, remember, voted, refuses to or fails to he for whom it is competent evidence, to resort to circumstantial to raise a in to that regard presumption Elections, 493, fact. words, (McCrary, 363.) In other circumstan p. tial evidence is admissible where direct evidence is unavailable from Robinson, examined, voter himself. In was but couldn’t illegal voter Therefore, “swear” that she voted for contestee. circumstantial actually evidence of her intentions was admissible.
Reliance Robinson to a broader rule was upon rejected support expressly Sanguinetti, Hawkins v. supra, 283-284, 98 wherein Cal.App.2d contestants to introduce executed sought affidavits voters one fol- month Estes, lowing election. The Lauer v. supra, court relied Cal. 120 upon 652, as not, contends, stated that Robinson controlling, “is as appellant for the use of authority as is manner such writings proposed appel- lant herein.”
Surely,
months before
signed
the election occurred
entitled
petition
to no
or
greater weight
effect than the affidavit
a voter
executed shortly
thereafter, and does not constitute the
clear” evidence
“very
required
cases. As the trial court herein stated
evi-
admitting
into
petition
dence, “the court will
feels
indicate at
time that it
it
has
petition]
[the
1 See,
McGill,
e.g.,
266, 274]; Bentley
Wilkinson v.
very probative to have their desire denoting can certainly anyone sign petition because election, how but it doesn’t indicate before the an issue put people admitted for It will be pur- to vote in sense. primarily they’re going have for what value may purposes.” they impeachment [sic] poses satisfactory “If and less 412 weaker Code section Evidence provides to it within the produce is offered when was power party evidence evidence, should the evidence offered and more satisfactory stronger “In determin- 413 states that with Evidence Code section viewed distrust.” the case or facts in against to draw from the evidence what inferences ing consider, . . . things, fact other party’s the trier of among party, in Shapiro . .” As stated thereto . . wilful evidence relating suppression-of 725], Soc., 75, P.2d Equitable quot- v. Assur. [172 Cal.App.2d Life “ naturally of evidence that would ‘The from Wigmore, nonproduction ing claimant an honest and therefore fearless have been by permits produced (Italics cause.’ party’s is to the the inference that its tenor unfavorable 1127-1130, and text.)” Witkin, (2d 1966) ed. (See also Evidence §§ cited.) cases the trial court’s authorities are on sustain directly
The foregoing point that the nine voters illegal herein that contestants failed to finding prove The to excuse voted for consolidation. majority actually attempt question voters their their failure to examine illegal regarding contestants from have lied feared that these voters might vote on the that contestants ground in Russell election. This was rejected argument squarely preserve McDowell, with 70, also supra, 83 Cal. 73: “He argues equal [contestant] voter has cast force, how the illegal that there is but one means proving false vote; which is more to be his own say, likely his by testimony, have true; how votes that the illegal than and consequently attempt prove the fraud. But what conse- in an been cast can result aggravation truth, a v . . In have us deduce from this reasoning? would he quence better, as to how votes illegal in the absence of can do nothing proof court done in this as was cast, have to make been than apportionment case . . .” . deter- overlook the trial make ability credibility
The majority judge’s herein; is obligated the nature involved no judge accept minations of in the litiga- of a witness interested face value the “self-serving” testimony voters to examine outcome. Had contestants fulfilled their obligation tion’s vote, the voter’s cross-examination their (supported directly regarding an un- well weakened or on the have might signature impeached petition) Rourke, 430, 442 32 Cal.2d (See Garrison favorable response. Thomas, 884], supra, 121 Cal. wherein and Smith v. P.2d manner.) in this voters was successfully testimony impeached to ask the chose not voluntarily The shows that contestants record before voters examined four initially how voted. Contestants voters M. how she voter Eva Lopez voted. asking voter how he asking any Upon objec- “That’s an voted, objection: made the following proper respondents the Court Honor, a clear unless there’s ruling tionable Your question, cast, the con- under If the vote is vote is cast. ... legally illegally not to answer.” stitution the voter is required Mrs. found ultimately Lopez court sustained the objection,
The *18 taken. As was well objection have been an voter. illegal Respondents’ McAbee, Robinson v. which the majority rely, stated in case upon will not be course, supra, compelled “Of such challenged [a voter] person he shown until it is clearly for whom he voted as to the testify person vote is of his as to legality voted And so as illegally. long question doubt, (64 to make the disclosure.” in he cannot be Cal.App. compelled 715; accord, Elections, 490-4,92.) supra, McCrary, §§ p. voters examined four more
After Mrs. contestants examining Lopez, was Then, without them how voted. voter Donald asking they Epperson he, had voted asked whether or not he told Robert that one Reed Epperson, on ground favor of consolidation. Again, objected, solely respondents court had been be an voter. The shown to yet illegal Epperson was a legal that there was a “serious whether agreed Epperson question” “Well, I voter, point at this don’t and sustained the objection, stating domicile one yet way feel that there’s foundation laid to establish sufficient added.) other, (Italics time” or the and I’ll at this sustain objection him, further, and never excused Contestants thereafter examined Epperson him, it clear unmistakably recalled even the court’s had made though ruling voted that contestants could ask and other voters how they Epperson Thereafter, voters were as voters. six more establishing illegal their status examined, had but did how they contestants not examine them regarding voter, Gonzales, was Then, been an voted. Louis E. shown to have illegal answer, and vote, asked the court to how he cast his was permitted voters were against that he six more Finally, voted consolidation. replied but not to them how voted. contestants chose ask questioned, examined, admit into evi- Once all voters had been contestants moved to view, testi- their dence the for consolidation and explained petition accorded any should not be from voters their vote regarding mony the circumstantial and that were contestants weight relying exclusively upon estab- which conclusively evidence afforded. Thus the record petition decision not to inquire lishes that made tactical voluntarily contestants the rule of the cases dis- most voters their vote. Under regarding above, sections 412 and the trial court and under Evidence Code cussed motion for granted respondents’ judgment. properly I would affirm the below. judgment J., McComb, J., C.
Wright, concurred.