Gascón v. Logan
Docket Number | B326869 |
Decision Date | 10 August 2023 |
Citation | 94 Cal.App.5th 352,312 Cal.Rptr.3d 160 |
Parties | COMMITTEE TO SUPPORT the RECALL OF District Attorney George GASCÓN, Plaintiff and Respondent, v. Dean C. LOGAN, as Los Angeles County Registrar-Recorder/County Clerk, etc., et al., Defendants and Appellants. |
Court | California Court of Appeals |
Olson Remcho, Deborah B. Caplan, Lance H. Olson, Sacramento, and Benjamin N. Gevercer, for Defendants and Appellants.
Dordulian Law Group and Kathleen M. Cady, Los Angeles; Marian M. J. Thompson, Richmond; Ellis George Cipollone O'Brien Annaguey, Eric M. George, Los Angeles, and David J. Carroll, for Plaintiff and Respondent.
Hill Rivkins Brown & Associates, Adam C. Brown, Fair Oaks, for the California Association of Clerks and Election Officials as Amicus Curiae on behalf of Appellants.
Rob Bonta, Attorney General of California, Thomas S. Patterson, Senior Assistant Attorney General, Anya M. Binsacca and Kristin A. Liska, Deputy Attorneys General, for Secretary of State Shirley N. Weber as Amicus Curiae on behalf of Appellants.
The Committee to Support the Recall of George Gascón (the Committee) filed a lawsuit against defendants Los Angeles County Registrar-Recorder/County Clerk Dean C. Logan and the Office of the Los Angeles County Registrar-Recorder/County Clerk (collectively "the Registrar") to enforce the Committee's rights under the Public Records Act (PRA) ( Gov. Code, § 7920.000 et seq. ) to examine a recall petition the Registrar certified as invalid for placement on the ballot.1 After filing a verified petition for writ of mandate, the Committee filed an ex parte application for a preliminary injunction commanding the Registrar to disclose voter information and expand access under sections 7924.000 and 7924.110. The trial court granted the ex parte application, ordered disclosure of various voter records, and ordered the parties to meet and confer on increased access. By subsequent order, the court directed disclosure of additional records and granted the Registrar's request to set an amount of preliminary injunction bond.
On appeal from the original injunction order and the subsequent order, the Registrar contends the trial court misinterpreted sections 7924.000 and 7924.110 when ordering disclosure of voter records and increasing the Committee's access during the petition examination. The Registrar also challenges the setting of bond.
The Committee has filed a motion to dismiss this appeal for lack of jurisdiction under the PRA, which provides that any "order of the court, either directing disclosure by a public official or supporting the decision of the public official refusing disclosure, is not a final judgment or order" and must be reviewed immediately by petition to the appellate court for issuance of an extraordinary writ. (§ 7923.500, subd. (a).)
We conclude that the exclusive means of challenging an order granting or denying disclosure of records in connection with the examination of an unsuccessful recall petition under the PRA is through section 7923.500, which requires filing a petition for extraordinary writ relief within 20 days of service of written notice of the order's entry. Because the Registrar did not meet this requirement for the injunction order, we lack jurisdiction to consider any contention challenging it. However, the Registrar's notice of appeal falls within the jurisdictional time limit for the subsequent order directing further disclosure of voter records. We therefore exercise our discretion to consider the Registrar's challenges to new directives appearing in that order as a petition for extraordinary writ. Exercising our discretion, we conclude that the order improperly commanded the Registrar to (1) authorize use of electronic voter lists outside its examination room, and (2) disclose redacted affidavits of voter registration. We dismiss the portion of the appeal purporting the challenge the injunction order and partially grant the petition for extraordinary writ.
On December 8, 2020, George Gascón (hereinafter Gascón) assumed office as the Los Angeles County District Attorney. About a year later, the Registrar approved the form and wording of a request by the Committee to circulate a petition to recall Gascón from office. The Committee collected 715,833 signatures for its petition, 148,976 more than the signatures required to trigger a recall election. (See Elec. Code, § 11221, subds. (a)(5), (b).) On July 6, 2022, the Committee submitted the recall petition to the Registrar to verify signatures, certify the sufficiency of the petition, and order a recall election. (See id. , §§ 11222, 11224.)
During a five percent random sample review, the Registrar found 72.55% of the sampled signatures valid. (See Cal. Code Regs., tit. 2, §§ 20521 - 20540.) Following a full count examination, on August 15, 2022, the Registrar issued a press release indicating it found a total of 520,050 validated signatures, approximately 46,000 signatures short of that needed to qualify the recall for the ballot.2
On August 18, 2022, the Committee informed the Registrar that it intended to examine the petition to assess "which signatures were disqualified and the reasons therefor." (§ 7924.110, subd. (b).) By written response, the Registrar agreed that section 7924.110 "governs the scope of the Petition examination...." The Registrar allowed the Committee to examine petition signatures three days per week, 9:00 a.m. to 4:00 p.m., with no more than 14 representatives working at seven computer workstations under the control of Registrar staff. The Registrar prohibited the Committee from using any personal electronic devices inside its examination room.
The Committee commenced its examination on September 6, 2022. The Registrar provided the Committee with reports generated for the examination and in response to many of the Committee's questions.3 The Registrar agreed to make one additional report available, but also stated that any questions by the Committee that were not covered by the reports "have been determined to exceed the authorized scope of the examination ... as set forth in Government Code section [7924.110]." The Registrar declined requests by the Committee to disclose training materials for the software program it used to store voter registration records (Runbeck's EMS-DIMS Election Management System, hereinafter "DIMS"), all signatures on file for each voter, various lists and/or reports for signatures deemed valid and accepted, and signatures invalidated as duplicates, death, fatal pending, or different address.4
In October and November 2022, the Committee filed an initial and operative first amended verified petition for writ of mandate and complaint for declaratory and injunctive relief under the PRA and Elections Code section 13314 to enforce its right " ‘to inspect or to receive a copy of any public record or class of public records.’ "5 (Quoting § 7923.000.) The Committee asserted causes of action for injunctive relief and a writ of mandate commanding the Registrar to disclose nine categories of documents and data pertaining to the Committee's petition and the Registrar's examination thereof, and any training materials used by Registrar staff to interpret its own data. The Committee sought in relevant part electronic copies of lists of all voters the Registrar found submitted a valid signature, lists of all voters whose signatures were invalidated under various disqualification categories (duplicates, death, different address, and fatal pending), and original affidavits of registration and re-registration for voters whose recall signatures were rejected, excluding social security numbers, driver's license numbers, and identification card numbers.6
The operative petition also requested an order commanding the Registrar to permit 25 Committee representatives to examine the recall petition five days per week, with access to 25 computer workstations and the ability "to use personal electronic devices during the review process." Finally, the petition sought a temporary restraining order and preliminary injunction to grant the requested relief, an order declaring that the Registrar acted unlawfully by failing to provide the requested documents and access, and attorney fees and costs.
On October 24, 2022, the Committee filed an ex parte application seeking an order to show cause why a preliminary injunction should not issue for the relief sought in the operative petition.7 The court granted the ex parte application and set an order to show cause hearing for December 6, 2022.
In its written opposition, the Registrar argued that the documents sought by the Committee were not public records as defined under the PRA, and the Registrar had already provided documentation beyond that required by section 7924.110 and Elections Code section 2194. The Registrar contended that the Committee's requests were "based on a deliberately misleading reading" of section 7924.110, such that any additional disclosure would infringe on the Registrar's duty to safeguard confidential voter information.
On December 5, 2022, the trial court issued a lengthy tentative decision partially granting the Committee's application. At various points during a hearing the same day, the court stated that its order would be based on the PRA "requirement[s]." The Registrar acknowledged this, but "disagree[d] with the court's interpretation" of section 7924.110. During argument, the court orally amended its tentative decision and provided that its statements would supplement the final order, which would issue forthwith. The parties waived notice of entry of the final order.
The following day (December 6, 2022), the court issued a final order partially granting the Committee's ex parte application. The...
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