Please read the Press release for background information.
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The original filing
Note, this version does not have case number so we will be updating as soon as I get the official copy.
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Michael Vu's main response is as follows:
Response: The ballots have been sealed pursuant to Elections Code 15370 and 17301, and may only be opened in
compliance with those statutes. The Public Records Act does not apply to official records which are exempted or
prohibited from disclosure by other statutes. (Gov. Code § 6254(k); Evidence Code §1040.)
Cal. Elec. Code §15370
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.
Cal. Elec. Code §15303 and 15304
If the returns from any precinct are incomplete, ambiguous, not properly authenticated, or otherwise defective, the elections official may issue and serve subpoenas requiring members of the precinct board to appear and be examined under oath concerning the manner in which votes were counted and the result of the count in their precinct. This section shall apply when ballots are tabulated manually or automatically at the polls
In jurisdictions using a central counting place, the elections official may appoint not less than three deputies to open the envelopes or containers with the materials returned from the precincts. If, after examination, any of the materials are incomplete, ambiguous, not properly authenticated, or otherwise defective, the precinct officers may be summoned before the elections official and examined under oath to describe polling place procedures and to correct the errors or omissions.
Cal. Elec. Code §17301
(a) The following provisions shall apply to those elections where candidates for one or more of the following offices are voted upon: President, Vice President, United States Senator, and United States Representative.
(b) The packages containing the following ballots and identification envelope shall be kept by the elections official, unopened and unaltered, for 22 months from the date of the election:
(1) Voted polling place ballots.
(2) Paper record copies, as defined by Section 19251, if any, of voted polling place ballots.
(3) Voted vote by mail voter ballots.
(4) Vote by mail voter identification envelopes.
(5) Voted provisional voter ballots.
(6) Provisional ballot voter identification envelopes.
(7) Spoiled ballots.
(8) Canceled ballots.
(9) Unused vote by mail ballots surrendered by the voter pursuant to Section 3015.
(10) Ballot receipts.
(c) If a contest is not commenced within the 22-month period, or if a criminal prosecution involving fraudulent use, marking or falsification of ballots, or forgery of vote by mail voters' signatures is not commenced within the 22-month period, either of which may involve the vote of the precinct from which voted ballots were received, the elections official shall have the ballots destroyed or recycled. The packages shall otherwise remain unopened until the ballots are destroyed or recycled.
Except as provided in Sections 6254.7 and 6254.13, nothing in this chapter shall be construed to require disclosure of records that are any of the following:
(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.
Evidence Code section 1040 provides in pertinent part:
(a) As used in this section, 'official information' means information acquired in confidence by a public employee in the course of his or her duty and not open, or officially disclosed, to the public prior to the time the claim of privilege is made.
(b) A public entity has a privilege to refuse to disclose official information, and to prevent another from disclosing official information, if the privilege is claimed by a person authorized by the public entity to do so and:
(1) Disclosure is forbidden by an act of the Congress of the United States or a statute of this state;
(2) Disclosure of the information is against the public interest because there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice . . . . In determining whether disclosure of the information is against the public interest, the interest of the public entity as a party in the outcome of the proceeding may not be considered."
The official information privilege in Evidence Code section 1040, subdivision (b)(2), is expressly conditional, not absolute.
If the public entity satisfies the threshold burden of showing that the information was acquired in confidence, the statute requires the court next to weigh the interests and to sustain the privilege only if " 'there is a necessity for preserving the confidentiality of the information that outweighs the necessity for disclosure in the interest of justice.' " (Shepherd v. Superior Court, supra, 17 Cal. 3d at pp. 123-125; see PSC Geothermal Services Co. v. Superior Court (1994) 25 Cal. App. 4th 1697, 1714 [31 Cal. Rptr. 2d 213]; Rubin v. City of Los Angeles (1987) 190 Cal. App. 3d 560, 585-587 [235 Cal. Rptr. 516]; CBS, Inc. v. Block (1986) 42 Cal. 3d 646, 656 [230 Cal. Rptr. 362, 725 P.2d 470].)
A trial court commits error under this section if the court fails to make the threshold determination or fails to engage in the process of balancing the interests. (Shepherd v. Superior Court, supra, 17 Cal. 3d at p. 125; PSC Geothermal Services Co. v. Superior Court, supra, 25 Cal. App. 4th at p. 1714; Rubin v. City of Los Angeles, supra, 190 Cal. App. 3d at p. 586.)
In rare instances, courts have declared a privilege compelled by constitutional considerations even where not specifically provided by statute. (Valley Bank of Nevada v. Superior Court (1975) 15 Cal. 3d 652, 656 [125 Cal. Rptr. 553, 542 P.2d 977] [state constitutional right to privacy compelled limited privilege against disclosure of bank customer records despite exclusivity of the Evidence Code on the subject of privileges]; Mitchell v. Superior Court (1984) 37 Cal. 3d 268, 274-284 [208 Cal. Rptr. 152, 690 P.2d 625] [First Amendment considerations compelled qualified privilege of newspaper reporter to refuse to disclose sources]; see also Welfare Rights Organization v. Crisan (1983) 33 Cal. 3d 766, 769 [190 Cal. Rptr. 919, 661 P.2d 1073, 31 A.L.R.4th 1214] [unless a privilege is expressly or impliedly based on statute, its existence may be found "only if required by constitutional principles, state or federal"; statutory basis found]; Roberts v. City of Palmdale (1993) 5 Cal. 4th 363, 373 [20 Cal. Rptr. 2d 330, 853 P.2d 496] [courts may not add to the statutory privileges "except as required by state or federal constitutional law"; statutory basis found].)
But even in those rare cases where constitutional considerations require judicial declaration of a privilege not based on statute, the courts have utilized a balancing of the interests approach, and eschewed creating an absolute privilege.
In Valley Bank of Nevada v. Superior Court, supra, 15 Cal. 3d at pages 657-658, the court balanced the constitutional interest of bank customers to maintain reasonable privacy regarding their financial affairs against the right of civil litigants to discover relevant facts.
The court "readily acknowledge[d] that relevant bank customer information should not be wholly privileged and insulated from scrutiny by civil litigants," noting that " 'in order to facilitate the ascertainment of truth and the just resolution of legal claims, the [civil discovery statute] clearly exerts a justifiable interest in requiring a businessman to disclose communications, confidential or otherwise, relevant to pending litigation.' "
In Mitchell v. Superior Court, supra, 37 Cal. 3d at page 276, the court weighed the First Amendment values furthered by protecting the confidentiality of a news reporter's sources against "the parallel importance of the policy favoring full disclosure of relevant evidence."
It concluded, "there is neither an absolute duty to disclose nor an absolute privilege to withhold, but instead a qualified privilege against compelled disclosure which depends on the facts of each particular case." (Ibid.)