Jacobson v. Bilbray

Filed 3/20/07 Jacobson v. Bilbray CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Yuri Hoffman, Judge. Dismissed.

On June 6, 2006, an election was held to fill the remaining six-month term for the 50th Congressional District of the United States House of Representatives (the House) that became vacant following the resignation of Representative Randy Cunningham. On June 13, 2006, after Brian P. Bilbray received an apparent plurality of the votes cast and his closest opponent conceded, by unanimous consent of the members of the House Bilbray was sworn in and admitted as a member of the House.

On June 29, 2006, the congressional election results were officially announced by the registrar of voters and Bilbray was declared the official winner of the election. On July 31, 2006, Barbara Gail Jacobson and Lillian Ritt (together contestants) filed the present action, styled as an election contest under California Elections Code section 16400 et seq.,^[1]alleging improprieties in connection with the voting machines used in the election and seeking a court-ordered hand recount of the votes cast and a declaration that the person with the most votes be judged elected as representative for the 50th Congressional District.

Defendant Mikel Haas, the San Diego County Registrar of Voters (Registrar), moved to dismiss this action, arguing, among other things, that the trial court did not have jurisdiction to consider the proposed election contest. The trial court agreed that article I, section 5, clause 1 of the United States Constitution vested in the House the exclusive authority to "be the Judge of the Elections, Returns and Qualifications of its own Members," and therefore the court was without jurisdiction to judge who was elected to the House as representative for California's 50th Congressional District. Accordingly, the trial court dismissed the action.

On appeal, contestants assert that neither article I, section 5 of the United States Constitution nor the federal statutory law (which permits an election contest challenging the election by a losing candidate) deprives a state court of jurisdiction to entertain an election contest by a voter seeking to "declare elected" a candidate and to annul a certificate of election previously issued to a candidate.

I

FACTS

A. The Admission of Bilbray to the House

The relevant factual background is largely undisputed.^[2] On June 6, 2006, an election was held to fill the remaining term for the vacant House seat for the 50th Congressional District. This congressional election was consolidated with the regular primary election for state and local offices and initiative measures. On June 8, 2006, the California Secretary of State informed the Clerk of the House by facsimile that, according to the unofficial returns of the special election, Bilbray had been elected to fill the remaining term for the 50th Congressional District by receiving 49.33 percent of the votes. The facsimile informed the Clerk that 68,500 ballots remained to be processed, and that an official certificate of election would be provided on certification of the official results, but there were no known or anticipated legal challenges to the outcome.^[3]

On June 13, 2006, the House, after noting the certificate of election had not yet arrived from election officials but that there was neither an election contest nor any question raised as to the election, gave unanimous consent to swear in and unconditionally admit Bilbray as a member of the House. On June 13, 2006, Bilbray was sworn in as a member of the House. On June 29, 2006, following an official canvass of the ballots, the Registrar of Voters declared the official final results of the election showing Bilbray won the election and had received 78,341 votes, and his closest challenger (Busby) had received 71,146 votes.

On July 5, 2006, Jacobson timely submitted a written request for a recount of the congressional election under the provisions of the voter requested recount provisions of the Elections Code. ( 15620 et seq.) These provisions require the voter seeking the recount to pay the costs of the recount ( 15624) and provide the "ballots may be challenged for incompleteness, ambiguity, or other defects." ( 15631.) The Registrar notified the parties of the recount request, scheduled a precount meeting for July 12 (the last day on which a recount could commence), and informed Jacobson that a deposit of $6,000 (representing the estimated costs of the first day of the recount) would be required on or before July 11 and that a recount could not begin without the deposit. Jacobson asked for an estimate of the total costs for the entire recount, and the Registrar gave an estimate that a manual recount of all the ballots would cost between $120,000 and $150,000. Jacobson did not submit the required first day deposit or attend the scheduled recount meeting on July 12. As a result, no recount occurred.

B. The Present Litigation

Neither Busby nor any other candidate filed an election contest under the Federal Contested Elections Act (2 U.S.C.  381 et seq. (FCEA)). However, after the time for filing a FCEA contest expired, contestants filed the present proceeding in Superior Court against Haas and Bilbray, under the election contest provisions of the Election Code. ( 16000 et seq.) Contestants' complaint alleged numerous improprieties in connection with the procedures used for casting and counting the ballots cast at the congressional election. The complaint alleged that the security procedures and chain of custody requirements necessary for certifying the accuracy of the Diebold voting machines were abandoned, keys for touch-screen voting machines were left in the possession of poll workers, the voting machines had a switch that allowed the machine to boot from an external source rather than an internal flash memory source (thereby allowing circumvention of software safeguards against tampering with the machines), and absentee ballots were improperly accounted for in a manner that barred detection of fraud in casting the absentee ballots. Contestants also alleged, on information and belief, that ballot definition errors are endemic to Diebold voting programs, which can cause votes cast for one candidate to be assigned to a different candidate, and that such "flipping" occurred in the congressional election. The complaint sought an order requiring a hand count of the ballots in the congressional election be conducted and a judgment that "the candidate with the most votes be judged elected." Contestants did not challenge the ballots cast in any other matter at issue in the June 6, 2006 election.

Haas moved to dismiss the action. He asserted, among other grounds, that article I, section 5, clause 1 of the United States Constitution vested in the House the exclusive authority to "be the Judge of the Elections, Returns and Qualifications of its own Members," and therefore the court did not have jurisdiction to consider a congressional election contest pursuant to a statutory scheme designed to adjudicate who had been elected.^[4] Contestants countered that (1) the time, place and manner of voting (including recount procedures) are reserved to the states and therefore an action seeking to contest the election was within the state court's jurisdiction, and (2) the House's action of prematurely swearing in Bilbray before the completion of the official canvass and declaration of the final results did not terminate the ability of a California voter to contest the election in state court.

The trial court ruled the House had exclusive jurisdiction to determine election contests challenging an election of one of its members, and courts do not have jurisdiction to adjudicate a dispute over the outcome of a House seat election. The court, responding to contestants' assertion at oral argument that they were not seeking an order annulling the House action but instead sought only a recount to determine who had won the election and that determination would then be presented to the House for further action by the House, noted the determination would be "some sort of advisory opinion" and declined contestants' invitation to issue an advisory opinion.

On September 19, 2006, contestants filed a notice of appeal. The hearing of the appeal was expedited on this court's own motion dated September 21, 2006, an abbreviated briefing schedule was established and the case received calendar preference. The parties were notified that any continuances would be granted only upon "a strong showing of good cause." After all three of the parties requested oral argument, this court set argument for December 13, 2006. The attorneys for contestants then sought that argument be continued, and argument was reset and subsequently heard on January 8, 2007. As of the January oral argument, Bilbray had completed the term of office for which he was elected in the June 2006 special election.

II

ANALYSIS

Article I, section 5, clause 1 of the United States Constitution provides that "[e]ach House" of Congress "shall be the Judge of the Elections, Returns and Qualifications of its own Members." This provision grants both the House of Representatives and the Senate exclusive and final constitutional authority to judge "which candidate is entitled to be seated" as a result of a Congressional election. (Roudebush v. Hartke (1972) 405 U.S. 15, 18 (Roudebush).)

Contestants, although acknowledging that no court may override the House's determination of who is entitled to be a member of the House, rely on McIntyre v. Fallahay (7th Cir. 1985) 766 F.2d 1078 (McIntyre) and Roudebush, supra, 405 U.S. 15, to argue that the House's decision to unconditionally admit Bilbray as the representative for California's 50th Congressional District does not abrogate the power of a California court to entertain a congressional election contest.^[5]

In Roudebush, the federal Supreme Court considered whether an Indiana state court could order a recount to proceed even after the Senate had conditionally seated the apparent winner of the election. (Roudebush, supra, 405 U.S. at p. 18.) The Roudebush court ultimately concluded that article I, section 5, clause 1 of the federal Constitution did not prohibit a court-ordered recount. While recognizing the Senate's exclusive constitutional authority to judge "[w]hich candidate is entitled to be seated," the court noted that the State of Indiana was also granted independent constitutional authority under article I, section 4 of the federal Constitution to regulate " '[t]he Times, Places and Manner of holding Elections for Senators and Representatives' " (Roudebush, at p. 19 & fn. 8), and that this authority encompassed " 'supervision of voting, protection of voters, prevention of fraud and corrupt practices, counting of votes, duties of inspectors and canvassers, and making and publication of election returns; in short, to enact the numerous requirements as to procedure and safeguards which experience shows are necessary in order to enforce the fundamental right involved.' " (Id. at pp. 24-25.) The court added that "[a] recount is an integral part of the . . . electoral process and is within the ambit of the broad powers delegated to the States by Art. I,  4." (Id. at p. 25.) The court further explained:

"It is true that a State's verification of the accuracy of election results pursuant to its Art. I,  4, powers is not totally separable from the Senate's power to judge elections and returns. But a recount can be said to 'usurp' the Senate's function only if it frustrates the Senate's ability to make an independent final judgment. A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount." (Roudebush, supra, 405 U.S. at pp. 25-26, fn. omitted.)

In McIntyre, supra, 766 F.2d 1078, a federal appeals court also considered a question analogous to that at issue here. In McIntyre, after a dispute arose as to the winner of a House election, the House conducted its own recount and subsequently seated the candidate it deemed to have won. The McIntyre court held that the fact that the House had made a final decision on the matter did not preclude the state court from entertaining an election contest and conducting "further proceedings with respect to this election," including a recount. (Id. at p. 1083.) The McIntyre court recognized that given the House's unilateral action in conducting its own recount and determining a winner, "the state would not have the final say," but emphasized that this is always the case because "the state never has the final say." (Id. at p. 1086.) "Whether or not the House conducts its own count, the state's count and the certificate of election are just advice from the state to Congress. The final decision always is that of the House, no matter who counts the ballots and no matter how many times they are tallied." (Ibid.; Thorsness v. Daschle (S.D. 1979) 279 N.W.2d 166, 168-170 [holding that state recount could proceed despite the fact that member had been "unconditionally seated" by the House].)

McIntyre and Roudebush, then, provide some support for contestants' assertion that pursuant to its independent federal constitutional authority, a state court can entertain an election challenge even after the House has unconditionally seated the member whose election is at issue without infringing on the House's constitutional authority to judge elections. Nevertheless, we need not (and do not) resolve the question of whether the election contest at issue here fits within the category of election contests that may be entertained without infringing on Congress' authority because the instant dispute can, and should, be resolved on a much narrower ground mootness. (See People v. Leon (2007) 40 Cal.4th 376, 396, quoting Leroy v. Great Western United Corp. (1979) 443 U.S. 173, 181 [for proposition that: " 'As a prudential matter it is our practice to avoid the unnecessary decision of novel constitutional questions' "]; Service Employees Intern. Union, Local 1000 (CSEA) v. Department of Personnel Admin. (2006) 142 Cal.App.4th 866, 872-873 ["we subscribe to the venerable jurisprudential principle to avoid constitutional questions where other grounds are available"].)

The instant appeal must be dismissed on mootness grounds not simply because Bilbray has been seated by the House, but rather because Bilbray has already served the entire term of office for which he was elected. As our high court has instructed:

"It is settled that 'the duty of this court, as of every other judicial tribunal, is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it. It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]' " (Paul v. Milk Depots, Inc. (1964) 62 Cal.2d 129, 132 (Paul).)

(See also Salazar v. Eastin (1995) 9 Cal.4th 836, 860 [" 'The rendering of advisory opinions falls within neither the functions nor the jurisdiction of this court' "]; Finnie v. Town of Tiburon (1988) 199 Cal.App.3d 1, 11 [dismissing as moot appeal from trial court's denial of injunction to stop election where election had subsequently taken place]; Bell v. Board of Supervisors (1976) 55 Cal.App.3d 629, 636 [dismissing appeal as moot where challenged legislation had been repealed and replaced with materially different law]; National Assn. of Wine Bottlers v. Paul (1969) 268 Cal.App.2d 741, 746 [dismissing appeal as moot where challenged order of Director of Agriculture had been withdrawn].)

Contestants' assertion that the House might, if faced with a contrary state court judgment, revisit its decision to seat Bilbray, has lost whatever force it might originally have possessed. Now that the contested term has been completely served, there is no longer any conceivable action that the House could take as a result of a state court judgment rendered in contestants' favor under section 16000 et seq.^[6]

In sum, due to events occurring after the filing of the instant election contest, it has become " 'impossible for this court' " to grant to contestants " 'any effectual relief whatever.' " (Paul, supra, 62 Cal.2d at p. 132.) Consequently, we " 'will not proceed to a formal judgment, but [instead] will dismiss the appeal.' " (Ibid.)

DISPOSITION

Dismissed.

IRION, J.

I CONCUR:

McINTYRE, J.

McDONALD, Acting P.J., Dissenting.

The majority opinion dismisses this appeal because it concludes that as a result of the expiration of Mr. Bilbray's congressional term in question, this court cannot grant any effective relief. However, the majority opinion suggests that were the congressional term in question still in effect, it could grant effective relief. I agree this court cannot grant effective relief, but conclude it could not do so even were the congressional term unexpired. I would affirm the judgment of the trial court, which dismissed the action because the complaint involved resolution of a political question, requested relief beyond the jurisdiction of the court and sought an advisory opinion.

Article I, section 5, clause 1 of the United States Constitution (hereafter article I, section 5) provides the "House shall be the Judge of the Elections, Returns and Qualifications of its own Members." The courts have construed this provision as providing that the House is the exclusive tribunal for adjudicating elections contests regarding House seats. (See, e.g., Reed v. County Com'rs of Delaware County, PA. (1928) 277 U.S. 376, 388.) Moreover, the House's determination of who won an election is final and nonreviewable. (See Barry v. United States (1929) 279 U.S. 597, 613-614.) Article I, section 5 bars the contestants' congressional election contest action.^[7]

The California Supreme Court in In re McGee (1951) 36 Cal.2d 592, construing the parallel provision of the California Constitution, concluded the Elections Code^[8]provisions that otherwise permit a candidate to challenge the election results have no application when the election contest involved the office of State Assemblyman because the California constitutional provision "confers exclusive jurisdiction on the Legislature to judge the qualifications and elections of its members." (Id. at pp. 594-598.) Accordingly, McGee held the trial court "had no jurisdiction to entertain the [election contest] proceeding" and directed the trial court to dismiss the action.^[9] (In re McGee, supra, 36 Cal.2d at p. 599.)

Contestants, although acknowledging that no court may override the House's determination of who is entitled to be a member of the House, rely on McIntyre v. Fallahay (7th Cir. 1985) 766 F.2d 1078 (McIntyre) and Roudebush v. Hartke (1972) 405 U.S. 15 (Roudebush) to nevertheless argue the House's decision to unconditionally admit Bilbray as the representative for California's 50th Congressional District does not abrogate the power of a California court to entertain a congressional election contest.^[10] Both cases note that article I, section 4 of the United States Constitution vests in the states the power to prescribe the time, place and manner of holding elections, and this power includes the right to establish rules for counting and recounting ballots. However, neither case addressed whether a state statutory scheme like California's election contests scheme under section 16000 et seq., which confers on the courts the power to issue a judgment "either confirming or annulling and setting aside the election" ( 16603) and "declar[ing] elected" ( 16700) a person other than the person admitted by the House as the elected representative, could properly be invoked to determine who must be admitted as a member of the House.

In Roudebush, the court considered only whether an Indiana state court could order a state recount procedure to proceed when the U.S. Senate had administered the oath to the apparent winner of the election but did so " 'without prejudice to the outcome of any recount that the Supreme Court might order.' " (Roudebush, supra, 405 U.S. at p. 18.) Roudebush ultimately concluded that article I, section 5 did not prohibit a court-ordered recount procedure because once the Senate "is assured that it has received the final Indiana tally, the Senate will be free to make an unconditional and final judgment" under article I, section 5. (Roudebush, at p. 19.) Roudebush noted that recount procedures are an integral part of the power vested in the states by article I, section 4 of the United States Constitution concerning the time, place and manner of holding elections and concluded the jurisdiction given to the Senate to "be the Judge of Elections" was not impaired by merely recounting the ballots. (Roudebush, at pp. 25-26.) However, Roudebush carefully noted that the state court's role under the statutory scheme in question was not to adjudicate the winner of the election, stating:

"To determine whether an Indiana court engages in a judicial function in connection with an election recount, we turn to the law of that State. In Indiana every candidate has a right to a recount and can obtain one by merely filing a timely petition in the circuit or superior court of the appropriate county. If the petition is correct as to form, the state court 'shall . . . grant such petition . . . and order the recount . . .' When it grants a petition, the court is required to appoint three commissioners to carry out the recount. Once these appointments are made, the Indiana court has no other responsibilities or powers. [] The exercise of these limited responsibilities does not constitute a court proceeding under [28 U.S.C.  2283] within the test of Prentis [v. Atlantic Coast Line Co. (1908) 211 U.S. 210, 226]: 'A judicial inquiry investigates, declares and enforces liabilities as they stand on present or past facts and under laws supposed already to exist. That is its purpose and end.' [Citation.] The state courts' duties in connection with a recount may be characterized as ministerial, or perhaps administrative, but they clearly do not fall within this definition of a 'judicial inquiry.' The process of determining that the recount petition is correct as to form‑‑that it contains the proper information, such as the names and addresses of all candidates, and is timely filed‑‑is clearly not a judicial proceeding." (Roudebush, at p. 21, fns. omitted.)

Roudebush's holding does not support contestants' position. First, unlike Roudebush (in which the Senate was awaiting the final vote tally before exercising its article I, section 5 powers), the House here has already exercised those powers. More importantly, unlike Roudebush (in which the state court was neither asked nor authorized to adjudicate the winner of the election under the recount statutes), a California court does engage in a judicial function in connection with election contest statutes.^[11] Contestants' proposed election contest sought to involve the court in a wide-ranging investigatory and declaratory contest, requiring resolution of questions whether the voting machines had been mishandled and exposed to tampering, whether the security systems for the machines were inadequate to prevent hacking, whether the computer programs were internally flawed and caused votes intended for one candidate to be attributed to a different candidate, whether the absentee ballots were handled in a manner intended to alter the results and frustrate reconciliation efforts to match registered voters with the ballots, and whether Bilbray was erroneously declared the winner because any or all of these deficiencies altered the result of the election. Indeed, contestants' complaint sought a judicial declaration that the "sum total of the changes effected by the use of electronic voting by San Diego [C]ounty rise to the level of such [a] fundamental change in the systems of elections so as to necessitate a [c]onstitutional amendment rather than a legislative change," resulting in a void, unconstitutional election. The ministerial procedures approved in Roudebush of merely appointing a committee to recount votes do not resemble the relief pursued here that a candidate be judicially declared elected. On being judged elected, the candidate is entitled to a "certificate of election" and any certificate of election previously issued to another candidate is "annulled by the judgment." ( 16700, 16701.)

Furthermore, contestants did not need to challenge the congressional election under the election contest provisions of the Elections Code to assert and obtain review of their allegations of ineffective and inadequate voting machines. They could have pursued a recount under the voter recount provisions of the Elections Code ( 15620 et seq.) in connection with which ballots may be challenged for "incompleteness, ambiguity, or other defects" ( 15631) without judicial intervention, or pursued an election contest under the Elections Code ( 16000 et seq.) by court action challenging ballots for matters voted on in the June 6, 2006 election other than the congressional election, and thereby avoided invocation of article I, section 5.

Contestants' reliance on McIntyre, which reliance focuses solely on dicta contained in the majority opinion, does not alter the conclusion. The limited issues decided in McIntyre were (1) whether an action commenced in state court challenging a recount of votes under state law (which had found the winner to be McCloskey) had been improvidently removed to federal court and, (2) if so, what was the appropriate disposition of the action. The McIntyre majority first concluded the action had been improvidently removed to federal court because (under Roudebush) state law rules for counting ballots are not preempted by federal law counting rules, and therefore the action did not "arise under" federal law and had been improvidently removed to federal court. (McIntyre, supra, 766 F.2d at p. 1087.) The McIntyre majority then turned to the question of whether the appropriate disposition of the state court action was to dismiss the action (thereby precluding further proceedings in state court) or to remand the action to state court. The McIntyre majority observed that the House had already decided the election contest and seated McCloskey and therefore:

"Nothing we say or do, nothing the state court says or does, could affect the outcome of this election. Because the dispute is not justiciable, it is inappropriate for a federal court even to intimate how Congress ought to have decided. The doctrine of justiciability is designed to prevent meddlesome advisory opinions fully as much as it is designed to prevent unwarranted interference with decisions properly made elsewhere. [Citation.] When a court has no right to determine the outcome of a dispute, it also has a duty not to discuss the merits of that dispute. [] Because a federal court may not award relief, the case no longer presents a 'case or controversy' within the meaning of Article III. . . . The House has made its 'unconditional and final judgment.' It has counted the votes independently and is no longer interested in the final Indiana tally.

"The resolution of the dispute about who is entitled to the seat raises the question whether this court should dismiss the case rather than decide whether the case was properly removed. Ordinarily the appropriate disposition of a case that becomes moot while on appeal is an order vacating the judgment and directing dismissal. [Citations.] . . . But state courts are free to hear disputes that are not 'cases or controversies' within the jurisdiction of federal courts." (McIntyre, supra, 766 F.2d at p. 1081, fn. omitted.)

The McIntyre majority concluded that, because the state courts of Indiana might elect to decide the dispute to "[adjudicate] any issues that remain live under state law" (McIntyre, supra, 766 F.2d at p. 1083), including "which rules Indiana should use to resolve controversies about future elections" (id. at p. 1082), remand rather than dismissal was the appropriate disposition. (Id. at p. 1083.) However, the majority pointed out that "no principle of federal law requires Indiana's courts to conduct further proceedings; we do not intimate that the state courts should do so; the state courts are free to decline to proceed" (ibid.), and observed that:

"Because the House has settled the election contest, nothing this or any other court can do will affect who represents Indiana's Eighth Congressional District through the end of 1986. . . . There is something unsettling about the prospect of one person sitting in Congress while the other seeks an advisory declaration in state courts that he 'really' won. The political question doctrine is designed in part to prevent such unseemly conflicts between federal courts and the political branches of the government. The political question doctrine may not bind the courts of Indiana, but these concerns may lead the state courts to dismiss this litigation nonetheless. [] The politics of the dispute, and the seemliness of this litigation, are not our concern. We have decided a single question‑‑whether federal law so occupies the field that any effort to establish legal rules for counting ballots in an election to the House necessarily 'arises under' federal law, even if the complaint asks only for the adjudication of issues of state law. We have held that state and federal rules for counting ballots can coexist in the absence of federal legislation explicitly preempting state rules. . . . Because federal law does not suffuse the field, the cases were improvidently removed. With this conclusion our own power lapses." (Id. at p. 1087.)

Thus, the McIntyre majority was concerned with the limited jurisdiction of the federal courts, and with how to craft a disposition that would not impede the ability of a state court to determine, notwithstanding mootness and justiciability concerns, whether to reach and decide ongoing state law questions.

The only other authority cited by contestants as authorizing a state court to decide an election contest after the House has unconditionally seated the member is Thorsness v. Daschle (S.D. 1979) 279 N.W.2d 166. In Thorsness, after Daschle was determined to have won the election, Thorsness both filed an FCEA contest and sought a recount under South Dakota's statutory scheme. The majority, rejecting Daschle's effort to block the South Dakota proceeding, concluded there was a distinction between "the questions 'of who won' [which present] purely matters of state law [citation] [and] the question of 'who sits' [which] is solely within the province of the United States Congress." (Id. at p. 168.) The majority concluded the former question could be reached because state law governs the counting and recounting of ballots, and the possibility that Congress might make its own investigation and determination of the winner would not bar state courts from making its own independent determination of " 'who we deem has won.' " (Id. at pp. 168-170.)

The Thorsness approach, which does not appear to have garnered a following outside of South Dakota, does not control here. First, the court carefully noted that, under the South Dakota recount statutes, the court's judgment would be limited to a "pronounce[ment of] what the court deems the correct result of the election," and there was no danger that a court "would or could order issuance of a certificate of election" to the candidate whom the court deemed to have won. (Thorsness v. Daschle, supra, 279 N.W.2d at p. 169.) In contrast, the California election contest scheme results in a judgment "confirming or annulling and setting aside the election" ( 16603), and entitling the person "declared elected . . . to a certificate of election " ( 16700), and any previously issued "certificate [of election] is annulled by the judgment." ( 16701.) Thus, the advisory status of a South Dakota judgment under Thorsness is distinct from the judgment entered under California's election contest statutes. Moreover, Thorsness was decided in a factual milieu distinct from this case. In Thorsness, the court noted that if its advisory judgment found that Thorsness had won, Thorsness could "place our judgment before the House . . . as evidence [in his pending FCEA contest] of his right to take the seat . . . [and the House] would then perform its constitutional duty of determining who shall sit." (Thorsness, at p. 169.) In this case, there is no pending FCEA contest in which an "advisory judgment" could serve as evidence, and the House has already "perform[ed] its constitutional duty of determining who shall sit" (ibid.) by unconditionally admitting Bilbray as a member.

Under the legislative scheme and factual context of this case, dismissal of contestants' complaint is the appropriate disposition. (See In re McGee, supra, 36 Cal.2d at p. 599.) Other states, addressing substantively identical issues, have reached the same conclusion. (See, e.g., State ex rel. Wheeler v. Shelby Circuit Court (Ind. 1977) 362 N.E.2d 477, 478-480; Laxalt v. Cannon (Nev. 1964) 397 P.2d 466, 467-468.) Contestants argued below, and contend on appeal, that because they eschewed a judgment requiring the House to unseat Bilbray, but instead could limit their lawsuit to seeking an adjudication of who received the most votes, the court was not asked to infringe on the matters unambiguously committed by the constitutional text to the House. Contestants argue a court should issue an advisory opinion because, as articulated by Judge Swygart in his dissenting opinion in McIntyre, supra:

"[A]side from the question of mootness, the underlying election controversy is now a nonjusticiable political question. Once the House has asserted its exclusive jurisdiction under [Article I, section 5] to seat a particular candidate as a member of the House, no court in the land‑‑State or federal‑‑has jurisdiction to hear any dispute contesting the outcome of the election. The only course that ought be taken is to dismiss the appeals.

"Although the majority agrees that the House's decision to seat McCloskey is a nonjusticiable political question, it defines the State's recount as an entirely separate issue that the State courts are free to consider even after the House has reached its final judgment. It is true the States may conduct recounts pursuant to their constitutional power to regulate the time, place, and manner of congressional elections. [Citations.] Where a house of Congress has expressly refused to seat a candidate pending a State recount and where the recount does not undermine the ability of that house to conduct its own investigation of the election, federal courts cannot enjoin the recount. [Citing Roudebush.]

"Here, however, the circumstances are such that continued recount proceedings are inconsistent with the House's absolute, unicameral authority to 'Judge . . . the Elections, Returns, and Qualifications of its own Members.' [Citation.] Before the House determines with finality who won the election, a system of dual sovereignty over elections is permissible because the State's tally is an important factor in the House's consideration. See H.Rep. No. 58, 99th Cong., 1st sess. 3 (1985) ('The House has consistently extended considerable deference to state election procedures.'). Once the House does decide to seat a particular candidate, the election is functus officio. It is no longer realistic or important to distinguish between the State's power to recount the votes and the House's final authority to judge the victor. Continued State proceedings are an affront to the House's absolute authority because they can only serve as an official declaration by the State that the duly-seated representative of the people of Indiana is a pretender to the throne." (McIntyre, supra, 766 F.2d at pp. 1087-1088 (dis. opn. of Swygart, J.), fn. omitted.)

However, it appears doubtful the Elections Code election contest provisions permit contestants to obtain the limited relief of a declaration of which candidate received the most votes.^[12] Even were that relief permissible under the election contest statutes, dismissal is appropriate because the power unambiguously committed by the constitutional text to another branch of government must be respected. This court should not make an independent pronouncement on an issue unambiguously committed to the House by article I, section 5, particularly after the House has already acted to seat Bilbray. Because the House has made its final decision to seat Bilbray, the entire election controversy becomes a nonjusticiable political question for several of the reasons noted in Baker v. Carr (1962) 369 U.S. 186, 217: there is a "textually demonstrable constitutional commitment of the issue to a coordinate political department," there is "an unusual need for unquestioning adherence to a political decision already made," and there is "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." When a matter presents a nonjusticiable political question, dismissal of the action is the appropriate disposition. (See, e.g., Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1214.)

Contestants assert this court need not treat the House's decision to admit Bilbray to membership as precluding the instant election contest because a court may intervene when Congress uses its powers in such an arbitrary and improvident manner that it results in a denial of due process or equal protection (cf. Morgan v. United States (D.C. Cir. 1986) 801 F.2d 445, 451), and the House's "premature" swearing in of Bilbray was an arbitrary use of its article I, section 5 power that violated due process and equal protection. Contestants' argument appears to be that, under Bush v. Gore (2000) 531 U.S. 98, actions that treat voters differently with respect to recount rights violate equal protection, and the rules governing recounts cannot be changed after the election without offending due process and equal protection; the House's action in prematurely swearing in Bilbray violated both precepts. Contestants argue that prematurely swearing in Bilbray deprived voters in California's 50th Congressional District of recount rights that voters in other congressional districts enjoyed, thereby violating equal protection.

Even assuming this claim may be raised here,^[13]recount rights under section 15620 et seq. remained available and were unimpaired by the House's action, and the House's action did not deprive the voters in California's 50th Congressional District of any protection or privilege enjoyed by voters in other congressional districts. Contestants also vaguely assert that prematurely swearing in Bilbray deprived voters in California's 50th Congressional District of due process because it changed the rules "after the fact" by permitting Bilbray to be unconditionally admitted before the final vote had been certified. However, it does not appear that the House changed it rules by admitting Bilbray on June 13 (because House precedents permit a member to be admitted prior to receipt of the certified results of the election),^[14]and it does not appear the House's decision to admit Bilbray deprived contestants of any process due them.

The trial court properly dismissed the action because it involved resolution of a political question, requested relief beyond the jurisdiction of the court to grant and sought an advisory opinion.

I would affirm the judgment of the trial court.

McDONALD, Acting P.J.

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^[1] All further statutory references are to the Elections Code unless otherwise specified.

^[2] Pursuant to this court's order dated October 19, 2006, we grant appellant's request for judicial notice, filed October 3d, and have considered the documents attached thereto.

^[3] Bilbray's closest challenger, Francine Busby, apparently conceded the election on June 7, 2006, after receiving approximately 43 percent of the votes.

^[4] Bilbray also moved to dismiss the action under the anti-SLAPP statute (Code Civ. Proc.,  425.16), raising the same constitutional bar against a court adjudicating who had been elected to the House. Counsel for the House Committee on House Administration, in an amicus letter in support of the motions by Bilbray and Haas to dismiss, interposed the same jurisdictional bar to the action, noting the House conclusively determined and admitted Bilbray as the duly elected representative on June 13, 2006, and no action to contest that determination had been filed under FCEA.

^[5] Contestants also assert that Powell v. McCormack (1969) 395 U.S. 486 demonstrates the House's action in seating Bilbray does not preempt the judicial review sought here.

^[6] The fact that the term at issue here has already been served is particularly significant given the statutory provisions invoked by contestants. Under section 16000 et seq., if contestants were to prevail in their election contest, they would be entitled to the following relief: (1) the court would "annul[] and set[] aside the election" ( 16603); (2) Busby would be "entitled to a certificate of election" and "the elections official [would] immediately make out and deliver to [her] a certificate of election" ( 16700); (3) "the certificate" issued to Bilbray would be "annulled" ( 16701); and finally, (4) "the court [would] declare [Busby] elected" ( 16703). There is, of course, no conceivable practical effect of granting such relief now that Bilbray has finished serving the contested term.

^[7] Even without article I, section 5, there is a strong argument that the Federal Contested Elections Act (2 U.S.C.A.  381 et seq., FCEA) would preempt state law schemes for contesting elections of House members, because it appears the FCEA occupies the field, and a court "may do what the [FCEA] authorizes and directs it to do, but no more." (Dornan v. Sanchez (C.D. Cal. 1997) 955 F.Supp. 1210, 1212, fn. omitted.) However, it is unnecessary in this case to determine whether the FCEA would preempt the present action apart from article I, section 5.

^[8] All statutory references are to the Elections Code unless otherwise specified.

^[9] Contestants assert McGee has been overruled by the enactment of section 16463. However, section 16463 merely provides that a candidate in a primary election is deemed to have consented to in personam jurisdiction in an election contest. Moreover, contestants do not suggest that a similar statute did not exist when McGee was decided, and ignores that the Legislature declared, when enacting the legislation contained in section 16463, that the changes "have only technical and nonsubstantive effect. Hence, no change made by this act shall be construed to create any new right, duty, or other obligation that did not exist on the effective date of this act." (Stats. 1994, ch. 920, 3, p. 5163.)

^[10] Contestants also assert that Powell v. McCormack (1969) 395 U.S. 486 demonstrates the House's action in seating Bilbray does not preempt the judicial review sought here. However, Powell is not applicable to this case. In Powell, the court carefully assessed whether the "textual commitment" under article I, section 5, vesting in the House to power to judge the "qualifications" of its members, precluded judicial intervention if a member who met the standing qualifications prescribed in the Constitution was nevertheless excluded by the House for disqualifying reasons not specified in the Constitution. The Powell court concluded that such an exclusion exceeded the type of adjudicatory determination constitutionally committed to the House. Powell essentially concluded that, in a contest over whether an elected official meets the "qualifications" specified by the Constitution, the House is the sole judge, but when "qualifications" are added that are not specified in the Constitution, the House is not the sole judge and judicial intervention does not transgress the political question limitation on judicial review. The present action requests a court judgment on the election of Bilbray, and that matter is textually committed to the House and the House's action is therefore not reviewable by the courts.

^[11]Roudebush would have been germane had contestants pursued a writ of mandate seeking to compel the registrar to fulfill his statutory obligations under the recount procedures embodied in section 15620 et seq. However, contestants have instead pursued an election contest, requesting the court to exercise adjudicatory functions Roudebush noted were not part of the Indiana procedure.

^[12] That determination is available under the recount procedures of section 15620 et seq., but contestants have not availed themselves of that remedy.

^[13] Contestants' claim appears to assert the House, by its June 13 swearing in of Bilbray, deprived them of equal protection and due process. It is doubtful a lawsuit that does not name, as a defendant, the party whose action is challenged (here, the House) may properly adjudicate the complained-of conduct.

^[14] The House action of swearing in a member by unanimous consent, even prior to the receipt of the certified results of the election, was consistent with longstanding House rules and precedents. (See House Practice Ch. 23, 3 & Ch. 33, 1; Dreschler's Precedents of the United States House of Representatives, Ch. 2, 3.5; Constitution Jefferson's Manual and Rules of the House of Representatives, 204.)