The following is a TENTATIVE ruling for 8/29/2006,
Department 60, the Honorable YURI HOFMANN presiding.
Case Number GIC870044
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The Election Contest filed on behalf of Contestants Barbara Gail Jacobson and Lillian Ritt is hereby DISMISSED, as this Court has no jurisdiction over the 50th Congressional District Special Election which took place on June 6, 2006 and which resulted in the unconditional swearing in of Congressman Brian P. Bilbray before the United State House of Representatives on June 13, 2006.
Article I, section 5 of the California Constitution [ed note: this was a typo, the court meant United States Constitution, not California Constitution] provides, in relevant part:
Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members . . ..
(Cal. Const. Art. I § 5, cl. 1.) On its face, this language clearly confers exclusive jurisdiction on the legislature with respect to its elections, and does not provide the legislature with the power to delegate such power to the courts. As stated by the U.S. Court of Appeals for the District of Columbia, "[i]t is difficult to imagine a clearer case of 'textually demonstrable constitutional commitment' of an issue to another branch of government to the exclusion of the courts [citations] than the language of Article I, section 5, clause 1. . . . The provision states not merely that each House 'may judge' these matters, but that each House 'shall be the Judge' (emphasis added). The exclusion of others - and in particular of others who are judges - could not be more evident." (Morgan v. U.S. (U.S. App. D.C. 1986) 801 F.2d 445, 447.) Citing to a dissenting opinion in a Seventh Circuit case, the U.S. Court of Appeals for the District of Columbia held: "Once the House has asserted its exclusive jurisdiction under U.S. Const. art. I, § 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." (Id. at p. 449, quoting Judge Swygert's dissenting opinion in McIntyre v. Fallahay (7th Cir.1985) 766 F.2d 1078, 1081.)
In California War Veterans for Justice v. Hayden (1986) 176 Cal.App.3d 982, citing to the California Supreme Court's holding in In re McGee (1951) 36 Cal.2d 592, the Court of Appeal discussed in detail the constitutional mandate requiring that the judiciary may not determine the qualifications of members of the legislative branch:
After the adoption of the present California Constitution in 1879, the Supreme Court continued to rule that the judicial branch does not have jurisdiction to determine the membership in the Legislature. In French v. Senate (1905) 146 Cal. 604, four members of the state Senate were expelled for malfeasance in office. They petitioned the Supreme Court for writ of mandate to compel the Senate to reinstate them. (Id., at p. 605.) The court sustained a general demurrer to the petition, holding that it had no jurisdiction over the dispute.
"Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution.... By article III of the constitution it is provided that one department of the state shall not exercise the functions of either of the other departments except as in that instrument, expressly directed and permitted. There is no provision authorizing courts to control, direct, supervise, or forbid, the exercise by either house of the power to expel a member. These powers are functions of the legislative department, and therefore in the exercise of the power thus committed to it the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do." ( Id., at pp. 606-607.)
In Allen v. Lelande (1912) 164 Cal. 56, the court denied a petition for a writ of mandate to order the Los Angeles County Clerk to strike the name of the candidate for the state Assembly from the ballot because of alleged nonresidency, stating "[f]or this court to undertake to try the question of eligibility and to deprive the candidate of any chance to be elected, would simply be to usurp the jurisdiction of the assembly." (Id., at p. 57.)
The California Supreme Court's last decision on the question of whether the judiciary has jurisdiction to determine the qualifications of members of the legislative branch is In re McGee (1951) 36 Cal.2d 592. In that case a Democratic candidate challenged the nomination of a Republican candidate who won the nomination of both parties for the Assembly. At that time then extant Elections Code sections 8600 and 8603 (later repealed) provided that any candidate in the primary could contest the nomination of another candidate for the same office by filing an action in the superior court. (Id., at pp. 592-593.)
The Supreme Court in deciding the conflict between the statutes and the Constitution held that the Constitution, under article IV, section 7, "confers exclusive jurisdiction on the Legislature to judge the qualifications and elections of its members." (In re McGee, supra, 36 Cal.2d at p. 594.)
The court in In re McGee, supra, 36 Cal.2d 592, also noted that "[t]he overwhelming weight of authority under identical federal and state constitutional provisions is in accord." (Id., at p. 595.)
The parallel provision of the United States Constitution is article I, section 5, which provides in pertinent part:
"Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, ..."
The United States Supreme Court in Reed v. County Commissioners (1928) 277 U.S. 376, held that under Article I, section 5, the Senate "is the judge of the elections, returns and qualifications of its members.... It is fully empowered, and may determine such matters without the aid of the House of Representatives or the Executive or Judicial Department." (Id., at p. 388; see also Barry v. U.S. ex rel. Cunningham (1929) 279 U.S. 597.
Department 60, the Honorable YURI HOFMANN presiding.
Case Number GIC870044
---------------------------
The Election Contest filed on behalf of Contestants Barbara Gail Jacobson and Lillian Ritt is hereby DISMISSED, as this Court has no jurisdiction over the 50th Congressional District Special Election which took place on June 6, 2006 and which resulted in the unconditional swearing in of Congressman Brian P. Bilbray before the United State House of Representatives on June 13, 2006.
Article I, section 5 of the California Constitution [ed note: this was a typo, the court meant United States Constitution, not California Constitution] provides, in relevant part:
(Cal. Const. Art. I § 5, cl. 1.) On its face, this language clearly confers exclusive jurisdiction on the legislature with respect to its elections, and does not provide the legislature with the power to delegate such power to the courts. As stated by the U.S. Court of Appeals for the District of Columbia, "[i]t is difficult to imagine a clearer case of 'textually demonstrable constitutional commitment' of an issue to another branch of government to the exclusion of the courts [citations] than the language of Article I, section 5, clause 1. . . . The provision states not merely that each House 'may judge' these matters, but that each House 'shall be the Judge' (emphasis added). The exclusion of others - and in particular of others who are judges - could not be more evident." (Morgan v. U.S. (U.S. App. D.C. 1986) 801 F.2d 445, 447.) Citing to a dissenting opinion in a Seventh Circuit case, the U.S. Court of Appeals for the District of Columbia held: "Once the House has asserted its exclusive jurisdiction under U.S. Const. art. I, § 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." (Id. at p. 449, quoting Judge Swygert's dissenting opinion in McIntyre v. Fallahay (7th Cir.1985) 766 F.2d 1078, 1081.)
In California War Veterans for Justice v. Hayden (1986) 176 Cal.App.3d 982, citing to the California Supreme Court's holding in In re McGee (1951) 36 Cal.2d 592, the Court of Appeal discussed in detail the constitutional mandate requiring that the judiciary may not determine the qualifications of members of the legislative branch:
After the adoption of the present California Constitution in 1879, the Supreme Court continued to rule that the judicial branch does not have jurisdiction to determine the membership in the Legislature. In French v. Senate (1905) 146 Cal. 604, four members of the state Senate were expelled for malfeasance in office. They petitioned the Supreme Court for writ of mandate to compel the Senate to reinstate them. (Id., at p. 605.) The court sustained a general demurrer to the petition, holding that it had no jurisdiction over the dispute.
"Under our form of government the judicial department has no power to revise even the most arbitrary and unfair action of the legislative department, or of either house thereof, taken in pursuance of the power committed exclusively to that department by the constitution.... By article III of the constitution it is provided that one department of the state shall not exercise the functions of either of the other departments except as in that instrument, expressly directed and permitted. There is no provision authorizing courts to control, direct, supervise, or forbid, the exercise by either house of the power to expel a member. These powers are functions of the legislative department, and therefore in the exercise of the power thus committed to it the senate is supreme. An attempt by this court to direct or control the legislature, or either house thereof, in the exercise of the power, would be an attempt to exercise legislative functions, which it is expressly forbidden to do." ( Id., at pp. 606-607.)
In Allen v. Lelande (1912) 164 Cal. 56, the court denied a petition for a writ of mandate to order the Los Angeles County Clerk to strike the name of the candidate for the state Assembly from the ballot because of alleged nonresidency, stating "[f]or this court to undertake to try the question of eligibility and to deprive the candidate of any chance to be elected, would simply be to usurp the jurisdiction of the assembly." (Id., at p. 57.)
The California Supreme Court's last decision on the question of whether the judiciary has jurisdiction to determine the qualifications of members of the legislative branch is In re McGee (1951) 36 Cal.2d 592. In that case a Democratic candidate challenged the nomination of a Republican candidate who won the nomination of both parties for the Assembly. At that time then extant Elections Code sections 8600 and 8603 (later repealed) provided that any candidate in the primary could contest the nomination of another candidate for the same office by filing an action in the superior court. (Id., at pp. 592-593.)
The Supreme Court in deciding the conflict between the statutes and the Constitution held that the Constitution, under article IV, section 7, "confers exclusive jurisdiction on the Legislature to judge the qualifications and elections of its members." (In re McGee, supra, 36 Cal.2d at p. 594.)
The court in In re McGee, supra, 36 Cal.2d 592, also noted that "[t]he overwhelming weight of authority under identical federal and state constitutional provisions is in accord." (Id., at p. 595.)
The parallel provision of the United States Constitution is article I, section 5, which provides in pertinent part:
"Each House shall be the Judge of the Elections, Returns, and Qualifications of its own Members, ..."
The United States Supreme Court in Reed v. County Commissioners (1928) 277 U.S. 376, held that under Article I, section 5, the Senate "is the judge of the elections, returns and qualifications of its members.... It is fully empowered, and may determine such matters without the aid of the House of Representatives or the Executive or Judicial Department." (Id., at p. 388; see also Barry v. U.S. ex rel. Cunningham (1929) 279 U.S. 597.
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