Committee to Support the Recall, etc. v. Logan

Filed 8/10/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
COMMITTEE TO SUPPORT B326869
THE RECALL OF DISTRICT
ATTORNEY GEORGE GASCÓN, (Los Angeles County
Super. Ct. No. 22STCP03795)
Plaintiff and Respondent,
v.
DEAN C. LOGAN, as Los
Angeles County Registrar-
Recorder/County Clerk, etc., et
al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los
Angeles County, James C. Chalfant, Judge. Dismissed in
part, granted in part as petition for extraordinary writ.
Olson Remcho, Deborah B. Caplan, Lance H. Olson,
and Benjamin N. Gevercer, for Defendants and Appellants.
Dordulian Law Group and Kathleen M. Cady; Marian
M. J. Thompson; Ellis George Cipollone O’Brien Annaguey,
Eric M. George and David J. Carroll, for Plaintiff and
Respondent.
Hill Rivkins Brown & Associates, Adam C. Brown, 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
1 Unspecified references are to the Government Code. Effective
January 1, 2023, the provisions in the PRA were reorganized and
recodified without substantive change in Division 10, Title 1 of the
(Fn. is continued on the next page.)
2
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
Government Code. (§ 7920.000 et seq., as enacted by Stats. 2021,
ch. 614, § 2; see §§ 7920.100, 7920.105.) For ease of reading, we use
the current sections of the PRA.
3
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.
BACKGROUND
A. The Recall Petition, the Registrar’s Certification
of Invalidity, and the Committee’s Examination
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
4
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
2 The press release provided a breakdown of invalidated
signatures under the following categories: “Not Registered” (88,464);
“Duplicate” (43,593); “Different Address” (32,187); “Mismatch
Signature” (9,490); “Canceled” (7,344); “Out of County Address”
(5,374); and “Other” (9,331).
5
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
3 The Registrar identified three reports it had made available in
the examination room, including: (1) a report of signatures challenged
as due to death with a date of death; (2) a report of signatures
challenged as fatal pending with a fatal pending reason code; and (3) a
report of signatures challenged as duplicates with all other signatures
for the voter, including accepted signatures.
As provided in the Registrar’s opposition to the Committee’s ex
parte application for preliminary injunction, the term “fatal pending”
refers to “voter registrations deemed incomplete or invalid for various
reasons.”
4 The Registrar did provide a hardcopy list and report of invalided
signatures, hardcopy list of signatures invalidated for death or fatal
(Fn. is continued on the next page.)
6
B. The First Amended Verified Petition for Writ of
Mandate
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,
pending, and a hardcopy report showing when a voter changed or
updated an address during the time the petition was circulated.
5 Section 7923.000 provides that any person may institute a
proceeding for injunctive or declaratory relief, or for a writ of mandate,
“to enforce that person’s right under [the PRA to] receive a copy of any
public record or class of public records.” Elections Code section 13314,
subdivision (a) permits any elector to file an action seeking a writ of
mandate “alleging that an error or omission has occurred, . . . or that
any neglect of duty has occurred, or is about to occur.”
7
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.
C. The December 2022 Order
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
6 Other records sought by the Committee included: all signatures
on file for voters whose recall petition signature were rejected as
mismatched; an electronic list of voters whose signatures were rejected
during the random sample review; all training materials or user
manuals for DIMS; all data and information relied on by the Registrar
when rejecting a petition signature; and for all voters whose signatures
were rejected, all voter files and any notations in DIMS appearing in
those files.
7 The original ex parte application, filed before the operative
petition, did not request disclosure of original affidavits of voter
registration. The Committee’s request for disclosure of affidavits of
(Fn. is continued on the next page.)
8
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 order discussed the relevant provisions of
the PRA and Elections Code before addressing the
probability of prevailing on the merits.
registration appeared in a subsequent ex parte application, which was
not considered by the court.
9
As to the first category of requested records—voter
signature files for voters whose signatures were denied as a
mismatch—the court found the Committee had established a
probability of success. The court reasoned that section
7924.110 authorized examination of all signatures appearing
in a voter file to determine “whether the signature compares
with a signature on an affidavit of registration or an image
thereof or a petition.”
The court then found the Committee had failed to
establish a probability of prevailing on its request for
addresses and changes of address notices for voters whose
residence address on the recall petition did not match his or
her registered address. In so finding, the court noted that
the Registrar had already provided a printout of current and
former addresses and dates of change during the time the
petition had been circulated.
As to the third category of records requested—
electronic lists of voters whose signatures were certified as
valid or invalidated for certain reasons—the court found the
Committee had established a probability of success. To the
extent any notations in its data management files were
made during the Registrar’s own petition examination, such
notations constituted disclosable “memoranda” under section
7924.110. These lists, already provided to the Committee in
hardcopy form, could be provided in electronic format subject
to an appropriate protective order. However, the court found
the Committee had failed to establish a probability of
prevailing on its request for training materials and manuals
10
of DIMS, as this material constituted proprietary
information that was exempt under section 7927.705 of the
PRA.8
The court refrained from ruling on the Committee’s
requests for expanded access but authorized use of electronic
devices under an appropriate protective order to be
negotiated by the parties. The court ordered the parties to
work towards a completed examination by March 31, 2023.
Turning to the balancing of harms, the court found in
favor of the Committee based on its right to timely
determine if its recall petition merited an election. Without
a preliminary injunction, the Committee’s examination
would finish no later than May 2024, about six months
before the end of Gascón’s current term.
While the court did note the requirement of setting a
preliminary injunction bond (Code Civ. Proc., § 529, subd.
(a)), it found that the “parties d[id] not argue for a specific
bond amount or provide evidence to calculate damages” for
the bond. The court’s final order did not set an amount of
bond. On December 8 and 13, 2022, the Committee filed and
served notices of entry of the final order on December 6,
2022, and the corresponding minute order.
D. The January 2023 Order
Dissatisfied with each other’s compliance with the
injunction order, on January 23, 2023, both parties filed
8 The court also declined to order the Registrar to generate and
disclose a list of validated signatures.
11
their own ex parte applications. In its application, the
Registrar sought an order setting an amount of bond and
clarifying the December 2022 injunction order as to the
Committee’s ability to copy and transfer data from electronic
lists for use outside of the Registrar’s examination room.9
In its application, the Committee sought an order
directing the Registrar in relevant part to comply with the
December 2022 injunction order by permitting Committee
counsel and their retained computer analysts to use
electronic voter data outside the examination room. The
Committee also sought an order commanding the Registrar
to disclose current and former affidavits of registration for
invalidated signatures, which was neither requested in the
Committee’s original ex parte application nor ordered
disclosed by the court on December 6, 2022.
Following a joint hearing on both applications, the
court issued an order partially granting the applications on
January 30, 2023. The court authorized use of electronic
data by the Committee outside the Registrar’s examination
room under a protective order and commanded the Registrar
to disclose redacted hardcopy affidavits of registration.
9 The Registrar also updated the court on its compliance. As of
the date of its ex parte application, the Registrar had expanded
workstations and signature review terminals; allowed more Committee
representatives to examine the petition; disclosed date of birth
information, the random sample list, and a list of voter notification
cards sent the prior two years; created a list of valid signatures; placed
all electronic lists on USB drives accessible in the examination room;
and permitted use of electronic devices inside the examination room
under certain conditions.
12
Finally, the court set an injunction bond in the amount of
$500.
On January 31, 2023, the Registrar filed a notice of
appeal from the orders issued on December 6, 2022, and
January 30, 2023.
DISCUSSION
The Committee has filed a motion to dismiss the
Registrar’s appeal as from a nonappealable order “either
directing disclosure by a public official or supporting the
decision of the public official refusing disclosure.”
(§ 7923.500, subd. (a) [such orders are “not a final judgment
or order within the meaning of Section 904.1 of the Code of
Civil Procedure from which an appeal may be taken”].) In
opposition, the Registrar contends that because the
December 2022 and January 2023 orders do not order
disclosure of “public records” under the PRA, they do not fall
under section 7923.500’s limitation on appellate review.
“The ‘existence of an appealable judgment is a
jurisdictional prerequisite to an appeal.’ [Citations.]”
(MinCal Consumer Law Group v. Carlsbad Police Dept.
(2013) 214 Cal.App.4th 259, 263 (MinCal).) To determine
the merits of the Committee’s motion and the scope of our
appellate jurisdiction, we review de novo section 7923.500
and the relevant PRA provisions. (Florez v. Linens ‘N
Things, Inc. (2003) 108 Cal.App.4th 447, 451.) As we shall
discuss, we agree with the Committee that both orders from
which this appeal was taken are nonappealable under
13
section 7923.500. Due to the jurisdictional time limits set
forth in section 7923.500, we further conclude that we lack
jurisdiction to consider the December 2022 injunction order
but may exercise our discretion to consider the Registrar’s
contentions challenging the January 2023 order.
A. Principles of Statutory Interpretation
When interpreting a statute, “‘“[o]ur fundamental task
. . . is to determine the Legislature’s intent so as to effectuate
the law’s purpose. We first examine the statutory language,
giving it a plain and commonsense meaning. We do not
examine that language in isolation, but in the context of the
statutory framework as a whole in order to determine its
scope and purpose and to harmonize the various parts of the
enactment. If the language is clear, courts must generally
follow its plain meaning unless a literal interpretation would
result in absurd consequences the Legislature did not
intend. If the statutory language permits more than one
reasonable interpretation, courts may consider other aids,
such as the statute’s purpose, legislative history, and public
policy.” [Citation.]’” (City of San Jose v. Superior Court
(2017) 2 Cal.5th 608, 616-617 (City of San Jose); see also
National Lawyers Guild, San Francisco Bay Area Chapter v.
City of Hayward (2020) 9 Cal.5th 488, 498 (Hayward)
[dictionary definitions may be a “reliable guide to statutory
meaning; [but] sometimes context suggests that the
14
Legislature may have been using a term in a more technical
or specialized way”].)
Ultimately, our job is to find an interpretation “that
more readily comports with the statutory text” under the
PRA. (Hayward, supra, 9 Cal.5th at p. 503.) “To the extent
any doubt remains, California’s constitutional directive to
‘broadly construe[ ]’ a statute ‘if it furthers the people’s right
of access’” may favor one interpretation over another. (Id. at
p. 507.)
B. Relevant PRA Provisions
1. The Right to Examine an Unsuccessful Recall
Petition
The PRA, codified in Title 1, Division 10 of the
Government Code, provides that “access to information
concerning the conduct of the people’s business is a
fundamental and necessary right of every person in this
state.” (§ 7921.000.) As employed in the PRA, “‘public
records’ includes any writing containing information relating
to the conduct of the public’s business prepared, owned,
used, or retained by any state or local agency regardless of
physical form or characteristics.” (§ 7920.530, subd. (a).)
Part 5 of the PRA, entitled “Specific Types of Public
Records,” sets forth 19 chapters on the disclosure of different
classes of records. Chapter 2 of Part 5, entitled “Election
Materials and Petitions,” prescribes limitations on
disclosures applicable to voter information
15
(§§ 7924.000-7924.005), and initiative, referendum, recall,
and other petitions (§§ 7924.100-7924.110).
Section 7924.000 provides in relevant part that
“[e]xcept as provided in Section 2194 of the Elections Code,
both of the following are confidential and shall not be
disclosed to any person: [¶] (1) The home address, telephone
number, email address, precinct number, or other number
specified by the Secretary of State for voter registration
purposes. [¶] (2) Prior registration information shown on an
affidavit of registration.” (§ 7924.000, subd. (a).)
Records that are similarly exempted from disclosure as
public records are any “recall petition” and “memorand[a]
prepared by a county elections official in the examination of
a petition, indicating which registered voters signed that
particular petition.” (§ 7924.110, subd. (a) [such records are
defined as “not public records”].) Despite this broad
exemption, whenever “a petition is found to be insufficient,
[ ] the proponent of the petition and a representative of the
proponent as may be designated by the proponent in writing”
have a statutory right under section 7924.110 to examine the
petition and any memoranda “in order to determine which
signatures were disqualified and the reasons therefor.”10
(§ 7924.110, subd. (b).) Any examination conducted under
10 A “petition” is defined as “any petition to which a registered
voter has affixed the voter’s own signature.” (§ 7924.100.) A
“proponent of the petition” includes any “person or persons who have
charge or control of the circulation of, or obtaining signatures” to any
recall petition. (§ 7924.105, subd. (c); see Elec. Code, § 343.)
16
section 7924.110 must commence “not later than 21 days
after certification of insufficiency, . . . .” (§ 7924.110,
subd. (d).)
2. Judicial Enforcement of PRA Rights
To further the statutory right of access to records
maintained by public agencies, the PRA requires prompt
disclosure of records by any public agency unless “the record
in question is exempt under express provisions of this
division, or that on the facts of the particular case the public
interest served by not disclosing the record clearly outweighs
the public interest served by disclosure of the record.”
(§ 7922.000; see §§ 7922.530, subd. (a), 7921.300.) The
agency must make this determination within 10 days from
receipt of the request and must provide prompt notification
of its determination and any reasons therefor.
(See § 7922.535, subd. (a).)
In the event a public agency refuses to disclose records
subject to inspection under the PRA, Part 4 of the statutory
scheme provides general principles and procedures “to
enforce that person’s right under this division to inspect or
receive a copy of any public record or class of public records.”
(§ 7923.000.) These statutes authorize judicial proceedings
initiated by verified petition for injunctive or declaratory
relief, or for a writ of mandate, to enforce a person’s rights
under the PRA. (§§ 7923.000, 7923.100.) Upon the filing of
a verified petition, the court must set a schedule “with the
17
object of securing a decision as to the matters at issue at the
earliest possible time.” (§ 7923.005.)
If the court finds unjustified the public agency’s
decision to refuse disclosure under either section 7922.000 or
7920.505, the court must order disclosure of the record.
(§ 7923.110, subd. (a).) If the court finds the agency’s refusal
to be justified, the court must return the record and issue an
order supporting the agency’s decision. (§ 7923.110,
subd. (b).)
“An 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 within
the meaning of Section 904.1 of the Code of Civil Procedure
from which an appeal may be taken, but shall be
immediately reviewable by petition to the appellate court for
the issuance of an extraordinary writ.” (§ 7923.500, subd.
(a).) Upon entry of any such order, “a party shall, in order to
obtain review of the order, file a petition within 20 days after
service upon the party of a written notice of entry of the
order, or within a further time, not exceeding an additional
20 days, as the trial court may for good cause allow.”
(§ 7923.500, subd. (b).) A stay of any order “shall not be
granted unless the petitioning party demonstrates that the
party will otherwise sustain irreparable damage and
probable success on the merits.” (§ 7923.500, subd. (d).)
These enforcement procedures “reflect a clear
legislative intent that the determination of the obligation to
disclose records requested from a public agency be made
18
expeditiously.” (Filarsky v. Superior Court (2002) 28 Cal.4th
419, 427 (Filarsky).)
C. The Registrar Appeals from Nonappealable
Orders
We conclude that the Registrar has appealed from
orders under section 7923.500 “either directing disclosure by
a public official or supporting the decision of the public
official refusing disclosure” under the PRA. Both challenged
orders either command the Registrar to disclose records in
hardcopy and/or electronic form or support the Registrar’s
refusal to disclose records exempted from disclosure under
the PRA. (See §§ 7923.500, subd. (a), 7930.160 [listing
§ 7924.110 as a provision that “operates to exempt certain
records, or portions thereof, from disclosure”].) To quote the
Registrar, the contentions raised in this appeal are based
primarily on “the scope of section 7924.110” of the PRA,
namely “the limited opportunity to examine an unsuccessful
petition . . . and the scope of access to materials subject to
disclosure. . . .” (Citing § 7924.110 (b)(2); Elec. Code, § 2194.)
We therefore agree with the Committee that both orders are
nonappealable under the plain language of section 7923.500.
The Registrar resists this conclusion, arguing that
because the underlying orders did not order disclosure of
“public records,” section 7923.500 does not apply. Mindful
that no such limitation appears in the text of section
7923.500, the Registrar contends that our Supreme Court
imposed this gloss in Filarsky, supra, 28 Cal.4th 418. To
19
support its contention, the Registrar relies on the following
language in Filarsky: “The purpose of [section 7923.500
(former § 6259, subd. (c))] limiting appellate review of the
trial court’s order to a petition for extraordinary writ is to
prohibit public agencies from delaying the disclosure of
public records by appealing a trial court decision and using
continuances in order to frustrate the intent of the [PRA].”
(Filarsky, supra, 28 Cal.4th at pp. 426-427, citing Times
Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325,
1334-1336.) In the Registrar’s view, “the Filarsky Court
therefore articulated what is not expressly stated in section
7923.500 (former § 6259), i.e., that the ‘order . . . directing
disclosure’ must direct disclosure of a record determined to
be a ‘public record’ within the [PRA].” And because the
orders here did not order the disclosure of “public records”
(see § 7924.000, 7924.110), the Registrar maintains that it
was not compelled to pursue appellate review by way of
section 7923.500.
We disagree with the Registrar’s construction of
section 7923.500. To begin with, we do not construe Filarsky
as limiting section 7923.500 to particular types of records
under the PRA. The Supreme Court granted review in
Filarsky to decide a separate issue—“whether a superior
court properly may grant declaratory relief in an action
initiated by a public agency solely to determine the agency’s
obligation to disclose documents to a member of the public
after the agency has denied the person’s request under the
[PRA].” (Filarsky, supra, 28 Cal.4th at p. 423; see Newark
20
Unified School Dist. v. Superior Court (2015) 245
Cal.App.4th 887, 908 [“Filarsky’s holding was narrowly
drawn to address only the circumstances before it”]; Public
Utilities Com. v. Superior Court (2016) 2 Cal.App.5th 1260,
1259, fn. 7 [same].)
Following a brief overview on the PRA, the Court
stated that section 7923.500 was intended “to prohibit public
agencies from delaying the disclosure of public records . . . .”
(Filarsky, supra, 28 Cal.4th at p. 427.) Placing no particular
emphasis on the term “public records,” the Court found that
the “legislative objective” behind section 7923.500 “was to
expedite the process and make the appellate remedy more
effective. [Citation.] Indeed, the [PRA’s] provision regarding
a public agency’s obligation to act promptly upon receiving a
request for disclosure . . . , the provision directing the trial
court in a proceeding under the [PRA] to reach a decision as
soon as possible . . . , and the provision for expedited
appellate review . . . all reflect a clear legislative intent that
the determination of the obligation to disclose records
requested from a public agency be made expeditiously.”
(Filarsky, supra, 28 Cal.4th at p. 427, citations omitted.)
If anything, we construe Filarsky as acknowledgment
by the Court that the PRA enforcement procedures were
designed for prompt resolution of requests for disclosure
made pursuant to the PRA. (See id. at p. 429 [“a public
agency could appeal from a judgment in favor of . . .
disclosure, thus further delaying a determination whether
the records must be disclosed and thwarting the clear intent
21
of the Legislature that the matter be resolved
expeditiously”].) As we shall discuss, that very concern is
implicated in this case.
A review of relevant legislative history confirms that
the need for prompt resolution of an agency’s duty of
disclosure under the PRA is not limited to “public records” as
that term is defined. As this case makes clear, that need
also exists when the right to a petition examination is
exercised. The statutory right of a petition examination was
added to section 7924.110 in 1980 (Stats. 1980, ch. 535, § 1)
and arose from a situation similar to the one here. (See
Assem. Comm. on Elections and Reapportionment, Assem.
Bill Digest, Analysis of Assem. Bill No. 2328 (1979-1980 Reg.
Sess.), as amended Mar. 27, 1980, p. 2 [describing a 1978 Los
Angeles Superior Court decision permitting proponents of a
petition to inspect the petition “after such petition has been
declared to contain an insufficient number of qualified
signatures”]; accord Sen. Democratic Caucus, Analysis of
Assem. Bill No. 2328 (1979-1980 Reg. Sess.), as amended
June 17, 1980, p. 1 [“[p]roponents state that [petition]
proponents should have the right to examine signatures that
have been disqualified by county clerks to assure proper
review”].) In addition to enacting this statutory right of
examination, the 1980 amendment also enacted the 21-day
limitations period for any petition examination. (§ 7924.110,
subd. (d), as enacted by Stats. 1980, ch. 535, § 1.) Viewing
these enactments in harmony, the 1980 amendment
22
signified not only an intent by the Legislature to enforce a
right of examination, but a right to do so promptly.
In addition, the right of prompt examination under
section 7924.110 readily comports with section 7923.500,
itself a statute that was designed “to speed appellate
review, . . . ” (Times Mirror, supra, 53 Cal.3d at
pp. 1332-1333; accord, Sen. Com. on Judiciary, Analysis of
Sen. Bill No. 2222 (1983-1984 Reg. Sess.), as introduced, p. 3
[§ 7923.500 proposed out of concern that “[some] public
officials are frustrating the intent of the laws for disclosure”
by filing appeals]; Assem. Com. on Judiciary, Worksheet on
Sen. Bill No. 2222 (1983-1984 Reg. Sess.), p. 2 [enacting
legislation “would correct these problems by providing that a
Superior Court decision concerning a Public Records Act
dispute is not a final judgment from which an appeal may be
taken”].)11
11 Section 7923.500 was enacted by legislation sponsored by the
California Newspaper Publishers’ Association “to remedy a problem
which arises when public agencies attempt to withhold information
from the public.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
2222, supra, at p. 2; Assem. Com. on Judiciary, Worksheet on Sen. Bill
No. 2222, supra, at p. 2 [“access delayed is access denied”].)
In 1991, the Legislature amended section 7923.500 to clarify
that orders under the PRA “shall be immediately reviewable by
petition to the appellate court for issuance of an extraordinary writ.”
(Stats. 1990, ch. 908, § 2.) “While an appeal is a matter of right in
most types of cases, statutes which create litigable rights, may also
limit the right to appeal. Such is the case with the [PRA].” (Sen Com.
on Judiciary, Analysis of Sen. Bill No. 2272 (1989-1990 Reg. Sess.), as
introduced, p. 3.)
23
The very same concerns raised in the legislative
histories in sections 7924.110 and 7923.500 exist in this
case. According to the Committee, the original conditions
under which it conducted its examination caused significant
delay, projecting a completion date of May 2024,
approximately six months before Gascón’s first term ends
and two months after the next primary election for Los
Angeles County District Attorney. To enforce its rights of
examination, the Committee filed a verified petition for relief
under the PRA (§§ 7923.00, 7923.100), the trial court set a
schedule for proceedings to expedite its decision under the
PRA (§ 7923.005), and the court issued an order directing
disclosure or affirming the Registrar’s decision refusing to
disclose records under the PRA (§ 7923.500). And while the
Registrar asserts that it has worked in good faith with the
Committee to expedite its examination, the Registrar admits
that it has also “relied on the stay” pending appeal to refuse
disclosure of documents previously ordered by the court.
The Registrar’s resistance reflects the very dangers on which
sections 7924.110 and 7923.500 were enacted and amended.
(Accord, Filarsky, supra, 28 Cal.4th at pp. 429-430.)
Indeed, the Registrar itself raises concerns favoring
application of section 7923.500 in this case. Throughout this
appeal, the Registrar has consistently maintained that the
trial court’s orders have caused “costly and disruptive impact
on the Registrar’s office. . . .” The Register also argues that
the trial court’s orders have impacted “the operations of the
24
County elections office” and “the public as a whole. . . .”12
The Registrar (or any county elections official) would benefit
from expedited review to correct any error causing this
breadth of public harm.
To effectuate the purposes of sections 7924.110 and
7923.500, and to harmonize the examination procedures set
forth in section 7924.000 through 7924.110 within the
overall context of the PRA (City of San Jose, supra, 2 Cal.5th
at pp. 616-617), we therefore construe 7923.500 as covering a
trial court’s order directing or refusing disclosure of records
in connection with the examination of an unsuccessful recall
petition. And because both orders at issue in this appeal
directed or refused disclosure of records in connection with
the Committee’s petition examination under section
7924.110, the Registrar was required to file petitions for
extraordinary writ review from those orders.
12 We previously granted applications by the Secretary of State
and California Association of Clerks and Elections Officials to submit
amicus curiae briefs in support of the Registrar. We also granted the
Committee’s application to file a response
The amicus briefs argue that the trial court’s interpretation of
section 7924.110 “threatens to impede elections officials’ ability to
carry out [their official] duties and thus to carry out elections.”
According to the Association, this interference would cause a “potential
chilling effect” on “the millions of California voters who engage in the
democratic process by signing petitions,” and would interfere with the
people’s right of privacy to voter information.
The Committee disputes these arguments, characterizing each
as “leav[ing] the petition examination process toothless and subject to
the whim of the Executive branch.”
25
D. Construing the Notice of Appeal as an
Extraordinary Writ
In anticipation of our conclusion above, the Registrar
requests that we exercise our discretion to treat its notice of
appeal as an extraordinary writ petition. (Citing Summers
v. Superior Court (2018) 24 Cal.App.5th 138, 142 (Summers);
Coronado Police Officers Ass’n v. Carroll (2003) 106
Cal.App.4th 1001, 1006 (Carroll).)
It is true that appellate courts have discretion to treat
an appeal from a nonappealable order as a petition for
extraordinary writ relief. (Summers, supra, 24 Cal.App.5th
at p. 142; Carroll, supra, 106 Cal.App.4th at p. 1006.) But
that discretion has been exercised “only under limited,
extraordinary, circumstances.” (Mincal, supra, 214
Cal.App.4th at p. 265.) We now address whether the
Registrar has demonstrated extraordinary circumstances
warranting the exercise of our discretion to construe the
appeal as an extraordinary writ from either the December
2022 injunction order or the January 2023 order.
1. We Lack Jurisdiction to Consider the December
2022 Injunction Order
Most of the Registrar’s appellate contentions challenge
the trial court’s December 2022 injunction order. The
Registrar has provided no argument on this court’s ability to
ignore the jurisdictional time limits prescribed in section
7923.500, subdivision (b). (See In re Antilia (2009) 176
Cal.App.4th 622, 630 [“[a] time limit prescribed by the
26
Legislature for filing a petition for writ of mandate is
jurisdictional”].) Under this express limitation, the
Registrar was required to file a petition for extraordinary
writ relief “within 20 days after service upon the party of a
written notice of entry of the order, or within further time,
not exceeding an additional 20 days, as the trial court may
for good cause allow.” (§ 7923.500, subd. (b).) This deadline
is both “mandatory and jurisdictional.” (Mincal, supra, 214
Cal.App.4th at p. 264.)
The Registrar filed a notice of appeal from the
December 2022 injunction order on January 31, 2023,
outside the 40-day jurisdictional window from both notices of
entry of order (December 8 and 13, 2023). We therefore lack
jurisdiction to consider the merits of the December 2022
injunction order. (See Mincal, supra, 214 Cal.App.4th at
p. 264 [“if a writ petition is not filed within the time limit, we
are without power to review the merits of the trial court’s
ruling”]; compare Carroll, supra, 106 Cal.App.4th at p. 1006
[exercising discretion where public agency “filed the notice of
appeal within the statutory time period for seeking writ
review”], with MinCal, supra, at pp. 265-266 [refusing to
exercise discretion where public agency filed notice of appeal
from PRA order beyond time permitted under section
7923.500], and Austin v. City of Burbank (2021) 67
Cal.App.5th 654, 656 [same].)13
13 Based on our own research, it appears that some appellate
courts have excused untimely notices of appeal by construing them as
writs of mandate. But in those cases, the courts excused the delayed
(Fn. is continued on the next page.)
27
2. We Exercise Our Discretion to Consider Portions
of the January 2023 Order
Notwithstanding our discussion above, the Registrar’s
notice of appeal falls within the jurisdictional deadline under
section 7923.500, as to the trial court’s January 2023 order.
We must therefore determine whether to exercise our
discretion to consider any contention challenging this order.
(Carroll, supra, 106 Cal.App.4th at p. 1006; see PV Little
Italy, LLC v. MetroWork Condominium Assn. (2012) 210
Cal.App.4th 132, 142-143 [whether a particular order
constitutes a separate appealable injunction “depends not on
its title or the form of the order, but on the ‘“substance and
effect of the adjudication”’”].)
The trial court’s January 2023 order granted ex parte
applications by the parties to (1) set an amount of bond and
(2) issue additional orders related to the preliminary
injunction. We address these portions in turn.
a. We Do Not Consider the Order Setting
Amount of Bond
The PRA does not specifically bar the requirement of
an undertaking on the grant of an injunction. (Stevenson v.
filings to relieve the appellants from detrimentally relying on prior
caselaw causing their delay. (See Phelan v. Superior Court (1950) 35
Cal.2d 363, 371; Drum v. Superior Court (2006) 139 Cal.App.4th 845,
853; see also In re Meranda P. (1997) 56 Cal.App.4th 1143, 1164-1165
[refusing to apply this principle in civil appeals, as it “prevails only in
criminal actions”].) The Registrar has not alleged that it relied on
prior caselaw to delay filing its notice of appeal.
28
City of Sacramento (2020) 55 Cal.App.5th 545, 552; see Code
Civ. Proc., § 529.) But “the injunction bond requirement of
section 529 can be waived or forfeited by the party to be
enjoined.” (Smith v. Adventist Health System/West (2010)
182 Cal.App.4th 729, 744 (Smith).) This can be done orally
or in writing, or it may be “inferred from their conduct.”
(Id. at p. 745.)
We decline to consider the issue of bond amount in this
case for several reasons. First, as the Registrar concedes,
the post-injunction order setting an amount of bond amount
is not separately appealable. (County of Los Angeles v. City
of Los Angeles (1999) 76 Cal.App.4th 1025, 1027-1028; see
People ex rel. Feuer v. Progressive Horizon, Inc. (2016) 248
Cal.App.4th 533, 538-539.)
Second, the Registrar did not argue for the posting of
bond or for an amount in its written opposition to the
Committee’s application for an injunction.14 The trial court’s
tentative decision informed the Registrar of the posting of
bond, the failure of the parties to set forth argument on a
bond amount, and the ability to raise “the value of the bond
at the hearing.” The Registrar did not do so,15 and instead
14 The Committee has filed a motion to augment the record to
include a reporter’s transcript of a hearing on February 14, 2023, in
which the trial court denied the Registrar’s motion objecting to the
sufficiency of bond. (Cal. Rules of Court, rule 8.155(a)(1).) We deny
the motion.
15 Without providing a citation to the record, the Registrar
contends it “first raised [the bond issue] at the hearing” on December
5, 2022. We disagree. The only reference made by the Registrar to a
(Fn. is continued on the next page.)
29
complied with several directives in the injunction order
while attempting to “meet and confer to discuss an amount
[of bond] and try to resolve this by submitting a stipulation.”
It was only when the Committee informed the Registrar that
it saw no “basis for the Registrar to seek to reopen or
reconsider the issue of a bond with the [c]ourt” that the
Registrar filed an ex parte application to set bond amount.
On these facts, we decline to consider the Registrar’s
challenge to the amount of bond. To rule otherwise would
invite parties “to achieve a greater benefit by saving the
injunction bond issue for appeal when it could have been
dealt with more efficiently in the lower court with much less
detriment to the party who obtained the injunction.” (Smith,
supra, 182 Cal.App.4th at p. 749.) This principle is
particularly significant in this case, which as discussed
requires expedited judicial review. (Cf. ibid. [“[t]he resulting
inefficiencies are an unacceptable burden on the
administration of civil litigation”].)
b.We Consider New Directives in the January
2023 Order
What remains in the January 2023 order are directives
commanding the Registrar to disclose additional documents
bond amount was in response to the court’s suggestion that it hire
more workers to expedite the Committee’s examination. The Registrar
responded, “Well, I guess we can talk about that in terms of the bond,
your honor. But we’re talking about . . . significant problems hiring
people and just getting those positions filled.” This response did not
properly raise the issue of bond amount at the hearing.
30
and to expand access. The Registrar challenges two
directives in this order: (1) use of electronic voter lists
outside the examination room; and (2) disclosure of current
and former affidavits of voter registration. We agree with
the Registrar that these are new directives warranting
consideration.16 We review the merits of these directives de
novo. (Kinney v. Superior Court (2022) 77 Cal.App.5th 168,
177; Los Angeles Unified School Dist. v. Superior Court
(2014) 228 Cal.App.4th 222, 236-237.)
1. Relevant Proceedings
In its ex parte application filed January 23, 2023, the
Committee sought an order commanding the Registrar to
comply with various directives that were purportedly in the
court’s December 2022 injunction order, including
(1) authorization for Committee counsel and their retained
computer analysts to use the electronic lists of voter data
outside the examination room subject to a protective order,
and (2) disclosure of current and former affidavits of
registration for signatures rejected for various reasons. In
16 At oral argument, the Committee conceded that the actual
affidavits of voter registration—not the information appearing on the
affidavits—were not ordered disclosed at the December 2022 hearing.
When asked to support its position at oral argument that use of
electronic lists outside the examination room had been previously
ordered at the December 2022 hearing, counsel identified several pages
of reporter’s transcript from the injunction hearing. Those pages do
not contain a statement by the court ordering any use of electronic lists
outside the examination room.
31
opposition, the Registrar argued that both requested
directives were not previously ordered by the Court.”
At a hearing on January 24, 2023, the court mistakenly
believed it had previously ruled on the Committee’s ability,
through counsel of record for and any computer analysts
operating under counsel’s direction, to “remove the list[s]
from the examination room subject to a protective
order. . . .”17 The court also stated that it previously ordered
the disclosure of addresses appearing on affidavits of voter
registration. As to this latter contention, the Registrar
agreed with the court but argued that the affidavits
themselves had not been ordered disclosed. The court
responded: “If I ruled on December [2022] that they [(the
Committee)] get access to affidavits of registration to look at
prior addresses, then that was my ruling.” The court
directed the Registrar to pull former registration cards for
voter signatures disqualified for various rejection categories,
redact confidential material under section 7924.000, and
provide the Committee hardcopy affidavits in redacted form.
17 More than six weeks had passed since the original injunction
hearing. The court did not rule on the Committee’s ability to remove
electronic data outside the examination room at the December 2022
hearing. Instead, the court ordered the production of electronic copies
of existing hardcopy lists subject to a strict protective order to be
negotiated by the parties. The court’s written order did not address
the removal of electronic data. On the contrary, the order provided
that the parties could minimize any concerns about voter
confidentiality “by an appropriate protective order limiting the use of
electronic copies solely to the purpose of examining the rejected votes
and only to be used in the examination room.” (Italics added.)
32
When the Registrar inquired about redaction and production
costs, the court ordered the parties to “discuss it after you
know how much it’s going to be, and if it [you] can’t reach an
agreement, you’re going to have to file an ex parte for cost
shifting.”
The court issued a written order granting the
Committee’s ex parte application on January 30, 2023. The
order directed the Registrar to provide records, including
redacted hardcopies of current and former affidavits of
registration for voters whose registration address was
changed during the circulation period, and whose signatures
on the recall petition were disqualified under specific
rejection categories. The court ordered the parties to submit
a proposed protective order placing restrictions on access by
Committee representatives inside the examination room and
allowing use of electronic lists outside the Registrar’s
examination room by Committee counsel and any retained
computer analyst.
2. Authorizing Use of Electronic Voter Data
Outside the Registrar’s Examination Room
Was Unauthorized
The Registrar contends the trial court misconstrued
section 7924.110 when authorizing use of electronic voter
lists outside its examination room. The Registrar asserts
section 7924.110 provides only a right to “inspect” the lists,
not a right to remove lists or information beyond the
Registrar’s supervision. The Committee has provided no
33
argument in response to this contention. (See Sweeney v.
California Regional Water Quality Control Bd. (2021) 61
Cal.App.5th 1093, 1149 [courts may ignore arguments by
respondent when they are unsupported by evidence or
authority] (Sweeney)); Maral v. City of Live Oak (2013) 221
Cal.App.4th 975, 984 [“‘[a]n appellate court is not required to
examine undeveloped claims, nor to make arguments for
parties’”].) Given the lack of argument or supporting
evidence to the contrary presented, and based on the
constitutional guarantee of voter privacy, we agree with the
Registrar’s limited interpretation of section 7924.110.
Section 7924.110 provides that for any petition
examination, the county elections official “[must] retain the
petitions . . . as prescribed in [Elections Code section
17200].” (§ 7924.110, subd. (d).) In turn, section 17200 of
the Elections Code restricts “[p]ublic access to the petition
. . . in accordance with Article 2 (commencing with Section
7924.100) of [the PRA].” (Elec. Code, § 17200, subd. (d).)
Beyond its reference back to the PRA, section 17200 of the
Elections Code provides no direction on the scope of an
examination or the duties of a county elections official to
ensure a full examination. The PRA does not define the
term, and we find no guidance from the legislative history of
section 7924.110.18
18 The Legislature first enacted a statutory right of examination by
way of an amendment to section 7924.110 in 1977. But that right was
limited to various public officials not relevant here, and the former law
did “not spell out a procedure for obtaining court approval” for such
(Fn. is continued on the next page.)
34
We must therefore determine what the Legislature
meant by “inspection” and “examination.” The verb “inspect”
is commonly defined to mean “view closely and critically”
and “examine with care.” (Webster’s 3d New Internat. Dict.
(1981) p. 1170.) The verb “examine” is defined to mean “look
over” and “seek to ascertain.” (Id. at p. 790; see Hayward,
supra, 9 Cal.5th at p. 499 [courts may utilize common
definitions in statutory interpretation].) These definitions
lend some support for the court’s order, as they contemplate
the ability to look over electronic lists without specifying a
location to determine which signatures were disqualified and
the reasons therefor.
In view of the constitutional guarantee of voter privacy,
however, it is unlikely the Legislature intended to broaden a
petition examination by permitting the proponent to copy
petition and memoranda data for use beyond the control of
county election officials. In Bilofsky v. Deukmejian (1981)
124 Cal.App.3d 825, 831 (Bilofsky), this court narrowly
examination. (Sen. Com. on Elections and Reapportionment, analysis
of Assem. Bill No. 1710 (1977-1978 Reg. Sess.), as introduced, p. 1; see
Stats. 1977, ch. 556, § 4.) Then, in 1980, the Legislature amended
section 7924.110 to grant “the same rights to examine such petitions as
is currently afforded the public officers, public employees, and public
entities as set forth above.” (Leg. Counsel’s Dig., analysis of Assem.
Bill No. 2328 (1979-1980 Reg. Sess.), as approved July 16, 1980, p. 95.)
While the amended law was also designed “to assure proper review” of
disqualified signatures by local county clerks, it too provided no
guidance on the scope of a petition examination. (Sen. Democratic
Caucus, analysis of Assem. Bill No. 2328 (1979-1980 Reg. Sess.), as
amended July 17, 1980, p. 1.)
35
construed a provision in the Elections Code to prohibit any
circulator of a petition (initiative, referendum, or recall) from
using the list of signatures “‘for any purpose other than
qualification of the . . . question for the ballot.’” (Id. at
pp. 827-828, fn. 1, quoting former Elec. Code, § 2770.)
Guided by “the California constitutional guarantee of
privacy by insuring the least interference with that right of
persons signing . . . recall petitions,” we narrowly construed
the provision as “designed in order to protect the signer from
any use of his identity other than that integral to the
[petition] process.” (Id. at pp. 831, 833; see Cal. Const., art.
I, § 1.)
We agree with the Registrar that the same privacy
concerns exist for voters who participate in recall petitions.
(See §§ 7924.000, subds. (a)-(c).) Use of voter information in
this case outside the Registrar’s walls would undoubtedly
give the Committee greater control over how they use the
information. In turn, this level of control could expedite its
petition examination. But the Committee already has access
to this information for use inside the examination room.
And as a practical matter, we are mindful of the risks of
unlawful dissemination of voter data in this case, even if
that risk is mitigated by a protective order.19 Under these
19 On January 30, 2023, the court signed and filed a protective
order previously approved as to form and content by the parties. The
following day, the Registrar filed its notice of appeal and emailed the
Committee that it would “not be providing the electronic lists or the
copies of the affidavits of registration pending appeal, and we will not
be entering into the protective order entered by the Court.”
36
circumstances, we do not believe that use of electronic voter
data outside the Registrar’s walls is “integral” to the
Committee’s petition examination. (Bilofsky, supra, at
pp. 831, 833.)
We therefore decline to construe section 7924.110
broadly to permit the Committee’s use of any recall or
memoranda material outside the Registrar’s examination
room. Our construction of section 7924.110 may affect the
Committee’s ability to control the speed of its examination,
but given the access it already has, we do not believe its
rights of examination would be impacted any “greater than
under many statutes designed to afford to individuals a
privilege of privacy. . . .” (Bilofsky, supra, 124 Cal.App.3d at
p. 833.)20
3. Ordering Redacted Hardcopies of Affidavits
of Registration Was Unauthorized
The Registrar contends the January 2023 order
improperly ordered the disclosure of redacted copies of
current and former affidavits of registration for voters whose
registration address was changed during the circulation
period, and whose signatures on the recall petition were
disqualified under specific rejection categories (fatal
20 The absence of legislative authority addressing the disclosure
and use of electronic voter information for purposes of a petition
examination (§§ 7924.000 et seq.; Elec. Code, § 2188 et seq.), is a
subject the Legislature may wish to address in the future.
37
pending, mailing address, and/or registration date). We
agree.21
Section 7924.000 provides that “[p]rior registration
information shown on an affidavit of registration” is
“confidential and shall not be disclosed to any person” except
as provided in section 2194 of the Elections Code.
(§ 7924.000, subd. (a).) Section 2194 of the Elections Code
also provides that “the affidavit of voter registration
information” is “confidential and shall not appear on any
computer terminal, list, affidavit, duplicate affidavit, or
other medium routinely available to the public at the county
elections official’s office.” (Elec. Code, § 2194, subd. (a)(1).)
Section 2194 does provide an exception, but it is a limited
one: affidavits of voter registration information “[s]hall be
provided with respect to any voter, subject to [additional
confidentiality provisions in the Elections Code], to any
candidate for federal, state, or local office, to any committee
for or against any initiative or referendum measure for which
legal publication is made, and to any person for election,
scholarly, journalistic, or political purposes, or for
governmental purposes, as determined by the Secretary of
State.” (Elec. Code, § 2194, subd. (a)(3), italics added.)
Conspicuously missing from this provision is any
reference to a committee or proponent for a recall petition.
“‘“Ordinarily, where the Legislature uses a different word or
21 In light of this conclusion, we do not consider the Registrar’s
alternative contention that the Committee never requested the
affidavits of registration in its ex parte application.
38
phrase in one part of a statute than it does in other sections
or in a similar statute concerning a related subject, it must
be presumed that the Legislature intended a different
meaning.’”” (Hayward, supra, 9 Cal. 5th at p. 500, quoting
Rashidi v. Moser (2014) 60 Cal.4th 718, 725 (Rashidi).)
The Committee recognizes Elections Code section 2194
omits any reference to recall petitions, and instead argues
“there is no reason why recall petitions would be excluded.”
The Committee fails to support this position with any
reasoned argument. (See Sweeney, supra, 61 Cal.App.5th at
p. 1143.)
The only authority on which the Committee purports to
rely are section 82043 and Elections Code section 2188.5.
Both of these statutes specifically refer to recall procedures
in addition to initiative and referendum procedures. Section
82043, part of a separate statutory scheme (the Political
Reform Act of 1974, § 81000 et seq.), defines “measure” as
any proposition submitted “to a popular vote at an election
by initiative, referendum, or recall procedure.” Similarly,
Elections Code section 2188.5 provides that any person who
requests voter information or “obtains signatures or other
information collected for an initiative, referendum, . . . or
recall petition shall not send that information outside of the
United States or make it available in any way electronically
to persons outside the United States . . . .” (Elec. Code,
§ 2188.5, subd. (b).)
Assuming these provisions are similar to the provisions
at issue in this case or concern related subjects (Hayward,
39
supra, 9 Cal.4th at p. 500), they support the Registrar’s
position and not the Committee’s. Both section 82043 and
Elections Code section 2188.5 expressly reference recall
petitions; Elections Code section 2194 does not. As both
section 82043 and Elections Code section 2188.5 clearly
illustrate, the Legislature is aware of its ability to define the
scope of a political measure statute to include recall
measures. Had it intended to define the scope of Elections
Code 2194 in like manner, we would expect it to have done
so. (See ibid.; Rashidi, supra, 60 Cal.4th at p. 725.) Thus,
we conclude that because Elections Code section 2194, as
incorporated into section 7924.000, does not authorize
disclosure of affidavits of registration to proponents of recall
petitions, the trial court erred by ordering disclosure of them
in this case.
40
DISPOSITION
The portion of the appeal challenging the order of
December 6, 2022, is dismissed. The portion of the appeal
challenging the order of January 23, 2022, is deemed a
petition for extraordinary relief. The petition for
extraordinary writ is granted in part. Let a writ of mandate
issue directing the superior court to vacate its January 23,
2023, order to the extent it (1) authorizes use of electronic
lists outside the Registrar’s examination room, and
(2) commands disclosure of redacted affidavits of voter
registration. The court shall issue a new and different order
denying both requests. In all other respects, the petition for
extraordinary writ is denied.
The parties are to bear their own costs on appeal.
(See Cal. Rules of Court, rules 8.278(a)(2), 8.493(a)(1)(B).)
CERTIFIED FOR PUBLICATION
MORI, J.
We concur:
CURREY, P. J. ZUKIN, J.
41