Lutz vs. Vu -- Complaint for Declaratory and Injunctive Relief

Citizens Oversight (2016-06-16) Ray Lutz, Alan Geraci

This Page: https://copswiki.org/Common/M1658
More Info: Election Integrity, Election Audit Lawsuit

Latest News

• AB-840 modified on August 28 to allow only early VBM and Polls ballots -- now signed into law.
• (M1785) 2017-08-31 Citizens Oversight OPPOSES AB-840, the bill to gut CA election audits -- Ray Lutz, Citizens Oversight, AB-840
• In the appellate court, they judged that due to the fact that AB-840 was now law, the case was moot. But they went further to say that it was always that way, and the lower court erred in ruling in our favor. This is ridiculous, but allows the county to get out of paying any legal expenses for our side. Disgusting!
• Please see the project Election Audit Lawsuit where new information will be provided.
• (M1670) 2016-08-03 Press Conference: Court Ruling on Anti-Election Fraud Lawsuit -- Ray Lutz, Citizens Oversight, Also includes court ruling and explanation.
• Lutz_Vs._Vu_Ruling_on_Injunction_CCE07282016.pdf: Ruling by Judge Wohlfeil on Election Audits Case
• Hearing was held in San Diego Superior Court, July 6, 2016, 1:30pm Dept C-73. (330 W. Broadway, 6th Floor) requesting injunctive relief. This would essentially stop Vu from certifying the election unless he complied with election code 15360, mandating that all ballots be subjected to the 1% manual tally audit. Vu excluded 285,000 ballots.
  • The judge heard both sides in oral arguments, then took it under submission.
  • Post hearing press conference: https://www.youtube.com/watch?v=cBNcpyEsefc
• Since the judge did not rule on it prior to certification deadline, Vu certified knowing he was in violation of the law.
• Now case has been modified as "Writ of Mandate" which means it will go forward and try to correct this situation for future elections. This should have state-wide application.
• This trial will likely take a number of months. We hope we can get it completed before November.
• We received a "Statement of Intended Decision" on Oct 26 and Status conference is scheduled for Dec 1, just before election certification.

PLEASE NOTE
This action was subsequently modified to request for injunctive relief, and now is being handled by former Deputy City Attorney Alan Geraci. Hearing occurred in San Diego Superior Court, July 6, 2016, 1:30pm Dept C-73. (330 W. Broadway, 6th Floor)

On June 16, 2016, the following "Complaint for Declaratory Relief" was filed by Ray Lutz against San Diego Registrar of Voters Michael Vu and his supervisor, Helen N. Robbins-Meyer, Chief Administrative Officer of San Diego County. This was served to the County Counsel at 12:35pm, and we attempted to serve Micheal Vu directly at 2:35pm but he refused to accept it, so we threw it on the floor at his office.

What is this about

The San Diego Registrar of Voters (SDROV) and many other election districts in California are not complying with the law regarding the 1% manual tally. They are leaving out a vast number of Vote by mail (VBM) ballots that were still to be processed after election day, and also the many provisionals.

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Header of the filed complaint:

Initial Complaint, filed Pro Per by Ray Lutz

• Lutz_vs_Vu_--_Complaint_for_Declaratory_Relief.pdf: Main complaint, Lutz vs. Vu
• Lutz_vs_Vu_--_Complaint_for_Declaratory_Relief_-_EXHIBITS.pdf: Lutz vs Vu -- Complaint for Declaratory Relief -- Exhibits

First Amended Complaint. Filed 2016-06-24 by Attorney Alan Geraci. Citizens Oversight added as a plaintiff

• Lutz_vs_Vu_--_FAC_06212016.pdf: First Amended Complaint
• Decl_Ray_Lutz.pdf: FAC - Decl of Ray Lutz
• NOL_Exhibits.pdf: FAC - Exhibits
• Notice_Motion.pdf: FAC - Notice Motion
• POS.pdf: FAC - Proof of Service
• Ps_and_As.pdf: FAC - Points and Authorities

County response, filed on 2016-06-30

• Defendants_Opposition_to_Mtn_for_Prelim_Injunction-PA.pdf: County Response -- Opposition to Motion, Points and Authorities
• Defendants_Req_for_Judicial_Ntce.pdf: Def. Request for Official Notice
• Evidentiary_Objections_to_Decl._of_R._Lutz.pdf: Objections to Ray Lutz declaration
• NTCE_of_Lodgmnt.pdf: County Response exhibits
• Decl._of_M._Vu.pdf: Declaration of Michael Vu
• Dec_of_J._Lean_(SOS).pdf: Declaration of J. Lean of SOS office
• Dec_of_D._Logan_(LA).pdf: Declaration of Dean Logan (LA ROV)
• Dec_of_G._Pellerin_(Santa_Cruz).pdf: Declaration of G. Pellerin (Santa Cruz ROV)
• Decl._of_J._Canciamilla_(Contra_Costa).pdf: Decl. of J. Canciamilla (Contra Costa ROV)
• Decl._of_J._Lavine_(Sac).pdf: Declaration of J. Lavine (Sac ROV)
• Decl._of_M._Bedard_(Kern).pdf: Declaration of M. Bedard (Kern ROV)
• Decl._of_N._Kelley_(Orange).pdf: Declaration of N. Kelley (Orange ROV)
• Decl._of_W._Rousseau_(Sonoma).pdf: Declaration of W. Rousseau (Sonoma ROV)
• Decl._of_T._Barry.pdf: Declaration of County Counsel Attorney Tim Barry

Our Reply, 2016-07-05

• Reply_Brief_0001.pdf: Reply Brief
• Dec_Supp_Raymond_Lutz_0001.pdf: Declaration Supplement of Raymond Lutz
• Dec_of_Ben_Cooper_0001.pdf: Dec_of_Ben_Cooper_0001.pdf
• NOL_with_Exhibits_0001.pdf: NOL_with_Exhibits_0001.pdf
• RJN_0001.pdf: Request for Judicial Notice
• POS_07052015_0001.pdf: Proof of Service
• EOrderConfirm.pdf: electronic submission receipt

Report on Hearing

The judge did not provide a tentative ruling prior to the hearing. He listened to statements from both sides. Counsel from County was caught off guard and was visibly shaking. Judge asked how many provisionals as a percentage were involved, they said 10%, and he seemed to accept that information as if it were quite a large number.

• Status: Taken under submission.
• View Ruling -- If it says: "no ruling found" then it hasn't been published yet.
• Lutz_Vs._Vu_Ruling_on_Injunction_CCE07282016.pdf: Ruling by Judge Wohlfeil on Election Audits Case

The Trial

The Trial was held October 4, 5, 6 and 11, 2016.

• Trial_Brief.pdf: Plaintiff's Trial Brief
• 211556_stark_partial.pdf: Partial transcript of Dr. Philip Stark's expert testimony
• Legislative History of SB-1235 (2006) from the Secretary of State Archives office -- approximately 246 pages of information detailing the history of the SB-1235 (2006) which added the requirement to include VBM and provisional ballots in the manual tally process.
• Closing_Brief_Final.pdf: Plaintiff's Closing Brief
• Defendants_Closing_Brief.pdf: Defendant's Closing Brief

Statement of Intended Decision

Instead of producing a complete decision immediately, Judge Wohlfeil published a "Statement of Intended Decision" and he solicited comments by the parties, (normally within 5 days after official reception, as it was mailed, that is Nov 4, 2016) and then scheduled a case status conference for Dec 1, 2016. That date is before final certification.

• Statement of Intended Decision SOID published on Oct 26, 2016
• Objections_to_SOID1.pdf: Plaintiff's Objections to Statement of Intended Decision
• Objections_to_SOID--Defendants.pdf: Defendant's Objections to Statement of Intended Decision

Case Status Conference

Judge Wohlfeil scheduled a case status conference for Dec 1, 2016 at 3pm in Dept 73 of San Diego Superior Court. This hearing was postponed to Friday, Dec 2 at 11am because no court reporter had been contracted for the hearing.

• Tentative_Ruling_12-1-2016.pdf: Tentative_Ruling_12-1-2016.pdf

Judgment

This was filed on January 10, 2017. The ruling correctly requires that all vote-by-mail ballots must be included in the 1% manual tally audit, but incorrectly rules that provisionals need not be included. The argument by the County and embraced by the court was that we are asking for more than 100% of the ballots to be audited because we want even provisionals that were not accepted to be audited. This argument is ridiculous as we never have asked for more than the validated and accepted provisionals to be included, but it appears the court wanted to give both sides a partial win to prompt appeal.

• Judgment.pdf: Judgment Document

Appeals

• Notice_of_Appeal_County.pdf: Notice by County of Appeal, dated 2017-02-03

Both parties have filed appeals to this judgment

1. County appealed because they don't want to include late VBM or Provisionals. at all in the 1% manual tally audit.
2. We appealed because a)
   • we want the results to apply to all counties and
   • the court ruled against us on Provisionals, but only because of an invalid argument by County that we wanted to also review invalidated or unaccepted provisional ballots when in fact we only argued to include the validated provisional ballots.

BUT -- will say that review of provisional processing and why each was invalidated would not be a bad idea, even though we did not argue for that.

Transcripts prepared for the appeals process

• D071907_VU,_ET_AL._CT_VOL_1_OF_3.pdf: Claimant Transcript 1 of 3.pdf
• D071907_VU,_ET_AL._CT_VOL_2_OF_3.pdf: Claimant Transcript 2 of 3.pdf
• D071907_VU,_ET_AL._CT_VOL_3_OF_3.pdf: Claimant Transcript 3 of 3.pdf
• D071907_VU,_ET_AL._RT_VOL_1_of_3.pdf: Respondent Transcript 1 of 3
• D071907_VU,_ET_AL._RT_VOL_2_of_3.pdf: Respondent Transcript 2 of 3
• D071907_VU,_ET_AL._RT_VOL_3_of_3.pdf: Respondent Transcript 3 of 3

• D071907_Record_Filed_-_Civil-multi-1.pdf: Notice of record filed on August 15, 2017. Respondent's opening brief due in 45 days.

Appellate Briefs & other filings

• County_Opening_Brief.pdf: County Opening Appeal Brief
• Combined_Respondents_and_Opening_Appellate_Brief_FINAL_3.pdf: Citizens Oversight & Lutz Appellate Brief
• County_Objections_to_RFJN.pdf: County objects to request for judicial notice of Exh 59
• County_Reply_Brief_and_Opposition_to_Cross_Appeal

AB-840 modified on August 28 to allow only early VBM and Polls ballots

• (M1785) 2017-08-31 Citizens Oversight OPPOSES AB-840, the bill to gut CA election audits -- Ray Lutz, Citizens Oversight, AB-840

Briefs regarding whether appeal should be dismissed due to mootness.

• CARE Law Group filing on Mootness of Appeal due to AB-840
• County's brief on mootness due to ab-840
• 2018-05-22 Request for Judicial notice of AB-840 Leg. History by County NOL 05222018.pdf: County's Request for Judicial Notice of some documents in Judicial History of AB-840

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