So Team Trung struck out (again) at the California Court of Appeals this morning. I guess the obvious question is: what will be their next step in trying to unseat Supe Janet Nguyen?

If you recall my posting from Friday, Trung Nguyen, lead by Mike Schroeder, sought an emergency order asking the court to preserve some 172 ballots from the Feb. 6 special election of last year. The machines were sealed last June in anticipation of Trung Nguyen’s appeal — which failed last month.

The court said this morning that Trung Nguyen can’t ask it for help in preserving the ballots when it essentially waived that right and that argument during it’s appeal. The decision can be read by clicking below.

(11:30 a.m. update: Schroeder returned my call and said Team Trung hasn’t decided whether they will appeal the case to the Supremes. “We’re still examining the situation,” he said. “We have another month to decide.”)

– Peggy Lowe

Here is the ruling:

02/04/2008 Order on motion filed.

THE COURT*: On Friday, February 1, 2008, the Registrar of Voters sought

an order from the superior court to allow him and his staff to break the

seals and service 172 of the 1,120 VVPAT printers used in the February

2007 election. Even though the seals would be broken, the Registrar

would still be storing the VVPAT printouts from the February 2007

election in a safe location at the Registrars offices. The reason for

the request was that, in anticipation of high turnout for the February

5, 2008 election, the Registrar needed all available machines in

service. However, there had been an earlier stipulation, made in June

2007, which prohibited the Registrar from breaking the seals and

conducting routine maintenance of the machines. So the Registrar needed

a court order to break the seals and put the machines back into service.

While the request was presented to the trial court on a short notice

(ex parte) basis, counsel for appellant Trung Nguyen had been notified

by Thursday, January 24, 2008, of the Registrars desire to service,

test, and re-load the printers that had been set aside pursuant to the

June 2007 stipulation. According to the declaration of the Registrars

counsel supporting the request, it was not until late Monday, January

28, 2008, that counsel for Trung Nguyen notified the Registrars counsel

of their intention to oppose the Registrars request. On Friday,

February 1, 2008, the trial court granted the Registrars request

allowing breaking of the seals and retrieval of the VVPAT printouts from

the February 2007 supervisorial election. Trung Nguyen almost

immediately sought to file this motion, seeking an order from this court

staying the order granted by the superior court allowing the servicing

of the machines. The motion was initially marked received. Now that

the court has been able to study the nature of the motion and relief

requested by Trung Nguyen, his motion is now ordered filed, nunc pro

tunc as of Friday, February 1, 2008.

On the merits the motion is DENIED. This court recognizes that Trung

Nguyen may file a petition for review in the California Supreme Court,

and our states high court may or may not grant review of this courts

affirmance of the trial courts decision in Trung Nguyens election

contest. However, as this court noted in our opinion in this case filed

January 17, 2008, and as the Registrar of Voters noted in his request to

service the machines, Trung Nguyen made it clear through his counsel at

his election contest that he was not seeking the relief of a manual

recount of the VVPAT printouts. Rather, the point of Trung Nguyens

appeal was that the recount itself was invalid because Janet Nguyen had

not requested a manual recount of the VVPAT printouts, and the Registrar

had honored her request. It is not correct to say, as appears in the

motion filed by Trung Nguyen, that “In its decision, the Court of

Appeals suggested that if Trung Nguyen prevailed on the merits of the

Appeal, a possible remedy may be the recounting of the electronic paper

ballots.” (Elsewhere, the motion asserts, “Specifically, the Court of

Appeal in its decision seemed to indicate that a possible remedy in this

case may be the recounting of the electronic paper ballots.”) This court

said, or suggested, no such thing. We said that Trung Nguyen could

have asked for a recount of the VVPAT printouts in his election contest,

but didnt.

Here is what we wrote: “Trung Nguyen deliberately decided to waive the

right that he had to ask the trial court in his election contest to

order the electronic ballots to be recounted manually. There is no

question that if such a recount was necessary for a proper

determination of his election contest, the trial court would have been

obligated to order such a recount. (See ‘ 16601; Enterprise Residents

Legal Action Against Annexation Com. v. Brennan (1978) 22 Cal.3d 767,

773, fn. 6.) Rather, in open court, Trung Nguyen disavowed his right to

have a manual recount of the electronic ballots. Rather, he chose to

stake his entire case on the idea that he is entitled, as a matter of

law, to be placed in office by the courts as a result of an election

contest based on what he claims is a statutorily invalid recount.

(Nguyen v. Nguyen (Jan. 17, 2008, G038705) ___ Cal.App.4th ___, ___;

2008 WL 152558 at p. 3.) If this court were incorrect in that

assessment, Trung Nguyen could have brought that fact to this courts

attention in a petition for rehearing. As of the close of the clerks

office on Friday, February 1, 2008 — the last for Trung Nguyen to file

a petition for rehearing — this court had received no petition for

rehearing bring any such error to our attention. Regardless of the

merits of this courts analysis of the issues presented by Trung Nguyen

in his appeal as might yet be reviewed by the California Supreme Court,

we are confident that Trung Nguyen did not request of either the trial

court or this court the relief of having his own manual recount of the

VVPAT printouts, and the trial courts order preserves the evidence in

any event. Thus even if the Supreme Court were to reverse our decision,

the fact that Trung Nguyen never asked for the relief of a manual

recount in his election contest means that his rights, as framed by his

appeal and the relief he asked for in the trial court, cannot suffer

from the order obtained by the Registrar. Accordingly, appellants

request for an order staying the order of the superior court allowing

the Registrar of Voters to open the 172 VVPAT printers and remove paper

ballots is hereby DENIED.

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