SAN DIEGO - The appeal of a lawsuit that challenged the June 2006 election of Rep. Brian Bilbray, R-Solana Beach, to fill the remaining six months of disgraced former Rep. Randy "Duke" Cunningham's term in office was dismissed Tuesday because Bilbray already has completed that term.

Bilbray won the election in November 2006 to his own full, two-year term in office.

A state appeals court in San Diego ruled Tuesday that the appeal of a judge's dismissal of the lawsuit was moot.

Bilbray's spokesman, Kurt Bardella, said the congressman was glad the court ruled as it did.

"It was a frivolous lawsuit to begin with, and we're glad we can put this behind us and continue working for the people of the 50th Congressional district," Bardella said.

Kenneth Simpkins, an attorney for the two voters who initiated the lawsuit in July 2006, said they have not decided yet whether to ask the state Supreme Court to review the case.

"Of course, we're disappointed," Simpkins said. "I think the court has decided voting rights are not important in this state."

Voters Barbara Gail Jacobson and Lillian M. Ritt filed a lawsuit July 31, 2006, in which they alleged problems existed with the voting machines used in the June 2006 election and asked for a hand-recount of the votes and a declaration that the candidate who received the most votes be declared elected to congress, the appeals court's written opinion stated.

The lawsuit named as defendants Bilbray and the county registrar of voters, Mikel Haas.

In August 2006, a Superior Court judge dismissed the lawsuit, ruling that the U.S. Constitution gives the House of Representatives the exclusive authority to judge the elections of its own members. As a result, the judge ruled that he did not have jurisdiction to decide who was elected to the 50th district congressional seat, the opinion stated.

Jacobson and Ritt appealed in September 2006. The appeals court heard oral arguments in January and issued a written opinion dismissing the case on Tuesday.

Associate Justice Joan Irion wrote for the court that two cases cited by Jacobson and Ritt's attorneys "provide some support" for the position that a state court can consider a challenge to a congressional election even after the House seats someone as a member, but that the appeals court did not need to address that issue because the appeal was moot.

"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," Irion wrote for the court. "Now that the contested term has been completely served, there is no longer any conceivable action that the House (of Representatives) could take as a result of a state court judgment rendered in contestants' favor… ."

Associate Justice James McIntyre agreed. Associate Justice Alex McDonald, in a separate opinion, wrote that he also believed the appeal had to be dismissed, but for different reasons.

Cunningham officially resigned from congress in December 2005, after pleading guilty to taking more than $2.4 million in bribes he said he received from two defense contractors and others in exchange for favors. He is serving an eight-year federal prison sentence.

- Contact staff writer Scott Marshall at (760) 631-6623 or smarshall@nctimes.com.

On the Net:

http://www.courtinfo.ca.gov/opinions/nonpub/D049407.PDF

Previous articles:

Judge throws out 50th District election lawsuit

Judge hears arguments in 50th District runoff

County sued over handling of primary:

Recount fee goes unpaid: San Diego Registrar says no recount happening in 50th District race

50th recount to cost $120,000 to $150,000

Resident calls for recount in 50th District runoff