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Reply Brief-Dummett v Bowen

Reply Brief-Dummett v Bowen

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Published by patgund
REPLY BRIEF IN SUPPORT OF
RESPONDENT SECRETARY OF STATE
DEBRA BOWEN'S DEMURRER TO
PETITION FOR WRIT OF MANDATE
REPLY BRIEF IN SUPPORT OF
RESPONDENT SECRETARY OF STATE
DEBRA BOWEN'S DEMURRER TO
PETITION FOR WRIT OF MANDATE

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Categories:Types, Research, Law
Published by: patgund on Oct 23, 2012
Copyright:Attribution Non-commercial

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12/04/2012

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KAMALA
D.
HARRIS
Attorney General
of
California
2
PETER
K.
SOUTI-IWORTI-1
Supervising Deputy Attorney General
3
ANTHONY
R. HAKL
Deputy Attomcy General4 State Bar No. 1973351300 I Street, Suite
125
5 P.O. Box 944255Sacramento, CA 94244-25506 Telephone: (916) 322-9041Fax: (916) 324-88357 E-mail: Anthony.liakl@doj.ca.gov
Attorneys/or Respondent California
8
Secretary oj'State Debra Bowen
IZOC1
i9
PI-I\:
42
LEGAL
Pl\OCESS
#3
/~
9
10
SUPERIOR
COURT
OF THE STATE OF CALIFORNIACOUNTY OF SACRAMENTO
II
1213
14
1516
17
18
19
20
JOHN
ALB~~RT
OIJMMETT, JR.,
ct al.,
Petitioners,
v.
SECRETARYOF
STATE I)EBRABOWEN,
Case No. 34-2012-80001091Related Case No. 34-2012-8000 I 048
REPLY BRIEF IN
SUPPORT
OF
RESPONDENT
SECRETARYOFSTATE
D~:BRA
BOWEN'S DEMURRER
TO
PETITION FOR
WRIT OF MANDATE
Date: October 26, 2012Respondent. Time:
9:00a.m.
Dept:
31
Judge: Honorable Michael
P.
KennyTrial Date: None
__________________
__,Action Filed: March
20,2012
21
This case
is
what has come
to
be known as a "birther" case.
It
is
virtually identical to22 another case handled by this Court,
Noonan
v.
Bowen,
Case No. 34-2012-80001048.
In
the order
23
relating the two cases, the Court explained: "The two cases raise identical legal issues, including24 whether the California Secretary
of
State has a legal duty
to
require candidates for the office
of
25 President
of
the United States to provide proof
of
their eligibility
to
hold that ot1ice before26 approving their names for the ballot, and whether Election Code section 6901 is27 unconstitutional.,. (Ruling on Notice
of
Related Cases filed June 15, 2012 at
p.
2.)28
Reply Brief in Support
of
Respondent Secretary
of
State Debra
Bowen's
Demurrer
to
Petitwn for Writ
of
Mandate
(34-20
12-800001
091)
 
Earlier this year, this Court disposed
of
Noonan
by way
of
the Secretary
of
State's demurrer2 (and a demurrer by President Barack Obama), which the Court sustained without leave to amend.3 A copy
of
the relevant minute order
is
attached as Exhibit
A.
In
sum, relying on
Keyes
v.
Bo·wen
4 (201 0) 189 Cal. App. 4th 647, 661, the Court concluded that the Secretary
ofState
has no5 mandatory duty to make a factual determination as
to
whether President Obama
is
eligible
to
hold6 or run for office
of
President
of
the United States. (Minute Order filed May 25, 2012 at pp. 2-3.)7 Under
Keyes,
and citing
Fuller
v.
Bowen
(2012) 203 Cal. App. 4th 1476, 1479, the Court further8 found that
it
lacked jurisdiction
to
itself make that determination.
(!d.
at
p.
3 .) The Court rejected
9
the claim regarding Election Code section 6901 because it was based on the meritless theory thatI 0 the Secretary
of
State has a mandatory duty to determine the eligibility
of
presidential candidatesII before placing their names on the ballot.
(hi.
at
p.
4.)
12
Here, the Court should make the same detennination it made in
Noonan.
Nothing in the
13
·latest opposition brief compels a different result. Indeed, in large part the opposition appears to
14
have been "copied and pasted" verbatim from the unsuccessful opposition in
.Noonan.
15
Finally,
it
is worth reiterating that the prayer for relief in the petition and complaint targets
16
the
June
5.
2012
Presidential Primary Election ballot.
Of
course, the June 5 primary election is
17
over. Thus, this action
is
moot.
18
For the foregoing reasons, and tor all
of
the reasons set forth
in
her demurrer, the Secretary
19
of
State respectfully requests that the Court sustain the demurrer without leave to amend.20 Dated: October 19,2012 Respectfully Submitted,
KAMALA
0.
HARRIS
1
22
23
24
25
262728
SA20
12
I
054~3
I 09694
73
.doc
2
Attomey General
of
Califomia
PETER
K.
SOUTHWORTH
Supervisi7
Der?
Attomey General
t1
b:tl----
/jf£VV
ANTHONYR.
I-IAI"L
Deputy Attomey General
Attorneys/or
Respondent CaliforniaSecretary o{State Debra Bowen
Reply Brief
in
Support
of
Rc~pondcnt
Secretary
of
State Debra Bowen's Demurrer
to
Petition for
Writ
of
Mandate
(34-2012-80000 I 091)
 
EXHIBIT
A
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II
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