3d Civ. No.

C062321

/

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

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.... AMbl £20 ; ROE PR. ALAN KEYES, WU£fi? 5 S· dE 1 VE; ) ( 2££ 2211 aSSd IE £I "

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.2 .. F 'i' and Appellants,

v.

SECRETARY OF STATE DEBRA BOWEN, e·+· q 'J

i?MBIPH1HiIE DID 2 GIS & 1 U 1 i [WE P I 1£ , •• Peak )

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Appeal from the Sacramento County Superior Court Case No. 34-2008-800000096-CU-WM-GDS

Honorable Michael P. Kenny, Judge

t~OUrlT OF APPEAL ., THHiD DISTRiCT OEENA C. FAVV(;EIT

BRIEF OF RESPONDENTS PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN, AND THE 55 CALIFORNIA PRESIDENTIAL ELECTORS OF 2008

By __ . . __ .. Deputy

MICHAELJ. STRUMWASSER (SBN 58413) FREDRIC D. WOOCHER (SBN 96689) AIMEE E. DUDOVITZ (SBN 203914) STRUMW ASSER & WOOCRER LLP 10940 Wilshire Boulevard, Suite 2000 Los Angeles, Califomia 90024 Telephone: (310) 576-1233

Counsel for President Barack Obama, Vice President Joe Biden, and the 55 California Presidential Electors of 2008

State of California Court of Appeal Third Appellate District

f

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d)

Court of Appeal Case Caption:

Ambassador Dr. Alan Keyes et al.

F I· I· ~~ D"

. _.B J.2J .&.. )

v.

secretary of State Debra Bowen et al.

MAR ~ 3 2010

Court of Appeal Case Number: CO 62321

COURT OF APPEAL - THIRD D!STRICT DEENA C. FAWCEIT

Please check here if applicable:

By __

Deputy

IKJ There are no interested entities or persons to list in this Certificate as defined in the California Rules of Court.

Name of Interested Entity or Person habetical order, lease.)

Nature of Interest

I.

2.

3.

4.

Please attach additional sheets with Entity or Person Ill/ormation, if necessary.

Date: March 2, 2010

Printed Name:

State Bar No:

Aimee E. Dudovitz SBN 203914

Firm Name & Address: Strumwasser & Woocher LLP

10940 Wilshire Blvd., Ste. 2000 Los Angeles, CA 90024

Purty Represented: Respondents President Barack Obama, Vice-President Joe Biden, and the 55 California Presidential Electors of 2008

ATTA CH PROOF OF SERVICE ON ALL PARTIES J¥ITH YOUR CERTIFICATE

Approved for Optional Use Within the Third Appellate District. 01/01/2007

'MAR .. 5 2010'

3d Civ. No. C062321

v.

IN THE COURT OF APPEAL OF THE STATE OF CALlI:ORNlA .

THIRD APPELLATE DISTRlCT

AMBASSADOR DR. ALAN KEYES, WILEY S. DRAKE, MARKHAM ROBINSON,

Petitioners and Appellants,

SECRETARY OF STATE DEBRA BOWEN, PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN, AND THE 55 CALIFORNIA PRESIDENTIAL ELECTORS OF 2008,

Respondents and Respondents.

Appeal from the Sacramento County Superior Court Case No. 34-2008-800000096-CU- WM-GDS Honorable Michael P. Kenny, Judge

BRIEF OF RESPONDENTS

PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BID EN, AND THE 55 CALIFORNIA PRESIDENTIAL ELECTORS OF 2008

MICHAEL J. STRUMWASSER (SBN 58413) FREDRIC D. WOOCHER (SBN 96689) AIMEE E. DUDOVITZ (SBN 203914) STRUMWASSER & WOOCHER LLP 10940 Wilshire Boulevard, Suite 2000 Los Angeles, California 90024 Telephone: (310) 576-1233

Counsel/or President Barack Obama, Vice President Joe Biden, and the 55 California Presidential Electors 0/2008

/

B. The Case Is Not Justiciable - It Is Moot in All Respects Except Those That Are Unripe, as to Which There Is A lso

a Failure to Join Indispensable Parties 22

1. The Case Originally Filed is Moot 22

2. Allegations Regarding Future Elections Are Unripe and Could Not, in Any Event, Be Adjudicated in the Absence of Future Electors Who Have Not

Been Joined 24

CONCLUSION 29

CERTIFICATE OF COMPLIANCE WITH RULE 8.204(c)(l) 30

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TABLE OF AUTHORITIES

Federal Cases

Marbury v. Madison, 1 Cranch 137 (1803) 17

Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986) 20

Ray v. Blair, 343 U.S. 214 (1952) 11

Roudebush v. Hartke, 405 U.S. 15 (1972) 20

California Cases

American Fed 'n of State, County and Mun. Employees v.

Metropolitan Water Dist., 126 Cal. App. 4th 247 (2005) 26

Balasubramanian v. San Diego Cmty. Call. Dist.,

80 Cal. App. 4th 977 (2000) 8

. Barnes v. Wong, 33 Cal. App. 4th 390 (1995) 17

Bradley v. Voorsanger, 143 Cal. 214 (1904) 23

Brandt v. Board of Supervisors of Madera County,

84 Cal. App. 3d 598 (1978) 26

Brown v. Prof'l Cmty. Mgmt., Inc.,

127 Cal. App. 4th 532 (2005) 13

California Water & Tel. Co. v. County of Los Angeles,

253 Cal. App. 2d 16 (1967) 26

Campbell v. Super. Ct., 126 Cal. App. 652 (1932) 23

Chase v. Brooks, 187 Cal. App. 3d 657 (1986) 23

City of Santa Monica v. Stewart, 126 Cal. App. 4th 43 (2005) 25,27

Curcini v. County of Alameda, 164 Cal. App. 4th 629 (2008) 7,8

Evans v. City of Berkeley, 38 Cal. 4th I (2006) 7

III

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Visnich v. Sacramento County Ed. of Educ.,

37 Cal. App. 3d 684 (1974) , 20, 21

Wilson v. Los Angeles County Civil Servo COl1'Zln 'n,

112 Cal. App. 2d 450 (1952) 22

Non-California State Cases

Irbyv. Barrett, 163 S.W.2d 512 (Ark. Sup. ct. 1942) 16

State ex rel. Robinson V. Craighead County Bd. of Election Com 'rs,

779 S.W.2d 169 (Ark. Sup. ct. 1989) 16

State ex ref. Sathre V. Moodie, 258 N.W. 558 (N.D. Sup. Ct. 1935) ......... 21

Federal Constitution & Statutes

U.S. Const.,

art. I, § 2 20

art. II, § I, cl. 4 2

3 U.S.C. § 7 (2010) 18

3 U.S.C. § 8 (2010) 12, 13

3 U.S.C. §§ 9-11 (2010) 18

3 U.S.C. § 15 (2010) 18,19

Pub. L. No. 110-430, § 2, 122 Stat. 4846 (2008) 19

155 Congo Rec. H76 (daily ed. Jan. 8,2009) 19

California Constitutions & Statutes

Cal. Const., art. III, § 3.5 12

Cal. Civ. Proc. Code,

§ 389 (West 2010) 27

v

/

§ 430.10(d) (West 2010) 28

§ 803 (West 2910) 20

§ 1085 (West 2010) 8

§ 1086 (West 2010) 18

§ 1859 (West 2010) 1 4

Cal. Elee. Code,

§ 6041 (West 2010) 15

§ 6901 (West 2010) 13, 14, 15

§ 6906 (West 2010) 11, 12

Non- California State Statutes

Ala. Code § 17:.14-31 (2010) 11

Alaska Stat. § 15.30.090 (2010) 11

Colo. Rev. Stat. Ann. § 1-4-304(5) (West 2010) 11

Conn. Gen. Stat. Ann. § 9-176 (West 2010) 11

Del. Code Ann. tit. 15, § 4303(b) (2010) 11

D.C. Code § 1-1001.08(g)(2) (2010) 11

Fla. Stat. Ann. § 103.021(1) (West 2010) 11

Haw. Rev. Stat. § 14-28 (2010) 11

Me. Rev. Stat. Ann. tit. 21-A, § 805(2) (2010) 11

Md. Code Ann., Elee. Law § 8-505(c) (West 2010) 11

Mich. Compo Laws Ann. § 168.47 (West 2010) 11

VI

INTRODUCTION

Nine days after the 2008 General Election, a losing candidate for President of the United States, his running mate, and one of their California Electors petitioned for a writ of mandate to enjoin the California Secretary of State and California's members of the Electoral College fr0111 implementing the voters' decision to give California's fifty-five electoral votes to now-President Barack Obama and now-Vice President Joe Biden. Appellants based their suit on doubts they professed as to whether President Obama is a "natural born citizen" eligible to be President. Appellants insisted that their doubts must be answered by the California Secretary of State and the California Electors, who carried out their official duties in connection with the 2008 election more than one year ago,

President Obama is, of course, a "natural born citizen," born in the United States to a mother who was an American citizen, However, the Superior Court disposed of the case not on that basis but rather on the basis that, as a matter of law, Appellants failed in all regards to state a valid cause of action, The Superior Court held that there is no obligation on the part of any of the officials sued to perform any of the duties demanded, that the action "is 11100t in all respects except those that are unripe," and that the Court lacked "jurisdiction over the subject of this action," (Clerk's Transcript ("CT") 1139-40,)

ST ATEMENT OF THE CASE

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In a pastiche of unsupported assertions and self-contradictory

arguments, Appellants now appeal the Judgment, insisting that this Court

may exercise jurisdiction over a past federal election to rule on the eligibility

of a sitting President to hold an office he has occupied for over a year. To

reach this bizarre conclusion, Appellants must overcome not only

insurmountable jurisdictional impediments but also the ineluctable fact that

the only relevant mandatory duty any official has is exactly contrary to the

relief Appellants seek. The decision of the Superior Court must be affirmed.

Appellants Ambassador Dr. Alan Keyes, Dr. Wiley S. Drake, Sr., and

Markham Robinson ("Appellants") filed their Petition for Writ of Mandate

("Petition") on November 13, 2008, nine days after the November 4, 2008

General Election. They alleged that they were, respectively, the 200K

Presidential Candidate, Vice Presidential Candidate, and a Certified

California Elector of the American Independent Party. (CT 2; 671.) They

named as Respondents Secretary of State Debra Bowen and all fifty-five of

California's Democratic Party Electors (collectively, "California Electors"),

as well as now-President Barack Obarna and now-Vice President Joe Bielen.

Appellants alleged that over twenty actions have been filed questioning

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whether the President is a "natural born citizen" under Article II, Section l,

Clause 4 of the United States Constitution. (CT 678.) According to

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Appellants, these lawsuits suggest variously that although President Obarna was born a United States citizen he somehow lost this status by subsequently obtaining citizenship in Indonesia, or alternatively that he was actually born in Kenya and is therefore either a Kenyan or British citizen. (E.g., CT 683- 84.) Appellants alleged that "[i]n the course of those lawsuits, most of which have been dismissed, it has been determined that there exists no designated official in the federal government directly charged with the responsibility of determining whether any Presidential candidate meets the qualifications of Article II of the Constitution of the United States." (CT 679.) Appellants then averred -- without citation to any legal authority - that "[bjased on all of the above [allegations], it is the duty of [the Secretary of State] to obtain proper documentation of OBAMA's citizenship ... to confirm his eligibility" to serve as President. (CT 685.) Appellants also alleged that each California Elector has "an affirmative duty to discover whether the candidate for President for which the elector is seeking election is a 'natural born' citizen." (CT 679.)

Appellants have never alleged that either the President or the Vice President failed to perform any mandatory duties under either state or federal law. Indeed, they still do not seek any relief as to either federal official. Instead, Appellants simply asserted -- again without authority ._that "it is the duty of the [Secretary of State] to obtain proper documentation

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duties upon which to premise a writ of mandate. The primary addition to the

First Amended Petition was an attempt to avoid obvious mootness by

contriving an ongoing dispute and seeking a writ barring the Secretary of

State and "future California Electors" from doing whatever it is that

Appellants claim these state officials might otherwise do. (CT 686.)1 And

Appellants continued in their First Amended Petition to repeat demands that

the Court bar the state Respondents from performing various acts associated

with the 2008 General Election, all of which were completed before the First

Amended Petition was filed. Like the original Petition, the First Amended

Petition sought no relief whatsoever against the now-President or Vice

President.

Respondent Secretary of State demurred to the First Amended

Petition citing the same pleading defects. (CT 700-22.) Respondents

President Obama, Vice President Biden, and the California Electors also

demurred. (CT 728-98.) The Superior Court heard both demurrers on

IT'he First Amended Petition also included the new allegation that one of the 2008 California Electors, Ilene Hgbcr, was improperly substituted for the designated Elector, Ilene Hgber. (CT 681-82.) This argument was nothing more than an effort to make a mountain out of a typographical error. Not surprisingly, the Superior Court quickly rejected Appellants' improper substitution claim, noting that judicially noticeable documents demonstrated both the error and its correction. (CT 1137-38.) Appellants have abandoned this argument on appeal.

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March 13, 2009, and issued its ruling that same day." The Superior Court

sustained the demurrers on the grounds that the Secretary of State had no

ministerial duty "to demand detailed proof of citizenship from Presidential

candidates," that the case was moot insofar as it pertained to the 2008

election and unripe as to future elections, and that exclusive jurisdiction to

review the qualifications of a presidential candidate lies with the United

States Congress. (CT 1136-38.) In addition, the Superior Court sustained

the demurrer of the President, Vice President, and Electors on the grounds

that Appellants' pleading sought no relief against the President or Vice

President, that there was no basis in law for Appellants' claim that the

California Electors have a duty to review their candidate's eligibility, and

that there was a misjoinder of parties because Appellants did not name the

future electors against whom the First Amended Petition sought an order.

(CT 1138-40.)

Judgment was entered on the orders of dismissal, and this appeal was

timely taken.

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2 At the same hearing, the Superior Court also considered a motion by Respondents President Obama, Vice President Bidcn, and the California Electors to quash a subpoena improperly issued to third-party Occidental College demanding access to President Obama's "housing and academic records." The Superior Court quashed the subpoena on the ground that it· was improperly served, and on the grounds that the categories of documents sought were vague, overbroad, and irrelevant to this lawsuit. (CT 1140-41.) Appellants do not appeal that ruling.

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any theory, even one not mentioned by the court." Curcini, 164 Cal. App.

4th at 637 (internal quotation omitted)."

ARGUMENT

I. The Superior Court Correctly Held That There Is No Basis For Mandamus Relief.

A writ of mandate lies only to compel the performance of a clear,

present, and ministerial duty. Sec Cal. Civ. Proc. Code § 1085 (West 2(10):

Balasubramanian v. San Diego Cmty. Co!!. Dist., 80 Cal. App. 4th 977, 990

(2000) (upholding denial of writ where school district had no cluty to

reclassify petitioner as academic contract employee); McCabe v. Snyder, 75

Cal. App. 4th 337, 340 (1999) (upholding denial of writ where Department

of Motor V chicles had no duty to disclose names and addresses of smog

impact fee payees). The Superior Court rejected Appellants' suit in large

part because Appellants were unable to identify a single unperformed

mandatory duty on the part of any Respondent. (CT 1136-40.) Appellants

acknowledge this ruling on appeal (AOB 6-7), and their arguments in this

Court are largely unchanged. Appellants still have not identified any

provision of law that imposes any duty on a political party's presidential or

vice-presidential candidate to provide proof of qualifications to the Secretary

---------.-- .. ~- ._-

"Although Appellants' own legal citations to the above cases reflect the proper standard of review 011 demurrer, Appellants inexplicably repeat the well-known summary judgment refrain regarding "triable issuc]s] of

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of State. Nor do they cite any law imposing a duty on Cali Cornia Electors to

review their candidate's eligibility. In fact, the California Ekctors had no

discretion whatsoever --- they were required by the state Elections Code to

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vote for their party's candidates, a point Appellants now acknowledge on

appeal. (E'.g., AOB 16.) And Appellants do not allege any statutory basis

'I.

for a legal duty of the Secretary of State to demand proof of natural born

citizenship from the parties' presidential nominees. The absence of any

ministerial duty of any Respondent properly compelled dismissal.

A. Appellants Still Cannot Identify Any Mandatory Duty 011 the Part of President Obama or Vice President Biden.

Although President Obama and Vice President Biden were named as

Respondents in both the original and First Amended Petition, Appellants'

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pleadings never sought any relief as to either. Rather, Appellants prayed

only for a writ to enjoin Secretary of State Bowen, Respondent California

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Electors, and "future California Electors" from performing a variety of

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tasks. In light of the absence of any prayer for relief directed to the

President or the Vice President, it should come as no surprise that the

pleadings also did not allege that either official had failed to discharge any

mandatory duty. The First Amended Petition contains only two oblique

assertions of presidential or candidate duties, each unadorned by citation of

material fact." (See, e.g., AOB 24, 35.) That standard, of course, has 110

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773,780 (l983) (granting extraordinary review of state statute because state

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the California Electors, even were they to believe they had a different duty

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under federal law, Cal. Const., art. HI, § 3.5 (providing that administrative

officials have "no power ... to refuse to enforce a statute on the basis that

federal law ... prohibit[s] enforcement of such statute unless an appellate

court has made [such] a determination"); Valdes v. Cory, 139 Cal. App. 3d

officials were "under a constitutional duty to comply with" disputed state

statute), Accordingly, there was no legal basis on which to bar, or even to

excuse, the California Electors from performing their legal duty on

December 15,2008, by "signing the Certificate of the Vote." (CT 678.)

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Appellants now appear to concede that state law afforded the Electors

no discretion. Citing Elections Code section 6906, Appellants acknowledge

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for the first time on appeal that the role of the California Electors is "purely

ministerial," that they "do not east an electoral ballot by choice," and that

"EC § 6906 requires Electors to vote in a particular manner." (AOn 16, 22-

23.) To the extent Appellants still contend on appeal that the California

Electors failed to carry out some mandatory duty with respect to the 2008

election, these admissions doom their claim.(i

(i Appellants cited below as a statutory basis for the claimed duty on the part of the fifty-five California Electors, Section 8 of Title 3 of the United States Code, which provides in full: "The electors shall vote for President and Vice President, respectively, in the manner directed by the Constitution." 3 U.S.C. ~ 8 (2010). While Appellants previously asserted

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C. The Secretary of State Had No Mandatory Duty - and No Authority - to Investigate the Qualifications of Presidential Candidates Nominated by Recognized Parties, Whom She Was Statutorily Required to Place on the Ballot and Whose Electors She Was Obliged to Certify.

The central argument that Appellants press on appeal is their theory

that Respondent Secretary of State was somehow obligated to demand proof

of citizenship before placing the names of the Democratic Party's

presidential and vice-presidential nominees on the 2008 General Election

ballot. (See, e.g., AOB 2 (describing issue on appeal as whether "BOWEN

has the duty ... to verify the eligibility of candidates for Federal office

insistence that such a duty obtains, they have cited neither state nor federal

running in the State of California").) Notwithstanding Appellants'

The Secretary of State's responsibilities are set forth in California

law to support their assertion.

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Elections Code section 6901 (West 20 I 0), which provides in full:

that "[t]his federal statute confers upon each elector an affirmative duty to discover whether the candidate for President for which the elector is seeking election is a 'natural born' citizen" (CT (79), they make no such claim here and accordingly have abandoned the argument. See Jibilian v. Franchise Tax Bd.. 136 Cal. /\1'1'. 4th 862, 867 n.3 (2006) ("Because it is not our role to construct theories or arguments that would undermine the judgment, we consider only those issues advanced in the appellant's brief's."); Brown v. Prof'l Cmty. Mgmt., Inc., 127 Cal. App. 4th 532, 537 (2005) C"When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary. ") (internal quotation omitted).

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Whenever a political party, in accordance with Section 7100 [Democratic Party], 7300 [Republican Party], 7578 [American Independent Party], or 7843 [Peace and Freedom Party], submits to the Secretary of State its certified list of nominees for electors of President and Vice President of the United States, the Secretary of State shall notify each candidate for elector of his or her nomination by the party. The Secretary of State shall cause the names of the candidates for President and Vice President of the several political parties to be placed upon the ballot for the ensuing general. election.

In accordance with this section, the California Secretary of State has a

ministerial duty to place on the ballot the names of the candidates for

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President and Vice President that arc submitted to her by a recognized

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political party. She has no discretion to overrule a party's selection of a

presidential candidate. Nor should she. The presidential nominating

process cannot be made subject to each of the fifty states' election officials

independently determining whether a nominee is qualified.

Appellants argue that the Secretary of State has authority to

investigate the qualifications of presidential candidates on the basis of her

general supervisory powers over elections. (AOB 25-26.) But a specific

statutory directive - here section 6901 's prescription that the Secretary of

State place recognized parties' candidates on the general election ballot ---

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supcrccdes any general provisions regarding the conduct of elections. Sec

Cal. Civ. Proc. Code ~ 1859 (West 2(10) ("In the construction or a statute

... when a general and particular provision are inconsistent, the latter is

paramount to the former. So a particular intent will control a general one

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It may be the case that the Secretary of State has some discretion in

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that is inconsistent with it."); Lazar v, Hertz Corp., 69 Cal. App. 4th 1494,

1504 (1999) ("lW]e give effect to a specific statute relating to a particular

subject in preference to a general statute."). And a claim of implied power

cannot be invoked to disregard an express statutory directive. See Lazar, 69

Cal. App. 4th at 1503 ("We may not speculate that the Legislature meant

something other than what it said, nor may we rewrite a statute to make

express an intention that did not find itself expressed in the language of that

provision.").

placing a name on the primary election ballot. That placement is governed

by California Elections Code section 6041, which authorizes the Secretary

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determined that the candidate is generally advocated for or recognized

of State to determine whether or not to include a potential candidate. See

Cal. Elec. Code ~ 6041 (West 2010) ("The Secretary of State shall place the

name of a candidate upon the presidential primary ballot when he or she has

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throughout the United States or California as actively seeking the

But no such discretion exists for the general election. Indeed, the fact that

nomination of the Democratic Party for President of the United States.").

context of the primary election only serves to underscore the Legislature's

the Legislature chose to afford the Secretary of State discretion in the

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clear intent to afford her no discretion whatsoever with respect to the general

election. C,/ Lazar, 69 Cal. App. 4th at 1504 (stating that. statutory

provisions should be read together and that use of different language in

different sections indicates that Legislature intended a different meaning).

Quite simply, Respondent Bowen had a mandatory duty to place the name of

then-candidate Barack Obama on the 2008 General Election ballot in

California, and Appellants have never cited any authority that suggests

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Appellants' irrelevant citations to Arkansas law are, ironically, in

accord. (AOB 31-34.) For example, State ex rel. Robinson v. Craighead

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County Bd. ofElection Com'rs, 779 S. W. 2d 169, 17 I (Ark. Sup. Ct. 1989),

holds that under Arkansas' statutory scheme, the Board of Election

Commissioners has no discretion to investigate and make findings regarding

a judicial candidate's eligibility before placing the candidate's name on the

general election ballot. Similarly, Jrby v. Barrett, 163 S.W. 2e1 512, 515

(Ark. Sup. Ct. 1942), held that Arkansas Democratic State Committee

7The di fferent statutory duties imposed on the Secretary of State in primary as opposed to general elections, and in the case of recognized political parties, also disposes of Appellants' argument that past Secretaries of State excluded two prior presidential candidates for the Peace and Freedom Party from the California ballot. (AOB 26-27.) Appellants' talc with respect to one instance is supported by a single citation to a memorandum denial of certiorari that provides no factual detail, and in the other instance Appellants provide no citation at all. On this record, the statutory scheme in place at the time of these alleged incidents cannot be determined, and there is no evidence that either case involved the nominee of a recognized party for the general election ballot.

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officials had no power at that time under either party rules or state law to

refuse to perform the ministerial duty of certifying a state senate candidate

Appellants' Arkansas digression also highlights, yet again, the central

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for inclusion on the ballot.

defect in Appellants' suit - that no judicial relief may be obtained by

mandamus absent a clear, ministerial duty on the part of the named

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respondent. Notwithstanding Appellants' citation to Marbury v. Madison, 1

Cranch 137 (1803) (AOS 22), it is only the province of the Court to say

Wong, 33 Cal. App. 4th 390, 395 (J995) ("A court has no power to order a

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what the law is when construing a statutory or constitutional enactment. It is

decidedly not the province of the Court, in a writ action or otherwise, to

command a state constitutional officer to engage in an action that is not

authorized by statute, and is at odds with her statutory duties. See Barnes v.

public official to commit an act in violation of a valid state statute,").

Because there is no basis in law for the relief sought against Respondent

Secretary of State, the trial court's dismissal order must be affirmed.

II. The Superior Court Properly Recognized That California Courts Have No Jurisdiction Over the Case.

In addition to holding that the First Amended Petition failed to state a

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cause of action, the Superior Court also held that Appellants' suit is barred

by a host of jurisdictional defects. Specifically, the Court held that state

courts have no jurisdiction over the qualifications of the President or Vice

President, that the case is moot as to the 2008 election, that it is unripe as to

future elections, and that it suffers from a misjoinder of parties as to fllt'ure

elections. Appellants have identified no basis for overturning any of these

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A.

Exclusive Jurisdiction over the Qualifications of Presidential and Vice-Presidential Candidates Lies with the United States Congress.

State courts have no jurisdiction over any aspect of the process into

which Appellants seek to inject this Court. Federal law establishes the

procedure for election of the President and Vice President and provides the

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exclusive means for challenges to their quali fications. It specifics that the

electors shall meet on the first Monday after the second Wednesday in

December, 3 U.S.C. § 7 (2010), for their votes to be certified and

transmitted to the President of the Senate, 3 U.S.C. §§ 9-11 (2010), who

receives and causes the votes to be counted before a joint session of

Congress on January 8, 3 U.S.C. § 15 (2010), as modified by Pub. L. No.

8 Although no Respondent ever demurred on the basis of standing, Appellants devote several pages of their Opening Brief 10 the doctrine, citing federal case law regarding "concrete injury" and "redressabjility]" (;\013 I 0-14), rather than California case law addressing whether Appellants have a "beneficial interest" in the issuance of a writ of mandate. Sec Cal. Civ. Proc. Code § 1086 (West 2010) (stating that writ may only be issued "upon the veri lied petition of the party beneficially interested') In any event, Appellants' claim to standing -_. which would apply at 1110st to the 2008 election - is irrelevant.

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IT]he votes having been ascertained and counted . . . , the result of the same shall be delivered to the President of the Senate, who shall thereupon announce the state of the vote, which announcement shall he deemed a sufficient declaration of thepersons, if any, elected President and Vice President of the United States, . .. Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received. When all objections so made to any vote or paper from a State shall have been received and read, the Senate shall thereupon withdraw, and such objections shall be submitted to the Senate for its decision; and the Speaker of the House of Representatives shall, in like manner, submit such objections to the House of Representatives for its decision; ...

I I 0-430, ~ 2, 122 Stat. 4846 (2008). The "[c [ounting of electoral votes in

Congress" and the process for objecting to them is detailed in 3 U.S.c. ~ 15,

which states in relevant part:

3 U.S.C. ~ IS (emphasis added). Of course, on January 8, 2009, the then-

Vice President made the requisite declaration of the election of Barack

Obama and Joe Bielen as President and Vice President. 155 Congo Rec. H76

(daily ed. Jan. 8, 2009). That was "deemed a sufficient declaration" of their

election, in the absence of objections filed by members of the Senate and

House of Representatives, which would have been resolved by those bodies.

There being no such objections, the President and Vice President were duly

inaugurated.

19

By its terms, this is the exclusive means to resolve objections to the

electors' selection of a President or Vice President, including the species of

objections raised by these Appellants. Even federal courts have no role in

this process. Plainly state courts have none.

There is nothing unusual about questions of an official's

qualifications to hold office being reserved to the non-judicial branches of

government. For example, each house of Congress is the exclusive judge of

the qualifications of its members, and courts have no power to review its

determinations of their qualifications. U.S. Const. art. 1, ~ 2; see, e.g.,

Roudebush v. Hartke, 405 U.S. 15, 19 (1972) (which candidate is entitled to

be seated in the Senate "is, to be sure, a nonjusticiable political question");

Morgan v. United States, 801 F.2d 445, 447-51 (D.C. Cir. 1986). Indeed, in

California a private citizen may n01 bring suit to divest an unqualified

officeholder from any public office; rather, such action may be brought only

in a quo warranto proceeding by the Attorney General or a relator approved

by the Attorney General. Cal. Civ. Proc. Code ~ 803 (West 2(10); Visnich

v. Sacramento County Bd. qj'Educ., 37 Cal. App. 3d 684,690 (1974)

(stating that "title to an elective office cannot be litigated by any other

means than ill quo warranto by the state")." These rules reflect the

() According to the Arkansas Attorney General Opinion cited by Appellants, Arkansas similarly permits removal of an unqualified officeholder post election through a quo warranto action instituted by "the

20

sensitivity of judicial intervention in the composition of independent

branches of government and the courts' salutary reluctance to overrule the

judgment of voters.

Such principles arc, of course, all the more compelling when the

office in question is the presidency of the United States and the tribunal

being asked to issue an injunction is not federal but rather a state court.

Were the courts of fifty states at liberty to issue injunctions restricting the

certification and actions of duly-elected presidential electors, the result

could easily be conflicting rulings and the delayed transition of power in

derogation of statutory and constitutional deadlines.

The Superior Court properly recognized that the qualifications of an

elected presidential candidate remain exclusively for the United States

Congress to assess. (C'I' 113R-40.) Neither this nor any other court has

jurisdiction over the matter. to

prosecuting attorney." Ark. Op. Atty. Gen. No. 2006-153, 2006 WL 2474743 (Ark. A.G.) at *3. And the inapposite North Dakota case that Appellants cite is an order from that state's supreme court exercising its constitutionally conferred original jurisdiction in a quo warranto proceeding instituted by the state attorney general. State ex rel. Sathre v=Moodie, 25R N.W. 558, 559 (ND. Sup. Ct. 1935).

IOAppellants devote several pages of their Opening Brief to the political question doctrine, including a discussion of cases that have apparently been cited by other respondents in suits "dealing with similar issues as this case." (AOB 16-22.) To the extent Respondents' argument

that an elected presidential candidate's qualifications is a matter committed to the United States Congress is grounded in the political question doctrine,

21

r

referendum petition mooted by conduct of election); Chase v. Brooks, 1 R7

Cal. App, 3d 657 (19R6) (whether referendum petition complied with

statutory requirements mooted by election); Long v. Hultberg. 27 C(l1. App.

3d 606 (1972) (mandamus pcti lion by official named in recall petition

challenging sufficiency of petition dismissed as moot after election held,

petitioner recalled, and successor elected); S(!C also generally Lanahan v.

City ofLos Angeles, 14 Cal. 2d 128 (1939) (challenge to sufficiency of recall

petition rendered moot by subsequent election); Bradley v. Voorsanger, 143

Cal. 214 (1904) (suit to enjoin election mooted by holding of election).

Likewise, when post-election proceedings have superseded a challenge to

the election or to those proceedings, a writ petition is properly dismissed as

moot. Eg., Campbell v. Super. Ct., 126 Cal. App. 652 (1932) (mandamus

petition seeking to block losing candidate's election contest rendered moot

by completion of contest).

This case is clearly moot 8S to the 200R election, The Secretary of

State already placed the candidates' names on the ballot and, or course, the

election has already taken place. Respondent California Electors were

certified by the Secretary of' State on December L 200g, they met and cast

their votes for President Obama and Vice President Bielen on December 15,

200R, and the Governor certified those results and transmitted them to the

------------_ .. _-----_._-----

impermissibly intruding upon

the authority of another branch of

23

B. The Case Is Not .Iusticiable -It Is Moot in All Respects Except Those That Are Unripe, as to Which There Is Also a Failure to Join Indispensable Parties.

1. The Case Originally Filed Is Afoot.

Even if Appellants were capable of alleging the cause of action they

have brought, any such claim would now be moot. Each Respondent has

now carried out his or her duties.

The black-letter rule is that even where "a case may originally present

an existing controversy, if he fore decision it has, through act of the parties or

other cause, occurring after the commencement of the action, lost that

essential character, it becomes a moot case or question which will not be

considered by the court." 3 Witkin, Cal. Proc. 5th, Actions, § 32, p. 98 (5th

ed. 2008) (internal quotation marks omitted) (quoting Wilson v. Los J1 ngele»

County Civil Serv. Comm 'n, 112 Cal. App. 2e1 450, 453 (1952) (challenge to

eivil service list rendered moot by expiration of list and issuance of new

listj). The rule is widely applied to election cases when an election has been

held that precludes the writ relief sought. See generally Mapstead v.

Anchuudo, 63 Cal. App. 4th 246 (1998) (challenge to su fficicncy of

the doctrine provides an additional basis on which this Court may affirm the judgment. See, e.g., Schabarum v. California Legislature, 60 Cal. App. 4th 1205, 1213-15 (1998) (explaining that doctrine is applicable when "complete deference to the role of the legislative or executive branch is required and there is nothing upon which a court can adjudicate without

22

President of the Senate on December 15, 2008. And, of course, President

Obama and Vice President Biden were inaugurated and have been engaged

in the duties of their offices for over a year. Since Appellants acted too late

for the Secretary of State, were she otherwise inclined, to demand evidence

of those candidates' qualifications, prayers for her to be compelled to take

such action arc not justiciable. Similarly, it is now far too late for the other

orders Appellants demand··- a writ of mandate barring the Secretary of'

State "from both certifying to the Governor the names of the California

Electors, and from transmitting to each Presidential Elector a Certificate of

Election," and a "writ barring Respondent California Electors from signing

the Certificate of Vote." (CT 678.) Those arc now completed acts. Such a

writ would be futile and cannot issue.

2. Allegations Regarding Future Elections Are Unripe and Could Not, in Any Event, Be Adjudicated ill the Absence of Future Electors Who Have Not Been Joined.

In an effort to breathe life into their post-mortem case, Appellants

amended their pleadings to add cryptic allegations of an ongoing dispute.

Thus, to their belated demand that the Secretary of State be enjoined from

her duties with regard to the 200R election they added the pica that she be

enjoined "'11"0111 certifying the California Electoral votes until documentary

proof is produced for any future Presidential candidate of that candidate's

government"),

24

eligibility to serve as President." (CT 685.) They also pray for a writ directing Respondent Secretary to "vet OBAMA's, and any other future candidate's eligibility for President and resolve this issue prior to the certification of the election results by the electors in any future Presidential election." (Id. at 685-86.)

To the extent these claims are not now 11100t, they are not ripe and not justiciable. For an action to be ripe, there must be an "actual controversy ... which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts." Selby Realty Co. v. City of San Buenaventura, lOCal. 3d 110, 117 (1973). That the Court may not issue an advisory opinion about facts not yet known is fundamental. E.g., Pac. Legal Found. v. Coastal Comm 'n, 33 Cal. 3d 158 (1982) ("'The ripeness requirement, a branch of the doctrine of justiciability, prevents courts from issuing purely advisory opinions.") (citing People ex rei. Lynch v. Super.

Ct., 1 Cal. 3d 910 (1970»).

As the California Supreme Court once

explained: "[A]n action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law ... will not be entertained." Golden Gate Bridge Dist. v. Felt, 214 Cal. 308, 316 (1931); City of Santa Monica v. Stewart, 126 Cal. ApI'.

25

their status as nominees and electors in the 200~ election (CT 679), lack standing to bring the case they now plead since they cannot show that any of them will be nominees or electors in any future election. Stewart, 126 Cal. App. 4th at 59-60 ("A party lacks standing if it docs not have an actual and substantial interest in, or would not be benefitted or harmed by, the ultimate outcome of an action.") (internal quotation marks omitted). Precisely because "we are not in a position to know the parameters of future relations between" the parties, the Court does not have before it "an actual controversy." Sanctity of Human Life Network v. California Highway

27

Patrol, 105 Cal. App. 4th 858, 872-73 (2003).

Just as possible future issues are not known, neither are future electors, whom Appellants would have this Court today enjoin. As the future officials against whom relief is presently sought, they are indispensable parties, Cal. Civ. Proc. Code § 389 (West 2010), whose absence compelled dismissal, Cal. Civ. Proc. Code ~ 430.10(d) (West 2010). Appellants' argument to the contrary (AOB 22-23) is a refutation of their argument on the merits. Appellants assert that the California Electors need not be joined because they will be legally required to vote for the nominee of their party regardless of his or her citizenship. (lei. at 23 ("It]hey provide a purely ministerial rolcj.) In other words, Appellants argue that because future electors arc under no ministerial duty to do what Appellants seck --

and in fact have a ministerial duty to the contrary-- their joinder is

unnecessary.

The fact that future electors will be bound to vote for future presidential candidates does not mean that these yet-unknown electors lack an interest in a suit to enjoin the exercise of their duties. Moreover, Appellants' "necessary party" theory proves too much. It implies that any government official who is obliged by statute to carry out a ministerial duty need not be joined in a lawsuit seeking to bar the execution of that very same duty. Predictably, Appellants cite no authority for this peculiar proposition.

Of course, any discussion of future cases requires a studied suspension of one's knowledge of the underlying law. Any future case will, like this one, suffer from the absence of any cognizable cause of action and 0'0111 the absence of state-court jurisdiction and the exclusivity of Congress' purview over the qualifications of an elected presidential candidate. If these Appellants wish again to throw themselves against those walls, and if they have the standing to support the try, then they can file another petition, well in advance of a future election. But the present case has been properly dismissed as non-justiciable.

28

CONCLUSION

Americans have the right to their day 111 court against even the

highest officials. But with that right come responsibilities -- for the parties

and for their counsel. Paramount among those responsibilities is the duty

not to burden the courts with frivolous claims, not to assert propositions

lacking in both logic and law, not to appeal propositions against which they

can summon no coherent legal argument. Appellants had their day in court

and were found to have no claim. They have conspicuously failed to cite

any basis for a contrary conclusion here. The judgment dismissing this

abuse of the judicial process must be affirmed.

Dated: March 5,201 ()

Respectfully submitted,

STRUMWASSER & WOOCHER LLI> Michael J. Strumwasser

Fredric D. Woocher

Aimee E. Dudovitz

flyAlI()~ .

~--j) - ~---.- .. -.-.

Micha J. Strumwasser

Counsel/or President Barack Obaina, Vice President Joe Biden, and the 55 California Presidential Electors (?f'200R

29

CERTIFICATE OF COMPLIANCE WITH RULE 8.204(c)(l)

I certify that, pursuant to Cal. App, Rule 8.204(c), the attached Brief

of Respondents President Barack Obarna, Vice President Joe Biden, and the

55 California Presidential Electors of 2008 is proportionately spaced, has a

typeface of 13 points or more and contains 7,220 words, as determined by a

computer word processor word count function.

Dated: March 5, 2010

Respectfully submitted,

STRUMWASSER & WOOCHER LLP Michael J. Strumwasscr

Fredric D. Woocher

Aimee E. Dudovitz

Counsel far President Barack Obama, Vice President Joe Biden, and the 55 California Presidential Electors oj'2008

30

Clerk for the Hon. Michael Kenny Sacramento County Superior Court Gordon D. Schaber Courthouse 720 9th Street

Sacramento, California 95814 via U.S. Mail

Office of the Clerk

Supreme Court of California 350 McAllister Street

San Francisco, California 94102 [4 copies]

via U.S. Mail

PROOF OF SERVICE

STATE OF CALIFORNIA COUNTY OF LOS ANGELES

. Re: Keyes, et al. v. Bowen, et al., Case No. C062321

(Sacramento Superior Court Case No. 34-2008-80000096-CU-WM-GDS)

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 10940 Wilshire Boulevard, Suite 2000, Los Angeles, California 90024.

On March 5, 2010, I served the document(s) described as Brief'of Respondents President Barack Obama, Vice President Joe Riden, And the 55 California Presidential Electors of 2008 on all appropriate parties in this action, as listed below, by the method stated.

Gary G. Kreep

Law Offices of Gary G. Kreep 932 "D" Street, Suite 2 Ramona, California 92065 Telephone: (760) 788-6624 Facsimile: (760) 788-6414

Attorney for Petitioners Ambassador Dr. Alan Keyes, Dr. Wiley S. Drake, Sr., and Markham Robinson

via OverniteExpress

Peter A. Krause

Deputy Attorney General 1300 I Street, Sui te 125 P.O. Box 944255 Sacramento, CA 94244 Telephone: (916) 324-5328 Facsimile: (916) 324-8835

Attorney for Respondent Secretary ofState Debra Bowen

via OverniteExpress

~ If overnight service is indicated, by placing this date for collection by sending true

copies in sealed envelopes, addressed to each person as indicated, pursuant to Code of Civil Procedure, section 1013(d). I am readily familiar with this firm's practice of collecting and processing correspondence. Under that practice, it would be deposited with OvemiteExpress, an overnight service in Los Angeles County, on that same day with an active account number shown for payment, in the ordinary course of business.

~ If U.S. Mail service is indicated, by placing this date for collection for mailing true

copies in sealed envelopes, first-class postage prepaid, addressed to each person as indicated, pursuant to Code of Civil Procedure section 1013a(3). I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party

served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing contained in the affidavit.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on March 5,2010, at Los Angeles, California.

(_