IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIAr

,

THIRD APPELLATE DISTRICT

ALAN KEYES, ET AL.,

. .,pr.titioners-and Appellants, f dd) h /-!-3

C062321

v.

FILED

MAR - 8 2010

COURT OF APPEAL - THIRD DISTRICT DEENA C. FAWCm

BY Deputy

DEBRA BOWEN, in h",r official eapaeity as C~ SECRETARY 8F STATE, e-k>.

ET AL., I

~es~ndents and Respondents. c£e:-/~&MC-.t:brrl.]'

Appeal from the Superior Court of California, County of Sacramento, Case No. 34-2008-80000096, Honorable Michael P. Kenny, Judge

BRIEF OF RESPONDENT SECRETARY OF STATE DEBRA BOWEN

EDMUND G. BROWN JR. Attorney General of California ZACKERY P. MORAZZlNI

Supervising Deputy Attorney General PETER A. KRAUSE

Deputy Attorney General

State Bar No. 185098

1300 I Street, Suite 125

P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5328 Fax: (916) 324-8835

E-mail: Peter.Krausergdoj.ca.gov Attorneys for Respondent Secretary of State Debra Bowen'

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA I THIRD APPELLATE DISTRICT

Petitioners and Appellants,

C062321

ALAN KEYES, ET AL.,

v.

DEBRA BO'VEN, in her official capacity as CALIFORNIA SECRETARY OF STATE, ET AL.,

Respondents and Respondents.

Appeal from the Superior Court of California, County of Sacramento, Case No. 34-2008-80000096, Honorable Michael P. Kenny, Judge

BRJEF OF RESPONDENT SECRETARY OF STATE DEBRA BOWEN

EDMUND G. BROWN JR. Attorney General of California ZACKERY P. MORAZZINI

Supervising Deputy Attorney General PETER A. KRAUSE

Deputy Attorney General

State Bar No. 185098

1300 I Street, Suite 125

P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 324-5328 Fax: (916) 324-8835

E-mail: Peter.Krausetgidoj.ca.gov

A ttorneys for Respondent Secretary of State Debra Bowen

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT

I

Case Name:

Alan Keyes, et al. v. California Secretary of Court of Appeal No.: C062321

State Debra Bowen, et al.

CERTIFICATE OF INTERESTED PARTIES OR ENTITIES OR PERSONS (Cal. Rules of Court, Rule 8.208)

(Check One) INITIAL CERTIFICATE 0

SUPPLEMENTAL CERTIFICATE D

Please check the applicable box:

There are no interested entities or persons to list in this Certificate per California Rules of Court, rule 8.208(d).

Interested entities or persons are listed below:

Full Name of Interested Entity or Party

Party Non-Party
Check One
[ 1 [ 1
[ 1 [ 1
[ 1 [ 1
[ 1 [ 1
[ 1 [ 1
[ 1 [ 1 Nature of Interest (Explain)

The undersigned certifies that the above listed persons or entities (corporations, partnerships, firms or any other association, but not including government entities or their agencies), have either (i) an ownership interest of 10 percent or more in the party if an entity; or (ii) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Attorney Submitting Form PETER A. KRAUSE

Deputy Attorney General

State Bar No. 185098

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550 Telephone: (916) 324-5328

Fax: (916) 324-8835

E-ma;I~Oi.ca.go,

Party Represented

Attorneys for Respondent Secretary of State Debra Bowen

March 8, 2010

(Signa ure of Attorney Submitting Form)

(Date)

SA20091 01867 10535067.doc

I

TABLE OF AUTHORITIES

Page

CASES

Alcorn v. Anbro Eng 'g, Inc.

(1970) 2 Ca1.3d 493 5

Ballard v. Uribe

(1986) 41 Ca1.3d 564 5

Barnes v. Wong

(1995) 33 Cal.AppAth 390 10

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

(1967) 253 Cal.App.2d 16 12

Cantu v. Resolution Trust Corp.

(1992) 4 Cal.AppAth 857 5

Easton v. Sutter Coast Hosp.

(2000) 80 Cal.AppAth 485 5

Eistrat v. Board of Civil Service Comm 'n of the City of Los Angeles

(1961) 190 Cal.App.2d 29 6

Estate of Felder

(2008) 167 Cal.AppAth 518 13

Garcia v. Superior Court

(1990) 50 Ca1.3d 728 : 5

Irby v. Barrett

(1942) 204 Ark. 682,163 S.W.2d 512 15

Little v. Auto Stiegler, Inc.

(2003) 29 Ca1.4th 1064 10

Lungren v. Deukmejian

(1988) 45 Ca1.3d 727 6

MacLeod v. Long

(1930) 110 Cal.App .. 334 6

11

I

TABLE OF AUTHORITIES (contin ued)

Page

McKinney v. Superior Court

(2005) 124 Cal.AppAth 951 17

Pacific Legal Found. v. California Coastal Comm 'n

(1982) 33 Ca1.3d 158 12

People ex reI. Lynch v. Superior Court

(1970) 1 Ca1.3d 910 12

People v. Stanley

(1995) 10 Ca1.4th 764 12

Robinson v. Bowen

(N.D. Cal. 2008) 567 F.Supp.2d 1144 14

San Bernardino Valley Audubon Soc y v. City of Moreno Valley

(1996) 44· Cal.AppAth 593 16

Soules v. Kauaians Nukolii Campaign Comm.

(9th Cir. 1988) 849 F.2d 1176 17

State v. Craighead County Board of Election Commissioners

(Ark. 1989) 300 Ark. 405, 779 S.W.2d 169 14

Taylor v. Board of Trustees

(1984) 36 Ca1.3d. 500 6

Treber v. Superior Court

(1968) 68 Ca1.2d 128 11

Wenke v. Hitchcock

(1972) 6 Ca1.3d 746 6

FEDERAL STATUTES

3 U.S.C. § 15 13, 14

III

-~

TABLE OF AUTHORITIES (continued)

I

Page

CALIFORNIA STATUTES

Code of Civil Procedure, § 1 085(a) : 6

Elections Code,

§ 6041 : 7

§ 6901 7

§ 13314(a)(1) · 17

§ 15505 8

Government Code, § 12172.5 7

CONSTITUTIONAL PROVISIONS

U.S. Const. Amendment XII ,·13

OTHER AUTHORITIES

Arkansas Attorney General Opinion No. 2006-153 (2006 WL

2474743) · 16

IV

INTRODUCTION

I

Although the First Amended Petition for Writ of Mandate weaves a shadowy tale about President Barack Obama's potential lack of citizenship, the issue presented in this case is not whether he is a United States citizen; indeed, petitioners and appellants Alan Keyes, Wiley S. Drake, and Markham Robinson (collectively, "Petitioners") seek no relief against the President. Instead, the case turns on whether California's Secretary of State, and the State's presidential electors, have a ministerial duty to investigate whether presidential candidates meet the qualifications for office set forth

in the United States Constitution before fulfilling their statutory election obligations. As the Superior Court recognized, no such duty exists.

Petitioners filed their original petition for writ of mandate on November 13,2008, more than a week after the 2008 General Election. They then waited three weeks before serving the petition on respondents. While Petitioners sat idle, the Secretary of State and the Electors discharged the statutory duties which Petitioners sought to enjoin. The Secretary of State eventually demurred to the petition on a number of grounds, including lack of ministerial duty, mootness, and laches. Rather than oppose the demurrer, Petitioners filed an amended petition which repeated nearly all the allegations of the prior pleading, but failed to cure any of its defects. Accordingly, the Secretary of State filed a second demurrer.

The Superior Court sustained the Secretary of State's demurrer to the amended petition and entered judgment against Petitioners on the grounds that: (1) there was no basis for mandamus relief because the Secretary of State has no ministerial duty to make an inquiry into or demand proof of citizenship from presidential candidates, (2) the petition was moot as it related to the 2008 General Election because the Secretary of State had discharged the duties which Petitioners sought to enjoin, (3) the controversy was unripe as to future elections, and (4) the appropriate

stt--

remedy for an issue concerning presidential qualifications is an action before the United States Congress. Petitioners now appeal the judgment/ but offer no legitimate reason to disturb these holdings.

First, a writ of mandate lies only where the respondent has a clear, present, and ministerial duty to perform the act sought to be compelled. The Superior Court correctly held that, despite having an opportunity to amend their writ petition, Petitioners could not allege that the Secretary of State had a ministerial duty to demand proof of citizenship from presidential candidates. And because the Secretary of State had discharged the duties which Petitioners sought to compel - certifying the names of the electors and transmitting to each elector a certificate of election - the court below properly held that the amended petition was moot as it related to the 2008 election. Similarly, the Superior Court correctly decided that the' case was unripe as to future elections because it could not predict what qualification controversies, if any, might arise in the future, any more than

, it could speculate about how the Secretary of State might handle any such

controversies.

Further, the issue of whether a presidential candidate is constitutionally qualified for office is a matter committed to Congress and the federal courts. And finally, although the trial court did not reach the issue, this Court may affirm the judgment on the ground that Petitioners delayed too long in filing their writ petition, and their mandamus action is therefore barred by the doctrine of laches. For all these reasons, the Secretary of State respectfully requests that this Court affirm' the judgment. I

I Petitioners devote several pages of their Brief to the issues of standing, injury in fact, redressability, and the political question doctrine. (Appellants Brief, pp. 10-22.) Given that no respondent demurred on these grounds, the relevance of this discussion (much of which seems to have been imported from briefs filed in unrelated federal cases) is unclear.

2

ISSUES PRESENTED

I

I. Whether the Superior Court correctly held that California's Secretary of State has no ministerial duty to make an inquiry into or to demand proof of citizenship from candidates for the office of President of the United States;

II. Whether the Superior Court correctly ruled that the issues raised in the First Amended Petition were moot given that the 2008 General Election had passed and the Secretary of State already had discharged the duties which Petitioners sought to enjoin;

III. Whether the Superior Court correctly ruled that candidate qualification issues relating to future presidential elections were unripe;

IV. Whether disputes over constitutional qualifications for the office of President of the United States are committed to the Congress; and

V. Whether the relief sought in the amended petition is barred by the doctrine of laches.

STATEMENT OF THE CASE

I. STATEMENT OF FACTS

Petitioners Alan Keyes and Wiley Drake, respectively, were the presidential and vice-presidential candidates of the American Independent Party in the 2008 election. (CT, vol. 3, p. 671 [First Amended Petition for Writ of Mandate], ,-r,-r 1-2.) Petitioner Markham Robinson alleged that he was a certified California elector of the American Independent Party and that he holds various positions in that party. (Id., p. 671, ,-r 3.) Although they seek no relief against President Obama, Petitioners assert that the existence of lawsuits in other jurisdictions concerning President Obama's "non-, lost, or dual citizenship," creates "reasonable doubt ... as to [President Obama's] eligibility to serve as President of the United States."

(Jd., p. 676, ,-r 63.)

3

Petitioners speculate that President Obama was either born in Kenya (CT, vol. 3, p. 683, ~ 81), or that he was born in Hawaii, but relinquished his United States citizenship while living in Indonesia as a child. (Id.,

p. 684, ~ 82.) They even suggest that the President might be a citizen of Great Britain. (Id., p. 684, ~ 84.)

Petitioners further allege, without authority, that it is the Secretary of State's "duty ... to obtain proper documentation of OBAMA's citizenship, and every other candidate for President on the California Ballot, to confirm the candidate's eligibility for the office" of President. (CT, vol. 3, p. 685,

~ 86.) They also asserted, again without support, that each California Elector had "an affirmative duty to discover whether the candidate for President for which the elector is seeking election is a 'natural born' citizen." (Id., p. 679, ~ 72.) The basis for the relief sought by Petitioners "is a reasonable and common expectation by the voters that to qualify for the ballot, the individuals running for office must meet minimum qualifications as outlined in the federal and state Constitutions and statutes, and that compliance with those minimum qualifications has been confirmed by the officials overseeing the election process." (Id., p. 677, ~ 66.)

Petitioners prayed for a peremptory writ of mandate barring the Secretary of State from certifying the names of the electors and from transmitting to each elector a certificate of election "until such documentary p_roof is produced and verified showing that any future presidential candidate is qualified to serve as President of the United States." (CT, vol. 3, p. 686, ~ 1.) They alleged that, if the requested relief were denied, they would "suffer irreparable harm in that an [sic] usurper will have been

sitting as the President of the United States, and none of the treaties, laws, or executive orders signed by him will be valid or legal." (Id., pp. 678-679, .~ 71.)

4

II. PROCEDURAL HISTORY

I

Petitioners filed their original Petition for Writ of Mandate on November 13,2008, more than a week after the November 4,2008 General Election. (CT, vol. 1, pp. 1-3l.) Three weeks later, they began serving the petition on respondents. (See CT, vol. 1 [proofs of service dated 12/08/2008-12/22/2008].)

On December 15, 2008, the Secretary of State demurred to the original Petition for Writ of Mandate. (CT, vol. 1, pp. 251-269.) Rather than oppose this demurrer, Petitioners opted to file a First Amended Petition for Writ of Mandate. (CT, vol. 3, p. 670.)

On February 23, 2009, the Secretary of State and the other respondents demurred to the First Amended Petition on the ground that it failed to state facts sufficient to constitute a cause of action. (CT, vol. 3, pp. 700, 731.) The Superior Court sustained the demurrers without leave to amend at a hearing held on March 13,2009. (CT, vol. 4, p. 1088.) On March 23, 2009, it entered a formal Order Sustaining the Secretary of State's Demurrer to the First Amended Petition for Writ of Mandate Without Leave to Amend. (CT, vol. 4, p. 1106.) Judgment was entered on May 4,2009. (CT, vol. 4, p. 1156.) This appeal followed.

STANDARD OF REVIEW ON APPEAL

In evaluating a trial court's order sustaining a demurrer, the Court of Appeal reviews de novo whether the complaint contains sufficient facts to state a cause of action. (Garcia v. Superior Court (1990) 50 Cal.3d 728, 732; Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 490.) But the "party challenging a judgment has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564,574; Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 880 [the plaintiff bears the burden of demonstrating error by the superior court].)

5

And to justify reversal, the plaintiff-appellant must show that the compl,int alleged facts sufficient to establish every element of the cause of action. (Alcorn v. Anbro Eng 'g, Inc. (1970) 2 Ca1.3d 493, 496.)

ARGUMENT

I.. THE SUPERIOR COURT CORRECTLY HELD THAT THERE WAS No BASIS FOR MANDAMUS RELIEF BECAUSE THE SECRETARY OF STATE HAS No MINISTERIAL DUTY TO DEMAND PROOF OF CITIZENSHIP FROM PRESIDENTIAL CANDIDATES.

A traditional writ of mandate can issue only if the respondent has a clear, present, and ministerial duty and the petitioner has a clear, present, and beneficial interest in the performance of that duty. (Lungren v. Deukmejian (1988) 45 Ca1.3d 727, 731-732 ["Mandate will not lie

unless ... the respondent has a present duty to perform the acts applicant seeks to compel"]; accord Taylor v. Board of Trustees (1984) 36 Ca1.3d. 500, 507.) A writ of mandate will lie "to compel the performance of an act which the law specially enjoins, as a duty resulting from office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled." (Code Civ. Proc., § 1085(a).)

Here, Petitioners bear the burden of demonstrating that the Secretary of State and the other respondents owe them a ministerial duty to perform the acts sought to be compelled. (MacLeod v. Long (1930) 110 Cal.App. 334,338 [a peremptory writ of mandate "must be predicated upon the existence of a duty on the part of defendants to perform an act concerning which they have no right to refuse. The burden is, therefore, upon the plaintiff to prove the existence of such right rather than upon the defendants to disprove the same"]; Eistrat v. Board of Civil Service Comm 'n of the City of Los Angeles (1961) 190 Cal.App.2d 29, 34.) Petitioners cannot meet their burden.

6

Although mandamus is the correct remedy for compelling an office!

to conduct an election according to law (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 751), Petitioners have never identified any basis for the Secretary of State's purported "duty ... to obtain proper documentation of OBAMA's citizenship, and every other candidate for President on the California Ballot, to confirm the candidate's eligibility for the office." (CT, vol. 3, p. 685, ~ 86.) The reason for this omission is plain - the Secretary of State has no ministerial duty to verify that a political party's nominee is qualified under the United States Constitution to hold the office of

President (or Vice-President) before placing their name on the ballot, or performing any of the other tasks delegated to her by statute.

The Secretary of State is California's chief elections officer and is responsible for ensuring that elections are conducted efficiently and that state election laws are enforced. (Gov. Code, § 12172.5.) Consistent with this responsibility, the Secretary of State has certain ministerial duties vis-

. a-vis presidential elections. For instance, in the presidential primary, the "Secretary of State shall place the name of a candidate upon the presidential primary ballot when he or she has determined that the candidate is

generally advocated for or recognized throughout the United States or California as actively seeking the nomination of the Democratic Party for President of the United States." (Elec. Code, § 6041.)

And in the General Election, the Secretary is required to provide local elections officials with a certified list of the names and party affiliations of candidates nominated by their respective parties to appear on the November General Election ballot:

Whenever a political party, in accordance with Section 7100, 7300, 7578, or 7843, 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.

7

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.

/

(Elec. Code, § 6901 [italics added].)

After the General Election, the Secretary has a duty to certify to the Governor the names of the electors receiving the highest number of votes. (Elec. Code, § 15505 ["the Secretary of State shall analyze the votes given for presidential electors, and certify to the Governor the names of the proper number of persons having the highest number of votes"].)

The Superior Court recognized that Petitioners could not meet their burden to establish that the Secretary of State has a clear or a present ministerial duty to demand documentary proof "that any future Presidential candidate is qualified to serve as President of the United States." (CT, vol. 3, p. 686, ~ 1.) As the court below stated:

Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates. Elections Code section 6901 requires the Secretary of State to provide

. local elections officials with a certified list of the names and party affiliations of candidates nominated by their respective

. parties to appear on the November 4,2008 Presidential General Election ballot. Elections Code section 15505 requires the Secretary of State to certify to the Governor the names of the electors receiving the highest number of votes. Petitioners have not met their burden of demonstrating that the Secretary of State has a clear or present ministerial duty to demand documentary proof that any future Presidential candidate is qualified to serve as President of the United States. Such a duty is not imposed by of Elections Code section 12172.5 which provides that the secretary of state "shall see that state election laws are enforced." Accordingly, there is no basis for mandamus relief. (See Barnes v. Wong (1995) 33 Cal.App.4th 390, 395.)

On appeal, Petitioners continue to argue that the Secretary of State should be required to verify that all candidates for elected office meet constitutional eligibility requirements. They remain unable, however, to

8

identify the source of this supposed duty. Instead, they argue - without authority - that the Secretary of State did not exercise "due diligence," which "historically" has meant "reviewing necessary background documents [and] verifying that the candidates that were submitted by the respective political parties as eligible for the ballot were indeed eligible." (Appellants' Brief, p. 26.) Petitioners support this "historic due diligence" argument by citing two instances in which California Secretaries of State purportedly disqualified candidates who did not meet certain requirements. (Jd., at pp. 26-27.) On this shaky premise, Petitioners conclude that it "would then follow that [the Secretary of State] would also have the duty to ensure that all candidates placed on a California ballot have met all requirements to hold whatever office for which the candidate is running, both in the 2008 election, and in all future elections." (Jd., at pp. 27-28.) This argument is meritless.

First, a mandamus action lies under Code of Civil Procedure section 1085 only where the respondent has a clear, present, and ministerial duty. A ministerial duty is one that is required to be performed in a prescribed manner under the mandate oflegal authority without the exercise of discretion or judgment. (Morgan v. Board of Pension Comm 'rs (2000) 85 Cal.App.4th 836, 843; see also People v. Karriker (2007) 149 Cal.App.4th 763, 774 [mandate will not lie to require a government official to exercise his or her discretion in aparticular way].) The Secretary of State's nondiscretionary duties relating to presidential elections are outlined above, and do not include a duty "to ensure that all candidates placed on a California ballot have met all requirements to hold whatever office for which the candidate is running." (Appellants' Brief, p. 27.)

In any case, the circumstances of the 1968 and 1984 candidate disqualification decisions are vague, at best. Indeed, Petitioners provide no facts at all concerning the alleged 1984 eligibility decision. But even

9

assuming for the sake of argument that prior Secretaries of State did remove a candidate's name from a ballot, that act alone would not constitute authority for the proposition that the Secretary of State has a duty

f

to investigate every candidate's eligibility under the United States Constitution to be President. In other words, just because an elected official might have taken some action in the past, it does not follow that they had the right, much less the duty, to take that action. It is difficult to tell from the record before the Court, but it seems that the 1968 and 1984 . actions either were not challenged, or were denied judicial review. We cannot know how a court might have ruled on the questions presented in those cases, or even what the questions would have been. (See Little v. Auto Stiegler, Inc. (2003) 29 Ca1.4th 1064, 1081, fn.3 [cases are not authority for propositions not presented or considered therein].)

The Superior Court correctly concluded that there was no basis for mandamus relief in this case. (See Barnes v. Wong (1995) 33 Cal.AppAth 390, 395 [issuance of peremptory writ of mandate improper where no ministerial duty existed on the part of the registrarj.) Accordingly, this Court should affirm the judgment.

II. THE SUPERIOR COURT CORRECTLY HELD THAT THE PETITION WAS MOOT AND THAT No JUSTICIABLE CONTROVERSY EXISTED AS TO FUTURE ELECTIONS.

A. The Superior Court Properly Ruled that the Relief Sought in the Petition is Moot as It Relates to the 2008 General Election,

Even if there were a basis for the relief that Petitioners seek, which, as explained above, there is not, the Superior Court correctly held that the amended petition was moot as it related to the 2008 General Election because the Secretary of State already had discharged the statutory duties which Petitioners sought to enjoin:

10

The Secretary of State also demurs on the ground that the

/

petition is moot and there is no judiciable controversy insofar as

it relates to the 2008 General Election. The Court agrees and sustains the demurrer on this ground. Elections Code section 15505 requires that on December 1, or as soon thereafter as the election results have been received from all counties, the Secretary of State shall certify the names of the ascertained Electors and then transmit to each presidential elector a certificate of election. Petitioners refer to this code provision in the First Amended Petition filed February 23,2009. (See FAP, par. 65.) Nowhere do petitioners allege that the Secretary of State failed to perform that duty. They do, however, allege that the Electoral College has voted (F AP, par. 79) and that Mr. Obama has been inaugurated as the President of the United States. (FAP, par. 63.) The action is moot insofar as it relates to the 2008 General Election. (See Treber v. Superior Court (1968) 68 Ca1.2d 128, 134.)

(CT, vol. 4, p. 1149.) Petitioners do not challenge this ruling on appeal.

The issue is therefore waived. (See People v. Stanley (1995) 10 Cal. 4th 764, 793 [when an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, courts treat the point as waived].)

Because the Superior Court correctly held that the relief sought against the Secretary of State as it relates to the 2008 General Election was moot (see Treber v. Superior Court (1968) 68 Ca1.2d 128, 134 ["mandate does not lie when the respondent no longer has the legal authority to discharge the alleged duty because the time for doing so, as specified by statute or ordinance, has expired"]), and because Petitioners do not challenge this holding on appeal, the Secretary of State respectfully requests that the Court affirm the judgment.

I

11

B. The Superior Court Properly Held That This Controversy Was Not Ripe as it Related to Future Elections.

I

In an effort to avoid mootness, Petitioners shifted the focus of their amended petition from the 2008 election to future elections, insisting that "it is imperative 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." (CT, vol. 3, pp. 685-686, 'Il89).

It is well established that courts should not entertain a lawsuit that

does not present a justiciable controversy. (See 3 Witkin, Cal. Proc. (4th ed. 1996) Actions, § 73, p. 132.) "The concept of justiciability involves the intertwined criteria of ripeness and standing." (California Water & Tel. Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16,23.) The ripeness requirement prevents courts from issuing purely advisory opinions. (See generally People ex ref. Lynch v. Superior Court (1970) 1 Cal.3d 910, 911- 912.) '''A controversy is "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. '" (Pacific Legal Found. v. California Coastal Comm'n (1982) 33 Cal.3d 158,171 [citation omitted].) And the legal

issues must be framed with sufficient concreteness and immediacy to allow the Court to render a conclusive and definitive judgment, rather than an advisory opinion based on hypothetical facts or speculative future events. (Id. at pp. 170-173.)

The Superior Court recognized that the amended petition failed to

identify or present a ripe controversy:

A controversy is "ripe" when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made. (Pacific Legal Foundation v. California Coastal Comm'n (1982) 33 Cal.3d 158, 171.) The issues must be framed with sufficient concreteness

12

and immediacy to allow the Court to render a conclusive and f

definitive judgment, rather than an advisory opinion based on hypothetical facts or speculative future events. (Id. at pp. 170- 173.) The Court concludes the petition does not meet these criteria.

(CT, vol. 4, p. 1149.) Petitioners have waived any claim of error on the issue of ripeness by failing to challenge this holding on appeal. (Stanley, 10 Ca1.4th at p. 793; Estate of Felder (2008) 167 Cal.AppAth 518, 523 [failure to raise argument on appeal results, in waiver of issue].)

As the Supreme Court of California said in Pacific Legal Foundation, supra, 'judicial decision-making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." Here, the Court cannot know (and should not speculate about) who future candidates might be, what kinds of controversies may arise, or how the Secretary of State might handle these hypothetical disputes. As the, matter now stands, it presents, at best, an abstract difference of legal opinion. The Court of Appeal should affirm the judgment on the ground that this casedoes not present a ripe or justiciable controversy.

III. As THE SUPERIOR COURT RECOGNIZED, PETITIONERS' REMEDY, IF ANY, LIES AT THE FEDERAL LEVEL.

The Superior Court recognized that the appropriate remedy for an issue concerning the qualifications of a presidential candidate is an action before the United States Congress pursuant to the Twelfth Amendment to the United States Constitution and 3 U.S.c. § 15. (CT, vol. 4, p. 1150.)

After the presidential electors vote, they transmit their results to the President of the United States Senate (i.e., the Vice-President of the United States), who counts them in the presence of a joint session of Congress. (See U.S. Const. amend. XII.) A federal statute details the process for

13

counting electoral votes in Congress, and provides a mechanism for registering objections:

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 ... 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

(3 U.S.c. § 15.) Hence, remedies exist under federal law for individuals who wish to challenge the constitutional qualifications of presidential candidates. Indeed, in a case very similar to this one, filed by one of the petitioners in this case, the United States District Court for the Northern District of California dismissed a challenge to John McCain's citizenship status, holding that presidential qualification issues are best resolved in Congress:

It is clear that mechanisms exist under the Twelfth Amendment and 3 U.S.C. § 15 for any challenge to any candidate to be ventilated when electoral votes are counted, and that the Twentieth Amendment provides guidance regarding how to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president are quintessentially suited to the foregoing process. Arguments concerning qualifications or lack thereof can be laid before the voting public before the election and, once the election is over, can be raised as objections as the electoral votes are counted in Congress.

(Robinson v. Bowen (N.D. Cal. 2008) 567 F.Supp.2d 1144, 1147.) If the rule were otherwise, the presidential nominating process would be subject to the discretion of fifty states' elections officers, each of whom could reach a different decision concerning the nominee's qualifications.

Petitioners fail to address any of these authorities in their Brief, and instead simply argue that judicial review in the California state court

14

system is proper. Their only support is an Arkansas Attorney General

I

opinion and an Arkansas Supreme Court decision, neither of which involve

the question of whether presidential candidate qualification decisions are properly addressed to the United States Congress.

Petitioners cite State v. Craighead County Board of Election Commissioners (Ark. 1989) 300 Ark. 405, 779 S.W.2d 169 for the proposition that the California courts have "appropriate jurisdiction to review the actions of the Secretary of State, and issue any such remedy as justice dictates." (Appellants Brief, p. 31.) Petitioners misstate the holding of this case, which is inapplicable to the issue presented here.

In Craighead County, a citizen challenged the eligibility of three candidates for Justice of the Peace after their names had been certified to the Election Board by the Democratic Party. The citizen did so on the basis that two of the candidates failed a residency requirement and the other candidate was not of good moral character. (ld.at p. 410.) The court first held that county election commissioners lacked authority to declare a candidate ineligible or to remove a name from the ballot when there is a dispute concerning the facts or the law. (Id. atp. 409.) Then, applying an Arkansas statute, it held that filing a petition for a writ of mandamus was the proper procedure to be used for a pre-election attack on a candidate's eligibility.(Id. )

Craighead County has no bearing on the question of whether Congress is the proper venue for presidential candidate eligibility decisions. Indeed, to the extent the case applies at all, it supports the Secretary of State's position. Just as the county election commissioners lacked the discretion to unilaterally remove a candidate's name from the ballot, Petitioners point to no statute requiring or authorizing the Secretary of State to investigate the constitutional qualifications of presidential candidates. Instead, as explained above, the Elections Code only requires the Secretary

15

of State to provide local elections officials with a certified list of the namfs and party affiliations of candidates nominated by their respective parties, and to certify to the Governor the names of the electors receiving the highest number of votes.'

Because a forum and a remedy exist for Petitioners at the federal level, the Secretary of State respectfully requests that the Court affirm the judgment.

IV. By WAITING UNTIL AFTER THE ELECTION TO SEEK RELIEF, PETITIONERS' ACTION ALSO Is BARRED BY THE DOCTRINE OF LACHES.

The Secretary of State demurred on the ground that Petitioners' claims were barred by the doctrine of laches. Although the court below did not reach this argument (CT, vol. A, p. 1150), the laches doctrine provides another basis for affirming the judgment.

"Laches bars a mandamus action if the petitioner delays in initiating or prosecuting an action, and prejudice to the respondent results." (San Bernardino Valley Audubon Soc'y v. City of Moreno Valley (l996) 44 Cal.App.4th 593, 605.) Here, Petitioners delayed too long in filing their writ petition to the prejudice of the Secretary of State and the general stability of elections.

President Obama's candidacy was common knowledge from at least the time of the 2008 presidential primaries. Furthermore, the allegations in

2 Petitioners misplace reliance on two other opinions, neither of which has any bearing on the issues presented in this appeal. (See Irby v. Barrett (1942) 204 Ark. 682, 163 S.W.2d 512 [chairman and secretary of the Arkansas Democratic Committee could not exclude candidate because, in their opinion, petitioner was ineligible for office ofstate senator]; Arkansas Attorney General Opinion No. 2006-153 (2006 WL 2474743) [the doctrine of incompatible offices might preclude a school resource officer from simultaneously holding the office of school board member in the district in which he worked].)

16

the amended petition reveal that Petitioners were aware of rumors and

J

innuendo concerning the President's citizenship as early as August 21,

2008. (CT, vol. 3, p. 683, ~ 81.) Giventhese facts, andthe clear statutory deadlines facing the Secretary of State, Petitioners' lengthy and unexplained delay in filing this action was objectively unreasonable. Furthermore, the consequences of granting the requested relief, after voting has concluded and President Obama has been in office for over a year, would damage not only the Secretary of State, but also the voting public and the President, and would undermine the stability of elections. (See McKinney v. Superior Court (2005) 124 Cal.App.4th 951, 957-960 [applying laches to avoid destabilizing California election law where petitioner delayed filing known challenge until after electionj.)

If Petitioners were truly concerned about the qualifications of.nowPresident Obama to hold office, they should have brought a challenge before the November 4,2008 General Election. Although, as explained above, the Secretary of State has no duty or discretion to demand proof of . _ citizenship from presidential candidates, Petitionersperhaps could have sought some form of pre-election relief under subdivision (a)(I) of Elections Code section 13314, which provides, in relevant part, tha~:

Any elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of any name on . . . a ballot.

But, rather than filing suit before the election, Petitioners waited until more than a week after the election to file, then inexplicably sat idle while the Secretary of State and the Electors discharged the statutory duties which Petitioners purportedly sought to enjoin. This is precisely the kind of delayed challenge that courts have dismissed on grounds of laches. (See Soules v. Kauaians Nukolii Campaign Comm. (9thCir. 198.8)849 F.2d 1176, 1182 [laches applied to bar election challenge where plaintiffs "failed

17

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

to explain adequately their failure to press (their) claim before the

I

election"]; McKinney, 124 Cal.AppAth at pp. 957-960.) For these reasons, the Secretary of State respectfully requests that this Court affirm the judgment on the ground that Petitioners waited too long to seek mandamus relief.

CONCLUSION

I

The Superior Court recognized that a basic prerequisite for a meritorious petition for writ of mandate is a clear, present, and ministerial duty on the part of the respondent. Here, the Secretary of State lacks a duty to inquire into or demand proof of citizenship from a political party's candidate for the office of President of the United States. The amended petition also is moot as to past elections because the Secretary of State has discharged the statutory duties which Petitioners sought to enjoin, and unripe as to hypothetical future elections. For all the foregoing reasons, Petitioners cannot meet their burden to plead a mandamus cause of action, thus the Secretary of State respectfully requests that this Court affirm the judgment.

Dated: March 8, 2010

Respectfully submitted,

EDMUND G. BROWN JR. Attorney General of California ZACKERY P. MORAZZINI

Supervising Deputy Attorney General

PETER A. KRAUSE Deputy Attorney General

Attorneys for Respondent Secretary of State Debra Bowen

SA2009101867 I0535067.doc

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CERTIFICATE OF COMPLIANCE

I

I certify that the attached BRIEF OF RESPONDENT SECRETARY OF STATE DEBRA BOWEN uses a 13 point Times New Roman font and contains 5,370 words.

Dated: March 8, 2010

EDMUND G. BROWN JR. Attorney General of California ZACKERY P. MORAZZINI

Supervising Deputy Attorney General

PETER A. KRAUSE Deputy Attorney General

Attorneys for Respondent Secretary of State Debra Bowen

DECLARATION OF SERVICE BY OVERNIGHT COURIER

I

Case Name: Alan Keyes et al. v. Debra Bowen as California Secretary of State, et al.

No.: C062321

I declare:

I am employed in the Office of the Attomey General, which is the office of a member of the Califomia State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter; my business address is: 1300 I Street, Suite '125, P.O .. Box 944255, Sacramento, CA 94244-2550.

On March 8, 2010, I served the attached

BRIEF OF RESPONDENT SECRETARY OF STATE DEBRA BOWEN

by placing a true copy thereof enclosed in a sealed envelope with the Golden State Overnight courier service, addressed as follows:

Orly Taitz 26302 La Paz

Mission Viejo, CA 92691

Gary G. Kreep

Law Offices of Gary G. Kreep 932 "D" Street, Suite 2 Ramona, CA 92065

Michael J. Strumwasser Strumwasser & Woocher LLP

10940 Wilshire Boulevard, Suite 2000 Los Angeles, CA 90024

Sacramento County Superior Court Gordon D. Schaber Courthouse 720 9th Street:

Sacramento, CA 95814 . Case No. 34-2008-80000096

Supreme Court of California 350 McAllister Street

San Francisco, CA 94102

(5 copies)

I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on March 8, 2010, at Sacramento, California.

Brenda Sanders

Declarant

Signature

SA2009101867 I0544070.doc