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Keyes v Bowen Appellants Opening Brief

Keyes v Bowen Appellants Opening Brief

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In the

atourt of 1\pptal

ofthe

&tutt of Clhdifomiu F I LED

THIRD APPELLATE DISTRICT

FEB - 3 2010

C062321

COURT OF APPe:AL .. THIRD DISTRICT DEENA c. FAwcrn

By _

Plaintiff-Appellant,

v.

G){'hr(~ BOWEN AS SECRETARY etc. et al., Defendants-Respondents.

APPEAL FROM THE SUPERIOR COURT OF SACRAMENTO COUNTY HON. MICHAEL P. KENNY' N'O.34200880000096CUWMGDS

BRIEF OF APPELLANTS

GARY G. KREEP, ESQ. (066482)

UNITED STATES JUSTICE FOUNDATION 932 "D" Street

Suite 2

Ramona, California 92065 , (760) 788-6624 Telephone (760) 788-6414 Facsimile

Attorney/or Appellants,

Dr. Alan Keyes, Dr. Wiley S. Drake and Markham Robinson

" COUNSEL PRESS' (800) 3-APPEAL

PRINTED ON RECYCLED PAPER @

Name of Interested Entity or Person

Nature of Interest

Wourt of l\pptal

ofthe

~tat£ nf Q!alifnrnia

CERTIFICATE OF INTER~=STED ENTITIES OR PERSONS

Court of Appeal Case No.: C06232I

Case Name: KEYES, DRAKE, ROBINSON v. BOWEN, OBAMA, BIDEN, HUGUENIN, et al.

[Z] There are no interested entities or parties to list in this Certificate per California Rules of Court, Rule 8.208( e )(3).

o Interested entities or parties are listed below:

l. 2. 3. 4. 5. 6. 7. 8.

9.

GARY G. KREEP

Printed Name

UNITED STATES JUSTICE FOUNDATION 932 "0" Street, Suite 2

Ramona, California 92065

Address

Party Represented: KEYES, DRAKE, and ROBINSON

State Bar No.: 066482

-------

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

I. INTRODUCTION 1

A. Nature of Action 1

B. Statement of Contentions 2

C. Order Appealed 2

D. Relief Requested 3

E. Statement of Appealability 3

II. STATEMENT OF FACTS 4

III. PROCEDURAL HISTORY 5

IV. STANDARD OF REVIEW 8

V. LEGAL DISCUSSION 10

A. APPELLANTS Have Standing to Bring this

Matter ~ 10

(1) APPELLANTS Have Suffered Actual Harm Caused by RESPONDENTS'

Actions 10

(2) APPELLANTS' Injury is Redressable

by the Court .. 13

(3) Questions of Candidate Eligibility are not Political Questions and May be

Heard by the Court 16

(4) The Court has Proper Jurisdiction because the California Electors are

not "Necessary Parties" 22

11

B. There Exists a Triable Issue of Material Fact in that BOWEN Has the Affirmative Duty to Verify that all Candidates Seeking Elected Office in the

State of California are Eligible for Office 24

C. In the Event of a Challenged Improper Certification of an Ineligible Candidate, it is Appropriate to Have Judicial Review on the Matter, so as to Determine the Appropriate

Remedy 31

VI. CONCIJUSION 36

CERTIFICATE OF COMPLIANCE 37

DECLARATION OF SERVICE

TABLE OF AUTHORITIES

u.s. CONSTITUTION

U.S. Constitution, Article II, Section I, Clause 4 19, 21

U.S. Constitution, Article V 20

U.S. Constitution, Twelfth Amendment 8

FEDF~RAL STATUTES

3 lJ.S.C'. § 6 25

3 U. S. C. § I 5 (CT I I 03) 8

Federal Election Code § 192.006 25, 26

FEDERAL CASES

Baker v. Carr (1962) 369 U.S. 186

16,17

Bullfrog Films, Inc. v. Wick (9th Cir. 1988) 847 F.2d 502 ...... 10

Cleaver v. Jordan (1968) 393 U.S. 810, 89 S.Ct. 43 27

Gladstone Realtors v. Village ofBellwood ( 1979) 441

U. S. 9 I, 1 00 . . . . . . . .. .. . .. . . . . . ... .. . ..... . . . . . . .. .. . .. . . . . . . .. . . . . . . . . . . . . . . I 0

Hollander v. McCain (O.N.H. 2008) 566 F.Supp.2d 63 ....... II

Japan Whaling Ass'n v. American Cetacean Soc. (1986)

478 U.S. 221, 230 18,19

Lujan v. Defenders of Wildlife (1992) 504 U.S. 555,

559-560 (quotes and citations omitted) 10, II

111

IV

Marbury v. Madison (1803) 1 Cranch 137 (1803) 177,

2 L.Ed. 60 '" 22

CALIFORNIA STATE STATUTES

California Code of Civil Procedure § 904.1 (a)(I) 3

California Elections Code § 6906 16

California Elections Code § 8303 25

California Elections Code § 15505 25

CALIFORNIA STATE CASES

California Assn. ofRetail Tobacconists v. State of California (4th Dist. 2003) 1 09 Cal. App. 4th 792,

1 35 Cal. Rptr. 2d 224 9

Cal(fornia Family Bioethics Council v. California Institutefor Regenerative Medicine (1 st Dist. 2007) 147 Cal. App. 4th 1319, 55 Cal. Rptr. 3d 272,

review denied (May 16, 2007) 9

California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Ca1.3d 692, 699, 170

Cal.Rptr. 817, 621 P.2d 856 9, 10

Curcini v. County ofAlameda (2008) 164 CA4th 629,

633, 79 CR3d 383, 387, fn.3 (citing text) 9

Evans v. City ofBerkeley (2006) 38 C4th 1, 5,40 CR3d

205, 208 9

Reynolds v. Lerman (APP. 2 Dist. 1956) 138 Cal.App.2d

586, 292 P.2d559 22

San Joaquin County Dept. ofChild Support Services v.

Winn (App. 3 Dist. 2008) 163 Cal.App.4th 296, 77

Cal.Rptr.3d 470 3

Schifando v. City of Los Angeles (2003) 31 C4th 1074,

1081, 6 CR3d 457, 460 9

OTHER STATE CASES

Irby v. Barrett (Ark. 1942)163 S.W.2d 512, 514 33,34

State ex reI. Robinson v. Craighead County Bd. of Election Com'rs (Ark. 1989) 779 S.W.2d 169,

171 32

State ex rei. Sathre v.Moodie (N.D. 1935) 65 N.D. 340,

258N.W.558 14, 15

OTHER AUTHORITIES

Ark. Op. (2006) Atty. Gen. No. 2006-153, WL 2474743

(Ark.A.G.) 32

Senate Resolution (April 24, 2009) 511 35

v

I.

INTRODUCTION

A. Nature of Action

This appeal is brought as a result of a judgment of dismissal on the First Amended Writ of Prohibition filed by Appellants Dr. Alan Keyes (hereinafter referred to as "KEYES"), Dr. Wiley Drake (hereinafter referred to as "DRAKE") and California Elector Markham Robinson (hereinafter referred to as "ROBINSON") (hereinafter collectively referred to as "APPELLANTS"), which resulted from the erroneous sustaining of a demurrer tiled herein by Respondents Barack Obama (hereinafter referred to as "OBAMA"), Vice President Joseph Biden (hereinafter referred to as "BlDEN"), California Secretary of State Debra Bowen (hereinafter referred to as "BOWEN"), and California Elector Aleita Huguenin, et al. (hereinafter collectively referred to as "RESPONDENTS") (CT

1158). The sustaining of RESPONDENTS' demurrer was in error because RESPONDENTS failed to establish that there was no triable cause of action on the critical Constitutional issues of whether OBAMA has met the eligibility requirements to serve as President of

the United States and whether BOWEN has the duty, as chief elections officer of the State of California, to verify the eligibility of candidates for Federal office running in the State of California.

B. Statement of Contentions

APPELLANTS contend that BOWEN has a duty to ensure that all candidates in the State of California, for both Federal and State offices, meet the eligibility requirements for the offices sought, that BOWEN did not fulfill said duty, and that a Court determination is needed to ensure that the California Secretary of State comply with this duty in the future. APPELLANTS contention is based on the fact that OBAMA has not met the eligibility requirements to serv~ as President of the United States and that he has not demonstrated that he meets said requirements.

C. Order Appealed

APPELLANTS appeal the Judgment of Dismissal, filed on June 10,2009, sustaining RESPONDENTS' demurrer after oral argument on the demurrer (CT 1158).

2

D. Relief Requested

APPELLAN'fS respectfully request a reversal on the judgment sustaining RESPONDENTS' demurrer.

E. Statement of Appealability

The California Code of Civil Procedure (hereinafter referred to as "CCP") § 904.1 (a)( I) provides that an appeal may be taken "from a judgment" other than an "interlocutory judgment." Here, APPELLANTS appeal the June 10, 2009, Judgment of Dismissal, sustaining RESPONDENTS' demurrer after oral argument on the demurrer. Because the dismissal leaves no further consideration for

the Court to decide on APPELLANTS' First Amended Writ of Prohibition, the judgment is an appealable final judgment.

"A judgment is 'final' for purposes of appeal when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined. San Joaquin County Dept. of Child Support Services v. Winn (App. 3 Dist. 2008) 163 Cal.AppAth 296, 77 Cal.Rptr.3d 470. This matter was timely appealed on June 19,2009 (CT 1181).

3

II.

STATEMENT OF FACTS

KEYES was the Presidential candidate for the American Independent Party in the 2008 election on the California State Ballot (CT 671). DRAKE was a Certified California Elector of the American Independent Party and was the Vice Presidential candidate of the American Independent Party in the 2008 election on the California State Ballot (CT 671). ROBINSON was a Certified California Elector of the American Independent Party, Chairman of the American Independent Party (California), which nominated KEYES and DRAKE for President and Vice President, respectively, and Vice Chairman of America's Independent Party, of Fenton, Michigan, which nominated KEYES for President (CT 671).

BOWEN is the Secretary of State of California (CT 671).

OBAMA is a former U.S. Senator from Illinois, and he was the Presidential Candidate of the Democratic Party on the California State Ballot in the 2008 election (CT 671). BIDEN is a former U.S. Senator from Delaware, and he assumed office as Vice President of the United States on January 20, 2009 (CT 671).

4

5

Following the November 8, 2008 election, on December 1, 2008, BOWEN certified to the Governor of the State of California the names of the California Democratic Electors and transmitted to each presidential Elector a Certificate of Election (CT 265).

On January 20,2009, OBAMA was inaugurated and assumed of lice as President of the United States, and BIDEN assumed office as Vice President.

III.

PROCEDURAL HISTORY

This appeal arises out of the Trial Court's judgment dismissing APPELLANTS' First Amended Petition for Writ of Mandate (CT 1156). On November 13, 2008, APPELLANTS filed a Petition for Writ of Mandate, naming BOWEN, OBAMA, BIDEN, and the California Democratic Party Electors as RESPONDENTS (CT 1). APPELLANTS' First Amended Petition (hereinafter referred to as "FAP") was filed February 23,2009 (CT 670). APPELLANTS' FAP sought to have the court bar the BOWEN from both certifying to the Governor the names of the California Electors, and from transmitting to each Presidential Elector a Certificate of Election, until

documentary proof of the OBAMA'S and all Future candidate's eligibility to serve as President was provided, in future elections(CT

686).

BOWEN tiled a demurrer to the Petition on February 23, 2009, on the ground that the Petition failed to state facts sufficient to constitute a cause of action against her, that the petition is moot and that there is no judicable controversy, as it relates to the 2008 General Election, and that the controversy is not ripe as it relates to future elections (CT 720). BOWEN argued that the Secretary of State has no "ministerial duty" to demand detailed proof of citizenship from Presidential Candidates (CT 1089). The Trial Court agreed and sustained BOWEN'S demurrers (CT 1106). The Court stated that a writ of mandate can only issue if the respondent has a clear, present, and beneficial interest in the performance of that duty (CT 1106). The Trial Court stated that APPELLANTS failed to identify authority requiring the Secretary of State to make an inquiry into, or demand tor, detailed proof of citizenship from Presidential candidates (CT

110 I). The trial court also stated that FAP is moot insofar as it relates to the 2008 general election (CT 110 I). The Court stated that the FAP

6

7

failed to frame the issues 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 (CT 11(2).

OBAMA, BIDEN, and the California Electors also filed a demurrer to the Petition on February 23, 2009, on the grounds that the Petition did not state facts sufficient to constitute a cause of action against any of the RESPONDENTS, that the Trial Court had no jurisdiction over the subject of the action as alleged in FAP, and that FAP suffered from a defect or misjoinder of parties (CT 728). The Trial Court sustained the demurrer, on the ground that FAP did not state facts sufficient to constitute a cause of action against the named RESPONDENTS, because the pleading did not seek any relief as to either OBAMA or BIDEN (CT 11(2). The Trial Court also stated that F AP does not prove that California Electors have a duty to review their candidate's eligibility (CT 11(3). The court sustained RESPONDENTS' demurrer on the ground that FAP suffered from a defect or misjoinder of parties because it contained allegations concerning future elections and, since the future Electors are

indispensable parties to such a claim, the Electors must be before the court (CT 1103). The trial court also sustained the demurrer on the ground the Court has no jurisdiction over the subject of the action (CT 1103). The Court stated that the exclusive remedy for challenging the qualifications of the President is an action before the United States Congress pursuant to the Twelfth Amendment of the United States Constitution and 3 U.S.C. § 15 (CT 1103). Lastly, the Court stated that the case is moot because the Secretary of State already placed the candidates' names on the ballot, the election already took place, and the President and Vice President had already been inaugurated and engaged in the duties of their offices (CT 1103).

On June 10, 2009, after sustaining, without leave to amend, RESPONDENTS' demurrers to FAP, the trial court entered its judgment dismissing FAP (CT 1158). Following the Trial Court's judgment, APPELLANTS timely tiled their Notice of Appeal on June 19, 2009 (CT 1181).

IV.

STANDARD OF REVIEW

On appeal from a judgment of dismissal after a demurrer is

8

-

9

sustained without leave to amend, appellate courts assume the truth of all facts properly pleaded by the plaintiff-appellant. [Evans v. City of Berkeley (2006) 38 C4th 1, 5,40 CR3d 205, 208; Schifando v. City of Los Angeles (2003) 31 C4th 1074, 1081,6 CR3d 457, 460; Curcini v. County of Alameda (2008) 164 CA4th 629,633,79 CR3d 383,387, fn. 3 (citing text)]

Further, Constitutional issues are questions of law reviewed de novo. [California Assn. ofRetail Tobacconists v. State ofCalifornia (4th Dist. 2003) 09 Cal. App. 4th 792, 135 Cal. Rptr. 2d 224; California Family Bioethics Council v. California Institutefor Regenerative Medicine (I" Dist. 2007)147 Cal. App. 4th 1319,55 Cal. Rptr. 3d 272, review denied, (May 16, 2007)]. This case concerns the Constitutional issue of the eligibility requirements for the Office of President of the United States, and the duties of BOWEN related thereto, and, therefore, the proper standard of review is de novo (CT

676).

This reviewing court therefore exercises its independent judgment, without deference to the trial court's ruling. (Cal(fhrnia

Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699, 170 Cal.Rptr. 817, 621 P.2d 856.)

v.

LEGAL DISCUSSION

A. APPELLANTS Have Standing to Bring this Matter

(1) APPELLANTS Have Suffered Actual Harm Caused by RESPONDENTS' Actions

Standing generally requires a showing that a plaintiff has suffered actual loss, damage, or injury, or is threatened with impairment of his or her own interests. Gladstone Realtors v. Village ~fBellwood (1979) 441 U.S. 91, 100; Bullfrog Films, Inc. v. Wick (9th Cir. 1988) 847 F.2d 502, 506. This tends to assure that a plaintiff has a sufficient stake in the outcome of the suit to make it a real "case or controversy." ld.

The "injury in fact" requirement must involve "an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife (1992) 504 U.S. 555, 559-560 (internal quotes

10

and citations omitted). Second, there must be a causal connection between the injury and the conduct complained of the injury, i.e., the injury has to be "fairly ... trace[ableJ to the challenged action of the defendant, and not '" th[ eJ result [of] the independent action of some third party not before the court. Id. at 560. This standard for injury has been extended to political candidates. The Court in Jlollander v. McCain held "a candidate or his political party has standing to challenge the inclusion of an allegedly ineligible rival on the ballot, on the theory that doing so hurts the candidate's or party's own chances of prevailing in the election." Hollander v. McCain (D.N.H. 2008) 566 F.Supp.2d 63. Here, KEYES and DRAKE were candidates for President of the United States and Vice-President of the United States, respectively, running against OBAMA and BIDEN in the 2008 Presidential election (CT 671). As Presidential and Vice-Presidential candidates, KEYES and DRAKE have an interest in having a fair competition for those positions. This interest is akin to that of an Olympic competition, where one of the competitors in an athletic competition is found to be using performance enhancing drugs, but is

11

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not removed despite a violation of the rules, and all of the athletes who had trained for the event legitimately are harmed if that disqualified contestant remains, as the contestants would not be competing on a level playing field. OBAMA entered this race without having met the eligibility requirements for the office of President of the United States and, as a result, KEYES, Presidential candidate on the American Independent Party ticket, and DRAKE, as the Vice-Presidential candidate on the same ticket, have been injured because they did not have fair competition for the office of Vice-President of the United States, and, thus, were not given a fair opportunity to obtain votes for President and Vice-President of the United States.

Here, also, ROBINSON was a Presidential Elector in the 2008 Presidential election (CT 671). As an Elector, and as head ofa political party, the American Independent Party, he had an interest in there being a fair competition between the candidate that he pledged to vote for, and the political party that he heads, and the other candidates for the office of President of the United States and the

political parties that they represent. OBAMA entered this race without having met the eligibility requirements for the office of President of the United States and, as a result, ROBINSON has been injured because the candidate he pledged to vote for, and the political party he heads, did not have a fair competition for the office of President and Vice-President of the United States, thus preventing ROBINSON from casting a vote for the candidates that he pledged to vote for as Elector.

As a result, APPELLANTS have suffered a concrete injury in fact caused by RESPONDENTS.

(2) APPELLANT'S Injury is Redressable by the Court

In order for Standing to be established, the issue must be one that the Court may remedy. Here, APPELLANTS allege that OBAMA is ineligible to serve as President of the United States by reason of not being a natural born citizen (CT 676), and that BOWEN did not comply with her duty to verify whether OBAMA was eligible for such office. Even though OBAMA was elected to this office, this ineligibility constitutes a legal disability for the Office of President of

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I ' .. '

1:

i

Moodie was duly elected to the office of Governor of the State of

the United States. In State ex rei. Sathre v. Moodie, after Thomas H.

North Dakota, it was discovered that Thomas H. Moodie was not

eligible for the position of Governor, as he had not resided in the state

for a requisite five years before running for office, and, because of

"The lack of residential qualifications on the part of the

that ineligibility, he was removed from office and replaced by the

Lieutenant Governor. State ex rei. Sathre v. Moodie (N.D. 1935) 65

N.D. 340,258 N.W. 558. The Court held:

these powers and duties upon him must be construed in the light

Governor is a legal disability. The [North Dakota] Constitution

does not differentiate between a disability existing before

election and one occurring after election in regard to the right of

the Lieutenant Governor to assume the powers and duties of the

office of Governor. The provision in the Constitution devolving

of reason. The context must be considered. When the framers of

the Constitution used the language which we are here

considering, they intended to include legal as well as physical

14

or mental disabilities, and did not exclude disabilities existing prior to election." State ex reI. Sathre v. Moodie (N.D. 1935) 65 N.D. 340, 258 N. W. 558.

Here, in like manner, APPELLANTS allege that OBAMA is legally disabled by his birth status. Therefore, all votes cast in favor of the OBAMA/BIDEN joint and unseverable ticket by the California Electors should be deemed null and void, since the votes were cast for an individual ineligible to run for the office of President of the United States of America. APPELLANTS do not seek to judicially place a different political party in the White House, but, instead, only seek a determination as to whether OBAMA has met the Constitutional eligibility requirements, and, should OBAMA be discovered to be ineligible to serve as President of the United States of America, APPELLANTS seek a Court declaration that the votes cast by the California Electors in favor of the OBAMA/BIDEN ticket were of no legal force or effect, In addition, APPELLANTS seek a determination as to the duties of the California Secretary of State with regards to checking the eligibility of candidates so that these issues do not arise

15

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

16

again in upcoming elections. Given that the Court has the power to review acts of the other branches of California government to ensure Constitutional compliance, and the power to issue writs and declarations against officers within these branches, when the Court determines that they have not acted within the scope of the California Constitution, and given that the EC § 6906 requires Electors to vote in a particular manner subject to civil and criminal penalties, the Court has a remedy available in this action.

(3) Questions of Candidate Eligibility are not Political Questions and May be Heard by the Court

In cases dealing with similar issues as this case, RESPONDENTS have alleged that the issue of whether OBAMA is eligible to serve as President of the United States is a political question that is not within the power of this Court, or any Court, to adjudicate, and, in support, have cited Baker v. Carr, which states the following:

"Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional

17

commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial

discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question." 369

U.S. 186 (1962).

Although quoted in, essentially, all political question cases, the Baker v. Carr standard does not give clear guidelines to the Court as to which matters are non-adjudicatable political questions.

Others have argued that there is a textually demonstrable constitutional commitment of the issue of eligibility for the office of President. However, there is no support for such an assertion regarding eligibility for the office of President, and the section of the

Constitution frequently used to support the argument refers to the appointment of Electors by the States and the direction of the same by Congress. The oversight to determine whether an Elector was properly elected or appointed, and whether an Elector properly cast a vote for President, is performed by Congress. However, neither Congress, nor the Electoral College, has the authority, as a result of either the Constitution or a Federal Statute, to make determinations of eligibility or to exclude a candidate who fails to meet the eligibility requirements, as such requirements are not political in nature. "The political question doctrine excludes from judicial review those controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch. The Judiciary is particularly ill suited to make such decisions, as 'courts are fundamentally under equipped to formulate national policies or develop standards for matters not legal in nature. '" Japan Whaling Ass'n v. American Cetacean Soc. (1986) 478 U.S. 221, 230.

Thus, while there are issues which the Judiciary, as a whole, is

18

19

ill equipped to determine, when an issue is one that does not "revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch," the Court then has the jurisdiction to make a determination of that issue. Id. The mere fact that issues of eligibility are related to elections and may have political elements does not preclude the Court from hearing such cases. The Court in Japan Whaling Ass'n v. American Cetacean Soc. also held, "[b]ut under the Constitution, one of the Judiciary's characteristic roles is to interpret statutes, and we cannot shirk this responsibility merely because our decision may have significant political overtones," Id. at 230. The issue of whether OBAMA is eligible to serve as President of the United States is one that has "significant political overtones," given that it has a direct relation to the election of the most powerful political office in the United States, but it is, nonetheless, an issue which the Court can make a determination on, because the requirements are clearly stated in Article II, Section 1, Clause 4, of the U.S. Constitution, and Courts routinely decide questions of law and of

fact such as the issue in this case.

An argument has also been made that the political question doctrine precludes action by the Court because such action would improperly arrogate to the Court jurisdiction over political questions as to the fitness and qualifications of the President, which the Constitution entrusts exclusively to the House and the Senate, and that issues related to a candidate's eligibility for the office of president rest, in the first instance, with the voters and with the Electoral College. This assertion is incorrect in a number of ways. First, a provision of the Constitution may not be disregarded by means of a popular vote of the people, as there are specific guidelines for amending the Constitution of the United States. The United States Constitution requires a two-thirds vote of both Houses of Congress, and a ratification by three-fourths of all State legislatures in the United States to do so. U.S. Constitution, Article V. Even if the people of the United States voted to elect as President a candidate who did not qualify for the position, that vote would not be sufficient to overcome the Constitutional requirements for the office and make that

20

candidate eligible. U.S. Constitution, Article II, Section 1, Clause 4.

Because voters can, and do, vote for candidates that are liked by the

voters, even if those candidates may not be eligible for the position,

the voters do not have the power, or the right, to determine the

eligibility of a candidate.

Furthermore, the process for determining whether a candidate

has met any and all requirements for eligibility to run for the office of

President is addressed nowhere in the United States Constitution, nor

in any federal legislation to date. This then begs the question of who

controls this process? It would seem to be a clear violation of the

"Separation of Powers" doctrine to place this ability in the executive

branch, because, since the issue is whether OBAMA is ineligible for

the office of President of the United States, it would be a conflict of

interest for OBAMA, or for an executive officer under OBAMA'S

control, or for his political party, to have the sole power to review

OBAMA'S eligibility. To place this power in the legislature's hands

would seem appropriate, since this is the branch that determines all of

election law. However, the issue here is not one of determining new

21

.;!

election law, but one of whether California was in line both with its own state constitution and the United States Constitution on this issue. This is ultimately an issue of judicial review, which has been a recognized power of the judiciary since 1803 in the case of Marbury v. Madison (1803) 1 Cranch 137 (1803) 177,2 L.Ed. 60.

Thus, as discussed above, this matter is not a political question best left to another branch of the government. Based on the foregoing, APPELLANTS' have standing and the case should not have been dismissed by the lower Court.

(4) The Court has Proper Jurisdiction because Future California Electors are not "Necessary Parties"

The court in Reynolds v. Lerman, defined necessary parties as, '''Necessary Parties' to action include persons interested in sense that they may possibly be affected by decision or having such interest in subject-matter or transaction involved that it cannot be finally and completely settled without them ... " Reynolds v. Lerman (App. 2 Dist. 1956)138 Cal.App.2d 586, 292 P.2d 559. Future California Electors in this case are not "Necessary Parties," because they are pledged to

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vote for a specific candidate by their party regardless of the duties of the California Secretary of State, which are at issue here. Further, their identities will not, and can not, be determined until 2012 (see below). A judgment on the merits in this case will not affect any interests held by future, speculative, Electors, since they provide a purely ministerial role, and do not cast an electoral ballot by choice. Each California voter in the general election casts a ballot in favor of whatever candidate they desire. However, they may only vote for eligible candidates, for which there are specific state and federal rules for eligibility. A ruling here would not affect any Elector's voting rights, since to even be an Elector is a privilege afforded them by their respective parties. Therefore, since the Electors have no rights other than to be able to cast their Electoral vote in the event that their party wins the majority of votes at the general election (in which they have had the opportunity to cast their individual ballot), they have no interest at stake in a judgment on the merits determining the duties of the Secretary of State of California.

B. There Exists a Triable Issue of Material Fact in that BOWEN Has the Affirmative Duty to Verify that all Candidates seeking Elected Office in the State of California are Eligible for Office

California law requires that, in each year of the general election at which electors for the Offices of President and Vice President of the United States are to be chosen, each Congressional nominee shall designate one Presidential Elector and shall file his or her name, residence, and business address with the Secretary of State by October 1 of the Presidential election year. Each United States Senator, or senatorial nominee, of the Democratic Party, as elected or nominated in the last two United States Senatorial elections in California, shall designate one Presidential Elector and shall tile his or her name, residence, and business address with the Secretary of State by

October I of the Presidential election year. In the event that there is no Democratic United States Senatorial nominee, or no Democratic Congressional nominee in any particular district, the state chairperson of the Democratic Party shall designate one Presidential Elector for

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each vacancy and shall file his or her name, residence, and business address with the Secretary of State by October 1 of the Presidential election year. EC § 8303.

BOWEN is responsible for ensuring the validity of the State election process by, among other things, verifying the qualifications of the voters, approving the ballots and the candidates, supervising the counting of the ballots, and certifying the results. This certification of the vote by the Secretary of State, based upon which Electors received the highest number of votes in the state, is the method provided for in California law for ascertaining which Electors are appointed to vote for President. EC § 15505, Also, see 3 U.S.C. §~. On December 1, or as soon thereafter as the election results have been received from

all counties in the state, the Secretary of State shall certify the names of the ascertained Electors to the Governor, and then transmit to each Presidential Elector a certificate of election (EC § 15505). The Governor then issues and seals a Certificate of Ascertainment which is delivered to the Electors by December 15 (3 U.S.C. § 6), who then meet to sign the Certificate of Vote (Federal Election Code

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§ 192.006). The office of the Secretary of State is intended to be non-biased, and to provide the critical sense of fairness and impartiality necessary for the people to have faith in the fundamental underpinnings of the democratic basis for our elections.

The Office of the Secretary of State of California is the California agency responsible for certifying candidates for inclusion on the ballot. In the 2008 election, however, BOWEN did not exercise due diligence, by certifying candidates without verifying that they had met all of the requirements of eligibility for office. Historically, California Secretaries of State have exercised their due diligence by reviewing necessary background documents, verifying that the candidates that were submitted by the respective political parties as eligible for the ballot were indeed eligible. In 1968, the Peace and Freedom Party submitted the name of Eldridge Cleaver as a qualified candidate for President of the United States. The then Secretary of State,Mr. Frank Jordan, found that, according to Mr. Cleaver's birth certificate, he was only 34 years old, one year shy of the 35 years of age needed to be on the ballot as a candidate for President. Using his administrative powers, Mr. Jordan removedMr.

Cleaver from the ballot. Mr. Cleaver, unsuccessfully, challenged this decision to the Supreme Court of the State of California, and, later, to the Supreme Court of the United States, which affirmed the actions of the California Secretary of State (hereinafter referred to as "SOS") by denying review of Cleaver's removal from the ballot. Cleaver v. Jordan (1968) 393 U.S. 810, 89 S.Ct. 43. APPELLANTS cited to the Cleaver case as an example of the 80S fulfilling his duty by removing an ineligible candidate from the ballot at oral argument, but RESPONDENTS denied that this Cleaver case had any relevance to the underlying issue (RT p.18 II. 5-17). Similarly, in 1984, the Peace and Freedom Party listed Mr. Larry Holmes as an eligible candidate in the Presidential primary. When the then SOS checked his eligibility, it was found that Mr. Holmes was, similarly, not eligible, and Mr. Holmes was removed from the ballot (CT 682). In this case, we have a similar situation in that the Democratic Party submitted the name of OBAMA as a candidate for President.

It would then follow that BOWEN 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

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running, both in the 2008 election, and in all future elections. There is 'a reasonable and common expectation by the voters that to qualify for the ballot, the individuals running for each 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. Heretofore, only a signed statement from the candidate attesting to his or her meeting those qualifications was requested and received by the Secretary of State, with no verification demanded (CT 677). This practice represents a much lower standard than that demanded of one when requesting a California driver's license. Since the Secretary of State has, as its core, the mission of certifying and establishing the validity of the election process, APPELLANTS sought a Court Order barring BOWEN from certifying any California Electors until documentary proof that a candidate for President is a "natural born" citizen of the United States of America was received (CT 686). This proof could include items such as an original birth certificate, showing the name of the hospital and the name and the signature of the doctor, a passport with immigration stamps, and verification from the

29

governments where the candidate has resided, verifying that he did not, and does not, hold citizenship of these countries, and/or any other documents that could certify an individual's citizenship and/or qualification for office.

In the case of individuals seeking the Office of President of the United States, the United States Constitution provides for a system of Electors, wherein citizens of the respective states have a state controlled election in which Electors representing the interests of the respective candidates for President on the state ballot are elected to represent the interests of the respective state in the Electoral College (CT 677). Thus, there is no federal ballot controlled by the federal government (CT 677). There is a California State ballot where voters elect Electors who in turn represent the named Presidential candidate on the ballot (CT 678). That is one more reason why the Secretary of State has responsibility for the certification of not just the counts of the ballots cast, but, also, the propriety of the contents of the ballot (CT 678). In case a candidate cannot present proper documentation verifying his citizenship, he or she cannot be elected President of the United States, and the Secretary of State has a duty to bar the casting

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of votes by California Electors in support of his or her candidacy (CT 678).

To avert any future constitutional crisis which would certainly accrue after upcoming elections through laborious legal challenges, APPELLANTS sought, and seek, an affirmation that the Secretary of State has an affirmative duty to verify the eligibility of a Presidential candidate prior to the candidate appearing on the California ballot in any subsequent election. It is incumbent on the candidates to present the necessary documentation confirming his or her citizenship, but, for this past election, OBAMA failed to do so, and BOWEN failed to demand that OBAMA do so.

As of the filing of this brief: OBAMA has not allowed independent or official access to his vault (original hospital) birth records and supporting hospital records. OBAMA'S citizenship status has been challenged in over 20 different legal actions in various federal and state courts, which challenges cast doubt on the validity of the electoral process, regardless of outcome (CT 678). BOWEN, as Secretary of State, is specifically, and specially, charged with certifying and guaranteeing the validity of official documents and

overseeing elections in California, such that the people's confidence in their duly elected government is maintained (CT 678). To date, in this regard, BOWEN has not carried out that fundamental duty with regard to this, or any prior presidential election, she has thus not fulfilled her duties as chief elections officer, and, to prevent this from happening again, BOWEN should be compelled to do the necessary due diligence in all subsequent elections.

C. In the Event of a Challenged Improper Certification of an Ineligible Candidate, it is Appropriate to Have Judicial Review on the Matter, so as to Determine the Appropriate Remedy

Since BOWEN has not dutifully verified the eligibility of the candidates, the Court thereby has appropriate jurisdiction to review the actions of the Secretary of State, and issue any such remedy as justice dictates. According to a 2006 Arkansas Attorney General Opinion, the Baxter County Board of Election Commissioners could not properly omit names of candidates who had failed to meet all the requirements for office:

"As a preliminary matter, I should note that the Baxter County

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Board of Election Commissioners is not empowered to omit from the ballot the names of any candidates who have complied with the filing requirements for the office, When questions arise as to a candidate's eligibility prior to an election, the proper remedy is resort to the courts, by virtue of an action for a declaratory judgment and mandamus." Ark. Op. (2006) Atty. Gen. No. 2006-153, WL 2474743 (Ark.A.O.).

Further, in State ex reI. Robinson v. Craighead County Bd. of Election Com'rs, the Appellate Court reversed the lower court's determination that "the Board of Election Commissioners had the power to make factual determinations concerning a candidate's eligibility and that, once that determination was made, mandamus could not compel an opposite result" State ex reI. Robinson v. Craighead County Bd. of Election Com'rs (Ark. 1989) 779 S.W.2d 169, 171, holding that, "the board does not have the authority to declare a candidate ineligible and remove his name from the ballot when there is a dispute concerning the facts or the law" Id. at 171.

Political boards, committees, and panels, such as the United States Congress, are not proper bodies for making determinations of

33

eligibility because of the significant risk of "corrupt and partisan action" lrby v. Barrett (Ark. 1942) 163 S.W.2d 512,514. The court in Irby v. Barrett held that:

"If the Chairman and Secretary of the Committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the Chairman and Secretary of the Committee? It may be that such power can be conferred upon them by laws of this State or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently

complied with the laws of the State and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, to have a holding by the court that the name should not have been omitted." lei.

Because of the risk of "corrupt and partisan action," the proper remedy for eligibility disputes is to bring such disputes to a Court for determination, rather than to Congress or the Electoral College, and, because this Court has the power to make determinations of fact and law regarding controversies over the eligibility of a political candidate, this Court has the power to redress the injury suffered by APPELLANTS.

Even though such determinations of eligibility are only properly decided by the Court, at this time there has not been any review ofOBAMA'S status by the Court, or even by an improper

34

tribunal. However, such a review of a candidate's eligibility was conducted concerning one ofOBAMA'S opponents, albeit by an improper tribunal. As a Presidential candidate for the Republican Party, Senator John McCain faced eligibility questions regarding his birth status and was subject to Congressional hearings into the matter. Senate Resolution 511, April 24, 2009. Congressional hearings are not, however, the proper method of resolving questions of whether a candidate meets the requirements to run for office. As discussed above, to date, OBAMA has neither been subject to any Congressional hearings nor any judicial review on the question of his eligibility, nor has he done any affirmative act to prove his eligibility.

Thus, since political bodies are not the proper venue to determine whether a candidate is eligible for the office of President of the United States, APPELLANTS seek a determination from this court on this matter.

There then exists a triable issue of material fact as to which branch of government, and what office within that branch, has the duty to ensure that all candidates on a California ballot meet the eligibility requirements to hold office.

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VI.

CONCLUSION

Based on the forgoing, APPELLANTS respectfully request a

reversal on the judgment sustaining RESPONDENTS' demurrer.

Dated: February 1,2010.

UNITED STATES JUSTICE FOUNDATION

Attorney for Appellants,

Dr. Alan Keyes, Dr. Wiley Drake, and Markham Robinson

36

CERTIFICATE OF COMPLIANCE

Counsel of Record hereby certifies that pursuant to Rule

8.204(c)(l) or 8.504(d)(l) of the California Rules of Court, the

enclosed Brief of Appellants is produced using I3-point or greater

Roman type, including footnotes, and contains 6,543 words, which is

less than the total words permitted by the rules of court. Counsel

relies on the word count of the computer program used to prepare this

brief.

Dated: February 1, 2010.

UNITED STATES JUSTICE FOUNDATION

Attorney for Appellants,

Dr. Alan Keyes, Dr. Wiley Drake, and Markham Robinson

37

State of California ) County of Los Angeles ) )

Proof of Service by: .; US Postal Service Federal Express

I, Elizabeth Hong , declare that I am not a party to the action, am over 18 years of

age and my business address is: 354 South Spring St., Suite 610, Los Angeles, California 90013.

On 2/1/2010 declarant served the within: Brief of Appellants

upon:

Copies

FedEx .; USPS

Peter A. Krause

Office of the State Attorney General Post Office Box 944255 Sacramento, California 94244-2550

Attorney for Defendant-Respondent, Debra Bowen as Secretary etc.

1 Copies

FedEx .; USPS

Clerk for the Han. Michael Kenny Sacramento County Superior Court Gordon D. Schaber

Sacramento County Courthouse 720 9th Street

Sacramento, California 95814

1 Copies

FedEx .; USPS

Michael J. Strumwasser Strumwasser & Woocher LLP

10940 Wilshire Boulevard, Suite 2000 Santa Monica, California 90024

Attorney for Defendants-Respondents, Barack Obama et al.

4 Co ies

FedEx .; USPS

Supreme Court of California Office of the Clerk

First Floor

350 McAllister Street

San Francisco, California 94102

the addressees) designated by said attorney(s) for that purpose by depositing the number of copies indicated above, of same, enclosed in a postpaid properly addressed wrapper in a Post Office Mail Depository, under the exclusive custody and care of the United States Postal Service, within the State of California, or properly addressed wrapper in an Federal Express Official Depository, under the exclusive custody and care of Federal Express, within the State of California

I further declare that this same day the original and copies haslhave been hand delivered for

filing OR the original and 4 copies has/have been filed by .; third party commercial carrier for next business day delivery to:

Office of the Clerk Court of Appeal 621 Capitol Mall 10th Floor

Sacramento, California 95814-4719

at the foregoing is true and correct:

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