Reply Memo Bowen Support Demurrer

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Attorney General of California PETER A. KRAUSE Supervising Deputy Attorney General Deputy Attorney General State Bar No. 197335 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 Fax: (916) 324-8835 E-mail: Anthony.Hakl@doj.ca.gov Attorneys for Respondent California Secretary of State Debra Bowen SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO
ANTIIONY R. HAKL

KAMALA D. HARRIS

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EDWARD C. NOONAN, PAMELA BARNETT, SHARON CHICKERING, GEORGE MILLER, TONY DOLZ, NEIL TURNER, and GARY WILMOTT, Petitioners,
v.

Case No. 34-2012-80001048 Related Case No. 34-2012-80001091 REPLY MEMORANDUM IN SUPPORT OF SECRETARY OF STATE DEBRA BOWEN'S DEMURRER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE

DEBRA BOWEN, individually and officially as the CALIFORNIA SECRETARY OF STATE, BARACK HUSSEIN OBAMA II, and OBAMA FOR AMERICA CALIFORNIA. ________________ Respondents. ~

Date: May 25,2012 Time: 9:00 a.m. Dept: 31 Judge: Honorable Michael P. Kenny Trial Date: None Action Filed: January 7,2012

Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

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INTRODUCTION

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Rather than meaningfully address the authorities cited in the Secretary of State's demurrer, Petitioner Edward C. Noonan uses his opposition brief to repeat discredited arguments and allegations. Nothing offered by Noonan changes the basic rule that a writ of mandate lies only where the respondent has a clear, present and ministerial duty to perform the act sought to be compelled. Despite amending the petition once and now briefing the issue, Noonan cannot meet

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his burden to demonstrate that the Secretary of State has any duty to investigate whether presidential candidates meet the qualifications for office set forth in the United States Constitution. And Noonan's petition is moot in any event. Accordingly, the Secretary of State

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respectfully requests that the Court sustain her demurrer without leave to amend.
ARGUMENT

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I.

PETITIONERS BARNETT, CHICKERING, MILLER, DOLZ, TURNER AND WILMOTT HAVE FAILED TO FILE OPPOSITION TO THE DEMURRER.

Only Petitioner Noonan, now represented by counsel, has filed opposition to the Secretary of State's demurrer. Because Petitioners Barnett, Chickering, Miller, Dolz, Turner and Wilmott have failed to file any opposition, they should not be heard at oral argument, and the Court should sustain the demurrer without leave to amend as to them. II.
THERE IS

No MINISTERIAL DUTY UPON WHICH TO PREMISE MANDAMUS RELIEF.

A writ of mandate may issue only where 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.) The petitioner bears the burden of demonstrating that the respondent has a duty to perform the act sought to be compelled. (MacLeod v. Long (1930) 110 Cal.App. 334, 338.) Petitioner Noonan asserts in his opposition that the Secretary of State's general obligation under Govenunent Code section 12172.~ to "see that elections are efficiently conducted and that state election laws are enforced" creates an affirmative duty to investigate whether presidential candidates meet the qualifications for office set forth in the United States Constitution.
2 Reply Memorandum In Support OfResponcient Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34~20l2-80001 048)

(Opposition at p. 3.)1 It plainly does not. Indeed, section 12175.5 refers only to the Secretary of 2 3
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State's duties under state election laws; the statute does not give rise to a duty to enforce qualifications for office that appear in the federal Constitution. As explained in the Secretary of State's demurrer, the issue of whether a presidential candidate is constitutionally qualified for that office is a matter committed to the United States Congress and the federal courts. (See Keyes v. Bowen (2011) 189 Cal.AppAth 647, 660-661; Robinson v. Bowen (N.D.Cal. 2008) 567 F.Supp.2d 1144, 1147.) In arguing the Secretary of State has a duty to investigate a candidate's qualifications and remove the person from the ballot ifhis ot her qualifications are lacking, Noonan also relies on Cleaver v. Jordan (1968) 393 U.S. 810, where, according to Noonan, Secretary of State Frank Jordan would not permit the Peace and Freedom Party to place Leroy Eldridge Cleaver's name on the ballot because he was only 34 years old, one year short of the 35 years of age needed to be a presidential candidate. Noonan similarly cites a more recent event involving another Peace and Freedom Party candidate, Peta Lindsay, whom, as Noonan puts it, the Secretary of State "rejected ... and refused to place ... on the ballot, because she is 27 years old." (Opposition at p. 5.) Nevertheless, as explained in Keyes, this citation to Cleaver v. Jordan "merely reflects that the United States Supreme Court denied a petition for writ of certiorari; it states nothing about the facts of the case." (Keyes, supra, 189 Cal.App.4th at pp. 659-660.) It is therefore not authority for any legal proposition. (Id. at 660.) Moreover, that fanner Secretary of State Jordan, or even

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current Secretary of State Bowen, excluded a candidate, "who indisputably did not meet the eligibility requirements," does not demonstrate that the Secretary of State has the requisite ministerial duty to investigate and determine if presidential candidates are constitutionally qualified for office.2 (Ibid.)
1 Without explanation, Noonan also cites to Government Code section 12172. But section 12172 concerns the Secretary of State's review of an initiative measure after it is prepared prior to its circulation. The provision is clearly inapposite in any analysis in this case .

. 2 Noonan's persistent argument regarding Elections Code section 6901 is also devoid of merit. As explained in detail in the Secretary of State's demurrer (Mem. of P. & A. in Supp, of Demurrer at pp. 5-6), Keyes rejected out of hand the assertion that section 6901 is "unconstitutional and will lead to absurd results." (Keyes, supra, 189 Cal.AppAth at p. 660.) This (continued ... )
3 Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

Accordingly,

Noonan

has failed to meet his burden to establish

a basis for mandamus

relief.

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The Court should sustain the demurrer without leave to amend.

III.

THE PETITION IS MOOT AS TO THE JUNE 5, 2012 ELECTION

"A case becomes the parties with effective

moot when a court ruling can have no practical relief."

effect or cannot provide
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(Califomians for Alternatives to Taxies v. California Dep
1049, 1069.) Because the Secretary

of

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Pesticide Regulation (2006) 136 Cal.AppAth
has issued to all County Clerks and Registrars

of State already

of Voters the official Certified

List of Candidates, (See Treber v. no longer

as required by law, the petition is moot as it relates to the June 5, 2012 election.

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Superior Court (1968) 68 Ca1.2d 128, 134 ["mandate does not lie when the respondent
has the legal authority statute or ordinance, to discharge the alleged duty because has expired"].)

the time for doing so, as specified by

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CONCLUSION
of State lacks a clear, present or ministerial duty to investigate the

qualifications

of presidential

candidates.

In any case, the petition is moot because duties which Petitioners the Secretary seek to enjoin.

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the Secretary of State already has discharged For these reasons, respectfully Dated:

the statutory

and all ofthe reasons set forth in her demurrer, that the Court sustain her demurrer

of State

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requests

without leave to amend. Submitted,

May 18,2012

Respectfully
KAMALA

Attorney General of California PETER A. KRAUSE

D. HARRIS

SUPer¥iSinrttomey General

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ANTHON . R. HAKL

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SA20 121 04548 10899362.docx

Deputy Attorney

General

Attorneys/or Respondent California Secretary of State Debra Bowen

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C ... continued) is the same argument Noonan continues to advance here. Keyes, this court should reject that argument.
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And following

the court of appeal in

Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

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DECLARATION OF SERVICE BY U.S. MAIL
Case Name: No.:

Noonan v. Bowen 34-2012-80001048 34-2012-80001091 (related case)

I declare: I am employed in the Office of the Attorney General, which is the office of a member of the California 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. I am familiar with the business practice at the Office of the Attomey General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same day in the ordinary course of business. On May 18, 2012, I served the attached

REPLY MEMORANDUM IN SUPPORT OF SECRETARY OF STATE DEBRA BOWEN'S DEMURRER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE
by placing a true copy thereof enclosed in a sealed envelope in the internal mail collection system at the Office of the Attorney General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Edward C. Noonan 1713 11th Avenue Olivehurst, CA 95961 Sharon Chickering 1713 11th Avenue Olivehurst, CA 95961 Tony Dolz 1713 '11 th Avenue Olivehurst, CA 95961 Neil Turner 1713 11th Avenue Olivehurst, CA 95961 Pamela Barnett 1713 11th Avenue Olivehurst, CA 95961 George Miller 1713 11th Avenue Olivehurst, CA 95961 Gary Wilmott 1713 11th Avenue Olivehurst, CA 95961 Fredric D. Woocher Strumwasser& Woocher LLP 10940 Wilshire Blvd., Ste. 2000 Los Angeles, CA 90024

SERVICE BY GOLDEN STATE OVERNIGHT
Gary G. Kreep United States Justice Foundation 932 D Street, Suite 2 Ramona, CA 92065

I declare under penalty of perjury under the laws of the State of Cali fomi a the foregoing is true and correct and that this declaration was executed on May 18,2012, at Sacramento, California.

Brenda Apodaca
Declarant
SAlO 121 04548 l0836552.doc

''fJ~

SiD' ature

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