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2012 05 18 - CA - NOONAN - Reply Memo of Obama in Support of Demurrer to First Prerogative Writ...

2012 05 18 - CA - NOONAN - Reply Memo of Obama in Support of Demurrer to First Prerogative Writ...

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FREDRICD. WOOCHER(SBN 96689) MICHAELJ. STRUMWASSER (SBN 58413) PATRICIA PEl (SBN 274957) T. STRUMWASSER & WOOCHER LLP 10940 Wilshire Boulevard, Suite 2000 Los Angeles, California 90024 Telephone: (310) 576-1233 Facsimile: (310) 319-0156 E-mail: fwoocher@strumwooch.com Attorneys for Respondents President Barack Obama and Obamafor America

SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SACRAMENTO

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Printed on Recycled Paper
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

EDWARD C. NOONAN, PAMELA BARNETT, SHARON CHICKERING, GEORGE MILLER, TONY DOLZ, NEIL TURNER, and GARY WILMOTT, Petitioners, v. DEBRA BOWEN, individually and officially as The California Secretary of State at 1500 th 11th Street, 5 Floor, Sacramento, CA 95814; BARACK HUSSEIN OBA:rv1AII; OBA:rv1A FOR AMERICA CALIFORNIA at Northern California HQ, 3225 Adeline Street, Berkeley, CA 94703; JOHN and JANE DOES and XYZ ENTITIES, Respondents.

CASE NO. 34-2012-80001048 REPLY MEMORANDUM OF PRESIDENT BARACK OBAMA AND OBAMA FOR AMERlCA IN SUPPORT OF DEMURRER TO FIRST AMENDED PREROGATIVE WRlT OF MANDATE AND RESTRAINT OF FUND RAISING

Date: Time: Dept.: Judge:

May 25, 2012 9:00 a.m. 31 Hon. Michael P. Kenny

Action Filed: January 6, 2012

1
2 3 4 TABLE OF AUTHORITIES
INTRODUCTION ARGUMENT., , , , ,.,.",." ,

CONTENTS
11

, ,.,.,.".,

, " .. ·"",·",

,,. ..

1 3

.. ,

5
6

1.
II.

PETITIONER STILL CANNOT IDENTIFY ANY MANDATORY DUTY THAT WOULD SUPPORT ISSUANCE OF A WRIT OF MANDATE AGAINST ANY OF THE RESPONDENTS

....

,

3
8

7

PETITIONER DISREGARDS THE LACK OF ST ATE-COURT JURISDICTION OVER THE QUALIFICATIONS OF PRESIDENTIAL CANDIDATES .. ,"",.,", .... ,',.".,""" PETITIONERF AILS TO REBUT RESPONDENTS' DEMONSTRATION THAT ALL CLAIMS FOR RELIEF RELATING TO THE JUNE 5,2012, PRESIDENTIAL PRIMARY ELECTION ARE Now Moot, ,'., .. , , " .. , , , , ,., THE COURT SHOULD CONSIDER ISSUING AN ORDER TO SHOW CAUSE RE: SANCTIONS AGAINST NOONAN'S COUNSEL PURSUANT TO CODE OF CIVIL PROCEDURE SECTION

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III.

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IV.

128.7

,,

,.,.,.,,,,
,

,

,,,,.,,,.9
,.,.

CONCLUSION,.,

.. ,."

,.,

.. ",

,

,

10

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REPLY MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

1
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Evid. Code, Elec. Code, Gov. Code, Code ofCiv. Proc., 3 U.S.C., § 15

TABLE OF AUTHORITIES
State Cases Keyes v. Bowen (2010) 189 Cal.App.4th 647 Federal Statutes 6 State Statutes 6, 7, 9

§ 128.7 § 128.7(b)(2) § 128.7(c)(2) § 430.10(a) § 430.80(a)

2, 9 9 2 6 6

§ 12172.5

3, 4

§ 6901

'

passim

§ 452
§ 452(d)(I)

4 7

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REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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INTRODUCTION Petitioner Noonan's Opposition to Demurrer contains a grand total of five pages of legal argument, virtually none of which is responsive to the substance of the demurrers filed by Respondents in this action.
1

Respondents President Obama and Obama for America demurred to both the original Petition for a Prerogative Writ of Mandate and Restraint of Fund Raising ("Petition") and the First Amended Prerogative Writ of Mandate and Restraint of Fund Raising ("First Amended Petition") on the ground that the petitions failed to state a valid cause of action against either President Obama or Obama for America. Noonan's Opposition does not even attempt to defend these defects, making no mention whatsoever in its legal argument of these claims for relief, much less providing any statutory or other legal basis for the relief sought. For all intents and purposes, Noonan has therefore abandoned the petitions' committee. Respondents President Obama and Obama for America Secretary of State Bowen and, separately, Respondent claims for relief against the President and the Obama for America

also demurred to the causes of action directed against Respondent of which requires dismissal, and to none of which

Bowen on three separate grounds, anyone

Noonan'S Opposition tenders a substantive response:

Respondents' demurrers pointed out that the Petition and First Amended Petition had

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'As is emphasized in Noonan's Opposition, that document is offered "on his behalf, and on his behalf alone.'; (Petitioner Noonan's Opposition to Demurrer ("Opposition"), p. 1.) None of the other Petitioners have served any opposition to the demurrers on Respondents' counsel, so they have waived any argument against the demurrers. In a declaration accompanying the submission of Noonan's opposition (in a document mistitled as "Petitioner Noonan's Opposition to Demurrer"), his counsel, Gary Kreep, declares that he does not represent any of the other named Petitioners and that the Opposition he is filing "will only address the issues relevant to NOONAN and will not be addressing the other issues raised in the demurrers." (Kreep Declaration, ,-r 3.) Respondent has no idea What that statement means, since a single Petition for a Prerogative Writ of Mandate and a single First Amended Prerogative Writ of Mandate was filed on behalf of all of the named Petitioners with no indication that there was any difference among any of the Petitioners with respect to the claims they were making and the issues they were addressing.

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1
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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not provided any authority establishing a mandatory duty on the part ofthe Secretary of State . to determine the eligibility of President Obama or of any other presidential candidate before placing his or her name on the election ballot. Other than a conc1usory reassertion of the claimed duty, Noonan's Opposition fails to respond substantively to this patent deficiency. • Respondents' demurrers showed that Congress, not the state courts, has exclusive of presidential candidates under the U.S.

jurisdiction Constitution.

to address the qualifications

Noonan'S Opposition does not even refer to the Congressional process or its

exclusivity, much less attempt to explain how the state courts possess the necessary jurisdiction to grant the requested relief. • Respondents' demurrers noted the obvious mootness of the petitions' claims relating

to the placing of President Obama's name on the June 5, 2012, Presidential Primary election ballot, seeing as how the certified list of candidates was finalized on March 29, 2012, and the ballots have now all been printed and are being voted as this is written. Noonan's Opposition does not dispute that the requested relief can no longer be granted with respect to the June 5, 2012, election, but merely contends mistakenly that the action should

not be deemed moot because the Petition was originally filed back on January 6, 2012, well in advance of the primary election, even though nothing was done in the next five months to pursue its claims. In short, N oonan' s Opposition fails to establish that the Petition and First Amended Petition state a valid cause of action against any of the Respondents herein, or that they could conceivably be amended to do so. For this reason, the demurrers must therefore be sustained without leave to amend. Worse yet.the legal arguments set forth in the few pages of Noonan's Opposition that do purport to address the substance of the Petition's and First Amended Petition's claims are rife with blatant misrepresentations, fail to apprise the Court ofthe controlling contrary legal precedents, and

are not "warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." (Code Civ. Proc., § 128.7.) For this reason, the Court should consider sua sponte issuing an OSC for imposition of sanctions against Petitioner Noonan's counsel pursuant to Code of Civil Procedure section 128.7. 2
REPLY MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

1

ARGUMENT

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I.

PETITIONER STILL CANNOT IDENTIFY ANY MANDATORY DUTY THAT WOULD SUPPORT ISSUANCE OF A WRIT OF MANDATE AGAINST ANY OF THE RESPONDENTS

As noted above, Noonan's Opposition does not even attempt to identify any mandatory duty on the part of President Obama or Obama for America that would justify issuance of a writ of mandate against them. The demurrer must therefore be granted as to the purported claims against these Respondents. Noonan's Opposition does at least contend that the Petition and First Amended Petition state a cause of action against Respondent Bowen. (Opposition, p. 3.) Nothing in Noonan's Opposition, however, supplies the necessary legal support for this proposition. Indeed, quite to the contrary,

Noonan's Opposition essentially admits that Respondent Bowen has no present, mandatory, and ministerial duty to verify the eligibility of presidential candidates before placing their names on the ballot. Thus, Noonan acknowledges: "The Secretary of State is required to verify that every

candidate for these positions is eligible for the sought position, with one exception: those candidates that have been selected for the office of President of the United States by a national political party are not required to present to the California Secretary of State any documentation proving their eligibility for the office of President," (Ibid. [lines 21-24] [emphasis addedj.) Noonan is thus left

to argue only that "[t]his duty [to verify that all candidates are eligible for the office sought] should properly extend to all candidates listed on the ballot, and not exempt a candidate simply because a national political party selects a particular candidate for President .... " (Id, p. 4 [emphasis added].) Of course, Noonan's argument that such a duty should exist falls far short of establishing that the duty does exist. Instead, the argument concedes that the Secretary of State has no present duty to verify the eligibility of presidential candidates. Noonan's Opposition suggests that the Secretary of State has an obligation to verify

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presidential candidates' qualifications stemming from her supposed "duty to advise candidates and local elections officials on the qualifications and requirements for running for office," citing

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27 28

Government Code section 12172.5. (Opposition, p. 3.) Noonan even goes so far as to claim that the Secretary of State's website (http://www.sos.ca.gov/adminlabout-the-agency.htm) lists this

3
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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obligation as one of the duties of that office.

(Ibid.) These assertions are blatantly false.

Government Code section 12172.5 provides, in its entirety: "The Secretary of State is the chief elections officer of the state, and shall administer the provisions ofthe Elections Code. The Secretary of State shall see that elections are efficiently conducted and that state election laws are enforced. The Secretary of State may require elections officers to make reports concerning elections in their jurisdictions. "If, at any time, the Secretary of State concludes that state election laws are not being enforced, the Secretary of State shall call the violation to the attention of the district attorney of the county or to the Attorney General. In these instances, the Secretary of State may assist the county elections officer in discharging his or her duties. "In order to determine whether an elections law violation has occurred the Secretary of State may examine voted, unvoted, spoiled and canceled ballots, vote-counting computer programs, vote by mail ballot envelopes and applications, and supplies referred to in Section 14432 of the Elections Code. The Secretary of State may also examine any other records of elections officials as he or she finds necessary in making his or her determination, subject to the restrictions set forth in Section 6253.5. "The Secretary of State may adopt regulations to assure the uniform application and administration of state election laws." (Gov. Code, § 12172.5.) There is not a word in Government Code section 12172.5 regarding any alleged "duty to advise candidates and local elections officials on the qualifications and requirements for running for office," nor any language that can remotely be construed to impose such a duty on the Secretary of State. Nor does the Secretary of State's website listthis as among the duties of that office. Attached hereto as Exhibit C and incorporated herein by reference is a copy of the page from the Secretary of State's website cited by Noonan in his Opposition. The Court can take judicial notice of this

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document pursuant to Evidence Code section 452 and can readily see that it makes no mention of any supposed duty to advise candidates, as asserted in Noonan's Opposition.

Rather, Noonan's

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counsel simply fabricated this contention out of whole cloth.
Finally, Noonan protests that Elections Code section 690 1_. the statute that Noonan himself acknowledges imposes a duty on the Secretary of State "to place arty [presidential] candidate nominated by a political party on the ballot, without verifying that the candidate is eligible for the office" (Opposition, p. 4) _ is unconstitutional because it allegedly "forces the Secretary of State to disregard the duties of her office as chief elections official in the State of California with regard 4
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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to the most important elected office in the United States."

(Id., pp. 3-4.) But Elections Code

section 6901 does not force the Secretary of State to disregard the duties of her office. Rather, that statute defines her duties as the state's chief elections official, and it imposes a mandatory and ministerial duty on her to "cause the names ofthe 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) without, as Petitioner Noonan is forced to acknowledge, first verifying their eligibility

under the terms of the U.S. Constitution. Nor is Elections Code section 6901 unconstitutional, Constitutions.' under either the state or federal

Contrary to Noonan's unsupported assertion, section 6901 is not "in direct conflict

with the requirements for Presidential eligibility in Article II of the United States Constitution." (Opposition, p. 4.) The Secretary of State can readily comply with Elections Code section 6901 without violating article II of the federal Constitution. That article sets forth the qualifications for

the office of President, but it imposes no duty upon the Secretary of State to enforce its provisions or to verify that candidates for President meet the eligibility requirements for the office. To the contrary.as explained in Respondents' opening brief, the Twelfth and Twentieth Amendments to

Any claim that Elections Code section 6901 somehow violates the California Constitution, as implied by Noonan's Opposition (see Opposition, p. 4), is laughable. One would not know it from Noonan's Opposition, for he fails to make any mention of it, but article II, section 5, of the state Constitution expressly incotporates the provisions of Elections Code sections 6041 and 6901 into its terms:
2

"(c) The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are thosefound by the Secretary 0/ State to be recognized candidates throughout the nation or throughout. California/or the office a/President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of non candidacy. "(d) A political party that participated in a primary election for a partisan office pursuant to subdivision (c) has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party's candidates." [Emphasis added.] 5
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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3

the U.S. Constitution

(as implemented by 3 U.S.C. § 15) provide the exclusive process for

challenging the qualifications of a candidate who allegedly does not meet the eligibility requirements for President under article II, and that process does not involve either the California Secretary of State or the California courts. (See Memorandum of Points and Authorities in Support of Demurrer of President Barack Obama and Obama for America, pp. 11-12.)3 The arguments set forth above would be sufficient to establish the legal deficiencies in the Petition and First Amended Petition even if this Court were ruling on a blank slate. But, of course, this Court is not ruling on a blank slate. Instead, as noted in Respondents' demurrers, there is a published appellate opinion that is directly on point - Keyes v. Bowen (2011) 189 Cal.App.4th 647. And what is most remarkable, and disturbing, about Noonan's Opposition is that he barely

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acknowledges the existence of the Keyes v. Bowen decision, much less makes any effort to distinguish its unqualified holding with respect to the key issue in this case - whether the Secretary of State has any duty to verify the eligibility of-candidates for the office of President before placing their names on the ballot -

even though Petitioner Noonan's counsel was also counsel for

3Noonan's Opposition asserts that "Respondents conceed [sic] that California Elections Code section 6901 is unconstitutional" because their demurrers allegedly "did not address the arguments regarding California Elections Code Section 6901, at all, and, therefore, waive any objection to NOONAN's argument." (Opposition, p. 6.) This contention fails on multiple levels. First, Respondent Bowen's demurrer did explicitly address Petitioner Noonan's argument regarding the asserted unconstitutionality of Elections Code section 6901, establishing that it had no merit. (See Memorandum of Points and Authorities in Support of Respondent Secretary of State Debra Bowen's Demurrer to First Amended Petition for Writ of Mandate, p. 5.) Respondents Obama and Obama for America did not directly address the argument in their demurrer because the unsupported assertion in the First Amended Petition that Elections Code section 6901 is unconstitutional is irrelevant to the merits of the underlying claims in the First Amended Petition: Noonan did not file a complaint/or declaratory relie/that section 6901 is unconstitutional; he filed e petttion for a writ of mandate alleging that the Secretary of State has a duty to verify the eligibility of presidential candidates. Thus, even if Noonan were correct that section 6901 is unconstitutional, that would not in any way advance his argument that Respondent Bowen had a duty to verify presidential candidates' qualifications, but would merely mean that she was not required by law to place the national party's designated candidate on the November general election ballot. Finally, Noonan himself acknowledges that there is no waiver if the objection is that "the court has no jurisdiction of the subject of the cause of action alleged in the pleading or an objection that the pleading does not state facts sufficient to constitute a cause of action" (Opposition, p. 6, quoting Code Civ. Proc., § 430.80, subd. (a)) - precisely the grounds for Respondents' Demurrer in this case. 6
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA

's DEMURRER

TO FIRST AMENDED PETITION

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Petitioner Keyes in that case. Noonan's only mention of the decision in Keyes v. Bowen, without even providing a citation to the case, is in the section of his Opposition in which he contends that "Respondents conceed [sic] that California Elections Code section 6901 is unconstitutional."

(Opposition, p. 6.) There, Noonan contends that "Noonan v. Bowen concerns distinct issues oflaw and fact from Keyes v. Bowen" because the court of appeal supposedly relied upon Elections Code section 6901 in dismissing the Keyes case, "[w]hereas Noonan v. Bowen has been brought, in part, to challenge the Constitutionality of California Elections Code Section 6901." (Ibid.) Noonan again misrepresents the facts. Attached hereto as Exhibit D is a true and correct

copy of the Reply Brief of Appellants Alan Keyes et al. in Keyes v. Bowen (3rd Civ. No. C062321), and Respondents request that the Court take judicial notice of the brief pursuant to Evidence Code section 452, subdivision (d)(1 ) [records of any court of this state]. On pages 15-17 of that brief, under the heading "Election Code Section 6901 is Unconstitutional and Will Lead to Absurd

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Results," Keyes made the same argument that he asserts here~· in almost the identical language ~ that "the language of CEC § 6901, compelling the Secretary of State to place any candidate nominated by a political party, is in direct conflict with the requirements for presidential eligibility in Article IIof the United States Constitution because it allows a candidate to be placed on the ballot without any verification of eligibility for the office." (Reply Brief of Appellants in Keyes v. Bowen, pp. 16-17.) And in the court of appeal's published opinion in that case, after chastising counsel for raising this argument for the first time in his reply brief, the court went on to emphatically reject it: "In any event, the truly absurd result would be to require each state's election official to investigate and determine whether the proffered candidate met eligibility criteria of the United States Constitution, giving each the power to override a party's selection of a presidential candidate. The presidential nominating process is not subject to each of the 50 states' election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed transition of power in derogation of statutory and constitutional deadlines. Any investigation of eligibility is best left to each party, which presumably will conduct the appropriate background check or risk that its nominee's election will be derailed by an objection in Congress, which is authorized to entertain and resolve the validity of objections following the submission of the electoral votes." (Keyes v. Bowen, supra, 189 Ca1.App.4th at p. 660 [citation omitted].) In sum, Noonan's Opposition provides no legal authority to support Petitioners' contention 7
REPLY MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETIT[ON

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that Respondent Bowen has a duty to verify the eligibility of presidential candidates before placing their names on either the primary or general election ballot. In fact, the established legal authority is to the contrary. On that basis alone, Respondents' Demurrers must be sustained without leave to amend.

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II.

PETITIONER DISREGARDS THE LACK OF STATE-COURT QUALIFICATIONS OF PRESIDENTIAL CANDIDATES

JURISDICTION

OVER THE

Respondents'

Demurrers

explained

in detail that any challenges

to a candidate's

qualifications to serve as President of the United States are vested exclusively in Congress, and that this Court therefore "has no jurisdiction of the subject of the cause of action alleged in" the Petition and First Amended Petition. (See Code Civ. Proc., § 430.10, subd. (a).) As noted above, Noonan's Opposition does not even acknowledge this law, much less attempt to respond to it. Petitioner has therefore not only abandoned his theory of liability, but must be deemed to concede the lack of jurisdiction.

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Ill.

PETITIONER FAILS TO REBUT RESPONDENTS' DEMONSTRATION THAT ALL CLAIMS FOR RELIEF RELATING TO THE JUNE 5,2012, PRESIDENTIAL PRIMARY ELECTiON ARE Now MOOT

Respondents' Demurrers noted that all of the Petition's and First Amended Petition's claims for relief relating to the upcoming June 5, 2012, Presidential Primary Election were now moot, since

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been cast in the election.

Noonan's Opposition nevertheless contends that his claims for relief are

riot moot because he filed his Petition on January 6,2012, well in advance of Respondent Bowen's certification. According to Noonan, if Respondents' position were adopted, "no lawsuit could ever be brought to challenge names on a primary election because no case could come before the Court on noticed motion prior to the deadline for certification of names." (Opposition, p. 7.) As the Court is well aware, Petitioners had several months to bring their challenge to this Court, whether by regular noticed motion or through an order shortening time. Instead, Petitioners "sat on their rights," failing to take any steps to bring their writ petition to hearing on a timely basis. To the contrary, when the Court and Respondents went out of their way to accommodate Petitioners' 8
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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28

1 2

belated request for a hearing prior to the Secretary of State's March 29th certification of the presidential candidates, Petitioners themselves forced the cancellation of that hearing by their last-

3 . minute stratagem of filing the First Amended Petition. Petitioners' claims relating to the Presidential 4 5 6 Primary Election are now decidedly moot ~ not because Petitioners did not timely file their action, and not because the Court could not or would not have accommodated their request for a timely hearing on the writ, but solely due to their own inaction and intransigence.

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IV.

THE COURT SHOULD CONSIDER SANCTIONS AGAINST NOONAN'S PROCEDURE SECTION 128.7

ISSUING AN ORDER TO SHOW CAUSE RE: COUNSEL PURSUANT TO CODE OF CIVIL

From the very beginning, this action has been frivolous. The Petition and First Amended Petition are barely comprehensible, and as is clear from the above discussion, they are utterly devoid of factual and legal merit, with the court of appeal in Keyes v. Bowen having emphatically rejected the identical claims only a year before the instant action was filed. Nevertheless, because the Petitioners were not represented by counsel, Respondents were

14· willing to give them the benefit of the doubt that they were pursuing this lawsuit in good faith and ·15 16 17 18 19 20 21 22 23 24 25 26 27 28 were willing to give them their one proverbial "bite of the apple." But that is no longer the case now that Petitioner Noonan is represented by counseland not just by any counsel, but by the very same

counsel who litigated Keyes v. Bowen, and who therefore is (or certainly should be) aware of the legal authority directly contrary to the positions that he is now advocating in this litigation. It is one thing for pro se litigants, unschooled in the law and in judicial procedures, to pursue a meritless action based upon their misguided beliefs and political leanings. It is quite another for a member of the Bar and an officer of the Courtespecially one who has actual, first-hand knowledge of the

governing precedents and legal authority ~ to repeatedly abuse the judicial system by pursuing a frivolous vendetta against the President of the United States solely for political and financial gain. By no objective standard could it be said that "[t]he claims, defenses, and other legal contentions" that have been presented to the Court and have been advocated for in this action by Petitioner Noonan's counsel "are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." (Code Civ.

Proc., § 128.7, subd. (b)(2).) Counsel's conduct is thus sanctionable under Code of Civil Procedure 9
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

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section 128.7.

Yet Noonan and his counsel have manipulated the timing of counsel's formal

substitution into and appearance in this action so as to prevent Respondents from timely filing a motion for sanctions pursuant to that section in light of its 21-day "safe harbor" provision." Accordingly, Respondents believe that the Court should consider sua sponte issuing its own Order to Show Cause to Noonan's counsel pursuant to Code of Civil Procedure section 128.7,

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subdivision (c)(2), as to why sanctions should not be ordered against him for "signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper" in violation of subdivision (b) of that section. CONCLUSION Neither this Court nor Respondents should have to waste another moment on this frivolous lawsuit. dismissed. Date: May 17,2012 Respectfully Submitted, STRUMWASSER By & WOOCHER LLP Respondents' Demurrer should be sustained without leave to amend, and the action

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f~

Fredric D. Woocher

1J.v;~.

Attorneys for Respondents President Barack Obama and Obama for America California

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"If the Court were to issue an OSC, Respondents' counsel is prepared to testify that he was first contacted by Mr. Kreep and informed by him that he intended to substitute in as counsel for Petitioners in this action back on March 21, 2012. Indeed, Mr. Kreep told Respondents' counsel that the purpose of his call was to request a continuance on behalf of Petitioners of the hearing on Respondents' demurrer that was at the time scheduled for March 23rd. During that conversation, Respondents' counsel advised Mr. Kreep that Respondents considered the case to be frivolous and would consider seeking sanctions against any attorney who pursued it, and when Mr. Kreep responded that he did not file the Petition, counsel explained to him that a lawyer who entered into a case and continued to pursue a frivolous action could be just as liable for sanctions as the persons who filed the case originally. Respondents' counsel therefore believes that Mr. Kreep intentionally delayed substituting into this action in order to preclude Respondents from filing a motion for sanctions pursuant to Code of Civil Procedure section 128.7. (Note also that the original date on the Substitution of Attorney form prepared by Mr. Kreep was March 27,2012, the date it was signed by Petitioner Noonan.) 10
REPL Y MEMO IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

About the Agency - California Secretary of State

http://www.sos.ca.gov/adminlabout-the-agency.htm

About the Agency
The' Secretary "of State's office is comprised of nearly 500 people who are dedicated to making go~ernment more transparent and accessible in the areas of elections, business, political campaigning, legislative advocacy, and historical treasures. The Secretary of State's responsibilities • Serving as the state's business include: Officer disclosure of campaign and lobbyist financial information

Chief Elections filing public filings

• Implementing • Maintaining • Operating • Maintaining • Safeguarding • Serving Secr~tary • Commissioning

electronic notaries

and Internet

the Safe at' Harne Confidential the Domestic Partners the State Archives of the California

Address

Program Health Care Directive Women Registries

and Advance Museum

as a trustee

for History,

& the Arts

of State Organizational

Chart (pdf - 47KB) Us page.

For contact information, visH our Contact

California State Archives
The Secretary' of State is responsible fdr'safeguarding at !!!!e:llwww.sos.ca.govlarchivesl. The California Museum for History, Women & the ArtS Califomia:s history in the State Archives. The Archives staff collect, organize and preserve the state's permanent govemment records and other historical materials such as maps, architectural drawings, photographs, video and audio tapes, and artifacts. Explore Califomia's history

Dedicated totalling the rich history of California's unique influence on Ihe world of technology, govemment, arts, sports and culture, the Califomia Museum houses two stories ot exhibit space full of fascinating objects .and interactive displays. Visit the museum website at http://www.californiamuseum.org!.

Business Programs
The largest portion of the Secretary of State's office, the BUsiness pro'grains Division Is the first stop for anyone wanting to do business in Califomia. The Califomia Business Portal provides <;Irillneresources and services' to businesses, easily coimecling people wiih electronfc versions of trnportant documents and handbooks, searchable lists of registered businesses, a step-by-step guide 10starting a business, and.assistance for intemational businesses wanting to operate in California. For a wide range of consumer and business services, visit http://www.sos.ta.govlbuslness/. The Business Entities Section processes, files and maintains records related to corporations, lim~ed liability companies, partnerships and other business entities that "Wish to do business in Califomia. The Notary Pul)/ic Bnd Special Filings Section: Notary Public appoints and commissions eligibte notaries public. A notary public lsa public official who performs valuable services to the legal, business, flnanclat and real estate communities by certifying or witnessing signatures on offiCial documents. Special Fili"ngs include trademarks and service marks as well as bonds Ihatceitain "county charters and claims ·for successor-In-Interest. The Unifonn Commercial Code Sectloil files financing documents that provide potential secured creditors.notice of possible interests in personal property of a debtor. business entities (including trnmlqratlon consultants) are required to file, joirit power agreements, city and

Lien notices are also filed, helping establish priority should a debtor default or file for bankruptcy prbtection. The Victims 6f Corporate Fraud Compensation Fund protects consumers and provides restitution to victims who are unable to collect on a corporate fraud judgment.

Elections
The Elections Division oversees all federal alld state elections within Oalifomla. In every statewide election, California prepares voter information pamphlets in seven languages ~ Engiish, Spanish, Chinese, Japanese, Korean, Tagalog and Vietnamese ~ for nearly 16 million registered voters. Asfhe chief elections officer for the largest state in the nation, the California Secretary of State tests and certifies all voting equipment for security, accuracy, reliability and accessibility in order to ensure that every vote is counted as it was cast The Secretary also ensures.election laws and campaign disclosure requirements are enforced, maintains a statewide database of all registered voters, certifies the official lists of candidates for elections, tracks and certifies ballot initiatives, compiles election returns and certifies election results, educates Caliiomia citizens about their veiting rights, and promotes voter registration and participation. Leam more about the rights and tools of Calltornia's democracy at hltp:llwww.sos.ca.govlelections/.

Information Technology
The Information Technology Division (ITO) supports the business requirements of the Secretary of State by planning, developing, implementing and maintaining" innovative and effective business and "information systems In active partnershIp with the Agency program divisions, vendors, and other agencies. ITO supports the remainder of the Agency which in turn serve .

a wide

variety of external enmies collectively referred to as stakeholders, including federal and state

agencies, the slate legislature, lobbyists, flnanclal lnstlnnlons, attorneys, county govemments, media organizations, vendors, and the general public, among others.

Political Refomi
The Political Reform Division helps make the political process more transparent by helping people monitor financing of state-political campaigns and lobbying activities. Most candidates for state 'office, ballot measure committees and anyone who lobbies the State Legislature and state agencies must file detailed financial disClosure statements with the Secretary of State. That information 'is available online through the Campaign Automated Lobbyist and Campaign Contribution and Expenditure Search System (CAL-ACCESS) at htlp:llcal-access.sos.ca.9_()\'{.

10f2

5/15/20 l2 6:49 PM

About the Agency - California Secretary of State

http://www.sos.ca.gov/adminiabout-the-agenty.htm

Safe at Home is a confidential address program that protects the identaies of survivors of domestic violence, sexual assault, stalking victims and employees, volunteers and patients of reproductive health care clinics. The Secretary of State's office receives and forwards the first-class mail of participants, confidentially registers eligible participants to vote, and works with government agencies and private companies to provide additional identity protection. For more information, visit http://,,!!!!:,!.:!}_os.c_,a~ovlsafe.'!.~hom ei. Advance Health Care Directive ~.~

Advance Health Care Directive Registry maintains AHCOs,-which allow a person to indicate to their loved ones and medical providers their medical treatment preferences if they cannot speak or make decisions for themselves. The AHCD may also designate someone else to make decisions regarding medical treatment. AHC Os and related information can be provided upon request to the' registrant's health care provider, public guardian or legal representative. Domestlc Partners

The Domesflc Partners ~egistry registers same-sex couples regardless of the age of the partners, and opposite-sex couples in which one partner is at least 62 years old, as domestic partners in California when they file a Declaration of Domestic Partnership.

Privacy Statement Copyright ~2012

i Free Docurrent Readers
CafrtomiaSecretary of Slate

20f2

5115/20126:49 PM

In the

Qtnurt of Apprul
of the

.~tatl! nf Qtalifnrnia
THIRD APPELLATE DISTRICT

C062321
ALAN KEYES,. et al., Plaintiffs-Appellants, v.

DEBRA BOWEN, et al., Defendants-Respondents.

APPEAL FROM THE SUPERIOR COURT OF SACRAMENTO COUNTY HON. MICHAEL P. KENNY· NO.34200880000096CUWMGDS .

REPLY ·BRIEF OF APPELLANTS
ESQ. (066482) UNITED STATES JUSTICE FOUNDATION 932 "D" Street, Suite 2 Ramona, California 92065 (760) 788-6624 Telephone (760) 788-6414 Facsimile
GARY G. KREEP,

Attorney for Appellants, Dr. Alan Keyes, Dr. Wiley S. Drake and Markham Robinson

'"

COUNSELPRESS'

(800)3-APPEAL

PRINTED ON RECYCLED PAPER

TABLE OF CONTENTS

TABLE OF AUTHORITIES I. II. III. INTRODUCTION STANDARD OF REVIEW ., LEGAL DISCUSSION A. ,

iii 1 .. 1 2

The Writ of Mandate is Not Moot Since it is Capable of Repetition Yet Evading Review.. ...... 2 This Case Is Not a Political Question, Since it Involves Judicial Review as to Whether the Duties of the Secretary of State of California Were Fully Executed ,............................................. 4 There is an Appropriate Remedy Available at the State Level, Rather Than Federal Level, Because : a State Court May Compel a State Official to Perform Ministerial Duties ......... ;........................ 6 RESPONDENT BOWEN has an Implied Ministerial Duty to Verify the Eligibility of Presidential Candidates Because Of Her Responsibilities as California's Chief Election Officer

B.

C.

D.

f2

E.

The Defense of Laches is not Available Because APPELLANTS Filed The Underlying Writ in a Timely Manner 14 Election-Code Section 6901 is Unconstitutional and Will Lead to Absurd Results ~...... 15 18

F.

IV.

CONCLUSION

CERTIFICATE OF CO:MPLIANCE DECLARATION OF SERVICE

_

19

11

TABLE OF AUTHORITIES

FEDERAL CASES Cleaver v. Jordan (1968) 393 U.S. 810 9

Morgan v. United States (D.C. CiL 1986) 801 F.2d 445 ...... 5, 6 Weinstein v. Bradford(1975) 423 U.S. 147,96 S.Ct. 347 STATE CASES California Teachers Assn v. San Diego Community . College Dist. (1981) 28 ·Ca1.3d 692, 699, 170 Cal.Rptr.817, 621 P.2d 856) Evans v. City ofBerkeley(2006) Cal.Rptr3d 205) 38 Ca1.4th 1,40 1 3

2

In re Neilson's Estate (1962) 57 Ca1.2d 733, 371 P.2d 745, 22 Cal.Rptr. 1 ~ FEDERAL STATUTES 3 United States Code § 15 STATE STATUTES California Bus. & Prof. Code § 25659 California Code of Civil Procedure § 1089.5 . California Elections Code § 6901 California Elections Code § 15505 California Government Code § 12172
III

13, 14

;

7

10 3 15, 16, 17 2,3 ; 8, 12,14

California Government Code § 12172.5 CALIFORNIA CONSTITUTION California Constitution, Article III, §'l U.S. CONSTITUTION United States Constitution, Article II United States Constitution, Article II, § 1 United States Constitution, Article II, § 5 ,

4,5

17

15, 16, 17 ,. 5 8

IV

I.

INTRODUCTION In their brief, RESPONDENTS have attempted to demean our efforts to honestly litigate important California and U.S. Constitutional issues concerning past and future elections. Therefore, APPELLANTS are bringing this brief, in part, to respond to attempts by RESPONDENTS this litigation. II. STANDARD OF·REVIEW In RESPONDENTS Opening Brief, they attempt to make it to minimize and marginalize ·the issues raised in

appear as if APPELLANTS have multiple barriers of proof as to the staridard of review. The appropriate standard of review on appeal from a judgment of dismissal after a demurrer is De Novo, in which there must be a showing of reversible error committed by the trial court (Evans v. City of Berkeley (2006) 38 'Ca1.4th 1,40 Cal.Rptr.3d 205). This is a single element standard of review. The appellate courts assume the truth of all facts properly pleaded by the plaintiff appellant (Evans at 5), and all questions of law are reviewed afresh by

1

the appellate courts without bounds of the trial courts' findings (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 CaL3d 692, 699,170 Cal.Rptr. 817,621 P.2d 856.). III. LEGAL DISCUSSION A. The Writ of Mandate is Not Moot Since it is Capable of Repetition Yet Evading Review The window of certification for the Secretary of State of California is a very narrow one, which lasts for approximately four weeks [California Election Code, (hereinafter referred to as "CEcn) § 15505]. RESPONDENT contends that the substantive issues of this caSe are also not yet ripe as to the 2012 General Election, and as to .

any other future elections. To hold this case to be mootas to the 2008 national election, and not yet ripe as to the 2012 national election as RESPONDENTS contend, and, therefore, not justiciable would leave this APPELLANT, and any future plaintiff, subject to a very narrow
. .

. window in which to attempt to fully litigate a set of very complex

"legal issues. This sliver of an exception has been outlined as a two
prong test:

2

tI( 1) the challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again.(Weinstein v. Bradford (1975) 423 U.S. 147,96 S.Ct. 347). APPELLANTS can easily satisfy both elements of this exception. Under the first prong, the time period in which to litigate the Secretary of State's certification of electorate votes for the winning candidate is only 32 days after the national election (CEC § 15505). This gives APPELLANTS a brief period to litigate very complicated issues which involve the United States Constitution; the California Constitution, and the California Elections Code, and which also 'present questions of first impression. Evidence to support APPELLANTS' claims is also complex and time consuming, since it involves researching and dissecting historical evidence and legislative .intent. The answer period for a writ alone proscribed by statute allows for thirty days to respond, thus taking up the entire period in which APPELLANT can avoid a mootness argument (See California Code of Civil Procedure § 1089.5). APPELLANT'S satisfaction of the Second Prong lies in the fact that Dr. Keyes has run for President in 1992, 1996, 2000, and 2008,

3

and it is reasonable to believe that Dr. Keyes will again seek the office of President in 2012, after which the Secretary of State can, again, not fulfill her duties as outlined in California Government Code (hereinafter referred to as "CGC") § 12172.5, leaving APPELLANT to again seek redress from this court, only to be subject again to the brief window of opportunity to litigate the same or substantially similar issues. This case is a Mt. Rushmore figure-head on the "capable of repetition yet evading review" exception to themootness doctrine. APPELLANT meets this mootness exception, and should be allowed to continue to litigate these complex legal questions. B. This Case Is Not a Political QuestionySiuee it Involves . Judicial Review as to Whether the Duties of the Secretary of State of California Were Fully Executed RESPONDENTS allege that jurisdiction over Presidential qualifications lies with the United States Congre~s, however, this case is not an issue of the constitutionality of these qualifications, or attempting to create new qualifications, but whether the Secretary of State of California has a duty to ensure that Presidential candidates do, in fact, meet these proscribed requirements, so as to properly put together the California ballot and certify proper electoral votes to the

4

President of the 'Senate [U.S. Constitution Article (hereinafter referred to as "U.S. Canst. Art.") II § 1]. "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors ... " (U.S. Canst. Art. II § 1), therefore each state "hasbeen granted the sovereignty of choosing how to set up their own-electorate system, which includes-how to certify " which votes go to which presidential candidate. In this instant case the question presented is whether the Secretary of State of California complied with her duties of certification under CGC § 12172.5. RESPONDENTS' citation of Morgan v. United States (D.C.

Cir. 1986)801 F.2d 445, to uphold their contention that this case is a prime example of a non-justiciable political question does not hold water as analogous to this instant case. InMorgan, the questions ' presented were based upon the U.S. House of Representatives denial of seating of Mr. McIntyre, who claimed to have won a seat in the House, and the House of Representatives then conducting their own recount of a 1984 Indiana Congressional election. The plaintiffs' contentions in Morgan were founded primarily on 1st Amendment causes of action, and directly challenged the power of the House of

5

Representatives members.

to choose whether or not to seat elected House this case concerns itself primarily with

UnlikeMorgan,

California state election law and the compliance or non-compliance by the Secretary of State in fulfilling her ministerial duties as chief elections officer of California. Thus, this is not a political question, but is, rather, a question well within the jurisdiction of this Court to determine, as it is a duty that may be compelled by this Court's equitable power. Therefore, RESPONDENTS" argument is without merit because this is a proper question for a writ of mandate and not a political question betterleft to another branch ofgovemment. C. There is an Appropriate Remedy Available at the State Level, Rather Than Federal Level, Because a State Court May Compel a State Official to Perform Ministerial Duties RESPONDENTS allege that the proper remedy in this matter is

found at the federal level; not at the state level, because it concerns the office of the President of the United States or candidates for said office. The only related remedy found in the United States Code is one which provides members of Congress with the opportunity to object to Electors who were improperly designated, or whose conduct

6

in casting a vote for President of the United States was improper. This remedy, however, is only infrequently exercised and does not have bearing on the relief sought in this case. In addition, even if the remedy were applicable to the issue raised in this appeal, the remedy is insufficient to prevent the harm. addressed by the remedy because, given the infrequent usage of this remedy, the success of any challenge raised against an Elector would be based on which party the objection is made against and which party is in power in the United States Congress at the time of the objection. This remedy is further limited because the United States Code only permits challenges to be made, but does not require the Vice President, who presides over the Electoral count, to either accept the challenge or act on it. (3 U.S.C. § 15). Since this Federal remedy neither directly relates to relief sought by Appellants, nor provides an adequate solution to the issues raised, it is not the proper remedy herein. A remedy is proper at state level where a duty is imposed on a state officer. The underlying writ does not require anything of any federal official, but does require Respondent BOWEN, the California Secretary of State, to fulfill a specific duty to·verify that a candidate

7

meets the eligibility requirements for the office that the candidate is seeking. This is a matter of first impression, and RESPONDENT'S correctly assert that there is not yet any statutory or judicial rule which requires this duty of the Secretary of State. However, it is a duty that is reasonably inferred from the already existing duties of said office. First, the California Secretary of State is the Chief elections officer of California (CGC § 12172). This duty requires that she oversee all elections in the state and ensure that no election law is violated. In order to fulfill this duty, the Secretary of State website contains information for all persons seeking elected office, in particular the requirements for eligibility that must be met in order to qualify for the ballot." .This also includes information for presidential candidates. (http://www.sos.ca.gov/elections/election nov2008.pdt). 2008/qualifications/wi_ptes

This information sheet includes the three

requirements for eligibility under U.S. Const. Art. II § 5, which are (1) be a natural-born citizen of the United States, (2) be at least 35 years of age, and (3) be a resident of the United States for at least 14 years. Unless these requirements are merely placed on the information sheet for the sole purpose filling space in the document,

,

j

j

i

8

it is reasonable to infer that the Secretary of State should verify that a Presidential candidate meets said requirements before placing that candidate on the ballot, since the Secretary of State is under a duty to verify the eligibility of all those who run for any state office as well as those who run for the United States Congress. In fact, the Secretary of State not only has such a duty to verify the eligibility of a Presidential candidate, prior Secretary of States have exercised this duty. In 1968, Eldridge Cleaver ran for President of the United States on the Peace and Freedom Party ticket, but was removed by then Secretary of State, Frank M. Jordan. Eldridge Cleaver did not meet the minimum age . requirement for the office. Eldridge Cleaver challenged his removal, which was upheld by California Supreme Court, whose decision was affirmed-by the Supreme Court of the United States, who refused to review the decision (Cleaver v. Jordan (1968) 393 U.S. 810). Finally, even if this remedy is not available for application to the 2008 Presidential Election, it is .available for future elections so as to avoid this issue in the future and it is within the power of this Court to compel the Secretary of State to perform this duty. Thus, the -

9
;

j

~

'.

Secretary of State should be compelled to verify the eligibility of all future presidential candidates on the Califotnia ballot. The Constitutional requirements of eligibility for the Office of President of the United States are not meaningless restrictions on who may seek the office that may be ignored if inconvenient. Instead, as in the natural born "citizen requirement, these requirements for the office of President serve an important function of assuring voters in the United States that the person that they "areelectingto the office of President does not have arty divided loyalties between the United States and any other nation. At this time, however, there is no clear duty on the part of any entity or body other than an implied duty upon the Secretary of State of California to make a determination of eligibility for the office of President, at least as far as the California ballot is concerned. In other arenas that are arguably far less

important than the most powerful elected position in the world, certain requirements are always verified. Store clerks have a statutory duty to check the identification of a customer who wants to purchase alcohol and may not take the customer's word regarding his age. (Cal.Bus. & Prof.Code § 25659). Likewise, any person who submitsan

10

J

application for a loan must provide proof of identity as well as proof of their salary before they can qualify for said loan. This kind of verification also takes place for any person who is taking an aptitude test or a licensing exam such as the bar exam, where the applicants must show identification, have a valid exam ticket, give fingerprints,
,

and provide other personal identifying inforination. Firially, if one obtains a season pass for an amusement park, merely holding the pass is insufficient to get into the park, the holder must also prove that she is in fact the person named on the pass. Since there are many things ranging from the trivial to .the significant that require specific verifications of eligibility in order to take advantage of goods and/or services that are accepted without question, then having an officer who has a duty to review a candidates proof of eligibility for the most significantposition.in the United States, if not the world, should be

.i

1

1

.

expected on the part of the Secretary of State, even if such a duty is not specifically codified.

11

"

.

D.

RESPONDENT BOWEN has an Implied Ministerial Duty to Verify the Eligibility of Presidential Candidates Because Of Her Responsibilities as California's Chief Election Officer RESPONDENTS argue that the California Secretary of State

has no clear ministerial duty to verify the eligibility of Presidential . candidates and that, since there is no ministerial duty, then the underlying writ is improper. However, on the California Secretary of State website (www.sos.ca.gov/elections/electionsabout.htm) there

is a list of duties of the office, including the duty as chief elections officer of California to ensure election laws are followed (CGC § 12172), the duty to investigate election fraud (CGC § 12172),and the duty to advise candidates and local elections officials on the qualifications and requirements for running for office (CGC § 12172). In order to fulfill her duty to advise candidates, there are several documents on the website informing all who are seeking elected office as to the qualifications and requirements for each elected position. Documents listing the qualifications and requirements are provided for the offices of Governor and Lieutenant Governor; Secretaries of State, Controller and Treasurer; Attorney General; Insurance Commissioner; Member of the State Board of Equalization; State
12

Senator and Member of Assembly; United States Senator; United States Representative in Congress; and President of the United States. The Secretary of State currently verifies that every candidate for these positions, except for that of the office of President of the United States, meets the requirements for each respective office. Since the Secretary of State does have a ministerial duty to verify the eligibility for nearly all of the candidates for office, it is not improper to infer that she also has a ministerial duty to verify the eligibility of those who are running for the office of President of the United States. In addition, when APPELLANTS' council inquired of RESPONDENT BOWEN'S attorney on the hearing on this matter on March 13, 2009, asking whether or not the 'Secretary of State has such a duty '-he said nothing. This silence on the part of RESPONDENt BOWEN'S

attorney amounts to a tacit admission because such an inquiry would normally call for a response. "Where person makes statement in

presence of party under circumstances that would normally call for response if statement were untrue, statement is admissible for limited purpose of showing party's reaction, and his silence, evasion, or equivocation may be considered as tacit admission.Yn re Neilson's

13

1
I
~ ~
.

Estate (1962) 22 Cal.Rptr. 1,57 Cal.2d 733,371 P.2d 745. Ifnothing else, this duty is implied by the Secretary of State's own list of duties found on her website as determined by California Statute (CGC § 12172), and, thus, she ought to be compelled to fulfill this implied duty in all future elections. E. The Defense of Lachesis not Available Because APPELLANTS Filed The Underlying Writ in a Timely Manner RESPONDENTS argue that APPELLANTS are precluded from any recovery based on the doctrine of Laches because APPELLANTS waited until after the election to file suit. This argument fails to be persuasive because, although APPELLANTS filed suit after, but in a timely manner on November 13,2008 (APPELLANTS Opening Brief, 5), the 2008 election was .concluded, there was no earlier time that suit could have been filed because prior to the election, any potential injury was speculative since RESPONDENT Obama might not have been elected. APPELLANTS filed suit after the resultscif . the general election were determined, but before the vote of the California Presidential Electors was certified by Secretary of State, before all Presidential Elector votes were certified by the United

!

~ ~

14

..

,, ..
~.

States Congress, and well before Respondent Obama was inaugurated. Had APPELLANTS filed suit prior to the election, they would have been faced with a problem with ripeness because, if Respondent Barack Obama had not been elected, then the issue of eligibility would not matter. There would be no concrete injury to anyone prior to the 2008 election because someone other than Mr. Obama could have been elected to the office of President of the United States. For that reason, it was not an unreasonable act for APPELLANTS to wait until after election to file suit. F. Election Code Section 6901 is Unconstitutional' and Will Lead to Absurd Results RESPONDENTS raise a provision of the California Elections . Code as the basis for the Secretary of State' having no authority to exclude any candidate chosen by a political party for the general election (RESPONDENTS Briefpage 14). The code section cited by RESPONDENTS (CEC § 6901) is wholly inconsistent with Article II of the United States Constitution because this code places a mandatory duty on the Secretary of State that could end up with absurd and ridiculous results. For example, RESPONDENTS would have this Court believe that if the Republican Party were to nominate
15

.

,

Arnold Schwarzenegger, the Secretary of State would be forced to put him on the ballot for the general election, despite the fact that Arnold Schwarzenegger is well known as not being a natural born citizen of the United States. Another example would be if the Libertarian Party were to nominate Ayn Rand, then the Secretary of State would be forced to put her on the ballot for the general election, even though Rand died in 1982. Or for even more ridiculous results, if the Democratic Party were to nominate Gordon Brown, the current Prime .Minister of Great Britain, then the Secretary of State would be forced to put him on the ballot for the general election. Such nominations are absurd, as these individuals clearly do not meet the eligibility .requirements under the United States Coristitution, but RESPONDENTS argue that even here, the Secretary of State has no discretion to exclude them from the ballot. In addition, the language ofeEe

§ 6901, compelling the

Secretary of State to-place any candidate nominated by a political party, is in direct conflict with the requirements for presidential eligibility in Article II of the United States Constitution because it

16

,

1
.

~'
allows a candidate to be placed on the ballot without any verification of eligibility for the office. The California Constitution states: "The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land." (Cal.Const. Art. III, § 1). For this reason, in situations where a state law is .in direct conflict with the United States Constitution, as is the case here between CEC § 6901 and Article II of the United States Constitution, then the United States Constitution controls over the inconsistent state law. Therefore, CEC § 6901 Should be held to be unconstitutional as inconsistent with the United States Constitution

]
g

1

i

I ~

and inconsistent with the Secretary of State's duty to enforce California election law.

17

IV. CONCLUSION Based on the forgoing, APPELLANTS respectfully request a reversal on the judgment sustaining RESPONDENTS' demurrer.

Dated: March 29, 2010

Respectfully Submitted,

Attorney for APPELLANTS

18

CERTIFICATE OF COMPLIANCE Counsel of Record hereby certifies that pursuant to Rule· 8.204(c){1) or 8.504(d)(I) of the California Rules of Court, the enclosed Reply Brief of Appellants is produced using 1J-point or greater Roman type," including footnotes, and contains 3,324 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: March 29, 20 I 0

Respectfully Submitted,

Gary~
Attorney for APPELLANTS

19

State of California County of Los Angeles

) ) )

,f

Proof of Service by: US Postal Service Federal Express

I, Stephen Moore , 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
upon:
1

03/29/2010

declarant served the within: Reply Brief of Appellants

Copies

FedEx

.f USPS

1

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

Michael J. Strumwasser Strumwasser & Woocher LLP 10940 Wilshire Boulevard, Suite 2000 Santa Monica, California 90024 Attorney for Defendants-Respondents. Barack Obarna et al.
4

.f USPS

Copies

FedEx

.f USPS·

Clerk for the Hon. Michael P. Kenny Superior Court of Caiifornia Sacramento County Superior Court . Gordon D.Schaber Sacramento County Courthouse 720 9th Street Sacrarnento. California 95814

Office of the Clerk Supreme Court of California 350 McAllisterStreet San Francisco, California 94102-4797

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 exc.lusive 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 .f third party commercial carrier for next business day delivery to: Office of the Clerk CALIFORNIACOURT OF APPEAL Third Appellate District 621 Capitol Mall. 10th Floor Sacramento, California 95814-4719

I declare under penalty of perjury that the foregoing is true and correct: Signature:~

/11(){Jff1_ ~

PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF SACRAMENTO Re: Noonan, et al. v. Bowen, et al., Case No. 34-2012-80001048

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 10940 Wilshire Boulevard, Suite 2000, Los Angeles, Califomia 90024. On May 17, 2012, I served the document(s) described as Reply Memorandum of President Barack Obama and Obama for America in Support of Demurrer to First Amended Prerogative Writ of Mandate and Restraint of Fund Raising on all appropriate parties in this action, by the method stated on the attached service list.
18I If electronic-mail service is indicated, by causing a true copy to be sent via electronic transmission from Strumwasser & Woocher LLP's computer network in Portable Document Format (PDF) this date to the e-mail addressees) stated, to the attention ofthe person(s) named.

If fax service is indicated, by facsimile transmission this date to the fax number stated, to the attention of the person named, pursuant to Code of Civil Procedure section 1013(£). IfU.S. Mail service is indicated, by placing this date for collection for mailing true copies in sealed envelopes, first-class postage prepaid, addressed to each person as indicated, pursuant to Code of Civil Procedure section 1013a(3). I am readily familiar.with the firm's practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles,California, in the ordinary course of business. I am aware that on motion of the party . served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing contained in the affidavit.
18I 18I If overnight service is indicated, by placing this date for collection by sending true copies in sealed envelopes, addressed to each person as indicated, pursuant to Code of Civil Procedure, section lOl3(d). I am readily familiar with this firm's practice of collecting and processing correspondence. Under that practice, it would be deposited with an overnight service in Los Angeles County on that same day with an active account number shown for payment, in the ordinary course of business .

o

I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on May 17, 2012 at Los Angeles, California.

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SERVICE LIST Noonan, et al., v. Bowen, et al. (Sacramento Superior Court Case No. 34-2012-80001048)

overnight & email Gary G. Kreep Nathaniel J. Oleson United States Justice Foundation 932 D Street, Ste. 3 Ramona, CA 92065 Tel: (760) 788-6624 Fax: (760) 788-6414 Email: usjf@usj{net Attorney for Petitioner Edward C. Noonan Pamela Barnett U.S. mail & email 1713 11til Avenue Olivehurst, California 95961 Phone: (530) 718-0843 Fax: (866) 908-2252 Email: pamelabarnett@mail.com In ProPer U.S. mail & email Sharon Chickering 1713 11th Av~nue Olivehurst, California 95961 Phone: (858) 716-9367 Fax: (866) 908-2252 Email: sharonchickering@aol.com In ProPer George Miller U.S. mail & email 1713 11 th Avenue Olivehurst, California 95961 Phone: (805) 807-5114 Fax: (866) 908-2252 Email: microcapmaven@aol.com In ProPer Tony Dolz U.S. mail & email 1713 II til Avenue Olivehurst, California 95961 Phone: (310) 371-7500 Fax: (866) 908-2252 Email: tony@dolz.com In Pro Per

Neil Turner u.s. mail & email 1713 I 1III Avenue Olivehurst, California 95961 Phone: (760) 431-8899 Fax: (866) 908-2252 Email: NBTurner@Earthlink.net In Pro Per Gary Wilmott U.s. mail & email 1713 11thAvenue Olivehurst, California 95961 Phone: (805) 630-0330 Fax: (866) 908-2252 Email: gmwesq@sbcglobal.nei In ProPer

Anthony R. Hakl . U.S. mail & email Office of the Attorney General California Department of Justice . 1300 I Street Sacramento, California 95814 Phone: (916) 322-9041 Email: Anthony.Hakl@doj.ca.gov Attorney for Debra Bowen. individually and officially as The California Secretary of State

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