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

Case No. C071764

v.
DEBRA BOWEN, individually and officially as the CALIFORNIA SECRETARY OF STATE, PRESIDENT BARACK HUSSEIN OBAMA, and OBAMA FOR AMERICA CALIFORNIA,

Respondents and Respondents.

Sacramento County Superior Court, Case No. 34-2012-80001048 CUWMGDS Honorable Michael P. Kenny, Judge

BRIEF OF RESPONDENT DEBRA BOWEN

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DOUGLAS

KAMALA D. HARRIS

Attorney General of California J. WOODS Senior Assistant Attorney General Supervising Deputy Attorney General
ANTHONYR. HAKL

TAMAR PACHTER

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 ofState Debra Bowen

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Petitioners and Appellants,

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EDWARD C. NOONAN and PAMELA BARNETT,

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

Case Name: Noonan et a/. v. Bowen et a/. Court of Appeal No.: C071764

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

(Check One)

INITIAL CERTIFICATE

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SUPPLEMENTAL CERTIFICATE

Please check the applicable box:

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

Full Name of Interested Entity or Party

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Party Non-Party Check One

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Attorney Submitting Form

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

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ANTHONY R. HAKL 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: Anthon Ha

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September 18, 2013

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(Signature of Attorney Submitting Form)

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Nature of Interest (Explain)

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TABLE OF CONTENTS
Page

Introduction Procedural History Standard of Review Argument.

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The Superior Court correctly ruled that the Secretary of State has no legal duty to determine whether a presidential candidate is a natural-born citizen eligible to serve as President of the United States The Superior correctly ruled that Elections Code section 6901 is not unconstitutional..

II. III. Conclusion

The relief sought in the petition is moot as it relates to the June 5, 2012 Presidential Primary Election

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TABLE OF AUTHORITIES

CASES

Blank v. Kirwan (1985) 39 Cal.3d 311 Brandt v. Board ofSupervisors (1978) 84 Cal.App.3d 598

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

Aubry v. Tri-City Hospital Dist. (1992) 2 Ca1.4th 962

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California Ass 'n for Health Services at Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696 Eistrat v. Board ofCivil Service Com 'n ofthe City ofLos Angeles (1961) 190 Ca1.App.2d 29 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Ca1.4th 911 Keyes v. Bowen (2011) 189 Ca1.App.4th 647 Loder v. Municipal Court (1976) 17 Cal.3d 859

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Long v. Hultberg (1972) 27 Cal.App.3d 606 MacLeod v. Long (1930) 110 Ca1.App. 334

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McCall v. PacifiCare ofCalifornia, Inc. (2001) 25 Ca1.4th 412

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5 6 5,6 passim 5 9 6 4

Santa Teresa Citizen Action Group v. California Energy Com. (2003) 105 Cal.AppAth 1441 Treber v. Superior Court (1968) 68 Cal.2d 128 Wenke v. Hitchcock (1972) 6 Ca1.3d 746 Zelig v. County ofLos Angeles (2002) 27 Cal.4th 1112
STATUTES

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Code of Civil Procedure4 1085, subd. (a) 1085 Elections Code 6180 6901 7100 7300 7578

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TABLE OF AUTHORITIES (continued)

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INTRODUCTION

Obama is ineligible to be a candidate for President of the United States, or to hold that office, "because he is not a natural born citizen" of the United

ineligibility, appellants sought a peremptory writ of mandate from the

Superior Court directing California Secretary of State Debra Bowen to bar

Election ballot. However, the Superior Court, following this Court's decision in Keyes v. Bowen (2011) 189 Cal.App.4th 647, correctly found that the Secretary of State has no ministerial duty to investigate the constitutional qualifications of presidential candidates. Accordingly, the court properly sustained without leave to amend the demurrers by the Secretary of State and President Obama. For the reasons explained below, this Court should affirm the Superior Court's ruling.

PROCEDURAL HISTORY Appellants initiated this action in the court below by filing a petition

Mandate and Restraint ofFundraising at p. 1.)1 Respondent California Secretary of State Debra Bowen filed a demurrer, as did respondents President Barack Obama and Obama for America, Mr. Obama's official

ex parte application seeking an "expedited evidentiary hearing on the

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merits." (AA 1:40-65.) After a hearing, the court denied the application.

At the request of appellants, though, and there being no objection by

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A copy of the initial petition is included in the Motion to Augment Record on Appeal granted by this Court on June 7,2013.

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campaign committee. (Appellants' Appendix ("AA") 1:1-39.) Before the scheduled hearing on those demurrers, appellants filed an

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for writ of mandate on January 6,2012. (Petition for a Prerogative Writ of

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President Barack Obama from the June 5, 2012 Presidential Primary

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States. (Brief of Appellant Noonan at p. 7.) Based on this purported

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This appeal is based on the meritless notion that President Barack

respondents, the Superior Court advanced the hearing date on the

On the eve of the rescheduled hearing on the demurrers, appellants

filed a first amended petition." (AA 1:93-263.) Like the initial petition, the amended petition named seven petitioners: Edward C. Noonan, Pamela

Barnett, Sharon Chickering, George Miller, Tony Dolz, Neil Turner and

Gary Wilmott. (AA 1:93.) Noonan was a 2012 presidential candidate for the American Independent Party. The other petitioners were California registered voters.

While appellants' allegations were somewhat difficult to decipher, the heart of their claim was that the Secretary of State has a "duty" to "vet"

President Obama and "verify" that he meets the constitutional eligibility requirements for the office of President of the United States before

certifying his name for inclusion on the primary ballot. (AA 1:94-95, 97-98, 103-104, 108 & 111-112.) According to appellants, the Secretary of State failed to fulfill that obligation. Therefore, as to the Secretary of State, appellants sought a peremptory writ of mandate staying the printing of any

on the ballot the name of any candidate who failed to prove their eligibility. (AA 1:114.) As to President Obama, appellants sought a writ barring him

from the primary ballot until he produced certain documents. and in fact
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proved that he is a "natural born citizen." (Ibid.) For the first time in the action, the first amended petition also prayed for a declaration that

To be precise, only Barnett signed the amended petition. The other petitioners later separately filed "verifications" of the amended petition. Also, as noted in President Obama's brief, the amended petition was not a stand-alone pleading; it was more like a supplemental pleading that added new arguments and information to the original petition. (Brief of Resps. President Barack Obama and Obama for America California at p. 7.)
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primary ballots and directing that the Secretary of State refrain from placing

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demurrers. (AA at 1:91-92.)

Elections Code section 6901 is "unconstitutional and unenforceable."

(Ibid.)

Because the amended petition remained deficient, the Secretary of State filed another demurrer, as did President Obama. (AA 2:265-327.)

fails to state facts sufficient to constitute a cause of action because it

requires the Court either to make a factual determination as to whether

President Obama is eligible to hold or run for the office of President of the United States, or to find that the Secretary of State has a mandatory duty to make that determination." (AA 2:404.) Judge Kenny explained that

Court, and is a matter that is not within the duties ofthe Secretary of State, as held in controlling decisions of the Third District Court of Appeal." (AA 2:404-405.) In this regard, Judge Kenny relied primarily on Keyes v.
Bowen (2010) 189 Cal. App. 4th 647, 661, where this Court held that the

California Secretary of State was under no "ministerial duty to investigate and determine whether a presidential candidate is constitutionally eligible

Judge Kenny found that the fundraising claim "is based entirely on the allegation that President Obama is not eligible to hold or run for the office

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would be entirely dependent upon a factual determination by the Court or the Secretary of State that he is not eligible." (AA 2:405.) But Judge Kenny reiterated that "the Court may not make that determination, or order

the Secretary of State to make it." (Ibid.) Thus, "[i]n the absence of any such determination, there is no factual basis under the petition for the Court

to issue an order restraining President Obama or respondent Obama for

America (California) from engaging in fund-raising activities in California related to the presidential campaign." (AA 2:405-406.)

of President of the United States. Any relief that could be granted therefore

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to run for that office." (AA 2:405.)

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"[s]uch a determination is a matter that is beyond the jurisdiction of this

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After a hearing, Judge Michael P. Kenny ruled that "[t]he amended petition

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Judge Kenny also rejected appellants' contention that Elections Code section 6901 is unconstitutional and unenforceable. (AA 2:406.) That contention "is based on the theory that the Secretary of State has a legal

duty, in this instance one that is alleged to be of constitutional origin, to determine the eligibility of candidates for President of the United States before their names may be placed on the ballot." (Ibid.) But, as Judge Kenny had explained, "no such legal duty exists." (Ibid.)

An Order Sustaining Demurrers to the First Amended Petition for Writ of Mandate was entered on July 5, 2012, together with a judgment of dismissal. (AA 2:398-407,409-411.) Appellants Noonan and Barnett filed separate notices of appeal from the judgment.

STANDARD OF REVIEW On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is de novo. (McCall v. PacifiCare ofCalifornia, Inc. (2001) 25 Cal.4th 412,415; Santa Teresa Citizen Action Group v. California Energy Com. (2003) 105 Cal.AppAth 1441, 1445.) The court exercises its independent judgment

action under any possible legal theory. (McCall, supra, 25 Cal.4th at p.415.)

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pleaded, but not contentions, deductions or conclusions of fact or law. (Blankv. Kirwan (1985) 39 Cal.3d 311,318; Zeligv. County ofLos

Angeles (2002) 27 Cal.4th 1112, 1126.) The court also considers matters which may be judicially noticed, and gives the complaint a reasonable interpretation, reading it as a whole and its parts in their context. (Blank,

supra, 39 Cal.3d at p. 318.) The judgment must be affirmed if anyone of

the several grounds of demurrer is well taken. (Aubry v, Tri-City Hospital

Dist. (1992) 2 Cal.4th 962,967.)

The court treats the demurrer as admitting all material facts properly

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about whether the complaint alleges facts sufficient to state a cause of

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ARGUMENT

maintaining that the amended petition states facts sufficient to constitute a cause of action for issuance of a writ of mandate under Code of Civil

Procedure section 1085. Second, they continue to argue that Elections Code section 6901 is unconstitutional and unenforceable because it

prevents the Secretary of State from fulfilling her official duties. This

I.

THE SUPERIOR COURT CORRECTLY RULED THAT THE SECRETARY OF STATE HAS No LEGAL DUTY To DETERMINE WHETHER A PRESIDENTIAL CANDIDATE Is A NATURALBORN CITIZEN ELIGIBLE To SERVE As PRESIDENT OF THE UNITED STATES.

In arguing that the amended petition states facts sufficient to constitute a cause of action, appellants continue to erroneously assert that the Secretary of State has an official duty to verify a candidate's eligibility to be President of the United States.

To be entitled to a writ of mandate issued in the court below,

(2) that appellants have a beneficial right to performance of that duty.

(Kavanaugh v. West Sonoma County Union High School Dist. (2003)

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The required duty is a "clear, present and usually ministerial duty on the

part of the respondent." (California Ass 'n for Health Services at Home v.
State Dept. ofHealth Services (2007) 148 Cal.AppAth 696, 704; see Code

Civ. Proc., 1085, subd. (a) ["[a] writ of mandate may be issued by any
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These arguments are most clearly identified in the brief of appellant Noonan, who is represented by counsel. Liberally construed, the brief filed by appellant Barnett, who is proceeding pro se, advances the same contentions.

29 Cal.4th 911, 916; Loder v. Municipal Court (1976) 17 Cal.3d 859, 863.)

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appellants had to show (1) that the Secretary of State has a duty to act and

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Court, like Judge Kenny, should reject these arguments as meritless. 3

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Appellants advance essentially two arguments. First, they persist in

court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station ...."].) "A ministerial act is an act that a

public officer is required to perform in a prescribed manner in obedience to

opinion concerning such act's propriety or impropriety, when a given state

emphasis added.) Appellants had the burden of demonstrating that the Secretary of State had a duty to perform the act sought to be compelled.

(MacLeod v. Long (1930) 110 Cal.App. 334,338; Eistrat v. Board a/Civil

Although mandamus is the correct remedy for compelling an officer to conduct an election according to law (Wenke v. Hitchcock (1972) 6 Cal.3d 746, 751), Judge Kenny correctly found that appellants could not meet their burden to demonstrate that the Secretary of State has a clear, present ministerial duty to determine whether a presidential candidate is a natural-born citizen eligible to serve as President of the United States. (See Brandt v. Board ofSupervisors, (1978) 84 Cal.App.3d 598, 600-601 ["the basis for the action must be a clear present duty to perform the act sought to be compelled"].) This is because the Secretary of State has no

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In a decision published in 2011, this Court concluded that the relevant

Elections Code provisions "do not impose a clear, present, or ministerial duty on the Secretary of State to determine whether the presidential

candidate meets the eligibility criteria of the United States Constitution."

(Keyes v. Bowen, supra, 189 Cal.AppAth 647,659.) Like appellants here,

the petitioners in Keyes were "people who claim President Barack Obama is not a natural born citizen of the United States of America and, hence, is

ineligible to be the President." (Id. at p. 651.)

such duty.

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Service Com 'n ofthe City a/Los Angeles (1961) 190 Cal.App.2d 29,34.)

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of facts exists." (Kavanaugh, supra, 29 Cal.4th at p. 916, citation omitted,

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the mandate of legal authority and without regard to his own judgment or

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Keyes acknowledged that California's Secretary of State is the state's

efficiently conducted and that state election laws are enforced...."

(Keyes, supra, 189 Cal.AppAth at p. 658, quoting Gov. Code, 12172.5.)

duty to investigate a candidate's constitutional qualifications. (Id. at p.659.)

Inexplicably, appellant Noonan, represented by counsel on this

appeal, makes no mention of Keyes, supra, in his opening brief. Appellant Barnett, proceeding pro se, at least acknowledges the case, but simply

characterizes it as "amazingly full of conjecture unsupported by law" and asserts that the controlling case "should be discarded and not considered by this court as it encourages unequal treatment under the law[.]" (Brief of Appellant Barnett at pp. 39 & 47.)

As the only published decision of a California appellate court on the question, Keyes is controlling precedent. In light of Keyes, this Court should affirm Judge Kenny's ruling on the demurrers.

Appellants persist in maintaining that Elections Code, section 6901 is

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duty to vet presidential candidates. In relevant part, section 6901 concerns general elections and directs that the Secretary of State must place on the

ballot the names of the several political parties' candidates. 4 However, as

just explained, the Secretary of State has no duty to vet candidates.

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Whenever a political party, in accordance with Section 7100, 7300, 7578, or 7843, submits to the Secretary of State its (continued... )

unconstitutional because it conflicts with the Secretary of State's purported

Elections Code section 6901 provides infull:

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THE SUPERIOR COURT CORRECTLY RULED THAT ELECTIONS CODE SECTION 6901 Is NOT UNCONSTITUTIONAL.

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But the court went on to conclude that these obligations do not include a

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chief elections officer and is responsible for ensuring "that elections are

Moreover, Keyes specifically rejected this argument regarding section

(Keyes, supra, 189 Cal.AppAth at p. 660.)

Accordingly, Judge Kenny properly concluded that there is no basis for the mandamus relief appellants seek. He was correct in sustaining the demurrers without leave to amend. (See Keyes, supra, 189 Cal.AppAth at

to amend]; see also Barnes v. Wong (1995) 33 Cal.AppAth 390,395 [issuance of peremptory writ of mandate improper where no ministerial

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(... continued) certified list of nominees for electors of President and Vice President of the United States, the Secretary of State shall notify each candidate for elector of his or her nomination by the party. The Secretary of State shall cause the names of the candidates for President and Vice President of the several political parties to be placed upon the ballot for the ensuing general election.

duty existed on the part of the registrar].)

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p. 662 [affirming trial court's judgment sustaining demurrer without leave

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[T]he 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[.]

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6901. Without the provision, this Court explained:

III.

Even if there were a basis for the relief that appellants seek, which there is not, the petition is moot as it relates to the June 5, 2012 election

because the Secretary of State already has discharged the statutory duties

Secretary of State to refrain from certifying the name of any candidate who has failed to prove his or her eligibility. (First Am Pet. at p. 22.) Yet, on March 29, 2012, the Secretary of State issued to all County Clerks and

2012 election, as required by law. (See Elec. Code, 6180 ["At least 68 days before a presidential primary election, the Secretary of State shall transmit to each county elections official a certified list containing the name of each candidate who is entitled to be voted for on the ballot at the presidential primary[.]") Accordingly, the relief sought against the Secretary of State is moot. (See Treber v. Superior Court (1968) 68 Ca1.2d 128, 134 ["mandate does not lie when the respondent no longer has the legal authority to discharge the alleged duty because the time for doing so, as specified by statute or ordinance, has expired"]; see also Long v.

Hultberg (1972) 27 Cal.App.3d 606,608 [writ petition by official named in

recall petition dismissed as moot after election held, petitioner recalled, and successor elected].). CONCLUSION

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this Court in 2011 in Keyes v. Bowen, supra. In light of Keyes, the Superior

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Any legitimate legal issues presented by this appeal were resolved by

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Registrars of Voters the official Certified List of Candidates for the June 5,

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which appellants seek to enjoin. The petition prays for a writ directing the

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THE RELIEF SOUGHT IN THE PETITION Is MOOT As IT RELATES To THE JUNE 5, 2012 PRESIDENTIAL PRIMARY ELECTION.

Court properly sustained Respondents' demurrers without leave to amend.

Dated: September 18, 2013

Respectfully submitted,
KAMALA D. HARRIS

TAMAR PACHTER

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ANTHONY R. HAKL Deputy Attorney General Attorneys for Respondent California Secretary ofState Debra Bowen

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Supervising

eput Attorney General

Attorney General of California DOUGLAS J. WOODS Senior Assistant Attorney General

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This Court should affirm that ruling.

CERTIFICATE OF COMPLIANCE

BOWEN uses a 13 point Times New Roman font and contains 2,756 words. Dated: September 18, 2013
KAMALA D. HARRIS

ANTHONY R. HAKL

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Deputy Attorney General Attorneys for Respondent California Secretary ofState Debra Bowen

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Attorney Gener. I of California

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I certify that the attached BRIEF OF RESPONDENT DEBRA

DECLARATION OF SERVICE BY U.S. MAIL

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; my business address is 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550. On September 18, 2013, I served the attached

BRIEF OF RESPONDENT DEBRA BOWEN

by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States Mail at Sacramento, California, addressed as follows:
SEE ATT ACHED SERVICE LIST

Brenda Apodaca Declarant

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I declare under penalty of perjury under the laws of the State of California the foregoing is true and correct and that this declaration was executed on September 18, 2013, at Sacramento, California.

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Signature

Case Name: Noonan et al. v, Bowen et al. Court of Appeal, Third Appellate District No.: C071764

SERVICE LIST

Submitted electronically under rule 8.212(c)(2) Office of the Clerk California Supreme Court 350 McAllister Street San Francisco, CA 94102-4797

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Clerk ofthe Court Sacramento County Superior Court 720 9th Street Sacramento, CA 95814 Case No. 34-2012-80001048CUWMGDS

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Pamela Barnett 2351 Sunset Blvd., Ste. 170-921 Rocklin, CA 95765 Appellant (Pro-Per)

Nathan Oleson United States Justice Foundation 932 D Street, Suite 3 Ramona, CA 92065 Plaintiffand Appellant Edward Noonan

Fredric D. Woocher Strumwasser & Woocher LLP 10940 Wilshire Boulevard, Suite 2000 Los Angeles, CA 90024 Defendant and Respondent Obama, as President et al., Baraek Hussein, II

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Case Name: Noonan et al. v. Bowen et al, Court of Appeal, Third Appellate District No.: C071764