ca - noonan et al v bowen et al - 2012-02-16 - obama demurrer memo of points & authorities

8/2/2019 CA - Noonan et al v Bowen et al - 2012-02-16 - Obama Demurrer Memo of Points & Authorities

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SUPERJOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SACRAMENTO

P rin te d o n R ec yc le d PaperMEMO OFPOINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO PETITION FOR WRIT OFMANDATE

5

v.

1 FREDRIC D. WOOCHER (SBN 96689)PATRICIA T. PEl (SBN 274957)2 STRUMWASSER & WOOCHER LLP10940 Wilshire Boulevard, Suite 20003 Los Angeles, California 90024Telephone: (310) 576-12334 Facsimile: (310) 319-0156E-mail: [email protected] for Respondents6 President Barack Obama and Obama for America

7891011 EDWARD C. NOONAN, PAMELA12 BARNETT, SHARON CHICKERING,13 GEORGE MILLER, TONY DOLZ, NEILTURNER, and GARY WILMOTT,1415 Petitioners,16 DEBRA BOWEN, individually and officially17 as The California Secretary of State at 150011 th Street, 5 th Floor, Sacramento, CA 95814;18 BARAeK HUSSEIN OBAMA II; OBAMA19 FORAMERlCA CALIFORNIA at Northem

California HQ, 3225 Adeline Street, Berkeley,20 CA 94703; JOHN and JANE DOES and XYZ21 ENTITIES,22 Respondents.232425262728

CASE NO. 34-2012-80001048

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEMURRER OF PRESIDENT BARACKOBAMA AND OBAMA FOR AMERICATO PETITION FOR PREROGATIVEWRIT OF MANDATE ANDRESTRAINT OF FUND RAISING

Date:Time:Dept.:Judge:

April 20,20129:00 a.m.31Hon. Michael P. Kenny

Action Filed: January 6, 2012
mailto:[email protected]:[email protected]


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CONTENTS2 TABLE OF AUTHORITIES , II3 INTRODUCTION 14 STATEM ENT OF THE CASE 25 ARGUMENT 36 I. THE PETITION DOES NOT STATE A CAUSE OF ACTION AGAINST ANYOF THE RESPONDENT S, AND ITCANNOT DO SO AS A MATTER OF7 LAW 4

A. THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST PRESIDENT OSAMA 58910II12131 4

B. THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE OBAMA FOR AMERICA CAMPAIGN COMMITTEE , 6C . THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE SECRETARY OF STATE 6

II. 8T A TE COU RTS HAVE NO JU RISD ICTION OVER THE QU ALIFICA nONSOF CAND IOATES FOR PRESID ENT OF THE U NITED STATES OR THEIRFEDERAL FUNDRAIS ING ACTIVITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.............................................................. 1 0ONCLUSION15

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1718192021222 32 4252 62728

MEMO OF POINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OSAMA'S DEMURRER TO PETITION FOR WRIT 01' MANDATE


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1 TABLE OF AUTHORITIES2 Federal Cases3 Cleaver v. Jordan (1968) 393 U.S. 810 ' 94 Hollander v. McCain (D . N .H . 2008) 566 F.Supp.2d 63 , 45 Minor v. Happersett (1875) 88 U.S. 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Robinson v. Bowen (N.D. Cal . 2008) 567 F.Supp.2d 1144 1, 107 Schneider v . Rusk (1964) 377 U.S. 163 ' 48 US v. Wong Kim Ark (1898) 169 U.S. 649 39 State Cases10 Blank v. Kirwan (1985) 39 CaJ . 3d 311 4II Common Cause v . Board of Supervisors (1989) 49 Ca1.3d 432 , 812 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Ca1.4th 911 813 Keyes v. Bowen (2010) 189 Cal.AppAth 647 1,2, 7, 8,9, 1014 Loder v . Municipal Court (1976) 17 Ca1 .3d 859 , 4IS Mosesian v. Parker (1941) 44 C al.App .2d 544 , 6'16 People ex rel. Younger v. County of El Dorado (1971) 5 Ca1 .3d 480 , 417 Routh v. QUinn (1942) 20 Ca l.2d 488 , 418 Other State Cases19 Ankeny v. Governor a/State of Indiana (Ind. App. 2009) 9] 6 N.E.2d 678 2, 420 Federal Statutes21 2 U.S.C.,22 431 1023 45 3 (a ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1024 3 U.S.c.,25 15 2, 1026 26 U.S.C.,27 900 1 ""..... 1028 903l .,............................................................. ] 0

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M EM O OF POINTS & A UT HO RIT IE S IN S UP PO RT O F R ES PO ND E NT OBAMA'S D EM URRER TO PETITIO N FO R W RIT O F M AND ATE


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6789

18203 ~ ~ 4 ~ ~ .. 5,6

2 Cal. Elec. Code,3 305 , , , ,............. 3, 54 350 (b) , , ,......,......... 3, 55 6041 , 7 ,8

State Statutes

18500 . . . . . . . . . . . . .. . . . . . . . . . . . . . ~. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 5,6 20200 3,5 20203 , ,................. 5

10 Cod e of C iv . P ro e.,11 413.10 , 212 430.IO(a) 4,913 430.IO(e) 414 1085 4IS 1085(a) 4,816 Stats. 2010, ch. 190, 9 , .. , , 7171819202122232425262728

III

M EM O O F POINTS & AU TH OR ITIE S IN SU PPO RT O F RE SPO ND ENT O BAM A'S D EM UR RE R TO PE TITIO N FO R W RIT O F M AND ATE


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MEMO OF POINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRERtO PETITION FOR WRIT OF MANDATE

1 INTRODUCTION2 Three years ago, this Court sustained a demurrer to the petition for writ of mandate in Keyes3 v . Bowen (Sacto. Super. Ct. Case No. 34-2008-80000096), which, inter alia, sought to bar4 Respondent California Seeretary of State Debra Bowen from certifying for the ballot the name of5 then-candidate Barack Obama or ~f "any future presidential candidate" without first verifying that6 the candidate is a "natural born citizen" of the United States and, hence, is eligible to hold the office7 of President. This Court's ruling was suhsequently affirmed in a published opinion by the Third8 District Court of Appeal, which unanimously held that Keyes' writ petition failed to state a cause of9 action against Secretary of State Bowen because California statutes do not impose a clear, present,10 or ministerial duty on the Secretary of State to investigate and determine whether a presidential11 candidate meets the eligibility criteria ofthe United States Constitution. (Keyes v. Bowen (2010) 18912 Cal.App.4th 647, 658-660.) The Court of Appeal further noted that a challenge to a presidential13 candidate's qualifications for office "is committed under the Constitution to the electors and the14 legislative branch, at least in the first instance. Judicial review - if any - should occur only after15 the electoral and Congressional processes have run their course." (Id. at p. 661 [quoting Robinson16 v. Bowen (N.D. Cal. 2008) 567 F.Supp.2d 1144, 1147].)17 The Petition for Prerogative Writ of Mandate in the present case is virtually identical to the18 petition in Keyes v. Bowen, and it suffers from the same fatal defects. Petitioners allege that President19 Barack Obama is not a "natural born citizen" eligible to be President of the United States (POTUS)20 - not because he was not born in the United States, but because his father was not a U.S. citizen-21 and they seek a writ of mandate to compel Secretary of State Bowen to "bar Respondent Obama ballot22 access in California along whir those similarly situated from the 2012 Election cycle from forming23 an elector slate for the office of POT US for California." (Petition for Prerogative Writ of Mandate24 and Restraint of Fund Raising ("Petition"), ~ 18.) The Petition also seeks a "permanent restraining25 order" barring President Obama or his campaign committee from fundraising in this election cycle.26 (Id., ~~33~34.)27 President Obama is, of course, a "natural born citizen," born in the United States to a mother28 who was an American citizen, and is thus fully qualified to be President under the U.S. Constitution.


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M EM O O F PO INTS & A UT HORIT IE S IN S UP PORT OF 'R };;S PO ND EN T O BA MA "'S D EM UR RE R T O P ET IT 10 N F OR WRIT O FM AN DA TE

(See, e,g.,Ankeny v.Governor a/State a/Indiana (Ind. App. 2009) 916 N. E.2d 678,684-689 [persons2 born within the borders of the United States are "natural born citizens," as required for qualification3 to be President of the United States, regardless of the citizenship of their parents].) However, this fact4 is immaterial to the proper disposition of this case, which - iike its predecessor, Keyes v.Bowen -5 can and must be dismissed as a matter of law because there is no duty on the part of the Secretary of6 State to determine whether President Obama or any other presidential candidate meets the eligibility7 requirements of the U.S. Constitution. Likewise, this Court lacks jurisdiction over Petitioners' claims8 becausefederallaw establishes the procedures for election of the President, and the exclusive means9 of challenging the qualifications of a presidential candidate is to present an objection before the10 United States Congress pursuant to 3 U.S,c. section 15. Because Petitioners cannot amend their11 Petition to state a valid cause of action, Respondents' demurrer must be sustained without leave to12 amend,13 STATEMENT OF THE CASE14 On January 6, 2012, seven in pro per petitioners - Edward C. Noonan, Pamela Barnett,15 Sharon Chickering, George Miller, Tony Dolz, Neil Turner, and Gary Wilmott (collectively,16 "Petitioners") - filed the instant "Petition for a Prerogative Writ of Mandate and Resiraint of Fund17 Raising" against Respondents California Secretary of State Debra Bowen, President Barack Obama,18 and President Obama's campaign organization in California, Obama for America California.'19 Petitioner Noonan alleges that he is a declared presidential candidate for the American Independent20 Party (Petition, ~ 1); the remaining Petitioners allege that they are "natural person[s] resident in21 California and registered to vote in the 2012 Election cycle." (Id., ~~2-7Y

'There is no legal entity entitled "Obama for America California." President Obama'sprincipal campaign committee, as registered with the Federal Election Commission (FEC), is24 "Obama for America," which is headquartered and has its only office in Chicago, lllinois. PresidentObarna's re-election campaign makes use of a number of local offices throughout the country, oneof which is located in the City of Berkeley, but these offices have no independent legal standing.

23

2526

2Although the Petition was never properly served on Respondent Obarrra in accordance with27 Code of Civil Procedure section 413.10 et seq., Respondents Obama and Obama for America have

agreed to waive the defect in service and to deem the Petition to have been served on them on28 January 17, 2012.

2


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2 from the ballot in the 2012 election cycle. The Petition alleges that President Obama is "a known3 ineligible declared candidate" for the office of President, in that President Obama has admitted that4 his father "was a British subject" while.married to his U.S. citizen mother. (Jd ., ~ 19.) According to

The gravamen of the Petition seeks a writ against Respondent Bowen to bar President Obama

5 Petitioners, under the U.S. Supreme Court precedent of Minor v . Happe rs ett (1875) 88 U.S. 162, this6 allegedly means that Respondent Obama "is not a natural-born Citizen eligible to be porus as7 mandated by the U.S. Constitution," and he "must be barred from ballot access by Respondent Bowen8 as SOS starting no later than January 9, 2012." (Id ., ~ 25.) Petitioners allege that they would suffer9 irreparable harm if an ineligible candidate were to appear on the ballot, and they therefore "demand10 by prerogative writ of mandate ... ther Respondent Bowen, SOS with authority to do so, bar11 Respondent Obama ballot access in California along with those similarly situated from the 201212 Election cycle from forming an elector slate for the office of POTUS for California." (Id, ~ 18.) In]3 addition, the Petition alleges that "Respondent Obama is prohihited from fund raising as defined in14 CaL Elec. Code 350(b) 'Candidate,' as used in Article 1 (commencing with Section 20200),"3 and15 it demands "a permanent restraining order to bar Respondent Obama and or his agents associated with16 Respondent Obama for America California be barred [sic] from fund raising or soliciting funds under17 the guise of the elections cycle as must apply for all those similarly situated who are ineligible to be18 a candidate for office of POTUS." (Petition, ~~ 33-34.)19 ARGUMENT20 As noted above, the legal theory on which the entire Petition is based - that, despite being21 born in the United States, President Obama is not a "natural born citizen" eligible to be President22 because his father was not a U.S. citizen - is manifestly incorrect. (See, e.g., U.S v. Wong K im A rk23 (1898) 169U.S. 649, 654-658 [noting that the meaning of the term "natural-born citizen of the United24 States" must be interpreted in light of English common law principles, under which "any person who25 (whatever the nationality of his parents) is born within the British dominions is a natural born British26

MEMO OF POINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO PETITION FOR WRIT OF MANDATE

27 "The Petition cites to California Elections Code section 350, but presumably intends to referto section 305. Section 305 defines the term "candidate" for various purposes in which the word is

28 used in the Elections Code; section 350, by contrast, defines the term "school measure."3


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1 subject"]; Schneider v. Rusk (1964) 377 U.S. 163, 165 [equating a "natural born citizen" who is2 eligible to be President to a native-born, as opposed to a naturalized, citizen]; Hollander v. McCain

THE PETITION DOES NOT STATE A CAUSE OF ACTION AGAINST ANYOF THE RESPONDENTS, AND IT CANNOT DO SO AS A MATTER OFLAW

4

3 (D. N.H. 2008) 566 F.Supp.2d 63, 66 ["Those born 'in the United States, and subject to the4 jurisdiction thereof have been considered American citizens under American law in effect since tile5 time of the founding and thus eligible for the presidency. "]; Ankeny v. Governor of State of Indiana,6 supra, 916 N.E.2d at 684-689 [rejecting argument that President Obama is constitutionally ineligible7 to assume the office of PresIdent because his father was a citizen of the United Kingdom].) Even8 leaving its flawed premise aside, however, the Petition does not and cannot state a cause of action9 against any of the named Respondents, for the simple reason that none of them has neglected to10 perform any dnty imposed upon them by law. Moreover, the subjeet of Petitioners' claims are outsideII the jurisdiction of this or any other state court, and the Petition must be dismissed on that ground, as12 well. Because amendment would serve no useful purpose, Respondents' Demurrer must be sustained13 without leave to amend. (Code Civ, Proc., 430.10, subds. (a) & (e); Blank v. Kirwan (1985) 3914 CaL3d 311, 3 J 8 [demurrer should be sustained when complaint fails to state facts sufficient to15 constitute a cause of action]; Routh v. Quinn (1942) 20 CaL2d 488, 493 [where "there are no16 circumstances under which an amendment would serve any useful purpose," dismissal without leave17 to amend is proper].)18 I.1920 Under Code of Civil Procedure section 1085, a writ of mandate will lie only "to compel the21 performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or22 station, or to compel the admission of a party to the use and enjoyment of a right or office to which23 the party is entitled, and from which the party is unlawfully precluded." (Code Civ, Proc., 1085,24 subd. (a).) Two essential requirements must therefore be met in order for a writ to issue: "(1) A clear,25 present and usually ministerial duty upon the part of the respondent; and (2) a clear, present and26 beneficial right in the petitioner to the performance of that duty." (Loder v . Municipal Court (1976)27 17 Cal.3d 859, 863 [quoting People ex reI. Younger v . County of El Dorado (1971) 5 Cal.3d 480,28 491].)

MEMO OF POINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO PETITION FORWRIT OFMANDATE


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MEMO OF POINTS & AUTHOR1T!ES IN SUPPOR'r OF RESPONDENT OBAMA'S DEMURRER TO PETITION FOR WRIT OF MANDATE

4 the President's qualifications as a "natural born citizen" to the Secretary of State in order to establish

Here, Petitioners cannot make the requisite showing to justify issuance of a peremptory writ2 because they have failed to cite any legal duties that Respondents have allegedly neglected toperform.3 Neither President Obama nor his campaign committee have any legal obligation to provide proof of

5 his eligibility to appear on the ballot as a presidential candidate, much less for him to be able to6 engage in fundraising activities in California. Similarly, the Secretary of State has no ministerial duty7 to determine presidential eandidates' constitutional eligibility for office before placing their names8 on the primary or general election ballot. Because these pleading failures cannot be cured by9 amendment, Respondents' Demurrer should be sustained without leave to amend, and the action10 should be dismissed as to all Respondents.

A . THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTIONACAJNST PRESIDENT OBAMA

13Although the Petition devotes a significant amount of attention to presenting the "forensic

proof' of President Obama's supposed ineligibility for office (Petition, ' j [19), the only relief soughtby the Petition that is actually directed to the President himself is the demand that a permanent1415 restraining order bar him or his agents "from fund raising or soliciting funds under the guise of the

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elections cycle." (fd., 'l'j[ 33-34; see also id., Prayer for Relief, ~ 2.) Nowhere, however, does thePetition identify any statutory or other legal basis that gives rise to a duty on the part of the Presidentto cease his fundraising activities in California, or to a correlative beneficial right on the part ofPetitioners to the performance of any such obligation. Petitioners embellish their demand withcitations to two sections of the California Elections Code, but neither of them lends any coherenceto their claim. (Id., ' j[34 [citing Elec. Code, 350, subd. (b) & 20200 et seq.j.)" The Petition alsoquotes elsewhere from two other Elections Code provisions setting forth criminal penalties for theperpetration of election fraud (Petition, 'l~8-29 [citing Elec. Code, 18203 & 18500]), but again,

25 4As noted above, Ejections Code section 305, subdivision (b ) (erroneously cited as26 section 350 throughout the Petition) simply defines the term "candidate" as it is used in Elections

Code sections 20200 through 20203. Those sections, in turn, prohibit a person from using the nameof a candidate or a committee in the solicitation of campaign funds unless the person has receivedthe candidate's or committee's prior authorization to do so. Plainly, neither section provides any

28 support for the restraining order sought by Petitioners in this case.S

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1 neither statute sets forth any ministerial duty required to be undertaken by the President, much less2 one that creates a private right of action for its enforcement, nor is either section remotely related to3 a candidate's fundraising activities."4 In short, the Petition tails to set forth any conceivable legal basis for this Court to issue an5 order barring President Obama from fundraising in California. "It is the general rule applicable to6 the issuance of a writ of mandamus to furnish any basis for the relief sought, that the petitioner show7 that respondents are under some duty to do what the petition asks that they be required to do."8 iMosesian v.Parker (1941) 44 Cal.App.2d 544, 548.) Petitioners' allegations as to President Obama9 fall far short of this minimal standard and, as such, they must be dismissed.10II12

B. 'THE PETITrON DOES NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE OBAMA FOR AMERICA CAMPAIGN COMMITTEE

As with President Obama, the only relief sought by the Petition with respect te RespondentObama for America is the demand for a restraining order barring its agents from engaging in any

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further fundraising in California. (Petition,' 33 & Prayer for Relief, , 2.) The Petition makes noattempt to identify any dirty owed by the campaign committee that would justify the relief sought,however, aside from citing to the same irrelevant Elections Code provisions referred to above, For

16 the same reasons that are discussed in the previous section, these statutes do nothing to cure the17 pleading's fatal deficiencies, and the demurrer must be granted as to Respondent Obama for America1 81920

without leave to amend.c. THE PETITION DOES NOT AND CANNOT STATE A CAUSE OF ACTION

AGAINST THE SECRETARY OF STATE

21 Finally, the Petition fails to state a cause of action against Respondent Bowen, as well,22 because it does not establish that the Secretary of State has a ministerial duty to determine the23 constitutional eligi biIity of President 0 bama or of any other presidential candidate before piacing his24 or her name on the election ballot. Indeed, no such showing could be made by Petitioners as a matter25 of law, for the statutory scheme and the case law firmly establish that the Secretary of State does not2 627 SElections Code section 18203 makes it a crime for a candidate to knowingly file a falsenomination paper or declaration of candidacy, and section 18500 makes it a felony to fraudulently

cast a vote or to aid or abet another in fraudulently voting.6

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MEMO OF POINTS & AUTHORITIES IN SUI'I'ORT Of RESPONDENT OSAMA'S DEMURRER TO PETlTION FOR WRIT OF MANDATE


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MEMO OFPOINTS & AUTHORITIES IN SUPPORT OF RESPONDENT 013AMA'S DEMURRER TO PETITION FORWRIT OFMANDATE

have the duty to do so.2 As noted in the Introduction, the Court of Appeal's decision in Keyes v, Bowen is directly on3 point with respect to this issue, and it is therefore worth quoting at length from the pertinent portion4 of that opinion:5 "The trial court also ruled that plaintiffs failed to state a cause of actionagainst Secretary of Stale Bowen because they .did not establish that she had a6 ministerial duty to investigate and determine President Obama's eligibility for theoffice of President. Again, plaintiffs fail to establish error.

The Secretary of State is charged with ensuring 'that elections are efficiently8 conducted and that state election laws are enforced .... ' (Gov. Code, 12172.5.)9 With respect to primary elections, section 604l directs the Secretary of Stateto 'place the name of a candidate upon the presidential primary ballot when he or she10 has determined that the candidate is generally advocated for or recognized throughout

the United States or California as actively seeking the nomination of the Democratic11 Party for President of the United States .... [ -r ] . . . After the 63rd day preceding apresidential primary election, the Secretary of State may add candidates to the12 selection, but he or she may not delete any presidential candidate whose nameappears on the announced list except as provided in Section 6043 [concerning a13 selected candidate's unqualified affidavit that he or she is not a candidate].'14 Section 6901, which governs general elections, states: 'Whenever a politicalparty, in accordance with Section 7100, 7300, 7578, or 7843 [none of which concern15 constitutional eligibility], submits to the Secretary of State its certified list ofnominees for electors of President and Vice President of the United States, the16 Secretary of State shall notify each candidate for elector of his or her nomination bythe party. The Secretary of Slate shall cause the names of the candidates for17 President and Vice President of the several political parties 10 be placed upon theballot ja r the ensuing general election.' (Italics added [by Gourt].)18 The aforementioned statutes do not impose a clear, present, orministerial duty19 on the Secretary of State to determine whether the presidential candidate meets theeligibility criteria of the United States Constitution. Section 6041 gives the Secretary20 of State some discretion in determining whether to place a name on the primaryballot, but she has no such discretion for the general election ballot, which is2I governed by section 6901. With respect to general elections, section 6901 directs thatthe Secretary of State must place on the ballot the names of the several political22 parties' candidates." (Keyes v. Bowen, supra, 189 Cal.App.eth at pp. 658-660[footnotes omittedj.)"2324

6The final paragraph of Elections Code section 6041 was amended slightly subsequent to thecourt's opinion in Keyes v. Bowen. (See Stats. 2010, ch. 190, 9.) The section now provides, in its

26 entirety:25

27 "The Secretary of State shall place the name of a candidate upon thepresidential primary ballot when he or she has determined that the candidate isgenerally advocated for or recognized throughout the United States or California as

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The Keyes decision thus unequivocally holds that the Secretary of State is under no duty to2 independently screen presidential candidates for eligibility before placing their names on the state's3 ballot. To the contrary, under Elections Code section 6041, Respondent Bowen has an affirmative4 duty toplace the candidate's name on theprimary ballot whenever she determines that "rhe candidate5 isgenerally advocated for or recognized throughout the United States or California as actively seeking6 the nomination of the Democratic Party for President ofthe United States." Secretary of State Bowen7 has fully performed her duty under section 6041 by publicly announcing and distributing to the news8 media a list of the candidates that she has determined meet the statute's criteria and that she intends9 to place on the ballot for the June 5 , 2012, presidential primary election. (See "Generally Recognized10 Presidential Candidates, June 5, 2012, Presidential Primary Election," Exh. A to Respondents']I Request for Judicial Notice.) President Obama 's name is rightly on the Secretary of State's published12 list of generally recognized presidential candidates.13 While section 6041 may be said to "give[] th e Secretary of State some discretion in14 determining whether to place a name on the primary ballot" (Keyes v. Bowen, supra, 189CaLApp.4th15 at p. 651), that discretion has nothing whatsoever to do with determining whether the candidate is16 constitutionally eligible for office, bur relates solely to whether he or she is generally recognized as17 "actively seeking the nomination of the Democratic Party." Moreover, it is well established that18 traditional mandamus does not lie to control an official's exercise of discretion, but only to compel19 an official to perform a ministerial act withirr:lhe meaning of Code of Civil Procedure section 1085,20 subdivision (a). (See, e.g., Common Cause v. Board of Supervisors (1989) 49 Ca1.3d 432, 442;21 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916 ["A

2324 actively seeking the nomination of the Democratic Party for President of the UnitedStates. The Secretary of State shall include as criteria for selecting candidates the fact

of qualifying for funding under the Federal Elections Campaign Act of 1974, asamended.5

26 Between the 150th day and the 68rh day preceding a presidential primary .election, the Secretary of State shall publicly announce and distribute to the newsmedia for publication a list of the selected candidates that he or she intends to placeon the ballot at the following presidential primary election."

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MEMO OF POINTS & AUTHORITIES INSUPPORT OF RESPONDENT OSAMA 's DEMURRER TO PETITION FOR WRIT OF MANDATE


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MEMO OFPOINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO PETITION FOR WRIT OFMANDATE

ministerial act is an act that a public officer is required to perform in a prescribed manner in2 obedience to the mandate of legal authority and without regard to his own judgment or opinion3 concerning such act's propriety or impropriety, when a given state of facts exist."}.) In any event, in4 the instant case, even Petitioners presumably weuld concede that Respondent Bowen did not abuse5 her discretion in determining that President Obama "is generally advocated for or recognized ... as6 actively seeking" the Democratic Party nomination for President. Indeed, the Secretary of State7 would have abused her discretion were she to have reached any other conclusion.'8 In sum, the Petition fails to establish any duty requiring the Secretary of State or any of the9 other Respondents to take the actions demanded of them by Petitioners. The demurrer must thereforelObe sustained withont leave to amend, and the Petition must be dismissed in its entirety.11 II. STATE COURTS HAVE NO JURISDICTION OVER THEQUAbIFICATIONS OF CANDIDATES FOR PRESIDENT O F 'E HE UNITEDST ATES OR THEIR FEDERAL FUNDRAISING ACTI VITIES13 The demurrer must also be sustained because "[t]he eourt has no jdrisdiction of the subject14 of the cause of action alleged in the pleading." (Code Civ. Proc., 430.10, subd. (a).) State courts15 simply do not havejurisdiction over the subject ofa candidate's eligibility under the U.S. Constitution16 for the office of President of the United States. As the Keyes v. Bowen riecision noted, "[t]he1718 7The Petition's "Background Facts" section mentions two "historical examples" in which it19 is alleged that "California Secretaries of State have exercised their due diligence by reviewing

necessary background documents" in order to verify a presidential candidate's eligibility for office.20 (Petition, ~ 13.) Only the Eldridge Cleaver reference is supported by any citation to authority,

however. (See id., ~ 31 [citing Cleaver v. Jordan (1968) 393 U.S. 810].) More importantly, as thecourt explained in Keyes v. Bowen, the Cleaver case does not show that the Secretary of State has aduty to investigate a presidential candidate's qualifications and remove him or her from the ballotif the qualifications are found lacking:

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"The citation provided by plaintiffs merely reflects that the United StatesSupreme Court denied a petition for writ of certiorari; it states nothing about the factsof the case. As we explained earlier, appellants' arguments must be supported byauthority, and we are not obligated to search for it . Besides, the fact that formerSecretary of State Jordan excluded a candidate, who indisputably did not meet theeligibility requirements, does not demonstrate that the Secretary of State has a clearand present ministerial duty to investigate and determine if candidates are qualifiedbefore following the statutory mandate to place their names on the general electionballot." (189 Cal.App.4th at pp. 659660.)9


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MEMO OF POINTS & AUTHORITIES IN SUPPORT OF RESPONDENT OSAMA'S DEMURRER TO PETITION FOR WRITOF MANDATE

presidential nominating process is not subject to each of the 50 states' election officials independently2 deciding whether a presidential nominee is qualified, as this could lead to chaotic results." (1893 Cal.AppAth at p. 660.) Rather, federal law sets forth the exclusive procedure by which objections4 to the qualifications of a presidential candidate may be registered and resolved. "[Mjechanisms exist5 under the Twelfth Amendment and 3 U.S.c. IS for any challenge to any candidate to be ventilated6 when electoral votes are counted, and [ J the Twentieth Amendment provides guidance regarding how7 to proceed if a president elect shan have failed to qualify. Issues regarding qualifications for president8 are quintessentially suited to the foregoing process." (189 Cal.AppAth at p. 661 [quoting Robinson9 v . Bowen, supra, 567 F.Supp.2d at p. 1147].) Therefore, any challenge to President Obama's10 eligibility to serve as President "is committed under the Constitution to the electors and the legislative11 branch, at least in the first instance" (ibid.) - not to the California Secretary of State or this Court.12 Likewise, the California state courts have no jurisdiction over the fundraising activities of13 presidential candidates. Those activities are governed by the F.ederal Election Campaign Act (214 U.S.c. 431 et seq.), the Presidential Election Campaign Fund Act (26 U.S.C. 9001 et seq.), and15 the Presidential Primary Matching Payment Account Act (26 U.S. C. 9031 et seq.). None of these16 statutes provides any authorization fer the state courts to interpret, implement, or enforce its17 provisions. To the contrary, the Federal Election Campaign Act expressly declares that "the18 provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision19 of State law with respect to election to Federal office." (2 U.S.C. 453, subd. (a) [emphasis added].)20 The state courts simply lack jurisdiction over any aspect of the fundraising activities of candidates21 for federal office, especially candidates for President of the United States.22 CONCLUSION23 Barack Obama has served as this country's President for more than three years. This lawsuit24 is only the latest in a never-ending parade of frivolous "birther" actions challenging President25 Obama's eligibility for office, all ofwhieh have been swiftly and decisively rejeeted by the courts.26 This Petition, like its predecessors, has no basis in law, and the relief it seeks cannot be granted by27 this Court. For the reasons and upon the authorities cited above, Respondents respectfully request that28 the Demurrer be sustained without leave to amend, and the action promptly be dismissed.

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Date: February It)', 2012 Respectfully Submitted,STRUMWASSER & WOOCHER LLPFredric D. WoocherPatricia T. Pei

B Y ? f ~ AJ~Fredric D. WoocherAttorneys for RespondentsPresident Barack Obama andObama for America California

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ca - noonan et al v bowen et al - 2012-02-16 - obama demurrer memo of points & authorities

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