noonan appeal - appellants' reply brief

7/27/2019 Noonan Appeal - Appellants' Reply Brief

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TABLE OF CONTENTS

TABLE OF AUTHORITIES iiINTRODUCTION 1ARGUMENT

I. The Twelfth and Twentieth Amendments asImplemented by 3 U.S.C. 15 Do Not Provide theExclusive Process for Challenging theQualifications of a Presidential Candidate 1

II. Keyes v. Bowen Incorrectly Held That theSecretary of State Has No Duty To Verify theConstitutional Eligibility of PresidentialCandidates 4

III. The Demand for a Writ ofMandate is Not MootSince the Injury is Capable of Repetition YetEvading Review 6

CONCLUSION 10


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TABLE OF AUTHORITIESFEDERAL CASESMcPherson v. Blacker, 146 U.S. 1 (1892) 3,4Ray v. Blair, 343 U.S. 214 (1952) 3,4Sosna v. Iowa, 419 U.S. 393 (1975) 7Southern Pacific Terminal Co. v. ICC (1911) 219 U.S. 498 7Weinstein v. Bradford (1975) 423 U.S. 147 8

STATE CASESKeyes v. Bowen, 189 Cal.App.a" 647 (2010) 4,6

STATE STATUTESCode ofCivil Procedure 1089.5 9Elections Code 6041 7,8Election Code 6901 4,5Election Code 12172.5 5,6

FEDERAL STATUTES3 U.S.C. 15 1,2

UNITED STATES CONSTITUTIONArticle II, Section 1, Clause 2 3Article II, Section 1, Clause 4 6Article II, Section 1, Clause 5 6Twelfth Amendment l,2Twentieth Amendment.. l,2

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INTRODUCTION

Appellant Edward C. Noonan filed his Opening Brief on April12,2013. AppellantPamela Barnett filed her Opening Brief on July10,2013. Respondents President Barack Obama and Obama forAmerica California filed their Respondents' Briefon August 20, 2013.Respondent Bowen filed her Respondents' Brief on September 18,2013. This Reply Brief is filed on behalf o f Appellant Edward C.Noonan.

ARGUMENT

I. The Twelfth and Twentieth Amendments as Implementedby 3 U.S.C. 15 Do Not Provide the Exclusive Process forChallenging the Qualifications of a Presidential Candidate.

Respondents O ba ma a nd O ba ma for America California contendthat there is an "exclusive process" by which presidential eligibilityma y be challenged in "the Twelfth and Twentieth Amendments to theUnited States Constitution (as implemented by 3 U.S.C. 15)."Obama's Respondents Brief, p. 21. According to Respondents,

because this process makes no room for either the California Secretaryo f State or the California courts, there is no jurisdiction for this Court(or the court below) to entertain petitioners' lawsuit.


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There is no legal support for this contention. Neither theTwelfth nor Twentieth Amendments to the U.S. Constitution provideany specific mechanism to challenge a Presidential candidate'squalifications. The Twelfth Amendment provides the Electors of theElectoral College with the procedure by which the votes for Presidentand Vice President are counted. The Twentieth Amendment specifiesthe procedure by which a successor President is chosen when the priorPresident has passed away in office. The Twentieth Amendment doesmention a situation when "a President elect shall have failed toqualify," but the procedures specified in the Amendment only provideguidance after a determination of ineligibility has been made, givingno insight as to who would determine whether a candidate is ineligible.In addition, 3 U.S.C. 15 gives detailed procedures by which amember of the House ofRepresentatives and a Senator may jointlychallenge the vote of a presidential elector, provided that the electorhas engaged in some impropriety. Nothing in the plain reading of 3

U.S.C. 15 provides a remedy for the eligibility of a President-Elect tobe challenged at the time for counting of electoral votes, and achallenge raised against a presidential elector is not equivalent to a

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challenge to ascertain the eligibility of a President-Elect. Finally, evenapplying a more expansive reading of the two Amendments and thestatute together, they so not purport to be exhaustive, and address onlythe authority of presidential electors and members of Congress, not theauthority of state officials.

Indeed, the primary authority over the means by which electorsare selected is vested in the States by Article II, Section 1, Clause 2 ofthe U.S. Constitution. See McPherson v. Blacker, 146 U.S. 1,35(1892) ("[T]he appointment and mode of appointment of electorsbelong exclusively to the States under the Constitution of the UnitedStates."). Pursuant to this authority, the State ofAlabama enacted alaw requiring candidates for presidential electors to pledge to vote forthe Presidential nominee chosen at the National Party Convention, andremoving electors who refused to so pledge. See Ray v. Blair, 343U.S; 214 (1952). The Alabama statute was upheld by the U.S.Supreme Court as a constitutional exercise of the power vested in the

state legislature over the selection of the president. See id. at 224-26,228-31. By the very same reasoning, it would be constitutional for theState of California to enact a law requiring its presidential electors to

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vote only for a candidate who meets the eligibility requirements for thePresident that are spelled out in the Constitution, including therequirement of being a natural born citizen. Clearly, it is wellestablished that there is nothing in the U.S. Constitution that bars theCalifornia legislature from placing limits on the state's presidentialelectors' voting powers. See McPherson, 146 U.S. at 35-36. See alsoBlair, 343 U.S. at 221-22.II. Keyes v. Bowen Incorrectly Held That the Secretary of State

Has No Duty To Verify the Constitutional Eligibility ofPresidential Candidates.Respondents allege that the issues raised by this appeal have

already been resolved by the case ofKeyes v. Bowen, 189 Cal.App.d"647 (2010). Obamas Respondents Brief, p. 21; Bowen's RespondentsBrief, p. 7. While Respondents correctly point out that the issue ofElections Code 6901 was raised by the Petitioners in the Keyes v.Bowen case, Appellant Noonan contests the correctness of thatdecision, holding that the Secretary of State has no duty to verify the

eligibility of a national Presidential Candidate.The Secretary of State has the duty and authority to examine the

qualifications of candidates for every office subject to election in the

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State of California. Elections Code 12172.5. Pursuant to that duty,the Secretary of State issues written guidelines for every candidateseeking to be placed on any ballot in the State of California, andremoves candidates from the ballot who the Secretary of State laterdetermines lack the qualifications for office. Elections Code 12172.5.This oversight over elections by the Secretary of State applies not onlyto State offices, but to Federal offices as well. Elections Code 12172.5.

Under current California law, the only exception to this duty iswith respect to Presidential candidates selected by national politicalparties. However, that exception does not preclude consideration of aPresidential candidate's eligibility, but merely excuses the Secretary ofState from routinely requiring such a candidate to provide evidence ofhis or her eligibility. Since Elections Code 6901 does not require theSecretary of State to routinely require evidence of eligibility fromcandidates selected by national political parties, and since there is no

duty imposed by state law on political parties to determine eligibility,Appellant Noonan brought this suit to require the Secretary of State toverify the eligibility of Presidential Candidates. In Keyes v. Bowen,

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this Court did not determine who had the duty to verify eligibility,finessing the issue by stating "presumably [the political parties] willconduct the appropriate background check...." Keyes v. Bowen, 189Cal.App.c" at 652. However, the matter of eligibility for the office ofPresident of the United States is too serious a matter to be left to avague "presumption." The California state legislature is duty bound byArticle II, Section 1, Clause 5 of the U.S. Constitution to ensure thatpresidential electors are chosen, and that those electors are committedto voting only for a person who meets the qualifications for the officeof the President as spelled out in Article II, Section 1, Clause 4. Thisresponsibility has been vested in the California Secretary of State.Elections Code 12172.5.III. The Demand for a Writ ofMandate is Not Moot Since the

Injury is Capable of Repetition Yet Evading Review.Respondent Bowen contends that the substantive issues of this

appeal are moot as to the 2012 California Presidential PrimaryElection. Bowen's Respondents Brief, p. 9. Even though the time tochallenge the certification by the Secretary of State of the names forthe 2012 Presidential Primary Election is past, this matter is not moot

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under the exception to the mootness doctrine for cases which are"capable of repetition yet evading review." See generally SouthernPacific Terminal Co. v. ICC (1911) 219 U.S. 498; Sosna v. Iowa(1975) 419 U.S. 393.

The window for consideration and announcement of nationallyrecognized candidates by the Secretary of State of California is narrow,as the Secretary of State has "[b ]etween the 150th day and the 68th daypreceding a presidential primary election" to make this announcementunder Elections Code 6041. To hold this case to be moot as to the2012 California Primary Election, as respondents contend and,therefore, not justiciable would leave this petitioner, and any futureplaintiff, subject to a very narrow window in which to attempt to fullylitigate a set of very complex legal issues. The U.S. Supreme Courtapplies a two-prong test in determining when to apply this exception tothe mootness doctrine:

(1) the challenged action was in its duration too short tobe fully litigated prior to its cessation or expiration, and(2) there was a reasonable expectation that the samecomplaining party would be subjected to the same actionagain. [Weinstein v. Bradford, 423 U.S. 147, 149 (1975).]

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This case easily satisfies both elements to trigger this exception.Under the first prong, litigation must be resolved by 68 days pr ior tothe June Primary Election. See Elections Code 6041. Th e earliestdate that o ne c ou ld litigate the Secretary of State's certification o fnames for the California presidential primary is 150 days prior to theJune Presidential Primary Election. Id. Even this full period is no tgenerally available, as the Secretary o f State is not required to declarethe name o f presidential candidates until the 68-day cutoff, thuspotentially limiting the window of time to litigate to only one daybefore the names o f presidential candidates must be certified for theballot. Ne ither Noona n no r an y party could litigate these complexissues which involve the United States Constitution, the CaliforniaConstitution, and the California Elections Code before an election.T he a ns we r p er io d prescribed by statute for a wri t allows 30 days torespond, thus potentially taking up the entire period (or longer) inwhich Noonan ca n avoid a mootness argument (See California Code of

Civil Procedure 1089.5). No party can assume such expeditedreview.

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With respect to the second prong, Noonan has run for the officeofVice-President and of President several times, including in 2008 and2012, and may again seek the office of President in future PresidentialElections. There is no reason to believe that the Secretary of State willchange her view regarding the scope of her duties, requiring Mr.Noonan, or some other similarity situated candidate for the office ofPresident of the United States, to again seek redress from this Courtduring the same briefwindow of opportunity to litigate their challenge.

Clearly, this case presents a challenge which is "capable ofrepetition yet evading review," meeting the requirements for thatexception to the mootness doctrine. Noonan should be allowed tocontinue to litigate these complex legal questions, not only for the2012 election cycle, but also to resolve these issues for futurepresidential elections.

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CONCLUSION

Based on the foregoing, as well as prior briefs, Noonanrespectfully requests that this Court reverse the lower court's JudgmentofDismissal after Sustaining Respondents' Demurrers, and remand thecase with instructions to order Respondents to answer the FirstAmended Petition or, in the alternative, with instructions for the lowercourt to allow Petitioners leave to amend their complaint.

October 7, 2013 Respectfully submitted,

~ 4 L -NATHANIEL J. OLESON(SBN 276695)UNITED STATES mSTICEFOUNDATION932 D Street, Suite 3Ramona, California 92065Tel: (760) 788-6624Fax: (760) 788-6414E-mail: [email protected]

Attorney for APPELLANTEDWARD C. NOONAN


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CERTIFICATE OF COMPLIANCECRC 8.204(c)(1)

I hereby certify that this Reply Brief consists of 1877 words per CaliforniaRules ofCourt Rule 8.204(c)(I). The number ofwords was confirmed byreference to counting by the WordPerfect computer program used to typeset thisbrief.

I declare under penalty of perjury that the foregoing is true and correct to the

best ofmy knowledge. Executed this 7th day ofOctober, 2013.

~ 4 - -NATHANIEL J. OLESON

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State ofCalifornia )County ofLos Angeles ))

Proofof Service by:.( US Postal ServiceFederal Express

I, Maurice Harrington , declare that I am not a party to the action, am over 18 years ofage and my business address is: 354 South Spring St., Suite 610, Los Angeles, California 90013.On 10107/2013 declarant served the within: Reply Brief of Appellant

upon:1 Copies FedEx.f USPS Copies FedEx USPSTo Each on Attached Service List Electronically Served on theSUPREME COURT OF CALIFORNIA,per Rule 8.212(c)(2)

Copies FedEx USPS Copies FedEx USPS

Clerk of the CourtCALIFORNIA COURT OF APPEALThird Appellate District621 Capitol Mall, 10th FloorSacramento, California 95814-4719

Electronically Submitted to theCALIFORNIA COURT OF APPEALThird Appellate District, per Rule 8.70

the addressees) designated by said attorney(s) for that purpose by depositing the number ofcopies indicated above, of same, enclosed in a postpaid properly addressed wrapper in a PostOffice Mail Depository, under the exclusive custody and care of the United States Postal Service,within the State ofCalifornia, or properly addressed wrapper in an Federal Express OfficialDepository, under the exclusive custody and care ofFederal Express, within the State ofCaliforniaI further declare that this same day the original and copies has/have been hand delivered forfiling OR the original and 4 copies haslhave been filed by .f third party commercial carrier fornext business day delivery to:

I declare under penalty ofperjury t the foregoing is true and correct:Signature: . . . . " . . . . . : ; r C - - - l . ~ - - - - . f - - ' = - = - - - - = ~ - - - -


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SERVICE LIST

Pamela Barnett Anthony R. Hakl III, Esq.2351 Sunset Boulevard OFFICE OF THE STATESuite 170-921 ATTORNEY GENERALRocklin, California 95765 P.O. Box 944255Sacramento, California 94244-2550Appellant In Pro Per Attorney for Respondent,

Debra BowenFredric D. Woocher, Esq. Clerk for the Hon. Michael P. KennySTRUMWASSER & WOOCHER LLP SUPERIOR COURT OF CALIFORNIA10940 Wilshire Boulevard County of SacramentoSuite 2000 Gordon D. Schaber Sacramento CountyLos Angeles, California 90024 Courthouse

720 9th StreetAttorney for Respondents, Sacramento, California 95814BarackHussein Obama IL as President et al. Trial Court Judge

noonan appeal - appellants' reply brief

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