noonan v bowen appeal - brief of respondent debra bowen 130918

7/29/2019 Noonan v Bowen APPEAL - Brief of Respondent Debra Bowen 130918

1/18

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIATHIRD APPELLATE DISTRlCT

EDWARD C. NOONAN and PAMELABARNETT, Case No. C071764Petitioners and Appellants,v.

DEBRA BOWEN, individually and officiallyas the CALIFORNIA SECRETARY OFSTATE, PRESIDENT BARACKHUSSEINOBAMA, and OBAMA FOR AMERICACALIFORNIA,Respondents and Respondents.

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

BRIEF OF RESPONDENT DEBRA BOWENKAMALA D. HARRISAttorney General of CaliforniaDOUGLAS J. WOODSSenior Assistant Attorney GeneralTAMAR PACHTERSupervising Deputy Attorney GeneralANTHONYR. HAKLDeputy Attorney GeneralState Bar No. 1973351300 I Street, Suite 125P.O. Box 944255Sacramento, CA 9 4 2 4 4 ~ 2 5 5 0Telephone: (916) 3 2 2 ~ 9 0 4 1Fax: (916) 324-8835E-mail: [email protected]

Attorneys for RespondentCalifornia Secretary ofState Debra Bowen


2/18

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIATHIRD APPELLATE DISTRICTCaseName: 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 [2]Please check the applicable box:

SUPPLEMENTAL CERTIFICATE DThere 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 Party Non-PartyCheck One Nature of Interest(Explain)

[ ] [ ]- - - - - - - - - - - - - - - - - [ 1 [ 1- - - - - - - - - - - - - - - - - [ 1 [ 1----------------- [ 1 [ ]----------------- [ 1 [ 1[ 1 [ ]

The undersigned certifies that the above listed persons or entities (corporations, partnerships, firms or anyother association, bu t not including governmententities or their agencies), have either (i) an ownershipinterest of 10 percent or more in the party i f an entity; or (ii) a financial or other interest inthe outcome of theproceeding that the justices should consider in determining whether to disqualify themselves, as defined inrule 8.208(e)(2).

Attorney Submitting FormANTHONY R. HAKLDeputy Attorney GeneralState Bar No. 1973351300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Telephone: (916) 322-9041Fax: (916) 324-8835E-mail: Anthon Ha

l(Signature of Attorney Submitting Form)SA201210741011174951.doc

Party RepresentedAttorney for RespondentCalifornia Secretary of State Debra Bowen

September 18, 2013(Date)


3/18

TABLE OF CONTENTSPage

Introduction 1Procedural History 1Standard ofReview 4Argument. 5

I. The Superior Court correctly ruled that the Secretaryof State has no legal duty to determine whether apresidential candidate is a natural-born citizen eligibleto serve as President of the United States 5

II. The Superior correctly ruled that Elections Codesection 6901 is not unconstitutional.. 7III. The relief sought in the petition is moot as it relates tothe June 5, 2012 Presidential Primary Election 9

Conclusion 9

1


4/18

TABLE OF AUTHORITIESPage

CASES

Aubry v. Tri-City Hospital Dist.(1992) 2 Ca1.4th 962 4Barnes v. Wong(1995) 33 Cal.App.4th 390 8Blank v. Kirwan(1985) 39 Cal.3d 311 .4Brandt v. Board ofSupervisors(1978) 84 Cal.App.3d 598 6California Ass 'n fo r Health Services at Home v. State Dept. of

Health Services(2007) 148 Cal.App.4th 696 5Eistrat v. Board o fCivil Service Com 'n of the City ofLos Angeles(1961) 190 Ca1.App.2d 29 6Kavanaugh v. West Sonoma County Union High School Dist.(2003) 29 Ca1.4th 911 5,6Keyes v. Bowen(2011) 189 Ca1.App.4th 647 passimLoder v. Municipal Court(1976) 17 Cal.3d 859 5Long v. Hultberg(1972) 27 Cal.App.3d 606 9MacLeod v. Long(1930) 110 Ca1.App. 334 6McCall v. PacifiCare o fCalifornia, Inc.(2001) 25 Ca1.4th 412 4

11


5/18

TABLE OF AUTHORITIES(continued) PageSanta Teresa Citizen Action Group v. California Energy Com.(2003) 105 Cal.AppAth 1441 .4Treber v. Superior Court(1968) 68 Cal.2d 128 9Wenke v. Hitchcock(1972) 6 Ca1.3d 746 6Zelig v. County ofLos Angeles

(2002) 27 Cal.4th 1112 .4STATUTESCode ofCivil Procedure4

1085, subd. (a) 5 1085 5

Elections Code 6180 9 6901 passim 7100 7 7300 77578 7

111


6/18

INTRODUCTIONThis appeal is based on the meritless notion that President Barack

Obama is ineligible to be a candidate for President of the United States, orto hold that office, "because he is not a natural born citizen" of the UnitedStates. (BriefofAppellant Noonan at p. 7.) Based on this purportedineligibility, appellants sought a peremptory writ ofmandate from theSuperior Court directing California Secretary of State Debra Bowen to barPresident Barack Obama from the June 5, 2012 Presidential PrimaryElection ballot. However, the Superior Court, following this Court'sdecision in Keyes v. Bowen (2011) 189 Cal.App.4th 647, correctly foundthat the Secretary of State has no ministerial duty to investigate theconstitutional qualifications ofpresidential candidates. Accordingly, thecourt properly sustained without leave to amend the demurrers by theSecretary of State and President Obama. For the reasons explained below,this Court should affirm the Superior Court's ruling.

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

for writ ofmandate on January 6,2012. (Petition for a Prerogative Writ ofMandate and Restraint ofFundraising at p. 1.)1 Respondent CaliforniaSecretary of State Debra Bowen filed a demurrer, as did respondentsPresident Barack Obama and Obama for America, Mr. Obama's officialcampaign committee. (Appellants' Appendix ("AA") 1:1-39.)

Before the scheduled hearing on those demurrers, appellants filed anex parte application seeking an "expedited evidentiary hearing on themerits." (AA 1:40-65.) After a hearing, the court denied the application.At the request of appellants, though, and there being no objection by

1A copy of the initial petition is included in the Motion to AugmentRecord on Appeal granted by this Court on June 7,2013.

1...........


7/18

respondents, the Superior Court advanced the hearing dateon thedemurrers. (AA at 1:91-92.)

On the eve of the rescheduled hearing on the demurrers, appellantsfiled a first amended petition." (AA 1:93-263.) Like the initial petition, theamended petition named seven petitioners: Edward C. Noonan, PamelaBarnett, Sharon Chickering, George Miller, Tony Dolz, Neil Turner andGary Wilmott. (AA 1:93.) Noonan was a 2012 presidential candidate forthe American Independent Party. The other petitioners were Californiaregistered voters.

While appellants' allegations were somewhat difficult to decipher, theheart of their claim was that the Secretary of State has a "duty" to "vet"President Obama and "verify" that he meets the constitutional eligibilityrequirements for the office ofPresident of the United States beforecertifying his name for inclusion on the primary ballot. (AA 1:94-95,97-98, 103-104, 108 & 111-112.) According to appellants, the Secretary ofState failed to fulfill that obligation. Therefore, as to the Secretary of State,appellants sought a peremptory writ ofmandate staying the printing of anyprimary ballots and directing that the Secretary of State refrain from placingon 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 himfrom the primary ballot until he produced certain documents. and in fact

/proved that he is a "natural born citizen." (Ibid.) For the first time in theaction, the first amended petition also prayed for a declaration that

2 To be precise, only Barnett signed the amended petition. The otherpetitioners later separately filed "verifications" of the amended petition.Also, as noted in President Obama's brief, the amended petition was not astand-alone pleading; it was more like a supplemental pleading that addednew arguments and information to the original petition. (BriefofResps.President Barack Obama and Obama for America California at p. 7.)

2


8/18

Elections Code section 6901 is "unconstitutional and unenforceable."(Ibid.)

Because the amended petition remained deficient, the Secretary ofState filed another demurrer, as did President Obama. (AA 2:265-327.)After a hearing, Judge Michael P. Kenny ruled that "[t]he amended petitionfails to state facts sufficient to constitute a cause of action because itrequires the Court either to make a factual determination as to whetherPresident Obama is eligible to hold or run for the office ofPresident of theUnited States, or to find that the Secretary of State has a mandatory duty tomake that determination." (AA 2:404.) Judge Kenny explained that"[s]uch a determination is a matter that is beyond the jurisdiction of thisCourt, and is a matter that is not within the duties ofthe Secretary of State,as held in controlling decisions of the Third District Court ofAppeal."(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 theCalifornia Secretary of State was under no "ministerial duty to investigateand determine whether a presidential candidate is constitutionally eligibleto run for that office." (AA 2:405.)

Judge Kenny found that the fundraising claim "is based entirely on theallegation that President Obama is not eligible to hold or run for the officeofPresident of the United States. Any reliefthat could be granted thereforewould be entirely dependent upon a factual determination by the Court orthe Secretary of State that he is not eligible." (AA 2:405.) But JudgeKenny reiterated that "the Court may not make that determination, or orderthe Secretary of State to make it." (Ibid.) Thus, "[i]n the absence of anysuch determination, there is no factual basis under the petition for the Courtto issue an order restraining President Obama or respondent Obama forAmerica (California) from engaging in fund-raising activities in Californiarelated to the presidential campaign." (AA 2:405-406.)

3


9/18

Judge Kenny also rejected appellants' contention that Elections Codesection 6901 is unconstitutional and unenforceable. (AA 2:406.) Thatcontention "is based on the theory that the Secretary of State has a legalduty, in this instance one that is alleged to be of constitutional origin, todetermine the eligibility of candidates for President of the United Statesbefore their names may be placed on the ballot." (Ibid.) But, as JudgeKenny had explained, "no such legal duty exists." (Ibid.)

An Order Sustaining Demurrers to the First Amended Petition forWrit ofMandate was entered on July 5, 2012, together with a judgment ofdismissal. (AA 2:398-407,409-411.) Appellants Noonan and Barnett filedseparate notices of appeal from the judgment.

STANDARD OF REVIEWOn 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; SantaTeresa Citizen Action Group v. California Energy Com. (2003) 105Cal.AppAth 1441, 1445.) The court exercises its independent judgmentabout whether the complaint alleges facts sufficient to state a cause ofaction under any possible legal theory. (McCall, supra, 25 Cal.4th atp.415.)

The court treats the demurrer as admitting all material facts properlypleaded, but not contentions, deductions or conclusions of fact or law.(Blankv. Kirwan (1985) 39 Cal.3d 311,318; Zeligv. County ofLosAngeles (2002) 27 Cal.4th 1112, 1126.) The court also considers matterswhich may be judicially noticed, and gives the complaint a reasonableinterpretation, 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 ofthe several grounds of demurrer is well taken. (Aubry v, Tri-City HospitalDist. (1992) 2 Cal.4th 962,967.)

4


10/18

A R G U M E N T

Appellants advance essentially two arguments. First, they persist inmaintaining that the amended petition states facts sufficient to constitute acause o f action for issuance o f a writ o fmandate under Code o fCivilProcedure section 1085. Second, they continue to argue that ElectionsCode section 6901 is unconstitutional and unenforceable because itprevents the Secretary o f State from fulfilling her official duties. ThisCourt, like Judge Kenny, should reject these arguments as meritless. 3I . T H E SUPERIOR CO U RT CORRECTLY RULED T H A T TH E

SECRETARYOF S T AT E H A S N o L E G A L DUTY To DETERMINEWHETHER A PRESIDENTIAL CANDIDATE I s A NATURAL-B O R N C I T IZ E N E L I GI B L ETo SERVE A s PRESIDENT OF T H EUNITED STATES.In arguing that the amended petition states facts sufficient to

constitute a cause o f action, appellants continue to erroneously assert thatthe Secretary o f State has an official duty to verify a candidate's eligibilityto be President o f the United States.

To be entitled to a writ o fmandate issued in the court below,appellants had to show (1) that the Secretary o f State has a duty to act and(2) that appellants have a beneficial right to performance o f that duty.(Kavanaugh v. West Sonoma County Union High School Dist. (2003)29 Cal.4th 911, 916; Loder v.Municipal Court (1976) 17 Cal.3d 859, 863.)The required duty is a "clear, present and usually ministerial duty on thepart o f the respondent." (California Ass 'n for Health Services at Home v.State Dept. ofHealth Services (2007) 148 Cal.AppAth 696, 704; see CodeCiv. Proc., 1085, subd. (a) ["[a] writ o fmandate may be issued by any

3 These arguments are most clearly identified in the brief o fappellant Noonan, who is represented by counsel. Liberally construed, thebrief filed by appellant Barnett, who is proceeding pro se, advances thesame contentions.

5


11/18

court to any inferior tribunal, corporation, board, or person, to compel theperformance of an act which the law specially enjoins, as a duty resultingfrom an office, trust, or station . . . . "].) "A ministerial act is an act that apublic officer is required to perform in a prescribed manner in obedience tothe mandate of legal authority and without regard to his own judgment oropinion concerning such act's propriety or impropriety, when a given stateof facts exists." (Kavanaugh, supra, 29 Cal.4th at p. 916, citation omitted,emphasis added.) Appellants had the burden of demonstrating that theSecretary 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/CivilService Com 'n of the City a/Los Angeles (1961) 190 Cal.App.2d 29,34.)

Although mandamus is the correct remedy for compelling an officerto conduct an election according to law (Wenke v.Hitchcock (1972)6 Cal.3d 746, 751), Judge Kenny correctly found that appellants could notmeet their burden to demonstrate that the Secretary of State has a clear,present ministerial duty to determine whether a presidential candidate is anatural-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 actsought to be compelled"].) This is because the Secretary of State has nosuch duty.

In a decision published in 2011, this Court concluded that the relevantElections Code provisions "do not impose a clear, present, or ministerialduty on the Secretary of State to determine whether the presidentialcandidate 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 Obamais not a natural born citizen of the United States ofAmerica and, hence, isineligible to be the President." (Id. at p. 651.)

6


12/18

Keyes acknowledged that California's Secretary of State is the state'schiefelections officer and is responsible for ensuring "that elections areefficiently conducted and that state election laws are enforced. . . ."(Keyes, supra, 189 Cal.AppAth at p. 658, quoting Gov. Code, 12172.5.)But the court went on to conclude that these obligations do not include aduty to investigate a candidate's constitutional qualifications. (Id. atp.659.)

Inexplicably, appellant Noonan, represented by counsel on thisappeal, makes no mention ofKeyes, supra, in his opening brief. AppellantBarnett, proceeding pro se, at least acknowledges the case, but simplycharacterizes it as "amazingly full of conjecture unsupported by law" andasserts that the controlling case "should be discarded and not considered bythis court as it encourages unequal treatment under the law[.]" (BriefofAppellant Barnett at pp. 39 & 47.)

As the only published decision of a California appellate court on thequestion, Keyes is controlling precedent. In light ofKeyes, this Courtshould affirm Judge Kenny's ruling on the demurrers.II. THE SUPERIORCOURT CORRECTLY RULED THAT ELECTIONS

CODE SECTION 6901 Is NOT UNCONSTITUTIONAL.Appellants persist in maintaining that Elections Code, section 6901 is

unconstitutional because it conflicts with the Secretary of State's purportedduty to vet presidential candidates. In relevant part, section 6901 concernsgeneral elections and directs that the Secretary of State must place on theballot the names of the several political parties' candidates.4 However, asjust explained, the Secretary of State has no duty to vet candidates.

4 Elections Code section 6901 provides infull:Whenever a political party, in accordance with Section 7100,7300, 7578, or 7843, submits to the Secretary of State its(continued... )

7


13/18

Moreover, Keyes specifically rejected this argument regarding section6901. Without the provision, this Court explained:

[T]he truly absurd result would be to require each state'selection official to investigate and determine whether theproffered candidate met eligibility criteria of the UnitedStates Constitution, giving each the power to override aparty 's selection of a presidential candidate. The presidentialnominating process is not subject to each of the 50 states'election officials independently deciding whether apresidential nominee is qualified, as this could lead to chaoticresults. Were the courts of 50 states at liberty to issueinjunctions restricting certification of duly-electedpresidential electors, the result could be conflicting rulingsand delayed transition of power in derogation of statutory andconstitutional deadlines. Any investigation of eligibility isbest left to each party, which presumably will conduct theappropriate background check or risk that its nominee'selection will be derailed by an objection in Congress[.]

(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 thedemurrers without leave to amend. (See Keyes, supra, 189 Cal.AppAth atp. 662 [affirming trial court's judgment sustaining demurrer without leaveto amend]; see also Barnes v. Wong (1995) 33 Cal.AppAth 390,395[issuance ofperemptory writ ofmandate improper where no ministerialduty existed on the part of the registrar].)

( ... continued)certified list of nominees for electors of President and VicePresident of the United States, the Secretary of State shallnotify each candidate for elector of his or her nomination bythe party. The Secretary of State shall cause the names of thecandidates for President and Vice President of the severalpolitical parties to be placed upon the ballot for the ensuinggeneral election.

8


14/18

III. THE RELIEF SOUGHT IN THE PETITION Is MOOT As ITRELATES To THE JUNE 5, 2012 PRESIDENTIAL PRIMARYELECTION.Even if there were a basis for the reliefthat appellants seek, which

there is not, the petition is moot as it relates to the June 5, 2012 electionbecause the Secretary of State already has discharged the statutory dutieswhich appellants seek to enjoin. The petition prays for a writ directing theSecretary of State to refrain from certifying the name of any candidate whohas failed to prove his or her eligibility. (First Am Pet. at p. 22.) Yet, onMarch 29, 2012, the Secretary of State issued to all County Clerks andRegistrars ofVoters the official Certified List of Candidates for the June 5,2012 election, as required by law. (See Elec. Code, 6180 ["At least 68days before a presidential primary election, the Secretary of State shalltransmit to each county elections official a certified list containing the nameof each candidate who is entit led to be voted for on the ballot at thepresidential primary[.]") Accordingly, the relief sought against theSecretary of State is moot. (See Treber v. Superior Court (1968) 68 Ca1.2d128, 134 ["mandate does not lie when the respondent no longer has thelegal 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 inrecall petition dismissed as moot after election held, petitioner recalled, andsuccessor elected].).

CONCLUSIONAny legitimate legal issues presented by this appeal were resolved by

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

9


15/18

Court properly sustained Respondents' demurrers without leave to amend.This Court should affirm that ruling.

Dated: September 18, 2013

SA201210741011174951.doc

Respectfully submitted,KAMALA D. HARRISAttorney General ofCaliforniaDOUGLAS J. WOODSSenior Assistant Attorney GeneralTAMAR PACHTERSupervising eput Attorney General

ANTHONY R. HAKLDeputy Attorney GeneralAttorneys for RespondentCalifornia Secretary ofState Debra Bowen

10


16/18

CERTIFICATE OF COMPLIANCEI certify that the attachedBRIEF OF RESPONDENT DEBRA

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

ANTHONYR. HAKLDeputy Attorney GeneralAttorneys for RespondentCalifornia Secretary ofState Debra Bowen


17/18

DECLARATION OF SERVICE BY U.S. MAIL

Case Name: Noonan et al. v, Bowen et al.Court ofAppeal, Third Appellate District No.: C071764I declare:I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar, at which member's direction this service is made. I am 18 years of age orolder and not a party to this matter; my business address is 1300 I Street, Suite 125, P.O. Box944255, Sacramento, CA 94244-2550.On September 18, 2013, I served the attachedBRIEF OF RESPONDENT DEBRA BOWENby 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 ATTACHED SERVICE LIST

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

SA201210741011175043doc

Brenda ApodacaDeclarant Signature


18/18

SERVICE LISTCase Name: Noonan et al. v. Bowen et al,Court ofAppeal, Third Appellate District No.: C071764Nathan OlesonUnited States Justice Foundation932 D Street, Suite 3Ramona, CA 92065Plaintiffand AppellantEdward NoonanPamela Barnett2351 Sunset Blvd., Ste. 170-921Rocklin, CA 95765Appellant (Pro-Per)

Submitted electronically under rule 8.212(c)(2)Office of the ClerkCalifornia Supreme Court350McAllister StreetSan Francisco, CA 94102-4797

Fredric D. WoocherStrumwasser & Woocher LLP10940 Wilshire Boulevard, Suite 2000Los Angeles, CA 90024Defendant and RespondentObama, as President et al., BaraekHussein, II

Clerk ofthe CourtSacramento County Superior Court720 9th StreetSacramento, CA 95814Case No. 34-2012-80001048CUWMGDS

noonan v bowen appeal - brief of respondent debra bowen 130918

Documents