noonan v bowen - petition for rehearing of appellant barnett
TRANSCRIPT
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
1/16
~ l u r t n
pp eal
tile
m
of ata lifnrnia
TBIRDFP LL T DISTRICT
CQ7 76 f
EDWARD NOONAN et al.
Plaintiffs and Appellants
v.
DEBRA BOWEN as Secretary
of
State etc.et al.
Defendants and Respondents
APPEAL
ROMTH
SUPERIOR COURT OF SACRAMENTO COUNTY
HON. MICHAEL P. KENNY NO. 34 2012 80001048CUWMGDS
PETITION
OR
REHEARING OF APPELLANT PAMELA BARNETT
P MEL B RNETT
Agent
Private Citizen
Self Represented Appellant
2351 Sunset Blvd. Ste. 170 921
Rocklin CA 95765
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
2/16
T BLE OF
CONTENTS
INTRODUCTION , 1
II. ARGUMENTS 1
A. THE COURT MISTAKES LAW GOVERNING PETITION, COURT
ERRED BY MAKING ASSUMPTION THAT PETITIONERS DID NOT
BRING PETITION UNDER THE ENTIRETY OF CEC 13314.
THEREFORE, COURT FAILEDTO ADDRESS STANDING AND
JURISDICTION UNDER THE STANDARD TO BRING PETITION
WHICH DOES NOT HAVE A DUTY REQUIREMENT UNDER CEC
13314. THIS ERROR DENIES PETITIONERS DUE PROCESS
RIGHTS 1
B. COURT MAKES ASSUMPTION NOT BASED ON FACT OR LAW
THAT SECRETARY OF STATE DUTIES TO INVESTIGATE
ELECTION FRAUD AS CHIEF ELECTION OFFICER UNDER CEC
12172.5 WOULD NOT BE APPLICABLE TO THE DUTIES UNDER
2
N ST N R
OF 13314 (A)(l), COURT FAILED TO ADDRESS
DEFENDANT BOWEN S DUTIES AS CHIEF ELECTION OFFICER IN
RELATION TO CEC 13314 4
C. COURT ERRED WHEN IT RULED THAT THE SECRETARY OF
STATE HAS NO DISCRETION UNDER OF CEC 6901 EVENT TO
INVESTIGATE AN ALLEGED FRAUDULENT CANDIDATE
7
D. COURT FAILED TO ADDRESS INELIGIBILITY AND FRAUD
CLAIMS AGAINST DEFENDANT OBAMA, OBAMA FOR AMERICA..
E. REQUEST APPELLANTS SHOULD NOT HAVE TO PAY DEFENSE
FEES 8
V. CONCLUSION 9-10
CERTIFICATE OF COMPLIANCE 11
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
3/16
T BLE OF UTHORITIES
U S Constitution
Article II, Section 1 Clause V 7
1
st
Amendment , 10
California Statues
California Government Code 12172.5 .4,6
California Elections Code 6041 .4
California Elections Code 13314 1-10
California Elections Code 18500 11
California Elections Code 18203 10
California Elections Code 6901 7
California Cases
Keyes Bowen
2010) 189 Cal.App.4
th
1,5,15
Heidi Fuller Debra Bowen, As Secretary State, Etc., et al, No. C065237
Cal.App. Dist.3 03/01/2012 : 16
Other uthorities
11
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
4/16
I. INTRODUCTION
Appellant Pamela Barnett submits this Petition For Rehearing under Rules
Court
8.268 regarding the 3
rd
Districts Court
Appeals Unpublished Opinion dated August
27,2014 for the court s warranted consideration.The 3
rd
District Court
Appeal
made errors in their unpublished opinion filed August 27, 2014, which require a
rehearing as the court has made unfounded assumptions and fails to address matters
law.
II. ARGUMENT
A.THE COURT MISTAKES LAW GOVERNING PETITION, COURT
ERRED BY MAKING ASSUMPTION THAT PETITIONERS DID NOT
BRING PETITION UNDER THE ENTIRETY OF CEC 13314.
THEREFORE, COURT FAILEDTO ADDRESS STANDING AND
JURISDICTION UNDER THE STANDARD TO BRING PETITION
WHICH DOES NOT HAVE A DUTY REQUIREMENT UNDER CEC
13314. THIS ERROR DENIES PETITIONERS DUE PROCESS
RIGHTS
Noonan et al v. Bowen, Obama, Obama for America, is a case
first
impression
as petitioners used
California Election Code 13314 in its entirety
to challenge
the placing the name Defendant Barack Hussein Obama because
his
ineligibility to be President
the United States under the Natural Born Citizen
requirement (U.S. Constitution, Aritic1e II, Section I, Clause V).
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
5/16
The appeals court erred in not giving consideration to Appellant Barnett s argument
that as she correctly stated under Elections Code Section 13314 gave the court the
power to grant relief even without the State having a ministerial duty unfilled. The
opinion from the 3
rd
District stated the following;
As we have explained, Noonan and Barnett sought a writ ofmandate
here on the theory that the Secretary
of
State has a duty to investigate
and determine whether a presidential candidate meets the eligibility
requirements of the United States Constitution before allowing the
candidate s name to be placed on the ballot. In essence, then, their
claim was based on the assertion that a neglect
of
duty was about to
occur insofar as Bowen was going to allow President Obama s name to
be placed on the ballot in the 2012 election cycle without investigating
or determining his eligibility for the office. Of course, to prevail on that
claim they had to show that such a duty existed, which is consonant
with the general requirement that a writ ofmandamus will not issue
unless the respondent has a clear, present and usually ministerial duty to
act. (See Keyes, supra, 189 Cal.App.4th at p. 657.)
Thus,
Barnett s
assertion
that
the trial court added a requirement to the Elections
Code is without
merit.
(Emphasis by Appellant.)
Appellants filed this petition under the
entirety
ofCEC 13314. Petitioners
standards an elector can tile a petition under CEC 13314.(Emphasis and Standard
Clarification by Appellant.)
a
1
An
elector
may seek
a writ of
mandate
alleging
that
an error or
omission
has
occurred, or is
about
to occur, in the
placing
a name on, or
in the printing of, a ballot, sample ballot, voter pamphlet,
or
other official
matter, FIRST STANDARD
or
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
6/16
that any neglect duty has occurred, or is about to occur. SECOND
STANDARD
or both standards to bring statute is the jrdSTANDARD.j
At a minimum both the trial court and now the Appeals court have failed to
address Petitioners right to due process under the first standard filing under CEC
13314 as bolded above.
The first requirement CEC 13314 o s not say whom had to commit the error
or that a ministerial duty or any duty had not to be neglected by the State in order
to use the statute as argued on appeal (AOB 12,13).
could be that a candidate
committed an error by not being qualified for the position they are competing for.
(Also, note, the 2
nd
Standard does not state what duty could be neglected.)
Consequently, like Appellant Barnett argued, the trial court added a requirement to
the first standard filing the petition under CEC 13314.
The petitioners had/have a right under the first standard CEC 13314to
challenge what they in good faith believe to be an error on the ballot because
Candidate Barack Hussein Obama is not constitutionally eligible because existing
American case law does not legally support the son
a foreign citizen being a
Natural Born Citizen as required by the U.S. Constitution, Article 2, Section 1,Clause
V, the Secretary
State s website, and therefore should not be on the ballot because
to do so creates a fraud on the California electorate and subsequently the presidential
electors, and breaks California election laws CEC 18500 and CEC 18203 as noted in
Petitioner s First Amended Petition (Augmentation 1:11).
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
7/16
At no time did Petitioners surrender any right under CEC 13314. In fact, it is
very clearthat Petitioners were using both standards Standard 3) to file under CEC
13314 A)1. Petitioners filed election complaints regarding Obama s ineligibility
under American case law and American history to the Secretary State to try to
prevent/eliminate the error adding O bama to the primary ballot as it would be a
fraud on the citizens California and the presidential electors. Filing the Petition
using CEC 13314 was the next step in the process for Petitioners to try to seek relief
from the State after the Secretary State refused to investigate potential election
fraud crimes
The facts that constitute an error on the ballot outlined in the Petitioners petition
exist regardless a required action by Defendant Bowen or other State official.
Consequently, the lower court and now the Appeals court failed to rule on facts and
law before it.
B. COURT MAKES ASSUMPTION NOT BASED ON FACT OR LAW THAT
SECRETARY OF STATE DUTIES TO INVESTIGATE ELECTION FRAUD
AS CHIEF ELECTION OFFICER UNDER CEC 12172.5 WOULD NOT BE
APPLICABLE TO THE DUTIES UNDER 2
ST N R
OF 13314
A l ,
COURT FAILED TO ADDRESS DEFENDANT BOWEN S DUTIES AS
CHIEF ELECTION OFFICER IN RELATION TO CEC 13314
The court only addresses that there is not a specific statute that requires the
Secretary State to vet eligibility all candidates and remove them from the ballot,
but then said that the Secretary
State can do it when she wants to in their opinion
which constitutes unequal treatment under the law as Defendant Bowen also had facts
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
8/16
and law before her regarding Candidate Obama s ineligibility and failed to act and
actually acted to help him by arguing against Petitioners that she could act
capriciously. Under CEC
13314 A)
1)
the second standard to bring the petition
states very broadly
that any neglect
duty has occurred or is about to occur .
Petitioners brought evidence that Candidate Obama would be a fraudulent candidate
according to the U.S. Constitution and the qualifications to run for President
of
the
United States on the sos.ca.gov website) to Defendant Bowen before she added
Defendant Obama to her primary list of candidates under CEC 6041. Petitioners
stated in election complaints that a fraud was going to be committed against the
California electorate and subsequently the California Presidential Electors
if
candidate
Obama were to be added to the 2012 primary ballot. These formal written complaints
created a duty under for Defendant Bowen. Defendant Bowen did not respond to
Petitioner Barnett s January 2012 election complaint that Defendant Obama did not
meet the Natural Born Citizen requirement under Article II, Section I, Clause V,
of
the U.S. Constitution according to American common law and federal case law.
Further, Bowen was notified via Petitioner s First Amended Petition
of
the Maricopa
County Arizona) Sheriff s report that the alleged Obama Hawaii birth certificate
posted at whitehouse.gov was an electronic forgery and so was/is his Selective
Service Registration. As the hiefElections Officer tasked with enforcing election
laws Defendant Bowen should have sided with Petitioners and citizens
of
California
to get to the truth
if
Obama was defrauding the California electorate and subsequent
presidential electors by using fraud to promote a perceived eligibility to be President
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
9/16
of
the United States. Because this part
of
the standard to bring the petition under CEC
13314 is broad, and it should be interpreted to include all
of
her duties, including
her duty as the
hief
Elections officer under Government Code 12172.5 where she
has the power to investigate election frauds and has an entire election fraud
department at her disposal and can even refer to district attorneys and the CA State
Attorney General for assistance under this statute.
Appellant Barnett attempted to submit documentary evidence via a judicial notice
motion that Candidate Obama has lied to every American by adjusting the timing
of
his live broadcast
of
his alleged killing
of
Osama Bin Laden to cover for the eligibility
hearing the next morning at the 9
th
Circuit Court ofAppeals as well as other
documents like his author biography that stated he was born in Kenyan for 16 years to
show that Obama has unclean hands and cannot be trusted and that the court needs to
allow discovery and a full hearing on Obama s eligibility.
hief
Justice Vance W.
Raye against the interest ofAppellant Barnett had denied admitting these documents
August 19, 2014, as well as documents that show Obama had/has the Indonesian alias
l al orn i Government ode
12172.5. a) The Secretary
of
State is the chiefelections officerofthe
state, and shall administer the provisions
of
the ElectionsCode. The Secretary
of
State shall see that elections
are efficientlyconducted and that state election laws are enforced. The Secretaryof State may require elections
officers to make reports concerningelections in their jurisdictions. b)
f
at any time,
the Secretary
of
State
concludes
that state
election laws are not being enforced, the
Secretary
of State shall call
the
violation to
the
attention
of
the
district
attorney
of the c ou nt y
or
to the
ttorney
General. In these instances, the
Secretaryof State may assist the county elections officer in discharging hisor her duties. c) In order to
determine whether an elections law violation hasoccurred, the Secretary of State may examine voted, unvoted,
spoiledand canceled ballots, vote-counting computer programs, vote by mailballot envelopes and applications,
and supplies referred to inSection 14432 of the Elections Code. The Secretary
of
State may alsoexamine any
other records of elections officials as he or she findsnecessary in making his or her determination, subject to
therestrictions set forth in Section 6253.5. d) The Secretary of State may adopt regulations to assure
theuniform application and administration
of
state election laws, uniform application and administration
of
state
election laws. Emphasis Added.)
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
10/16
of Soebarkah (State Department Freedom of Information passport document) and that
it appears his legal mother Stanley Ann Dunham Soetoro removed him from her
passport because he was not a U.S. citizen as well as other documents that show
possible fraud by the Democratic Party under Rep. Nancy Pelosi regarding candidate
Obama s eligibility and 20 other documents.
C. COURT ERRED WHEN IT RULED TH T THE
SECRET RY
OF ST TE
HAS NO DISCRETION UNDER
OF CEC
6901
EVENT TO INVESTIG TE
AN
LLEGED
FR UDULENT C NDID TE
Arguendo, even
if
the petitioners brought this petition at the general election
instead before the primary, the Secretary of State had discretion to act on this petition
regardless of CEC 6901, because a Statute cannot be used to hide or leave a possible
crime unprosecuted. In instances, where statutes use absolutes such as shall other
States and the federal government have interpreted shall to mean may .
Other Case law and common sense support that if a statute would be allowing the
breaking of another law that the imperative shall in a statute will be then be
interpreted as may . Defendant Bowen or any other Secretary of State should not be
able to use a statute as an excuse to knowingly or unknowingly commit a fraud on the
California electorate by using State power to give legitimacy to a fraudulent candidate
and therefore commission a crime.
D. COURT F ILED TO ADDRESS INELIGI ILITY AND FRAUD CL IMS
AGAINST DEFEND NT OBAMA, O M FOR
MERIC
?
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
11/16
The plaintiffs brought an action not only against Debra Bowen, but also against
Candidate Barack Hussein Obama. Hence, the court had to examine not only our
claims against Bowen, but also those we made against Obama. Petitioners allege that
Obama is not a natural born citizen and therefore not eligible to be President.
Petitioners requested that the Court issue a permanent injunction against Obama
barring him from being placed on the ballot for his not being a natural born citizen.
This has nothing to do with Bowen s duties as Secretary
of
State, but all to do with
whether Obama is an Article II natural born citizen and whether he should be allowed
to be place on the ballot.
f
Obama is not a Natural Born Citizen and/or used fraud to
achieve a perception that he is eligible with allegedly forged birth certificate posted at
whitehouse.gov, he committed a multi-million dollar fraud on tens
of
millions
of
California citizens.
The lower court found that it did not have jurisdiction to decide
if
Obama is a
natural born citizen, but Petitioners argued on appeal AOB 14-24) that the court did
have the facts and the law before it to render a decision
ofObama s
constitutional
eligibility. The appeals court does not address this issue at all in their opinion.
Rather, the court s entire focus is on whether Bowen has a ministerial duty to
investigate Obama s eligibility which it says she does not. Petitioners argued that
Candidate Obama is/was not a natural born citizen, based on admitted facts and the
case law and asked for an injunction against him because he is not a natural born
citizen.
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
12/16
E. REQUEST PPELL NTS SHOULD N OT H VE
TO
P Y DEFENSE
FEES
In the interestofjustice appellants should not have to pay defense fees Calif. Rules
of
Court 8.278 A 5 as the petitioners brought this petition under the entirety of
CEC Section 11314 as a matter of first impression to challenge the eligibility of a
presidential candidate in good faith because they knew an error was about to be made
on the primary ballot in 2012 as all existing American federal case law shows
Obama
to be ineligible to be president as he was born with foreign citizenship to a foreigner
father and a competent legal authority, the Maricopa County Arizona Sheriff
Department performed an investigation of
Obama
s alleged Hawaii birth certificate at
whit hous gov and declared it a forgery. This petition is also a matter
of
first
impression
of
an elector challenging a presidential candidate before the primary
election. Paying of defense fees would chill free speech and deter citizens for
bringing fourth election fraud complaints in the future and bring doubt to the integrity
of California elections as well as disenfranchise legal citizen voters and citizens at
large who have given up on fair elections in California as the Secretary
of
State
refuses to protect the integrity of elections.
Paying fees of Defense is not warranted against Petitioners and they have a right to
due process of their grievances as they brought their case under the entirety of CEC
Section 13314 regardless
of other arguments made but not accepted by court as
convincing.
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
13/16
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
14/16
ERTIFI TE OMPLI N E
In pro per Appellant hereby certifies that pursuant to Rule 8.204 c) 1) or
8.504 d) 1)
of
the California Rules of the Court, the enclosed ri f of the Appellant is
produced using 13-point or greater Roman type, including footnotes and contains less
than 3,000 words, which is less than the total words permitted by the rules
of
the
court. Appellant in pro per relies on the w ord count of the computer program used to
prepare this brief.
Dated: September 11, 2014
Respectfully Submitted,
P
A \ ELA
BARNETT, ent)
AP pELLANT, S e l f ~ e p r ~ ~ r t 1 e d
f>l i vate
Citizen ..-,
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
15/16
APP
PROOF OF SEIWICE Court of Appeal)
FOR COURTUSE ONLY
_
o Personal Service
Notice: This fann
may
be
used
to provide proof
that a
document has been
served in a
proceeding
in the Court ofAppeal Please read
Infonnation
Sheet fo r
Proof
of
Senfice Court
of ppeal form APP-G09-INFO) before
completing this form.
Case
Name:
NOONAN
v.
BOWEN
Court
of
Appeal Case Number:
C071764
~ p e r i o r C o u r t C a s e N u m b e r : 34-2012-80001048 CUWMGDS
1. At the time
of
service I was at
least
18 years
of
age and
no t
a
party
to this legal action
2. My 0 residence 0 business address is specify :
590 McBean Park Dr., Lincoln, CA,
9 ~
/
3. I mailed or personally delivered a copy of
the
follOwing document as indicated below
fill in
t
name of the document you maile
delivered and complete eithera
or
b :
Petition for Rehearing ofAppellant Pamela Barnett
a.
0
Mail
I
mailed a
copy
of
the
document
identified above as follows:
(1) I enclosed a
copy
of the document identif ied above in an envelope or envelopes and
(8)
0
deposited
the sealed envelope(s)
with
the u.s. Postal Service, with the postage fully prepaid.
(b) 0
placed
the envelope(s)
fo r
collection and mailing on
the
date and at the place shown in i tems below,
following our ordinary business practices. I am r e ~ y familiar with this business s practice
of
collecti
and processing
COIJ 8SPOndence
for mailing. On
the
same
day
that correspondence
is
placed for
collection and mailing,
it
is deposited in the ordinary course of business
with
the U.S. Postal Service,
sealed envelope(s)
with
postage fully prepaid.
(2) Date mailed: 9/11/2014
(3) The
envelope was or envelopes were addressed as follows:
(a) Person served:
(i) Name: Anthony Hakyl,
Ill,
Esq., Deputy Attorney General
(ii) Address:
P.O. Box 944255
Sacramento, CA, 94244-2550
(b) Person served:
(i) Name:
Fredric D. Woocher, Esq.
(ii) Address:
10940 Wilshire Blvd., Ste. 2000
Los Angeles, CA, 90024
(c) Person served:
(i) Name: Nathaniel Oleson, Esq.
(ii) Address:
932 D s Ste. 3, Ramona, CA, 92065
d) Sacramento Superior Court, 720 9th St., Sacramento, CA, 95814
d Additional persons served are l isted on the attached page (write
-APP-009, Item
3a
at the top of the pa
(4) I am a resident of or employed in the county where the mailing occurred. The document was mailed from
city
and state : Lincoln, CA
Page
FoonApproyed
for
0pll0naI Use
JUdicial Councilof C8Iib nia
APP..009[New
Jaroaly
1,
2009]
PROOF OF SERVICE
Court
of Appeal
-
8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett
16/16
CASE
N ME
NOONAN v.
BOWEN
3. b.
0 Personal delivery
I
personally
delivered a copy
of
the document identified above as follows:
1)
Person
served:
a)
Name:
b
Address where delivered:
c) Date del ivered:
d) Time del ivered:
APP-00
C071764
2) Person served:
a) Name:
/
b) Address where delivered:
c) Date delivered:
d) Time del ivered:
3) Person served:
a) Name:
b)
Address where delivered:
c)
Date delivered:
d) Time del ivered:
o Names and addresses of additional persons served and delivery dates and times are listed on the attached page wri
APP-D09, Item b
at
the top
of
the page).
I declare under penalty
of
perjury underthe laws of the State of California thatthe foregoing is true and correct.
Date: 9/11/2014
P YLL S WING
TYPE OR PRINT NAME OF PERSOt: COMPlETING THIS FORM)
APp-oog[New
January
1, 2009]
PROOFOF
SERVICE
Court of
Appeal
Page o