ca - 2012-04-25 - noonan - memo of points & authorities to demurrer to 1st amended writ

8/2/2019 CA - 2012-04-25 - NOONAN - Memo of Points & Authorities to Demurrer to 1st Amended Writ

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Respondents.

1 FREDRIC D. WOOCHER (SBN 96689)PATRICIA T. PEl (SBN 274957)2 STRUMWASSER &WOOCHER LLP10940 Wilshire Boulevard, Suite 20003 Los Angeles, California 90024Telephone: (310) 576-1233

4 Facsimile: (310) 319-0156E-mail:[email protected] Attorneys for Respondents .6 President Barack Obama and Obamafor America

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SUPERIOR COURT OF THE STATE OF CALIFORNIAFOR THE COUNTY OF SACRAMENTO

Printed on Recycled PaperMEMO OFPOINTS &AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

1011 EDWARD C. NOONAN, PAMELA12 BARNETT, SHARON CHICKERING,13 GEORGE rvIILLER, TONY DOLZ, NBIL

TURNER, and GARY WILMOTT,1415 Petitioners,v .16 DEBRA BOWEN, individually and officially17 as The California Secretary of State at 1500

1 1 t h Street, 5 th Floor, Sacramento, CA 95814;18 BARACK HUSSEIN OBAMA II;OBAMA19 FOR AMERICA CALIFORNIA at Northern

California HQ, 3225 Adeline Street, Berkeley,20 CA 94703; JOHN and JANE DOES and XYZ21 ENTITIES,22232425262728

CASE NO. 34-2012-80001048

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

Date:Time:Dept.:Judge:May 25,20129:00 a.m.31Hon.Michael P. Kenny

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


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2 TABLE OF AUTHORITIES 13 INTRODUCTION 14 , STATEMENT OF THE CASE : , 25 ARGlJMENT ' 6

THE PETITIONS DO NOT STATE A CAUSE OF ACTION AGAINST ANY OFTHE RESPONDENTS, AND THEY CANNOT DO SO AS A MATTER OF LAW...................................................................... 6

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9101112II.13

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CONTENTS

A. THE PETITIONS DO NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST PRESIDENT OBAMA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..

B. THE PETITIONS Do NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE OBAMA FOR AMERICA CAMPAIGN COMMITTEE. . . . . . . . . . . . . . ..

C. THE PETITIONS Do NOT AND CANNOT STATE A CAUSE OF ACTIONAGAINSTTHESECRETARYOFSTATE

STATE COURTS HAVE NO JURISDICTION OVER THE QUALIFICATIONS OFCANDIDATES FOR PRESIDENT OF THE UNITED STATES OR OVER THEIRFEDERAL FUNDRAISING ACTIVITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1PETITIONERS' CLAIMS FOR RELIEF WITH RESPECT TO THE ruNE 5, 2012,CALIFORNIA PRESIDENTIAL PRIMARY ELECTION MUST BE DISMISSEDAS MOOT 1

CONCLUSION ~ " 1

MEMO OF POINTS &AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA 's DEMURRER TO FIRST AMENDED PETITION


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1 TABLE OF AUTHORITIES2 Federal Cases3 Hollander v. Me/lain (D. N.H. 2008) 566 F.Supp.2d 63 24 Minor v. Happersett (1875) 88U.S. 162 ''-5 Robinson v. Bowen (N.D. CaL 2008) 567 F.Supp.2d 1144 : 1,26 Schneider v. Rusk (1964) 377 U.S. 1637 u.s . v. Wong Kim Ark (1898) 169 U.S. 649 28 State Cases9 Blank v. Kirwan (1985) 39 Cal.3d 31110 Bradley v. Voorsanger (1904) 143 Cal. 214 l311 Chase v. Brooks (1986) 187 Cal.App.657 112 Common Cause v. Board of Supervisors (1989) 49 Ca1.3d 432 : 113 Fuller v. Bowen (2012) 203 CaLAppAth 147614 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 CaL4th 911 : 115 Keyes v. Bowen (2010) 189 Cal.App.4th 647 1,2,9-11, 12, 116 Lanaham v. City of Los Angeles (1939) 14 Ca1.2d 128 117 Loder v. Municipal Court (1976) 17 Ca1.3d 85918 Long v. Hultberg (1972) 27 Cal.App.3d 606 119 Mapstead v. Anchundo (1998) 63 Cal.AppAth 246 120 Mosesian v. Parker (1941) 44 Cal.App.2d 54421 People ex rei. Youngerv. County of El Dorado (1971) 5 Cal. 3d 48022 Routh v. Quinn (1942) 20 Ca1.2d 488 ~23 Treber v. Superior Court (1968) 68 Ca1.2d 128 124 Wilson v. Los Angeles County Civil Servo Comm 'n (1952) 112 Ca1.App.2d 450 125 Other State Cases26 Ankeny v. Governor of State of Indiana (Ind. App. 2009) 916N.E.2d678 1-27 II28 /1

MEMO OF POINTS &AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION


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1 Federal Statutes2 2 U.S.c.,3 431 124 453(a) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 125 3 U.S.C., 15 ' ' 26 26 V.S.c.,7 9001 128 9031 129 State Statutes

loCal. Elec. Code,11 30512 305(b) '.'13 35014 6041 " 10-1115 9601 ,16 13314 : 5,6,717 13314(a)(I)18 13314(a)(2)19 13314(a)(2)(B) 120 1820321 1850022 202 00 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,23 2020324 Code of Civ. Proc.,25 413.1026 430.IO(a) 6, 127 430.10(e)28 452

MEMO OFPOTNTS & AUTHORlTIES TNSUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FJRST AMENDED PETITION


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1 464 42 464(a) 53 471.5 44 472 45 1085 6, 76 1085(a) 6,117 Stats. 2010, ch. 190, 9 108 Miscellaneous9 3 Witkin, Cal. Procedure, Actions, 32 (5th ed. 2008) 13

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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 Secretary of State Debra Bowen from certifying for the ballot the name of5 then-candidate Barack Obama or of "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 subsequently 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 of the 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 and the "First Amended Prerogative Writ o18 Mandate" in the present case are virtually identical to the petition in Keyes v.Bowen, and they suffe19 from the same fatal defects. Petitioners allege that President Barack Obama is not a "natural born20 citizen" eligible to"be President of the United States, and they request that this Court "[mJandate tha21 BOWEN require all candidates for the office of President of the United States provide sufficient proof22 of eligibility prior to approving their names for the ballot," and specifically that the Court "[b]ar23 Barack Obama from the California Primary Ballot until he provides evidence which proves that h24 is a 'natural-born Citizen' born in the U.S.A. of U.S. Citizen parents." (First Amended Prerogative25 Writ of Mandate and Restraint of Fund Raising, p. 22 [Prayer for Relief, ~~4 & 5].)26 President Obama is, of course, a "natural born citizen," born in the United States t o a mothe27 who was an American citizen, and is thus fully qualified to be President under the U.S. Constitution.28 (See, e.g., Ankeny v. Governor of State of Indiana (Ind. App. 2009) 916 N.E.2d 678, 684-689

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MEMO OF POINTS & AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

1 [rejecting the argument that President Obama is constitutionally ineligible to hold the office of2 President because his father was a citizen of the United Kingdom, holding that persons born within3 the borders of the United States are "natural born citizens," regardless of the citizenship of their4 parents].) I However, this fact is immaterial to the proper disposition of this case, which-like its5 predecessor, Keyes v.Bowen - can and must be dismissed as a matter oflaw because there is no duty6 on the part of the Secretary of State to determine whether President Obama or any other presidential7 candidate meets the eligibility requirements of the U.S. Constitution. Likewise, this Court lacks8 jurisdiction over Petitioners' claims because:federallaw establishes the procedures for election of the9 President, and the exclusive means of challenging the qualifications of a presidential candidate is to

10 present an objection before the United States Congress pursuant to 3 U.S.C. section 15. Finally, to11 the extent that Petitioners seek relief with respect to the June 5,2012, Presidential primary election,12 their claims are now moot. Because Petitioners cannot further amend their Petition to state a valid13 cause of action, Respondents' demurrer must be sustained without leave to amend.14 STATEMENT OF THE CASE15 On January 6, 2012, seven in pro per petitioners - Edward C. Noonan, Pamela Barnett,16 Sharon Chickering, George Miller, Tony Dolz, Neil turner, and Gary Wilmott (collectively,17 "Petitioners") - filed the instant action against Respondents California Secretary of State Debra18 Bowen; President Barack Obama, and President Obama's campaign organization in California,19 Obama for America California." Petitioner Noonan alleges that he is a declared presidential candidate

21 'See also Us. v.:Wong Kim Ark (1898) 169 U.S. 649, 654-658 [noting that the meaning of22 the term "natural-born citizen of the United States" must be interpreted in light of English commori

law principles, under which "any person who (whatever the nationality of his parents) is born withinthe British dominions is a natural born British subject"]; Schneider v.Rusk (1964) 377 U.S. 163,165[equating a "natural born citizen" who is eligible to be President to a native-born, as opposed to anaturalized,-;citizen]; Hollander v. McCain (D. N.H. 2008) 566 F.Supp.2d 63, 66 ["Those born 'inthe United States, and subject to the jurisdiction thereof have been considered American citizensunder American law in effect since the time ofthe founding and thus eligible for the presidency."].

23242526 . 2There is no legal entity entitled "Obama for America California." President Obama's27 principal campaign committee, as registered with the Federal Election Commission (FEC), is

"Obama for America," which is headquartered and has its only office in Chicago, Illinois. PresidentObama's re-election campaign makes use of a number of local offices throughout the country, one

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1 for the American Independent Party. (Petition for a Prerogative Writ of Mandate and Restraint of2 Fund Raising" ("Petition"), ~ 1.) The remaining Petitioners allege that they are "natural person[ s]3 resident in California and registered to vote in the 2012 Election cycle." (Id., ~~ 2-7.)34 The Petition seeks a writ mandating Respondent Bowen to bar President Obama from the5 ballot in the 2012 election cycle. The Petition alleges that President Obama is "a known ineligible6 declared candidate" for the office of President, in that he has admitted that his father "was a British7 subject" while married to his U.S. citizen mother. (Id., ~ 19.) According to Petitioners, under the8 U.S. Supreme Court precedent of Minor v.Happersett(1875) 88 U.S. 162, this allegedly means that9 Respondent Obama "is not a natural-born Citizen eligible to be POTUS [President of the United

10 States] as mandated by the U.S. Constitution," and he "must be barred from ballot access by11 Respondent Bowen as SOS starting no later than January 9, 2012." (Id., ~25.) Petitioners allege that12 they would suffer irreparable harm if an ineligible candidate were to appear on the ballot, and they13 therefore "demand by prerogative writ of mandate ... that Respondent Bowen, SOS with authority14 to do so, bar Respondent Obama ballot access in California along with those similarly situated from15 the 2012 Election cycle from forming an elector slate for the office of porus for California." (Id.16 ~ 18.) In addition, the Petition alleges that "Respondent Obama is prohibited from fund raising as17 defined in Cal. Elec. Code 350(b) 'Candidate,' as used in Article 1 (commencing with18 Section 20200),,,4 and it demands "a permanent restraining order to bar Respondent Obama and o19 his agents associated with Respondent Obama for America California be barred [sic] from fund20 raising or soliciting funds under the guise of the elections cycle as must apply for all those similarly21 situated who are ineligible to be a candidate for office of POTUS." (petition, ~~ 33-34.)

23 of which is located in the City of Berkeley, but these offices have no independent legal standing.24 3Although the Petition was never properly served on Respondent Obama in accordance with

Code of Civil Procedure section 413.10 et seq., Respondents 0bama and 0bama for America agreedto waive the defect in service and to deem the Petition to have been served on them on January 17

26 2012.25

27 4The 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 wordis

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

MEMO OFPOINTS &AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA' S DEMURRER TO FIRST AMENDED PETITION


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1 , In February, Secretary of State Bowen and President Obama and Obama for America2 (collectively, "Respondents") filed demurrers to the Petition, which were initially calendared for a3 hearing on April 20, 2012. On March 16,2012, however, Petitioner Barnett appeared ex parte and4 made an oral request to advance the April 20th hearing date so that a hearing could be held before the

,5 Secretary of State issued the Certified List of Candidates for the June 5,2012, Presidential Primary6 Election on March 29, 2012. Respondents agreed to advance the hearing date to accommodate7 Petitioners' request, and the Court issued an order scheduling the hearing on the demurrers for8 March 23,2012. (Minute Order of March 16,2012.) But on the eve of that hearing -, at 1:13 p.m.9 on March 22, 2012, just moments before the Court was to post its tentative ruling - Petitioner

10 Barnett filed with the Court a document entitled "First Amended Prerogative Writ of Mandate and11 Restraint of Fund Raising" ("First Amended Petition"). Based upon that filing, this Court ordered12 the Match 23,2012, hearing on the demurrers to be vacated pursuant to Code of Civil Procedure13 section 472. (Minute Order of March 23,2012.)514 'The First Amended Petition does not actually constitute a stand-alone "amended petition" in15 the sense contemplated by Code of Civil Procedure sections 471.5 and 472. Rather, it is more in the16 nature of a "supplemental" pleading, adding new "arguments and information" to the initial writ17 petition filed on January 6, 2012. (See First Amended Petition, p. 1.)6 In particular, the Firs1819 5Although the First Amended Petition was apparently filed with the Court on March 22,2012,

Petitioner Barnett did not serve it on Respondents Obama and Obama for America until March 27,20 2012. Upon receiving service of the document, Respondents' counsel contacted Petitioner Barnett

to point out that the First Amended Petition was not verified by any petitioner, and that it was onlysigned by and submitted in the name of Ms. Barnett herself- who, because she was not an attorneywas not authorized to represent any of the other petitioners. Counsel offered to'allow Petitioners tovoluntarily correct these defects, in order to avoiding making them the grounds for a demurrer ormotion to strike. Over the course of the'next several weeks, Petitioner Barnett submitted the requiredverification, and each of the other Petitioners has apparently at least attempted to file with the Courta "Declaration of Omitted Verification for the First Amended Prerogative Writ of Mandate andRestraint of Fund Raising." Respondents will therefore treat the First Amended Petition as havingbeen timely filed on behalf of all seven pro se Petitioners.

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6Code of Civil Procedure section 464 allows a party "to make a supplemental complaint oranswer, alleging facts material to the case occurring after the former complaint or answer." Incontrast to an amended pleading, which may be filed once by a party as of right at any time prior tothe hearing on a demurrer, a supplemental pleading may only be filed "on motion." (Code Civ. Proc.,

4MEMO OFPOINTS & AUTIlORITIEHN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION


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1 Amended Petition alleges that on March 1,2012, subsequent to the initial petition being filed in this


2 action, (a) the court of appeal issued an "important ruling" on Elections Code section 13314 in Fuller3 v. Bowen (2012) 203 Cal.AppAth 1476, which supports Petitioners' standing and "gives this court4 the full power to grant petitioners' prayers for relief even without the State having a ministerial duty5 unfilled" (First Amended Petition, ~~ 14-15), and (b) Maricopa County Arizona Sheriff Joe Arpaio' s6 "Cold Case Posse" issued a "Preliminary Report" that supports the suspicion that President Obama7 was not born in Hawaii, that both the short-form and long-form Certificates of Live Birth he produced8 are forgeries, that his Selective Service registration card is also forged, that he perjured himself on9 his application for entry to the Illinois bar in 1991, and that he "is now directly acting in a continuing

10 pattern to spoliate evidence" through the theft and concealment of microfilmed INS travel records11 from August 1961 housed at the National Archives in Washington (id.,~~19-24 & Exhs. 2-9).12". The gravamen of the First Amended Petition, however, remains the same as the initial13 Petition: Italleges that President Obama is not a "natural-born Citizen," and that the Secretary of14 State has a ministerial duty to verify a candidate's eligibility for President of the United States. (Id.,15 p. 21 [Conclusion].) As relief, the First Amended Petition requests, inter alia, that the Court:16 (1) "Issue a Peremptory Writ for Stay of BOWEN ballot printing until further order"; (2) "Enjoin17 BOWEN from placing the names of candidates who have failed to so prove their eligibility on the18 2012 California Presidential primary election ballot"; (3) "Mandate that BOWEN require all19 candidates for the office of President of the United States provide sufficient proof of eligibility prior20 to approving their names for the ballot"; and (4) "Bar Barack Obama from the California Primary21 Ballot until he provides evidence which proves that he is a 'natural-born Citizen' born in the U.S.A.22 of U.S. Citizen parents." (Id., p. 22 [prayer for Relief, ~~ 1, 2, 4 & 5].)7232425 464, subd. (a).)26 7The First Amended Petition also requests that the Court (1) "Bar Barack Obama from the27 California Primary Ballot until he release [sic] the August 1, 1961 through August 7, 1961 travel

microfilm"; and (2) "Find California Elections Code 9601 to be unconstitutional andunenforceable." (Ibid. [Prayer for Relief, ~~ 3 & 6].)

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1 ARGUMENT2 Even leaving aside their flawed premise that President Obama is not a "natural born citizen"3 of the United States, the Petition and the First Amended Petition (collectively, the "Petitions")" do

4 not and cannot state a cause of action against any of the named Respondents, for the simple reason5 that none of the Respondents has neglected to perform any duty imposed upon them by law.6 Moreover, the subject of Petitioners ' claims are outside the jurisdiction of this or any other state court,7 and the Petitions must be dismissed on that ground, as well. Because further amendment would serve8 no useful purpose, Respondents' Demurrer must be sustained without leave to amend. (Code Civ.9 Proc., 430.10, subds. (a) & (e); Blank v. Kirwan (1985) 39 Ca1.3d 311, 318 [demurrer should be

10 sustained when complaint fails to state facts sufficient to constitute a cause of action]; Routh v . Quinn11 (1942) 20 CaL2d 488,493 [where "there are no circumstances under which an amendment would12 serve any useful purpose," dismissal without leave to amend is proper].)1 3 I.14

THE PETITIONS DO NOT STATE A CAUSE OF ACTION AGAINST ANYOF THE RESPONDENTS, AND THEY CANNOT DO SO AS A MATTER OFLAW15 Under Code of Civil Procedure section 1085, a writ of mandate will lie only "to compel the16 performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or17 station, or to compel the admission of a party to the use and enjoyment of a right or office to which18 the party is entitled, and from which the party is unlawfully precluded." (Code Civ, Proc., 108519 subd. (a).) Two essential requirements must therefore be met in order for a writ to issue: "(1) A clear,20 present and usually ministerial duty upon the part of the respondent; and (2) a clear, present and21 beneficial right in the petitioner to the performance of that duty." (Loder v. Municipal Court (1976)22 17 Ca1.3d 859, 863 [quoting People ex rel. Younger v. County of El Dorado (1971) 5 Ca1.3d 480

25 8Respondents refer jointly to the Petition and the First Amended Petition in this demurrer26 because, as noted above, the First Amended Petition appears to be an effort to supplement the initial

Petition rather than to replace it. Because Petitioners are not represented by counsel, and in light of27 the principle that pleadings should be liberally construed (see, e.g., Code Civ. Proc., 452),

Respondents' demurrer focuses on the substantive deficiencies in Petitioners' legal arguments rather28 than on the technical defects in their pleadings.

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MEMO OFPOINTS & AUTHORJTIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

2 Here, Petitioners cannot make the requisite showing to justify issuance of a peremptory writ3 because they have failed to cite any legal duties that Respondents have allegedly neglected to perform.4 Neither President Obama nor his campaign committee have any legal obligation to provide proof of5 the President's qualifications as a "natural born citizen" to the Secretary of State in order to establish6 his eligibility to appear on the ballot as a presidential candidate, much less for him to be able to7 engage in fundraising activities in California. Sirriilarly, the Secretary of State has no ministerial duty8 to determine presidential candidates' constitutional eligibility for office before placing their names9 on the primary or general election ballot. Because these pleading failures cannot be cured by

10 amendment, Respondents' Demurrer should be sustained without leave to amend, and the action11 should be dismissed as to all Respondents.

. A. THE PETITIONS DoNOT AND CANNOT STATE ACAUSE OF ACTIONAGAINST PRESIDENT OBAMA

. Although the Petitions devote a significant amount of attention to presenting the "forensic

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himself is the demand that a permanent restraining order bar him or his agents "from fund raising orsoliciting funds under the guise of the elections cycle [sic]." (Petition, ~~ 33-34; see also id., Prayerfor Relief, ~ 2.)10Nowhere, however, do the Petitions identify any statutory or other legal basis that

9Contrary to the suggestion in the First Amended Petition, no different standard applies forissuance of a writ of mandate under Elections Code section 13314. That section provides that "[a]n

22 elector may seek a writ of mandate alleging that an error or omission has occurred, or is about tooccur, in the placing of a name on, or in the printing of, a ballot, sample ballot, voter pamphlet, orother official matter, or that any neglect of duty has occurred, or is about to occur." (Elec. Code, 13314, subd. (a)(1).) The section goes on to direct that "[a] peremptory writ of mandate shall issue

24 only upon proof of both of the following: (A) That the error, omission, or neglect is in violation ofthis code or the Constitution [and] (B) That issuance of the writ will not substantially interfere withthe conduct of the election." (Id., subd. (a)(2) [emphasis added].) For a writ to issue under ElectionsCode section 13314, then, there must be a "neglect of duty" or other "violation oflaw" by a publicofficial, just as is the case under Code of Civil Procedure section 1085.

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252627 IOAsset forth above, the First Amended Petition asks the Court to "[b]ar Barack Obamafrom28 the California Primary Ballot" until he complies with certain demands (see First Amended Petition,

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MEMO OFPOINTS &AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMBNDED PETITION

1 gives rise to a duty on the part of the President to cease his fundraising activities inCalifornia, or to2 a correlative beneficial right on the part of Petitioners to the performance of any such obligation.3 Petitioners embellish their demand with citations to two sections of the California Elections Code,4 but neither of them lends any coherence to their claim. (See Petition, ~34 [citing Elec. Code, 350,5 subd. (b) & 20200 et seq.j.)!' The Petition also quotes elsewhere from two other Elections Code6 provisions setting forth criminal penalties for the perpetration of election fraud (Petition, ~, 28-297 [citing Elec. Code, 18203 & 18500]), but again, neither statute sets forth any ministerial duty8 required to be undertaken by the President, much less one that creates a private right of action for its9 enforcement, nor is either section remotely related to a candidate's fundraising activities."

loIn short, the Petitions fail to set forth any conceivable legal basis for this Court to issue an11 order barring President Obama from fundraising in California. "It is the general rule applicable to12 the issuance of a writ of mandamus to furnish any basis for the relief sought, that the petitioner show13 that respondents are under some duty to do what the petition asks that they be required to do."14 (Moses ian v. Parker (1941) 44 Cal.App.2d 544, 548.) Petitioners' allegations as to President Obama15 fall far short of this minimal standard and, as such, they must be dismissed.

B . THE PETITIONS DoNOT AND CANNOT STATE A CAUSE OF ACTIONAGAINST THE OBAMA FOR AMERICA CAMPAIGN COMMITTEE

As with President Obama, the only relief sought by the Petitions with respect to RespondentObarna for America is the demand in the initial Petition for a restraining order barring its agents from

p. 22 [Prayer for Relief, ~~ 3&5]), but that relief is really directed to Respondent Secretary of State,since she is the one who places the names of candidates on the primary ballot; President Obama hasno power to place his own name on the California primary ballot.

liAs noted above, Elections Code section 305, subdivision (b) (erroneously cited assection 350 throughout the Petition) simply defines the term "candidate" as it is used in ElectionsCode 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 anysupport for the restraining order sought by Petitioners in this case.

J2Elections 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 fraudulentlycast a vote or to aid or abet another in fraudulently voting.

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1 engaging in any further fundraising in California. (Petition, ~ 33 & Prayer for Relief, 4 I j ] 2.) The2 Petition makes no attempt to identify any duty owed by the campaign committee that would justify3 the relief sought, however, aside from citing to the same irrelevant Elections Code provisions referred4 to above. For the same reasons that are discussed in the previous section, these statutes do nothing5 to cure the pleading's fatal deficiencies, and the demurrer must be granted as to Respondent Obama6 for America without leave to amend.

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C. THE PETITIONS Do NOT AND CANNOT STATE ACAUSE OF ACTIONAGAINST THE SECRETARY OF STATE

Finally, the Petitions fail to state a cause of action against Respondent Bowen, as wellbecause they do not establish that the Secretary of State has a ministerial duty to determine theconstitutional eligibility of President Obama or of any other presidential candidate before placing hisor her name on the election ballot. Indeed, no such showing could be made by Petitioners as a matterof law, for the statutory scheme and the case law firmly establish that the Secretary of State does nohave the duty to do so.

As noted in the Introduction, the Court of Appeal's decision in Keyes v. Bowen is directly onpoint with respect to this issue, and it is therefore worth quoting at length from the pertinent portionof that opinion:

"The trial court also ruled that plaintiffs failed to state a cause of action18 against Secretary of State Bowen because they did not establish that she had aministerial duty to investigate and determine President Obama's eligibility for the19 office of President. Again, plaintiffs fail to establish error.20 The Secretary of State is charged with ensuring 'that elections are efficientlyconducted and that state election laws are enforced .... ' (Gov. Code, 12172.5.)21 With respect to primary elections, section 6041 directs the Secretary of State22 to 'place the name of a candidate upon the presidential primary ballot when he or shehas determined that the candidate is generally advocated for or recognized throughout23 the United States or California as actively seeking the nomination of the Democratic

Party for President of the United States .... [~] ... After the 63rd day preceding a24 presidential primary election, the Secretary of State may add candidates to theselection, but he or she may not delete any presidential candidate whose name25 appears on the announced list except as provided in Section 6043 [concerning aselected candidate's unqualified affidavit that he or she is not a candidate].'262728

Section 6901, which governs general elections, states: 'Whenever a politicalparty, in accordance with Section 7100, 7300, 7578, or 7843 [none of which concernconstitutional eligibility], submits to the Secretary of State its certified list ofnominees for electors of President and Vice President of the United States, the9

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Secretary of State shall notify each candidate for elector of his Qrher nomination bythe party. The Secretary of State shall cause the names 0/ the candidates for2 President and Vice President of the several political parties to be placed upon theballot/or the ensuing general election.' (Italics added [by Court].)

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The aforementioned statutes donot impose a clear, present, orministerial dutyon the Secretary of State to determine whether the presidential candidate meets theeligibility criteria of the United States Constitution. Section 6041 gives the Secretaryof 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 isgoverned 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 politicalparties' candidates." (Keyes v. Bowen, supra, 189 Cal.App.4th at pp. 658-660[footnotes omittedj.)" .The Keyes decision thus unequivocally holds that the Secretary of State is under no duty to

independently screen presidential candidates for eligibility before placing their names on the state'sballot. To the contrary, under Elections Code section 6041, Respondent Bowen has an affirmativeduty toplace the candidate's name on theprimary ballot whenever she determines that "the candidateis generally advocated for or recognized throughout the United States or California asactively seekingthe nomination ofthe Democratic Party for President of the United States." Secretary of State Bowenfully performed her duty under section 6041 by publicly announcing and distributing to the newsmedia a list of the candidates that she determined met the statute's criteria and that she intended to

131415161718

place on the ballot for the June 5, 2012, presidential primary election, and by then certifying thosecandidates for the primary election ballot. (See "Generally Recognized Presidential Candidates,

19 13Thefinal paragraph of Elections Code section 6041 was amended slightly subsequent to the20 court's opinion inKeyes v. Bowen. (See Stats. 2010, ch. 190, 9.) The section now provides, in its

entirety:2122

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"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 asactively seeking the nomination of the Democratic Party for President of the UnitedStates. The Secretary of State shall include as criteria for selecting candidates the factof qualifying for funding under the Federal Elections Campaign Act of 1974, asamended.

Between the 150th day and the 68th day preceding a presidential primaryelection, 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."

10MEMO OFPOINTS & AUTBORlTIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION


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1 June 5, 2012, Presidential Primary Election," Exh. A to Respondents' Request for Judicial Notice2 ("KIN"); "Certified List of Candidates for the June 5, 2012, Presidential Primary Election," Exh. B3 to Respondents' RJN.) President Obama's name is rightly on the Secretary of State's published list4 of generally recognized presidential candidates, as well as on the official certified list of candidates.5 While section 6041 may be said to "give[] the Secretary of State some discretion in

STATE COURTS HAVE NO JURISDICTION OVER THEQUALIFICATIONS OF CANDIDATES FOR PRESIDENT OF THE UNITEDSTATES OR OVER THEIR FEDERAL FUNDRAISING ACTIVITIES

6 determining whether to place a name on the primary ballot" (Keyes v.Bowen, supra, 189 Cal.AppAth7 at p. 651), that discretion has nothing whatsoever to do with determining whether the candidate is8 constitutionally eligible for office, but relates solely to whether he or she is generally recognized as9 "actively seeking the nomination of the Democratic Party." Moreover, it is well established that

10 traditional mandamus does not lie to control an official's exercise of discretion, but only to compel11 an official to perform a ministerial act within the meaning of Code of Civil Procedure section 1085,12 subdivision (a). (See, e.g., Common Cause v . Board of Supervisors (1989) 49 Ca1.3d 432, 442;13 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Ca1.4th 911, 916 ["A14 ministerial act is an act that a public officer is required to perform in a prescribed manner in15' obedience to the mandate of legal authority and without regard to his own judgment or opinion16 concerning such act's propriety or impropriety, when a given state of facts exist."].) In any event, in17 the instant case, even Petitioners presumably would concede that Respondent Bowen did not abuse18 her discretion in determining that President Obama "is generally advocated for or recognized ... as19 actively seeking" the Democratic Party nomination for President. Indeed, the Secretary of State20 would have abused her discretion were she to have reached any other conclusion.21 In sum, the Petitions fail to establish any duty requiring the Secretary of State or any of the22 other Respondents to take the actions demanded of them by Petitioners. The demurrer must therefore23 be sustained without leave to amend, and the Petitions must be dismissed in their entirety.24 II.2526 The demurrer must also be sustained because "[t]he court has no jurisdiction of the subject27 of the cause of action alleged in the pleading." (Code Civ. Proc., 430.10, subd. (a).) State courts28 simply do not havejurisdiction over the subject ofa candidate's eligibility under the U.S. Constitution

11MEMO OFPOINTS &AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION


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5 to the qualifications of a presidential candidate may be registered and resolved. "[M]echanisms exist6 under the Twelfth Amendment and 3 U.S.C. 15 for any challenge to any candidate to be ventilated

PETITIONERS' CLAIMS FOR RELIEF WITH RESPECT TO THE .ruNE 5,2012, CALIFORNIA PRESIDENTIAL PRIMARY ELECTION MUST BEDISMISSED AS MOOT

1 for the office of President of the United States. As the Keyes v. Bowen decision noted, "[tjhe2 presidential nominating process is not subject to each of the 50 states' election officials independently3 deciding whether a presidential nominee is qualified, as this could lead to chaotic results." (1894 Cal.AppAth at p. 660.) Rather, federal law sets forth the exclusive procedure by which objections

7 when electoral votes are counted, and []the Twentieth Amendment provides guidance regarding how8 to proceed if a president elect shall have failed to qualify. Issues regarding qualifications for president9 are quintessentially suited to the foregoing process." (189 Cal.App.4th at p. 661 [quoting Robinson

10 v. Bowen, supra, 567 F.Supp.2d at p. 1147].) Therefore, any challenge to President Obama's11 eligibility to serve as President "is committed under the Constitution to the electors and the legislative12 branch, at least in the first instance" (ibid.) - not to the California Secretary of State or this Court.13 Likewise, the California state courts have no jurisdiction over the fundraising activities of14 presidential candidates. Those activities are governed by the Federal Election Campaign Act (215 U.S.C. 431 et seq.), the Presidential Election Campaign Fund Act (26 U.S.C. 9001 et seq.), and16 the Presidential Primary Matching Payment Account Act (26 U.S. C. 9031 et seq.). None of these17 statutes provides any authorization for the state courts to interpret, implement, or enforce its18 provisions. To the contrary, the Federal Election Campaign Act expressly declares that "the19 provisions of this Act, and of rules prescribed under this Act, supersede and preempt anyprovision20 a/State law with respect to election to Federal office." (2 U.S.C. 453, subd. (a) [emphasis added].)21 The state courts simply lack jurisdiction over any aspect of the fundraising activities of candidates22 for federal office, especially candidates for President of the United States.

23 III.2425 Finally, to the extent that the Petitions seek relief with respect to the June 5, 2012, California26 Presidential primary election, those claims are now moot. The Secretary of State officially certified27 President Obarna's name for the ballot as a presidential candidate on March 29, 2012. (See28 Respondents' RJN, Exh. B.) The ballots and sample ballots containing President Obama's name on

12MEMO OF POINTS & AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION


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5 It is black-letter law that even when "a case may originally present an existing controversy,6 if before decision it has, through act of the parties or other cause, occurring after the commencement7 of the action, lost that essential character, it becomes a moot case or question which will not be

MEMO OFPOINTS &AUTHORITIES IN SUPPORT OF RESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

1 them have already been printed, vote-by-mail ballots containing President Obama's name on them2 have been mailed to millions of voters throughout the state, and by the time the hearing on3 Respondents' demurrer is held, hundreds of thousands of those ballots will already have been cast for

4 President Obama and returned to the County Registrars of Voters for counting."

8 considered by the court." (3 Witkin, Cal. Procedure, Actions, 32, p. 98 (5th ed. 2008) [internal9 quotation marks omitted], quoting Wilson v . Los Angeles County Civil Servo Comm 'n (1952) 112

10 Cal.App.2d 450, 453 [challenge to civil service list rendered moot by expiration oflist and issuance11 of new list]; see, e.g., Treber V . Superior Court (1968) 68 Cal.2d 128, 134 ["mandate does not lie12 when the respondent no longer has the legal authority to discharge the alleged duty because the time13 for doing so, as specified by statute or ordinance, has expired"].) This rule is widely applied to14 election cases when an election has been held that precludes the relief sought. (See generally15 Mapstead V . Anchundo (1998) 63 Cal.App.4th 246 [challenge to sufficiency of referendum petition16 mooted by conduct of election]; Chase v. Brooks (1986) 187 Cal.App.3d 657 [whether referendum17 petition complied with statutory requirements mooted by holding of election]; Long V . Hultberg18 (1972) 27 Cal.App.3d 606 [mandamus petition challenging sufficiency ofrecall petition dismissed19 as moot after election was held, petitioner was recalled, and successor was elected]; Lanaham v. City20 of Los Angeles (1939) 14 Ca1.2d 128 [same]; Bradley v. Voorsanger (1904) 143 Cal. 214 [suit to212223 "Four ofthe six "prayers for relief" in the First Amended Petition explicitly request that the24 Court bar or enjoin Respondent Bowen from placing the names of Respondent Obama or other

candidates who fail to prove their eligibility on the 2012 California Presidential primary electionballot. (First Amended Petition, p. 22 [Prayer for Relief, ~~ 1, 2, 3 & 5].) A fifth prayer is more

26 ambiguous, requesting that the Court mandate Respondent Bowen to require all candidates forPresident to "provide sufficient proof oftheir eligibility prior to approving their names for the ballot."

27 (Ibid. [prayer for Relief, ~ 4].) Of course, to the extent that the Petitions seek relief with respect tothe general Presidential election ballot, rather than the primary election, the case is on all fours with

28 Keyes v. Bowen, which sought the identical relief on identical grounds.13

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MEMO OFPOINTS &AUTHORITIES IN SUPPORT OFRESPONDENT OBAMA'S DEMURRER TO FIRST AMENDED PETITION

1 enjoin election mooted by holding of electionj.)"2 Itis plainly too late to grant any relief with respect to the 2012 Presidential primary election,3 and Petitioners' claims in that regard are therefore moot. Respondents' demurrer must be sustained4 on this ground, as well.5 CONCLUSION6 Barack Obama has served as this country's President for more than three years. This lawsuit7 is only the latest in a never-ending parade of frivolous "birther" actions challenging President8 Obama's eligibility for office, all of which have been swiftly and decisively rejected by the courts.9 The Petition and First Amended Petition inthis case, like its predecessors, has no basis in law, and

10 the relief Petitioners seek cannot be granted by this Court. For the reasons and upon the authorities11 cited above, Respondents respectfully request that the Demurrer be sustained without leave to amend,12 and the action promptly be dismissed.1314 Date: April ~s- ,2012 Respectfully Submitted,

STRUMWASSER &WOOeRER LLPFredric D. WoocherPatricia T. Pei

,.,.-fl;~BY~21~~.~~~.~~ _Fredric D. WoocherAttorneys for RespondentsPresident Barack Obama andObamafor America California

15Seealso Elec. Code, 13314, subd. (a)(2)(B) [writ of mandate shall issue only upon proof28 that "issuance of the writ will not substantially interfere with the conduct of the election"].

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PROOF OF SERVICESTATE OF CALIFORNIACOUNTY OF SACRAMENTO

Re: Noonan, et al. v. Bowen, et al., Case No. 34-2012-80001048

I am employed in the County of Los Angeles, State of California. I am over the age of 18and not a party to the within action. My business address is 10940 Wilshire Boulevard, Suite2000, Los Angeles, California 90024.

On April2S, 2012, I served the document(s) described asMemorandum of Points and Authorities in Support of Demurrer of PresidentBarack Obama and Obama for America to First Amended Prerogative Writof Mandate and Restraint of Fund Raising

on all appropriate parties in this action, by the method stated on the attached service list.1 8 1 If electronic-mail service is indicated, by causing a true copy to be sent via

electronic transmission from Strumwasser & Woocher LLP's computer network in PortableDocument Format (PDF) this date to the e-mail address( es) stated, to the attention oftheperson(s)named.

o If fax service is indicated, by facsimile transmission this date to the fax numberstated, to the attention of the person named, pursuant to Code of Civil Procedure section 1013(f).

1 8 1 IfU. S. Mail service is indicated, by placing this date for collection for mailing truecopies in sealed envelopes, first-class postage prepaid, addressed to each person as indicated,pursuant to Code of Civil Procedure section 1013a(3). I am readily familiar with the finn'spractice of collection and processing correspondence for mailing. Under that practice, it wouldbe deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid atLos Angeles, California, in the ordinary course of business. I am aware that onmotion of the partyserved, service is presumed invalid if postal cancellation date or postage meter date is more thanone day after date of deposit for mailing contained in the affidavit.

I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on April 25, 2012 at Los Angeles, California.

Paula M. Klein


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.,

SERVICE LIST

Noonan, et al., v. Bowen, et al. (Sacramento Superior Court Case No. 34-2012":80001048)

Edward Noonan1713 11ill AvenueOlivehurst, California 95961Phone: (530) 845-5186Fax: (866) 908-2252Email: [email protected] Pro Per

Neil Turner1713 11thAvenueOlivehurst, California 95961Phone: (760) 431-8899Fax: (866) 908-2252Email: NBTurner@EarthlinknetIn ProPer .

Pamela Barnett1713 1ph AvenueOlivehurst, California 95961Phone: (530) 718-0843Fax: (866) 908-2252Email: [email protected] ProPer

Gary Wilmott1713 11th AvenueOlivehurst, California 95961Phone: (805) 630-0330Fax: (866) 908-2252Email: [email protected] Pro Per

Sharon Chickering1713 11th AvenueOlivehurst, California 95961Phone: (858) 716-9367Fax: (866) 908-2252

. Email: [email protected] Pro Per

George Miller1713 11th AvenueOlivehurst, California 95961Phone: (805) 807-5114Fax: (866) 908-2252Email: [email protected] ProPer

Anthony R. HaklOffice of the Attorney GeneralCalifornia Department of Justice1300 I StreetSacramento, California 95814Phone: (916) 322-9041Emai1:[email protected] for Debra Bowen, individually andofficially as The California Secretary of State

Tony Dolz1713 11th AvenueOlivehurst, California 95961Phone: (310) 371-7500Fax: (866) 908-2252Email: [email protected] Pro Per
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:Emai1:[email protected]:[email protected]:[email protected]:Emai1:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

ca - 2012-04-25 - noonan - memo of points & authorities to demurrer to 1st amended writ

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