COACA Third Appellate District - Noonan v Bowen APPEAL - Brief of Respondents OBAMA and OfACA -...

7/30/2019 COACA Third Appellate District - Noonan v Bowen APPEAL - Brief of Respondents OBAMA and OfACA - FINAL 130820

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3d Civ. No. C071764

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

EDWARD NOONAN and PAMELA BARNETT,Petitioners and Appellants,

v.DEBRA BOWEN, individually and as California Secretary of State,PRESIDENT BARACK HUSSEIN 0BAMA, and0BAMA FOR AMERICA CALIFORNIA,

Respondents and Respondents.

Appeal from the Sacramento County Superior CourtCase No. 34-2012-80001048Honorable Michael P. Kenny, Judge

BRIEF OF RESPONDENTSPRESIDENT BARACK OBAMA andOBAMA FOR AMERICA CALIFORNIA

FREDRIC D. WOOCHER (SBN 96689)MICHAEL J. STRUMWASSER (SBN 58413)PATRICIA T. PEl (SBN 274957)STRUMWASSER & WOOCHER LLP10940 Wilshire Boulevard, Suite 2000Los Angeles, California 90024Telephone: (31 0) 576-1233Facsimile: (310) 319-0156E-mail: [email protected]@[email protected]

Counsel for President Barack Obama andObama For America California


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State of CaliforniaCourt of AppealThird Appellate DistrictCERTIFICATE OF INTERESTED ENTITIES OR PERSONS

California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d)Court of Appeal Case Caption:Edward Noonan and Pamela BarnettV.Debra Bowen, President Barack Hussein Obama and Obama for America CaliforniaCourt of Appeal Case Number: CO _7_1_7_64__Please check here if applicable:[ ] There are no interested entities or persons to list in this Certificate as defined in the

California Rules of Court.

Name oflnterested Entity or Person Nature oflnterest(Alphabetical order, please.)1.

2.

3.4.Please attach additional sheets with Entity or Person Information, ifnecessary.1 ~ ! l v ~Signature of Attorney or Unrepresented PartyPrinted Name: Fredric D. WoocherState Bar No: 96689Firm Name & Address:Strumwasser & Woocher LLP

10940 Wilshire Boulevard, Suite 2000Los Angeles, California 90024Party Represented:

Date:

President Barack Obama and Obama for America California

August 20, 2013--------------------

ATTACH PROOF OF SERVICE ON ALL PARTIES WITH YOUR CERTIFICATEApproved for Optional Use Within the Third Appella te District. 01/01/2007


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CONTENTSTABLE OF AUTHORITIES .................................... iiINTRODUCTION . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . . .. . . . . . . 1STATEMENT OF THE CASE .................................. 3STANDARD OF REVIEW .................................... 11ARGUMENT . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . 12I. THE SUPERIOR COURT CORRECTLY RULED THAT THE FIRST

AMENDED PETITION FAILED TO STATE FACTS SUFFICIENT TOCONSTITUTE A CAUSE OF ACTION FOR ISSUANCE OF A WRIT OFMANDATE UNDER CODE OF CIVIL PROCEDURE SECTION 1085 . . . . 12

II. THE SUPERIOR COURT CORRECTLY RULED THAT ELECTIONSCODE SECTION 6901 IS NOT UNCONSTITUTIONAL ............. 20

CONCLUSION . . . . . . . . . . . . . .. . . . . . . . . . . . .. . . . . . . . . . . . . .. . . . 24CERTIFICATE OF COMPLIANCE WITH RULE 8.204(c)(l) . . . . . . . 26


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TABLE OF AUTHORITIESFederal Cases

Minor v. Happersett (1875) 88 U.S. 162 ........................... 5Robinson v. Bowen (N.D. Ca. 2008) 567 F.Supp.2d 1144 ............ 23

State CasesCommon Cause v. Board ofSupervisors (1989) 49 Cal.3d 432 . . . . . . . . 15Curcini v. County ofAlameda (2008) 164 Cal.App.4th 629 ........... 11Evans v. City ofBerkeley (2006) 38 Cal.4th 1 ...................... 11Fuller v. Bowen (2012) 203 Cal.App.4th 1476 ...................... 7Kavanaugh v. West Sonoma County Union High School Dist.(2003) 29 Cal. 4th 911 ................................... 15Keyes v. Bowen (20 10) 189 Cal.App.4th 64 7 .................. passimStanson v. Brown (1975) 49 Cal.App.3d 812 ...................... 11

Federal StatutesU.S. Const. art. II, 1 ..................................... 17, 21U.S. Const. amend. XII ....................................... 21U.S. Const. amend. XX ....................................... 213 U.S.C., 15 ................................................. 21

State StatutesCode Civ. Proc.,

464 ................................................. 7 471.5 ............................................... 7 472 ............................................... 6, 7 1085 ......................................... 10, 15, 20

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Elec. Code, 305 ................................................. 5 350 ................................................. 5 6041 ......................................... 14, 15, 19 6901 .................... 1, 2, 9, 11, 15, 19, 20, 21, 22, 23, 24 13314 ............................................... 7

Gov. Code, 12172 ........................................... 17' 1912172.5 ...................................... 13,17,18

MiscellaneousStats. 2010, ch. 190, 9 ....................................... 14

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INTRODUCTIONIn 2008, when Barack Obama first ran for President, three "birthers"

brought suit against California Secretary of State Debra Bowen and thenPresidential candidate Obama, contending that the Secretary of State wasrequired to verifY that President Obama met the constitutional qualificationsfor office before certifying him for inclusion on the ballot. In Keyes v. Bowen(20 10) 189 Cal.App.4th 64 7 ("Keyes"), this Court squarely rejected thatcontention, holding that the California Elections Code "do[ es] not impose aclear, present, or ministerial duty on the Secretary of State to determinewhether the presidential candidate meets the eligibility criteria of the UnitedStates Constitution." (Id. at p. 659.) The Court in Keyes also specificallyrejected plaintiffs' argument that Elections Code section 6901, whichmandates the Secretary of State to place the names of the political parties'nominees for President and Vice-President on the general election ballot, isunconstitutional and would lead to absurd results, observing that "the trulyabsurd result would be to require each state's election official to investigateand determine whether the proffered candidate met eligibility criteria of theUnited States Constitution, giving each the power to override a party'sselection of a presidential candidate." (Id. at p. 660.)

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Undeterred by this Court's definitive decision in Keyes v. Bowen, sevendifferent "birthers" filed the instant lawsuit last year seeking to prevent

President Obama's name from appearing on the June 2012 primary electionballot. The present action is virtually identical to the Keyes lawsuit. Just asthe plaintiffs in Keyes had argued, Petitioners in the present case contend thatPresident Obama is not a "natural born citizen" and that Secretary of StateBowen has a ministerial duty to verify a candidate's eligibility for President

before placing his or her name on the ballot. And just like the plaintiffs inKeyes, Petitioners assert that Elections Code section 6901 is unconstitutionaland will lead to "absurd and ridiculous results."

Solely on the basis of hese already-rejected legal arguments, Petitionersrequested the Superior Court, inter alia, to issue a writ of mandate

commanding Respondent Bowen to "require all candidates for the office ofPresident of the United States [to] provide sufficient proofof eligibility priorto approving their names for the ballot"; to enter an order "[b Jar[ ring] BarackObama from the California Primary Ballot until he provides evidence whichproves that he is a 'natural-born Citizen' born in the U.S.A. of U.S. Citizen

parents"; and to "[ f]ind California Elections Code 6901 to beunconstitutional and unenforceable." (Appellants' Appendix, vol. 1, p. 114("AA 1: 114").) Not surprisingly, the Superior Court sustained Respondents

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Bowen's and President Obama' s demurrers to the First Amended Petition, andon July 5, 2012, judgment was entered formally dismissing Petitioners' action.

Now, more than a year later and months after President Obama was reelected and sworn into office for his second term, Appellants Barnett andNoonan - two of the seven original Petitioners in the trial court - arepursuing the instant appeal from the Superior Court's judgment. The appealis utterly frivolous, raising exactly the same arguments that were expressly

rejected by this Court in Keyes v. Bowen. Most outrageously, despite themanifest applicability of the Court's decision in Keyes to Appellants' presentclaims - and despite the fact that Appellant Noonan is represented by thesame law firm who represented the plaintiffs in Keyes -Noonan's OpeningBrief does not even mention, much less attempt to distinguish, that critical

governing precedent.This is not a serious appeal, and neither Respondents nor this Court

should have been required to waste their limited time and resources inresponding to it. Appellants' legal arguments are wholly without merit, andthe relief they claim to seek has long since been rendered moot. The Superior

Court's judgment should be affirmed.STATEMENT OF THE CASE

On January 6, 2012, seven in proper petitioners-Edward C. Noonan,

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Pamela Barnett, Sharon Chickering, George Miller, Tony Dolz, Neil Turner,and Gary Wilmott (collectively, "Petitioners") - filed the instant action in

Sacramento County Superior Court against Respondents California Secretaryof State Debra Bowen, President Barack Obama, and President Obama'scampaign organization in California, Obama for America California. 1Petitioner Noonan alleged that he was a declared presidential candidate for theAmerican Independent Party. (Petition for a Prerogative Writ ofMandate and

Restraint of Fund Raising ("Petition"), ,-r 1.)2 The remaining Petitionersalleged that they are "natural person[s] resident in California and registered tovote in the 2012 Election cycle." (ld., ,-r,-r 2-7.)

The Petition sought a writ mandating Respondent Bowen to barPresident Obama from the ballot in the 2012 election cycle. The Petition

alleged that President Obama is "a known ineligible declared candidate" forthe office of President, in that he has admitted that his father "was a British

1There is no legal entity entitled "Obama for America California."President Obama's principal campaign committee, as registered with theFederal Election Commission (FEC), is "Obama for America," which isheadquartered and has its only office in Chicago, Illinois. President Obama'sre-election campaign made use of a number of local offices throughout thecountry, one of which was located in the City of Berkeley, but these officeshad no independent legal standing.

2Although a copy of the Petition was not included in Appellants'Appendix, it is attached to Appellant Barnett's Motion to Augment Record onAppeal, which was granted by this Court on June 7, 2013.4


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subject" while married to his U.S. citizen mother. ( ! d . , ~ 19.) According toPetitioners, under the U.S. Supreme Court precedent ofMinor v. Happersett

(1875) 88 U.S. 162, this allegedly means that Respondent Obama "is not anatural-born Citizen eligible to be POTUS [President of the United States] asmandated by the U.S. Constitution," and he "must be barred from ballot accessby Respondent Bowen as SOS starting no later than January 9, 2012."

( P e t i t i o n , ~ 25.) The Petition alleged that Petitioners would suffer "imminent

irreparable harm" if an ineligible candidate were to appear on the ballot, andthey therefore "demand by prerogative writ ofmandate . . . that RespondentBowen, SOS with authority to do so, bar Respondent Obama ballot access inCalifornia along with those similarly situated from the 2012 Election cyclefrom forming an elector slate for the office ofPOTUS for California." (!d.,

18.) In addition, the Petition alleged that "Respondent Obama is prohibitedfrom fund raising as defined in Cal. Elec. Code 350(b) 'Candidate, ' as usedin Article 1 (commencing with Section 20200),"3 and it demanded "apermanent restraining order to bar Respondent Obama and or his agentsassociated with Respondent Obama for America California be barred [sic]

3The Petition cited to California Elections Code section 350, butpresumably intended to refer to section 305. Section 305 defines the term"candidate" for various purposes in which the word is used in the ElectionsCode; section 350, by contrast, defines the term "school measure."

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from fund raising or soliciting funds under the guise of the elections cycle asmust apply for all those similarly situated who are ineligible to be a candidate

for office ofPOTUS." ( P e t i t i o n , ~ ~ 33-34.)On February 16, 2012, Secretary ofState Bowen and President Obama

and Obama for America (collectively, "Respondents") filed demurrers to thePetition, which were initially calendared for a hearing on April 20, 2012.(AA 1:1-39.) On March 16,2012, however, Petitioner Barnett appeared ex

parte and made an oral request to advance the April 20th hearing date so thata hearing could be held before the Secretary of State issued the Certified ListofCandidates for the June 5, 20 12, Presidential Primary Election on March 29,2012. Respondents agreed to advance the hearing date to accommodatePetitioner's request, and the Superior Court issued an order scheduling the

hearing on the demurrers for March 23,2012. (AA 1:91-92.) But on the eveof that hearing - just moments before the Superior Court was to post itstentative ruling - Petitioners filed with the trial court a document entitled"First Amended Prerogative Writ ofMandate and Restraint ofFund Raising"("First Amended Petition"). (AA 1:93-263.) Based upon that filing, the court

ordered the March 23,2012, hearing on the demurrers to be vacated pursuantto Code ofCivil Procedure section 472. (AA 2:264.)

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The First Amended Petition did not actually constitute a stand-alone"amended petition" in the sense contemplated by Code of Civil Procedure

sections 4 71.5 and 4 72. Rather, it was more in the nature of a "supplemental"pleading, adding new "arguments and information" to the initial writ petitionfiled on January 6, 2012. (See AA 1:93, 11. 26-28.)4 In particular, the FirstAmended Petition alleged that on March 1, 2012, subsequent to the initialpetition being filed in this action: (1) the court of appeal issued an "important

ruling" on Elections Code section 13314 in Fuller v. Bowen (20 12) 203Cal.App.4th 1476, which supposedly supported Petitioners' standing and"gives this court the full power to grant petitioners' prayers for relief evenwithout the State having a ministerial duty unfilled" (AA 1:98-99, ~ 14-15);and (2) Maricopa County, Arizona Sheriff Joe Arpaio's "Cold Case Posse"

issued a "Preliminary Report" that supports the suspicion that President Obamawas not born in Hawaii, that both the short-form and long-form Certificates ofLive Birth he produced are forgeries, that his Selective Service registrationcard is also forged, that he perjured himself on his application for entry to the

4Code of Civil Procedure section 464 allows a party "to make asupplemental complaint or answer, alleging facts material to the case occurringafter the former complaint or answer." In contrast to an amended pleading,which may be filed once by a party as of right at any time prior to the hearingon a demurrer, a supplemental pleading may only be filed "on motion." (CodeCiv. Proc., 464, subd. (a).)

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Illinois bar in 1991, and that he "is now directly acting in a continuing patternto spoliate evidence" through the theft and concealment ofmicrofilmed INS

travel records from August 1961 housed at the National Archives inWashington, D.C. (AA 1:100-103, ,-r,-r 19-24 & Exhs. 2-9).

The gravamen of the First Amended Petition, however, remained thesame as the initial Petition: It alleged that President Obama is not a "naturalborn Citizen," and that the Secretary of State has a ministerial duty to verifY

a candidate's eligibility for President of the United States. (AA 1: 113[Conclusion].) As relief, the First Amended Petition requested, inter alia, thatthe Court: "(1) Issue a Peremptory Writ for Stay ofBOWEN ballot printinguntil further order; (2) Enjoin BOWEN from placing the names of candidateswho have failed to so prove their eligibility on the 2012 California Presidential

primary election ballot; . . . (4) Mandate that BOWEN require all candidatesfor the office of President of the United States provide sufficient proof ofeligibility prior to approving their names for the ballot; and (5) Bar BarackObama from the California Primary Ballot until he provides evidence whichproves that he is a 'natural-born Citizen' born in the U.S.A. ofU.S. Citizen

parents." (AA 1:114 [Prayer for Relief].) The First Amended Petition alsorequested that the Court "[b]ar Barack Obama from the California PrimaryBallot until he release [sic] the August 1, 1961 through August 7, 1961 travel

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microfilm"; and "[ f]ind California Elections Code 6901 to beunconstitutional and unenforceable." ( I b i d . , ~ ~ 3 & 6].)

Respondents renewed their demurrers to the First Amended Petition, 5and at the conclusion ofa hearing held on May 25, 2012, Superior Court JudgeMichael P. Kenny affirmed his written tentative ruling sustaining thedemurrers without leave to amend. (AA 2:391-395.) Judge Kenny ruled thatthe amended petition failed to state facts sufficient to constitute a cause of

action because it required the court either to make a factual determination asto whether President Obama was eligible to run for the office ofPresident ofthe United States or to find that the Secretary ofState has a mandatory duty tomake that determination. The former determination, Judge Kenny explained,was beyond the jurisdiction of the court, and the latter was not within the

duties of the Secretary of State, as this Court had held in Keyes v. Bowen.(AA 2:392-393.) Judge Kenny likewise ruled thattherewas no factual orlegalbasis for the court to issue the requested order restraining President Obama orObama for America from engaging in fund-raising activities in Californiarelated to the presidential campaign. (AA 2:393-394.) Lastly, Judge Kenny

rejected Petitioners' contention that Elections Code section 6901 is

5In the interim, attorney Gary Kreep of the United States JusticeFoundation, who had represented the plaintiffs in the Keyes litigation,substituted in as counsel for Petitioner Noonan. (AA 2:335-336, 396-397.)9


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unconstitutional and unenforceable because it supposedly prevented theSecretary of State from fulfilling her duties as Chief Elections Officer of

California, reiterating that the Secretary ofState has no legal duty to determinethe eligibility ofcandidates for President before their names may be placed onthe ballot. (AA 2:394.)

A formal Order Sustaining Demurrers to the First Amended Petition forWrit of Mandate was entered on July 5, 2012, together with a Judgment of

dismissal. (AA 2:398-407, 409-411.) Petitioners Noonan and Barnett(collectively, "Appellants") filed separate notices ofappeal from the Judgment,on August 2, 2012, and September 4, 2012, respectively.

Appellants challenge only two aspects of he Superior Court's decisionon appeal. Appellants insist that, contrary to the Superior Court 's ruling, the

First Amended Petition stated facts sufficient to constitute a cause ofaction forissuance ofa writ ofmandate to Secretary ofState Bowen under Code ofCivilProcedure section 1085. (Brief of Appellant Noonan ("Noonan's AOB"),pp. 2, 17-19; BriefofAppellant Barnett ("Barnett's AOB"), pp. 2, 46-48.)6 In

6Although Appellant Noonan's Opening Brief never actually identifiesexactly what "duty resulting from office" Respondent Bowen supposedly didnot perform in this case, presumably Appellant is referring to the Secretary ofState's alleged duty to determine President Obama's eligibility for officebefore placing his name on the primary or general election ballot, as Appellantargued below. (See AA 2:330-333.)

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addition, Appellants contend that Elections Code section 6901 isunconstitutional and unenforceable because it purportedly prevents the

Secretary of State from fulfilling his or her duties as the Chief ElectionsOfficer of California. (Noonan's AOB, pp. 10-17; Barnett's AOB, pp. 45-46.V

STANDARD OF REVIEW

The standard of review on appeal from a judgment of dismissal after a

trial court decision sustaining a demurrer is de novo. (Curcini v. County ofAlameda (2008)164 Cal.App.4th 629, 637.) Although the reviewing courtmust "treat the demurrer as admitting all material facts properly pleaded," itdoes not assume the truth of"contentions, deductions or conclusions offact orlaw." (Evans v. City ofBerkeley (2006) 38 Cal.4th 1, 6.) Appellants bear the

burden of"show[ing] either the demurrer was sustained erroneously or that tosustain the demurrer without leave to amend constitutes an abuse ofdiscretion." (Stanson v. Brown (1975) 49 Cal.App.3d 812, 814.) Moreover,as this Court admonished in Keyes v. Bowen, "the trial court's judgment ispresumed to be correct, and the appellant has the burden to prove otherwise by

7Appellant Barnett's Opening Brief includes many extraneous factualassertions and legal arguments that Respondents have difficulty evendeciphering. Because these arguments do not appear to relate to the decisionbelow, Respondents do not address them in this brief.

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presenting legal authority on each point made and factual analysis, supportedby appropriate citations to the material facts in the record; otherwise, the

argument may be deemed forfeited." (189 Cal.App.4th at p. 655 [supportingcitations omitted].)

AR GUM E NT

I. THE SUPERIOR COURT CORRECTLY RULED THAT THE FIRSTAMENDED PETITION FAILED TO STATE FACTS SUFFICIENT TOCONSTITUTE A CAUSE OF ACTION FOR ISSUANCE OF A WRIT OFMANDATE UNDER CODE OF CIVIL PROCEDURE SECTION 1085The First Amended Petition's principal claim is that Respondent Bowen

has a ministerial duty to determine the constitutional eligibility of PresidentObama or of any other presidential candidate before placing his or her nameon the election ballot. (AA 1: 113.) The Superior Court correctly ruled,however, that this Court in Keyes v. Bowen addressed and squarely rejectedthat argument, specifically holding to the contrary that "the Secretary of Statedoes not have a duty to investigate and determine whether a presidentialcandidate meets eligibility requirements of the United States Constitution."(189 Cal.App.4th at pp. 651-652; accord, id. at p. 661 ["plaintiffs have notestablished that the Secretary of State has a ministerial duty to investigate anddetermine whether a presidential candidate is constitutionally eligible to runfor that office"].)

Because this Court's decision in Keyes v. Bowen is so directly on point12


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with respect to this issue, it is worth quoting at length from the pertinentportion of the opinion:

"The trial court also ruled that plaintiffs failed to state acause of action against Secretary of State Bowen because theydid not establish that she had a ministerial duty to investigateand determine President Obama's eligibility for the office ofPresident. Again, plaintiffs fail to establish error.

The Secretary of State is charged with ensuring 'thatelections are efficiently conducted and that state election lawsare enforced . . . . (Gov. Code, 12172.5.)

With respect to primary elections, section 6041 directsthe Secretary ofState to 'place the name ofa candidate upon thepresidential primary ballot when he or she has determined thatthe candidate is generally advocated for or recognizedthroughout the United States or California as actively seekingthe nomination of the Democratic Party for President of theUnited States.... ... After the 63rd day preceding apresidential primary election, the Secretary of State may addcandidates to the selection, but he or she may not delete anypresidential candidate whose name appears on the announcedlist except as provided in Section 6043 [concerning a selectedcandidate's unqualified affidavit that he or she is not acandidate].'

Section 6901, which governs general elections, states:'Whenever a political party, in accordance with Section 7100,7300, 7578, or 7843 [none of which concern constitutionaleligibility], submits to the Secretary of State its certified list ofnominees for electors of President and Vice President of theUnited States, the Secretary of State shall notify each candidatefor elector ofhis or her nomination by the party. The SecretaryofState shall cause the names of he candidates for Presidentand Vice President of he several political parties to be placedupon the ballotfor the ensuing general election.' (Italics added[by Court].)

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The aforementioned statutes do not impose a clear,present, or ministerial duty on the Secretary of State todetennine whether the presidential candidate meets theeligibility criteria of the United States Constitution. Section6041 gives the Secretary ofState some discretion in determiningwhether to place a name on the primary ballot, but she has nosuch discretion for the general election ballot, which is governedby section 6901. With respect to general elections, section 6901directs that the Secretary of State must place on the ballot thenames of the several political parties' candidates." (189Cal.App.4th at pp. 658-660 [footnotes omitted; emphasis inoriginal].)8The Keyes decision thus unequivocally holds that the Secretary ofState

has no duty to independently screen presidential candidates for eligibilitybefore placing their names on the state's ballot for either the primary or

8The final paragraph of Elections Code section 6041 was amendedslightly subsequent to this Court's opinion in Keyes v. Bowen. (SeeStats. 2010, ch. 190, 9.) The section now provides, in its entirety:

"The Secretary of State shall place the name of acandidate upon the presidential primary ballot when he or shehas determined that the candidate is generally advocated for orrecognized throughout the United States or California asactively seeking the nomination of the Democratic Party forPresident of the United States. The Secretary of State shallinclude as criteria for selecting candidates the fact ofqualifYingfor funding under the Federal Elections Campaign Act of 197 4,as amended.

Between the 150th day and the 68th day preceding apresidential primary election, the Secretary of State shallpublicly announce and distribute to the news media forpublication a listof he selected candidates that he or she intendsto place on the ballot at the following presidential primaryelection."

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general election. To the contrary, under Elections Code section 6041,Respondent Bowen has an affirmative duty to place a candidate's name on the

presidential primary election ballot whenever she has determined that "thecandidate is generally advocated for or recognized throughout the UnitedStates or California as actively seeking the nomination of he Democratic Partyfor President of the United States." Likewise, under Elections Codesection 6901, Respondent Bowen has an affirmative duty to place a

candidate's name on the presidential general election ballot "[w]henever apolitical party . . . submits to the Secretary ofState its certified list ofnomineesfor electors of President and Vice President of the United States."9

9As this Court noted in Keyes, while section 6041 may be said to "give[]the Secretary of State some discretion in determining whether to place a nameon the primary ballot" (189 Cal.App.4th at p. 651 ), that discretion has nothingwhatsoever to do with determining whether the candidate is constitutionallyeligible for office, but relates solely to whether he or she is "generallyadvocated for or recognized . . . as actively seeking the nomination of theDemocratic Party for President of the United States." (Elec. Code, 6041.)Moreover, it is well established that traditional mandamus does not lie tocontrol an official's exercise ofdiscretion, but only to compel an official toperform a ministerial act within the meaning of Code of Civil Proceduresection 1085, subdivision (a). (See, e.g., Common Cause v. Board ofSupervisors (1989) 49 Cal.3d 432, 442; Kavanaugh v. West Sonoma CountyUnion High School Dist. (2003) 29 Cal.4th 911, 916 ["A ministerial act is anact that a public officer is required to perform in a prescribed manner inobedience to the mandate of legal authority and without regard to his ownjudgment or opinion concerning such act's propriety or impropriety, when agiven state of facts exist."].)

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In sum, the Superior Court correctly ruled - based upon the bindingprecedent ofKeyes v. Bowen- that the First Amended Petition failed to state

a cause of action establishing any mandatory duty on the part of the Secretaryof State to investigate and determine whether President Obama isconstitutionally eligible to run for or to hold the office of President beforeplacing his name on either the primary or general election ballot.

Remarkably, despite his law firm having been counsel for the plaintiffs

in Keyes v. Bowen and despite the centrality ofthis Court's decision in Keyesto the issues in the present case and to the Superior Court's ruling below,counsel for Appellant Noonan does not even mention- much less attempt todistinguish - the Keyes opinion in his Opening Brief. 10 Appellant simplypretends that the Keyes precedent does not exist. Indeed, Appellant Noonan's

Brief contains virtually no legal argument or analysis at all in support of itscontention that Respondent Bowen failed to comply with the mandatory dutiesof her office, devoting but a single sentence to that claim:

10To her credit, Appellant Barnett does at least acknowledge thisCourt's decision in Keyes v. Bowen in her Opening Brief, although she, too,makes no attempt to distinguish it from the present case. Instead,characterizing the Keyes ruling as "amazingly full of conjecture unsupportedby law" (Barnett's AOB, p. 39) and "contrary to federal case law" (id. atp. 41 ), Barnett states that the ruling "should be discarded and not consideredby this court." (Id., p. 4 7.) Under the well-established principle of staredecisis, of course, this is not a legitimate option for the Court.

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"The unambiguous language of U.S. Constitution, Article 2,Section 1, and the Elections Code, read along with theCalifornia Government Code, clearly define BOWEN's dutiesas Secretary of State, including duties as the Chief ElectionsOfficer for California, to ensure that California's election lawsare followed (Gov. Code 12172), to investigate election fraud(!d.), and to advise candidates and local elections officials on thequalifications and requirements for running for office (!d.)."(Noonan's AOB, pp. 19-20.)The provisions cited by Appellant Noonan in this sentence, however,

do not establish any duty on the part of he Secretary ofState to investigate and

verify presidential candidates' eligibility for office. For example, Article II,section 1, of he U.S. Constitution sets forth the eligibility requirements for theoffice ofPresident, but it articulates no role f o r - much less imposes any dutyupon - the California Secretary ofState to investigate, determine, or enforcethose eligibility requirements with respect to any presidential candidate.

Likewise, the cited section of he California Government Code does notassist Appellant's case. First, Appellant cites the wrong Government Codesection; the provision that enumerates the duties of the Secretary of State as"the chief elections officer of he state" is section 12172.5, not section 12172. 11Second, Appellant blatantly misrepresents the Secretary ofState's duties as

11 Government Code section 12172 relates to the Secretary of State'sreview of the provisions of a proposed initiative measure upon the request ofits proponents. It has nothing to do with the Secretary of State's role insupervising or administering elections.

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the state's "chiefelections officer" under section 12172.5. Government Codesection 12172.5 provides, in its entirety:

"(a) The Secretary ofState is the chief elections officerof the state, and shall administer the provisions of the ElectionsCode. The Secretary of State shall see that elections areefficiently conducted and that state election laws are enforced.The Secretary of State may require elections officers to makereports concerning elections in their jurisdictions.

"(b) If, at any time, the Secretary ofState concludes thatstate election laws are not being enforced, the Secretary ofStateshall call the violation to the attention of the district attorney ofthe county or to the Attorney General. In these instances, theSecretary of State may assist the county elections officer indischarging his or her duties.

"(c) In order to determine whether an elections lawviolation has occurred, the Secretary of State may examinevoted, unvoted, spoiled and canceled ballots, vote-countingcomputer programs, vote by mail ballot envelopes andapplications, and supplies referred to in Section 14432 of theElections Code. The Secretary of State may also examine anyother records of elections officials as he or she finds necessaryin making his or her determination, subject to the restrictions setforth in Section 6253.5.

"(d) The Secretary of State may adopt regulations toassure the uniform application and administration of stateelection laws." (Gov. Code, 12172.5.)As can be seen, there is not a word in Government Code section

12172.5 about the Secretary of State having a duty "to advise candidates andlocal elections officials on the qualifications and requirements for running for

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office." Appellant has simply fabricated that asserted duty out of wholecloth. 12

Finally, Appellants can point to no provision in the California ElectionsCode that imposes a duty upon the Secretary of State to verifY that apresidential candidate satisfies the eligibility requirements of the U.S.Constitution before placing his or her name on the primary or general electionballot. To the contrary, as this Court held in Keyes v. Bowen and as discussed

above, the Elections Code imposes a duty upon the Secretary of State to placea presidential candidate's name on the ballot whenever the candidate "isgenerally advocated for or recognized throughout the United States orCalifornia as actively seeking the nomination" (Elec. Code, 6041[presidential primary election]), or whenever the candidate has been nominated

for President by one "of the several political parties" (id., 6901 [general

12Appellant Noonan similarly asserts that "[t]he Secretary of State'swebsite (http://www.sos.ca.gov/admin/about-the-agency.htm) lists the dutiesof the office of the Secretary of State to ensure that California's election lawsare followed (Gov. Code 12172), investigate election fraud (!d.), and toadvise candidates and local elections officials on the qualifications andrequirements for running for office. (!d.)." (Noonan's AOB, p. 11.) This, too,is a complete fabrication: The Secretary ofState 's website says no such thing.(See AA 2:351-352 [print-out of the cited pages from the Secretary of State'swebsite, as of May 15, 2012].) What is most disturbing is that the factuallyerroneous nature of these assertions was brought to the attention ofAppellantNoonan's counsel during the trial court proceedings, yet he persists mreiterating these same false statements in his Opening Brief in this Court.

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election])- without first verifying the candidate's eligibility under the termsof the U.S. Constitution.

The dismissal of Petitioners' writ of mandate claims againstRespondents Bowen and President Obama must therefore be affirmed on theground that the Superior Court correctly ruled that the First Amended Petitionfailed to state facts sufficient to constitute a cause of action for issuance of awrit of mandate under Code of Civil Procedure section 1085.

II. THE SUPERIOR COURT CORRECTLY RULED THAT ELECTIONS CODESECTION 6901 IS NOT UNCONSTITUTIONAL

Appellants' second argument on appeal is that the Superior Court erredin not declaring Elections Code section 6901 to be unconstitutional andunenforceable. According to Appellants, Elections Code section 6901 "iswholly inconsistent with Article II of the United States Constitution" and "isinconsistent with the several duties and requirements of the Secretary of Stateprovided by the California Government Code, which includes the duty todetermine candidates' eligibility for holding various offices." (AppellantNoonan's AOB, p. 11; Appellant Barnett's AOB, pp. 45-46.)

As discussed in the previous part, far from being "inconsistent with" theduties and requirements of the Secretary of State as the state's chief electionsofficial, Elections Code section 6901 defines what the Secretary ofState'sduties are with regard to placing the names of he political parties' presidential

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nominees on the general election ballot. It is only by misrepresenting what theGovernment Code actually says that Appellants can concoct any purported

conflict between its provisions and Elections Code section 6901.Nor is Elections Code section 6901 inconsistent with Article II of the

U.S. Constitution. The Secretary of State can readily comply with ElectionsCode section 6901 without violating article II of he federal Constitution. Thatarticle sets forth the qualifications for the office ofPresident, but it imposes no

duty upon the Secretary of State to enforce its provisions or to verify thatcandidates for President meet the eligibility requirements for the office. To thecontrary, the Twelfth and Twentieth Amendments to the U.S. Constitution (asimplemented by 3 U.S.C. 15) provide the exclusive process for challengingthe qualifications of a candidate who allegedly does not meet the eligibility

requirements for President under article II, and that process does not involveeither the California Secretary of State or the California courts.

Moreover, once again, the Court is not ruling on a blank slate withrespect to this issue. This Court addressed the identical argument raised by theplaintiffs in Keyes v. Bowen, who - j u s t like Appellants here - contended

that "Elections Code section 6901 is unconstitutional and will lead to absurdresults." (See AA 2:373-375 [Reply BriefofAppellants in Keyes v. Bowen].)As Appellants do here, the plaintiffs in Keyes argued that "the language of

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CEC 6901, compelling the Secretary of State to place any candidatenominated by a political party, is in direct conflict with the requirements for

presidential eligibility in Article II of the United States Constitution becauseit allows a candidate to be placed on the ballot without any verification ofeligibility for the office." (Jd., pp. 374-375.Y3

After observing that the plaintiffs had forfeited this argument becausethey had raised it for the first time in their reply brief, the Court in Keyes v.

Bowen nevertheless proceeded to address it, emphatically rejecting thesuggestion that Elections Code section 6901 would lead to absurd results:

"In any event, the truly absurd result would be to requireeach state's election official to investigate and determinewhether the proffered candidate met eligibility criteria of theUnited States 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 a presidentialnominee is qualified, as this could lead to chaotic results. Werethe courts of 50 states at liberty to issue injunctions restrictingcertification of duly-elected presidential electors, the resultcould be conflicting rulings and delayed transition of power inderogation of statutory and constitutional deadlines. Anyinvestigation of eligibility is best left to each party, which

13Indeed, the Keyes plaintiffs even used the exact same three examplesof he supposedly "absurd results" that would follow from upholding ElectionsCode section 6901 that Appellants cite in the present case - the potentialpresidential nominations ofArnold Schwarzenegger by the Republican Party,the late Ayn Rand by the Libertarian Party, or former British Prime MinisterGordon Brown by the Democratic Party. (Compare AA 2:373-374 withNoonan's AOB, pp. 12-13.)

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presumably will conduct the appropriate background check orrisk that its nominee's election will be derailed by an objectionin Congress, which is authorized to entertain and resolve thevalidity of objections following the submission of the electoralvotes." (189 Cal.App.4th at p. 660 [citation omitted].)14In sum, as this Court previously concluded inKeyes v. Bowen, Elections

Code section 6901 is perfectly consistent both with the Secretary of State'sduties as California's chief elections official and with the eligibilityrequirements and the presidential election process contained in the U.S.

14Quoting from a recent federal district court decision dismissing a pre-election challenge to the qualifications of Republican Party presidentialcandidate John McCain, this Court in Keyes explained:

"[M]echanisms exist under the Twelfth Amendment and 3U.S.C. 15 for any challenge to any candidate to be ventilatedwhen electoral votes are counted, and that the TwentiethAmendment provides guidance regarding how to proceed if apresident elect shall have failed to qualify. Issues regardingqualifications for president are quintessentially suited to theforegoing process. Arguments concerning qualifications or lackthereof can be laid before the voting public before the electionand, once the election is over, can be raised as objections as theelectoral votes are counted in Congress. The members of theSenate and the House of Representatives are well qualified toadjudicate any objections to ballots for allegedly unqualifiedcandidates. Therefore, this order holds that the challengepresented by plaintiff is committed under the Constitution to theelectors and the legislative branch, at least in the first instance.Judicial review- if any - should occur only after the electoraland Congressional processes have run their course." (189Cal.App.4th at p. 661 [quoting Robinson v. Bowen (N.D. Ca.2008) 567 F.Supp.2d 1144, 1147].)

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Constitution. The Superior Court correctly refused to find that Elections Codesection 6901 is unconstitutional and unenforceable.

CONCLUSIONEvery person has the right to their day in court, even against the

government's highest officials. But with that right comes certainresponsibilities - for both the parties and their counsel. Paramount amongthese responsibilities is the duty not to burden the courts with frivolous claims,

not to file repeated lawsuits asserting the same claims that have already beenrejected by the courts, and not to file appeals for which they can summon nocoherent legal support.

The legal arguments advanced by Appellants in the present appeal wereconsidered and rejected by this Court in Keyes v. Bowen. Appellants

nevertheless were permitted to renew and pursue those same claims in this newaction. The Superior Court duly considered Appellants' arguments and onceagain found them to have no merit. Appellants have conspicuously failed toprovide any basis for this Court to reach a contrary conclusion. The SuperiorCourt's judgment dismissing this abuse of the judicial process must therefore

be affirmed.

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Dated: August 20, 2013 Respectfully submitted,STRUMWASSER & WOOCHER LLPFredric D. WoocherMichael J. StrumwasserPatricia T. Pei

B y ; ~ ~Fredric D. WoocherCounsel for President Barack Obamaand Obama for America California

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CERTIFICATE OF COMPLIANCEWITH RULE 8.204(c)(l)

I certifY that, pursuant to Cal. App. Rule 8.204( c), the attached BriefofRespondents President Barack Obama and Obama for America California isproportionately spaced, has a typeface of 13 points or more and contains 5,917words, as determined by a computer word processor word count function.

Dated: August 20, 2013 Respectfully submitted,STRUMWASSER & WOOCHER LLPFredric D. WoocherMichael J. StrumwasserPatricia T. Pei

Fredric D. Woocher

Counsel for President Barack Obamaand Obama for America California

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STATE OF CALIFORNIACOUNTYOFSACRAMENTO

PROOF OF SERVICE

Re: Noonan, eta!. v. Bowen, et al., 3d Civ. No. C071764

I am employed in the County ofLos Angeles, State ofCalifornia. 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 August 20, 2013, I served the document(s) described as BRIEF OF RESPONDENTSPRESIDENT BARACK OBAMA AND OBAMA FOR AMERICA CALIFORNIA on allappropriate parties in this action, as listed below, by the method stated on the attached Service List.

181 If electronic-mail service is indicated, by causing a true copy to be sent viaelectronic transmjssion from Strumwasser & Woocher LLP' s computer network in PortableDocument Format (PDF) this date to the e-mail address( es) stated, to the attention of he person(s)named.

o If fax service is indicated, by facsimile transmission this date to the fax numberstated, to the attention ofthe person named, pursuant to Code ofCivil Procedure section 1013().181 IfU.S. Mail service is indicated, by placing this date for collection for mailing true

copies 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 firm'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 ofbusiness. I am aware that on motion of he partyserved, service is presumed invalid if postal cancellation date or postage meter date is more thanone day after date ofdeposit for mailing contained in the affidavit.

o Ifovernight service is indicated, by placing this date for collection by sending truecopies in sealed envelopes, addressed to each person as indicated, pursuant to Code of CivilProcedure, section 1013(d). I am readily familiar with this firm's practice of collecting andprocessing correspondence. Under that practice, it would be deposited with an overnight servicein Los Angeles County on that same day with an active account number shown for payment, in theordinary course of business.

I declare under penalty ofperjury under the laws of the State ofCalifornia that the aboveis true and correct. Executed on August 20, 2013 at Los Angeles, California.


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SERVICE LISTNoonan, et al., v. Bowen, et al.3d Civ. No. C071764

Via U. S. MailNathaniel J. OlesonUnited States Justice Foundation932 D Street, Suite 3Ramona, California 92065Telephone: (760) 788-6624Facsimile: (760) 788-6414Attorney for Plaint iffandAppellant EdwardNoonan

*****Via Electronic and U. S. MailPamela Barnett2230 Sunset Boulevard, Suite 340-160Rocklin, California 95765Telephone: (916) 626-2831Email: [email protected] Pro Per

*****Via U. S. MailAnthony R. Hakl, IIIOffice of the Attorney GeneralCalifornia Department of JusticeP. 0. Box 944255Sacramento, California 94244-2550Phone: (916) 322-9041Email: [email protected] for Defendant and RespondentDebra Bowen

Via U. S. MailClerk, Department 31Sacramento Superior Court720 Ninth StreetSacramento, California 95814*****

Via Electronic ServiceCalifornia Supreme Courthttp:/ www.courts.ca.gov/19284.htm

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