DOJ Demurrer

8/2/2019 DOJ Demurrer

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1 KAMALA D. HARRISAttorney General of California

2 PETER A. KRAUSESupervising Deputy Attorney General

3 ANTHONY R. HAKLDeputy Attorney General

4 State Bar No. 1973351300 I Street, Suite 1255 P.O. Box 944255

Sacramento, CA 94244-25506 Telephone: (916) 322-9041

Fax: "(916)324-88357 E-mail: [email protected]

Attorneys for Respondent California8 Secretary of State Debra Bowen

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SACRAMENTO

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v . RESPONDENT SECRETARY OF STATEDEBRA BOWEN'S NOTICE OFDEMURRER AND DEMURRER TOPETITION FOR WRIT OF MANDATE

12 JOHN ALBERT DUMMETT, JR., et aI.,

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Case No. 34-2012-80001091

Petitioners, Related Case No. 34-2012-80001048

SECRETARY OF STATE DEBRABOWEN,

Date: October 26, 2012Time: 9:00 a.m.Dept: 31Judge: Honorable Michael P. KennyTrial Date: None

________________ ----' Action Filed: March 20, 2012

Respondent.

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on October 26, 2012, at 9:00 a.m., before the Honorable

Michael P. Kenny in Department 31 of the court identified above, located at 720 9th Street,

Sacramento, California, Respondent California Secretary of State Debra Bowen will present forhearing her demurrer to Petitioners' entire "Petition for Writ of Mandate Compelling

Respondents to Require Proof of Eligibility Prior to Approving Presidential Candidate Names for

Ballot Placement, and to Declare Unconstitutional California Election Code Section 6901." This

demurrer will be based on Code of Civil Procedure sections 422.10 and 430.10 and Rule 3.1320

Dummett et at. v. Bowen (34-2012-80001091)
mailto:[email protected]:[email protected]


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Dummett et al. v. Bowen (34-2012-80001091)

1 of the California Rules of Court, and upon the grounds that the petition fails to state a cause of

2 action against the Secretary of State. Accordingly, Respondent prays that the demurrer be

3 sustained without leave to amend.

4 The demurrer will also be based on this notice of demurrer and demurrer, the separately

5 filed memorandum of points and authorities, all pleadings and papers on file herein, and upon

6 such other matters as may be presented in connection with the hearing.

7 Pursuant to Local Rule 3.04, the court will make a tentative ruling on the merits of this

8 matter by 2:00 p.m., the court day before the hearing. You may access and download the court's

9 ruling from the court's website at http://www.saccourt.ca.gov. If you do not have online access,

10 you may obtain the tentative ruling over the telephone by calling (916) 874-6353 and a deputy

11 clerk will read the ruling to you. If you wish to request oral argument, you must contact the clerk

12 at (916) 874-6353 (Department 31) and the opposing party before 4:00 p.m. the court day before

13 the hearing. If you do not call the court and the opposing party by 4:00 p.m. on the court day

14 before the hearing, no hearing will be held.

15 Dated: May 4,2012

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Respectfully Submitted,

KAMALA D. HARRISAttorney General of California

PETER A. KRAUS)fSupervi in DewptyAttorney General

ANTHONY R. HAKLDeputy Attorney GeneralAttorneys for Respondent CaliforniaSecretary of State Debra Bowen

SA201210548323 20581122.doc

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http://www.saccourt.ca.gov./http://www.saccourt.ca.gov./


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DECLARATION OF SERVICE BY U.S. MAIL

Case Name:No.:

John Albert Dummer, Jr., et al. v. Secretary of State Bowen3 4 - 2 0 1 2 - 8 0 0 0 0 1 0 9 1

I declare:

I am employed in the Office of the Attorney General, which is the office of a member of theCalifornia State Bar, at which member's direction this service is made. I am 18 years of age orolder and not a party to this matter. I am familiar with the business practice at the Office of-theAttorney General for collection and processing of correspondence for mailing with the UnitedStates Postal Service. In accordance with that practice, correspondence placed in the internalmail collection system at the Office of the Attorney General is deposited with the United StatesPostal Service with postage thereon fully prepaid that same day in the ordinary course ofbusiness.

On May 4, 2012, I served the attached RESPONDENT SECRETARY OF STATE DEBRABOWEN'S NOTICE; OF DEMURRER AND DEMURRER TO PETITION FOR WRITOF MANDATE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OFDEMURRER TO PETITION FOR WRIT OF MANDATE by placing a true copy thereofenclosed in a sealed envelope in the internal mail collection system at the Office of the AttorneyGeneral at 1300 I Street, Suite 125, ~.O. Box 944255, Sacramento, CA 94244-2550, addressedas follows:

Gary G. KreepNathaniel J. OlesonUnited States Justice Foundation932 OlD"Street, Suite 2Ramona, CA 92065

Tony Dolz1713 11th AvenueOlivehurst, CA 95961

Edward Noonan1713 11th AvenueOlivehurst, CA 95961

Neil Turner1713 11th AvenueOlivehurst, CA 95961

Pamela Barnett1713 11th AvenueOlivehurst, CA 95961

Gary Wilmott1713 lith AvenueOlivehurst, CA 95961

Sharon Chickering

17131lthAvenueOlivehurst, CA 95961

.Frederic D. WoocherStrumwasser & Woocher LLP10940 Wilshire Boulevard, Suite 2000Los Angeles, CA 90024

George Miller1713 11th AvenueOlivehurst, CA 95961


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I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on May 4, 2012, at Sacramento, California.

Brooke C. Carothers ~ (1 .(l;T~Declarant Signature

S/l20121QS48,

10891ondoc


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1 KAMALA D. HARRISAttorney General of California

2 PETER A. KRAUSESupervising Deputy Attorney General

3 ANTHONY R. HAKL .Deputy Attorney General

4 State Bar No. 1973351300 I Street, Suite 125

5 P.O. Box 944255Sacramento, CA 94244-2550

6 Telephone: (916) 322-9041Fax: (916) 324-8835

7 E-mail: [email protected] for Respondent California

8 Secretary of State Debra Bowen

9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SACRAMENTO

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12 JOHN ALBERT DUMMETT, JR., et al., Case No. 34-2012-80001091

Petitioners, Related Case No. 34-2012-80001048

Date: October 26,2012Time: 9:00 a.m.Dept: 31Judge: Honorable Michael P. KennyTrial Date: None

________________ ---l Action Filed: March 20,2012

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v .

SECRETARY OF STATE DEBRABOWEN,

Respondent.

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MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFRESPONDENT SECRETARY OF STATEDEBRA BOWEN'S DEMURRER TOPETITION FOR WRIT OF MANDATE

Memorandum of Points and Authorities in Support of Respondent Secretary of State Debra Bowen'sDemurrer to Petition for Writ of Mandate (34-2012-80001091)
mailto:[email protected]:[email protected]


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1 INTRODUCTION

2 This case is premised on the theory that President Barack Obama is constitutionally

3 ineligible to hold the office of President of the United States. Based on this purported

4 ineligibility, Petitioners seek a peremptory writ of mandate directing California Secretary of State

5 Debra Bowen to require President Obama (and all other presidential candidates) to provide proof

6 that they are in fact eligible to hold the office of President. Petitioners further ask that the

7 Secretary of State be enjoined from certifying any presidential candidate's name for the June 5,

8 2012 Presidential Primary Election ballot until he or she provides such proof.

9 As the Court is aware, this case has been related to Noonan v. Bowen, Case No. 34-2012-

10 80001048. Just like in Noonan, the issue for this Court to decide is not whether Mr. Obama is in

11 fact constitutionally eligible to be President. Rather, the issue is whether the Secretary of State

12 has a ministerial duty to investigate the constitutional qualifications of presidential candidates in

13 the first place. I As explained below, under the applicable provisions of the Elections Code, and

14 as held by the Third District Court of Appeal in Keyes v. Bowen (2011) 189 Cal.AppAth 647,

15 there is no such duty. .

16 Even if there were a basis for the relief that Petitioners seek, which there is not, the petition

17 is also moot because the Secretary of State has already certified the list of presidential candidates

18 for the June 5, 2012 Presidential Primary Election.

19 Additionally, it is federal law that provides a mechanism for lodging objections to

20 presidential candidate qualifications. And because Petitioners did not bring this action until after

21 President Obama was elected and inaugurated for the first time more than four years ago, the

22 action is barred by the doctrine of laches.

23 For all these reasons, and as more fully explained below, the Secretary of State respectfully

24 requests that this Court sustain her demurrer without leave to amend.

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27 .' \ In Noonan; demurrers by the Secretary of State and President Barack Obama are set tobe heard on May 25, 2012, at 9:00 a.m.

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ALLEGATIONS OF THE PETITION

There are seven petitioners in this case: John Albert Dummett, Jr., "a write-in Presidential

candidate in the,2012 California Republican Presidential primary"; Markham Robinson,

"Chairman of the Executive Committee of the State Central Committee of the American

Independent Party of California"; the Constitution Party, which is alleged to be a national

political party; and registered California voters Gil Houston, Larry Lakamp, Milo L. Johnson and

Joe Ott ("Petitioners"), (Pet. at pp. 1-2.) The only respondent is California Secretary of State

Debra Bowen.

According to Petitioners, there is a question as to whether President Barack Obama is

"eligible to run for, and serve as, President" and he is "arguably ineligible for the office.,,2 (Pet.

at 'i[~23 & 4l.) Petitioners claim that the Secretary of State has the responsibility to "verify" and

require "proof' that any candidate for the office of President of the United States meets the

constitutional eligibility requirements for the office before certifying his or her name for inclusion

on the primary ballot. (See Pet. at ~'i[1-2~11, 20-22.) They assert that the Secretary of State has

failed to discharge that responsibility.

Therefore, Petitioners ask this Court to determine for certain whether the Secretary of State

"has required all candidates for President of the United States to provide proof that they are, in

fact, eligible to serve in the office of President of the United States" and enjoin the Secretary of

State from "placing the names of candidates who have so failed to prove their eligibility on the.

2012 California Presidential primary election ballot." (Pet. at p. 12.) Petitioners seek an order

mandating that the Secretary of State "require all candidates for the office of President of the

United States provide sufficient proof of eligibility prior to approving their names for the ballot."

(Ibid.) They also ask the Court to find Elections Code section 6901 to be "unconstitutional and

unenforceable." (Ibid.)

2:The petition as a whole demonstrates that the focus of-this case is the supposed, . ineligibility of President Barack Obama, although there is a brief reference in the petition that "a,.similar situation may exist concerning the Republican Party candidacy of Mitt Romney."(Pet. ~ 41.)

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APPLICABLE LEGAL STANDARDS FOR A DEMURRER

Motions attacking the pleadings and other pretrial objections may generally be brought in

writ proceedings. (Code Civ. Proc., 1109.) A respondent may object to an entire petition or

any purported cause of action within it by demurrer. (Code Civ. Proc., 430.50.) On demurrer,

the trial court considers the properly pled material facts and those matters which may be judicially

noticed. (California A lliance for Utility etc. Education v. City of San Diego (1997)

56 Cal.AppAth 1024, 1028.) Courts treat as true all of the petition's material factual allegations,

but not the contentions, deductions, or conclusions offact or law. (Blank v. Kirwan (1985) 39

Ca1.3d 311, 318.) Given the assumed truth of the alleged facts, when ruling on demurrer, the

court determines if the petition sufficiently states a cause of action. (Picton v, Anderson Union

High School Dist. (1996) 50 Cal.AppAth 726,733.) The petition in this case fails under this

standard and the Court should sustain the demurrer without leave to amend.

ARGUMENT

I. THE SECRETARY OF STATE HAS No LEGAL DUTY TO DETERMINE WHETHER APRESIDENTIAL CANDIDATE IS CONSTITUTIONALLY ELIGIBLE TO SERVE ASPRESIDENT OF THE UNITED STATES.

To be entitled to a writ of mandate, Petitioners must show (1) that the Secretary of State has

a duty to act and (2) that Petitioners have a beneficial right to performance of that duty.

(Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Ca1.4th 911,916;

Loder v. Municipal Court (1976) 17 Cal.3d 859, 863.) The required duty is a "clear, present and

usually ministerial duty on the part of the respondent." (California Ass 'nfor Health Services at

Home v. State Dept. of Health Services (2007) 148 Cal.App.4th 696, 704; see Code Civ. Proc.,

1085, subd. (a) ["[a] writ of mandate may be issued by any court to any inferior tribunal,

corporation, board, or person, to compel the performance of an act which the law specially

enjoins, as a duty resulting from an office, trust, or station .... "J.) "A ministerial act is an act

that a public officer is required to perform in a prescribed manner in obedience to the mandate of

legal.authorityand without regard to his ownjudgment oropinion concerning ~~ch act's propriety

or-impropriety, when a given state of facts exists." (Kavanaugh"supra;29 CaL4th at p. 916, . " , -+- ,. ',~ ', ~., , : ' : '~"

citation omitted.) .The petitioner bears the burden of demonstrating that the respondent has a duty3

Memorandum of Points and Authorities in Support of Respondent Secretary of State Debra Bowen'sDemurrer to Petition for Writ of Mandate (342012-80001091)


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to perform the act sought to be compelled. (MacLeod v. Long (1930) 110 Cal.App. 334, 338;

Eistrat v. Board a/Civil Service Com 'n a/the City of Los Angeles (1961) 190 CaLApp.2d 29,34.)

Here, although mandamus is the correct remedy for compelling an officer to conduct an

election according to law (Wenke v. Hitchcock (1972) 6 CaL3d 746, 751), Petitioners cannot meet

their burden to demonstrate that the Secretary of State has a clear, present ministerial duty to

determine whether a presidential candidate meets the federal constitutional requirements to serve

as president of the United States. (See Brandt v. Board of Supervisors, (1978) 84 Cal.App.3d

598, 600-601 ["the basis for the action must be a clear present duty to perform the act sought to

be compelled; the writ will not be granted merely in anticipation that the party will refuse to

perform the duty when the time comes"].) This is because the Secretary of State has no such

duty.

In a decision published last year, the Third District Court of Appeal concluded that the

relevant Election Code provisions "do not impose a clear, present, or ministerial duty on the

Secretary of State to determine whether the presidential candidate meets the eligibility criteria of

the United States Constitution." (Keyes v. Bowen (2011) 189 Cal.App.4th 647, 659.) Similar to

Petitioners here, the petitioners in Keyes were "people who Claim President Barack Obama is not

a natural born citizen of the United States of America and, hence, is ineligible to be the

President." (Id. at p. 651.) Indeed, counsel for Petitioners here served as counsel for the

plaintiffs in Keyes. (Id. at pp. 647.) And Markham Robinson, a petitioner here, was a plaintiff in

Keyes. 3 (Id. at pp. 647,651.)

Keyes acknowledged that California's Secretary of State is the staters chief elections officer

and is responsible for ensuring "that elections are efficiently conducted and that state election

3 Thus, in addition to all of the reasons set forth in the body of this brief, the claims as to

Mr. Robinson have been previously litigated and determined and are therefore barred by resjudicata and 'collateral estoppel. "'Res judicata' describes the preclusive effect of a finaljudgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same causeof action in asecond suit between the same parties or.parties in privity with them." (Mycogen

. 'Corp. v;:Monsanto Co.' (2002) 28 Ca1Ath888, 896.) "A sister doctrine of res judicata is collateral..estoppel, under which a prior judgment between the same parties operates as an estoppel as to, those issues actually and necessarily decided in theprior action." tWhiulesey v. Aiello (2002)104 Cal.App.4th 1221, 1226.)

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Memorandum of Points and Authorities in Support of Respondent Secretary of State Debra Bowen'sDemurrer to Petition for Writ of Mandate (34-20]2-8000]091)


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21 (Keyes, supra, 189 CaLApp.4th at p. 660.)

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laws are enforced .... " (Keyes, supra, 189 Cal.App.4th at p. 658, quoting Gov. Code,

12172.5.) But the court went on to conclude that these obligations do not include a duty to

investigate a candidate's constitutional qualifications. (Id. at p. 659.) As the only published

4 decision of a California appellate court on the question, Keyes is controlling precedent in the

present proceeding.

As noted above, Petitioners assert that Elections Code section 6901 is unconstitutional

because it conflicts the Secretary of State's purported duty to verify the qualifications of

presidential candidates. In relevant part, section 6901 concerns general elections and directs that

the Secretary of State must place on the ballot the names of the several political parties'

candidates. 4 However, as just explained, the Secretary of State has no duty to verify t~e

eligibility of candidates. Moreover, Keyes rejected this argument regarding section 6901.

Without the provision, the court explained:

[T]he truly absurd result would be to require each state's election official toinvestigate and determine whether the proffered candidate met eligibility criteria

. of the United States Constitution, giving each the power to override a party's'selection of a presidential candidate. The presidential nominating process is notsubject to each of the 50 states' election officials independently deciding whether apresidential nominee is qualified, as this could lead to chaotic results. Were thecourts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result could be conflicting rulings and delayed

transition of power in derogation of statutory and constitutional deadlines. Anyinvestigation of eligibility is best left to each party, which presumably will conductthe appropriate background check or risk that its nominee's election will bederailed by an objection in Congress[.]

4 Elections Code section 6901 provides in full:

Whenever a political party, in accordance with Section 7100, 7300, 7578, or 7843,submits to the Secretary of State its certified list of nominees for electors ofPresident and,Vice President of the United States, the Secretary of State' shall

.'notify each candidate 'for elector O fhis or her-nomination by.the party. TheSecretary of State shall cause the names, of the candidates for President and VicePresident of the several political parties to-be placed.upon. the ballot for theensuing general election.

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Accordingly, there is no basis for the mandamus relief Petitioners seek and the Court

should sustain the demurrer without leave to amend. (See Keyes, supra, 189 Ca1.App.4th at p.

662 [affirming trial court's judgment sustaining demurrer without leave to amend]; see also

Barnes v. Wong (1995) 33 Cal.App.4th 390, 395 [issuance of peremptory writ of mandate

improper where no ministerial duty existed on the part of the registrar].)

II. THE RELIEF SOUGHT IN THE PETITION IS MOOT AS IT RELATES TO THEJUNE 5,2012 PRESIDENTIAL PRIMARyELECTlON.

Even if there were a basis for the relief that Petitioners seek, which there is not, the petition

is moot as it relates to the June 5, 2012 election because the Secretary of State already has

discharged the statutory duties which Petitioners seek to enjoin. The petition asks that this Court

enjoin the Secretary of State from "placing the names of candidates who have ... failed to prove

their eligibility on the 2012 California Presidential primary election ballot." (Pet. at p. 12.) Yet,

on March 29,2012, the Secretary of State issued to all County Clerks and Registrars of Voters the

official Certified List of Candidates for the June 5,2012 election, as required by law. 5 (See Elec.

Code, 6180 ["At least 68 days before a presidential primary election, the Secretary of State shall

. transmit to each county elections official a certified list containing the name of each candidate

who is entitled to be voted for on the ballot at the presidential primary[.]") Accordingly, the relief

sought against the Secretary of State is moot. (See Treber v. Superior Court (1968) 68 Ca1.2d

128, 134 ["mandate does not lie when the respondent no longer has the legal authority to

discharge the alleged duty because the time for doing so, as specified by statute or ordinance, has

expired"]; see also Long v. Hultberg (1972) 27 Ca1.App.3d 606,608 [writ petition by official

named in recall petition dismissed as moot after election held, petitioner recalled, and successor

elected].)

, 5 A copy of the Official Certified List of Candidates for President of the United States is'attached as Exhibit A.. Thecomplete list-issued by the Secretary' of State is available at: ., http://W\:v.W.sos.ca.gov/elections/ccroVlpdfI2012/marchJI2109em.pdf. The Secretary of State :'0 '>here by requests that the Court take 'judicial noticeof the list pursuant to Evidence Code section' .452, subdivision (6), which a:l16wsjudiCiat:nbtice of"[o]fficial acts of the legislative, executive..andjudicial departments of the United States and of any state of the United States."

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Memorandum of Points and Authori ties in Support of Respondent Secretary of State Debra Bowen'sDemurrer to Petition for Writ of Mandate (34-2012-80001091)


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III. ANY REMEDY FOR PETITIONERS LIES AT THE FEDERAL LEVEL.

The Court should also sustain the demurrer because the issue of whether a presidential

candidate is constitutionally qualified for that office is a matter committed to Congress and the

federal courts. After presidential electors vote, they transmit their results to the President of the

United States Senate (i.e., the current Vice-President of the United States), who counts them in

the presence of a joint session of Congress. (See U.S. Const, amend. XII.) A federal statute

details the process for counting electoral votes in Congress, and provides a mechanism for

registering objections:

Every objection shall be made in writing, and shall state clearly and concisely, andwithout argument, the ground thereof, and shall be signed by at least one Senatorand one Member of the House of Representatives before the same shall bereceived. When all objections so made ... shall have been received and read, the

Senate shall thereupon withdraw, and such objections shall be submitted to theSenate for its decision; and the Speaker of the House of Representatives shall, inlike manner, submit such objections to the House of Representatives for itsdecision.

(3 U.S.C. 15.)

Thus, remedies exist under federal law for individuals who wish to challenge the

qualifications of presidential candidates. In Keyes, in addition to finding that the Secretary of

State had no ministerial duty, the Court of Appeal affirmed the trial court's determination that it

lacked jurisdiction over the matter, which was governed by federal law and required objections to

presidential qualifications to be lodged with Congress. (Keyes, supra, 189 Cal.App.4th at

pp. 660-661.) In yet another case similar to this one, the United States District Court for the

Northern District of California dismissed a 2008 challenge to John McCain's citizenship status,

holding that presidential qualification issues are best resolved in Congress. (Robinson v. Bowen

(N.D.Cal. 2008) 567 F.Supp.2d 1144, 1147 ["Arguments concerning qualifications or lack thereof

can be laid before the voting public before the election and, once the election is over, can be

raised as objections as the electoral votes are counted inCongress."].) Because Petitioners have a~eril~dY'atth~ :fed~~al.l~~el,.thesec~~iaryo(State resp~'ctfully r~quests th~t 'th~:Court sustai~'hYr.:

DOJ Demurrer

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