1 2 3 4 5 6 7 8 9

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

KAMALA D . HARRIS

Attomey General of Califomia

PETER A. KRAUSE

Supervising Deputy Attomey General

ANTHONY R. HAKL

MY 1 8 21 A 02
By:
J. ROVER
DEPUTY CLERK

Deputy Attomey General State BarNo. 197335 1300 I Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Telephone: (916) 322-9041 Fax: (916)324-8835 E-mail: Anthony.HakI(^doj.ca.gov Attorneys for Respondent California Secretary of State Debra Bowen

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SACRAMENTO

EDWARD C. NOONAN, PAMELA BARNETT, SHARON CHICKERING, GEORGE MILLER, TONY DOLZ, NEIL TURNER, and GARY WILMOTT,

Case No. 34-2012-80001048 Related CaseNo. 34-2012-80001091

REPLY MEMORANDUM IN SUPPORT Petitioners, OF SECRETARY OF STATE DEBRA BOWEN'S DEMURRER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE DEBRA BOWEN, individuaiiy and officially as the CALIFORNIA SECRETARY OF STATE, BARACK HUSSEIN OBAMA II, Date: May 25, 2012 and OBAMA FOR AMERICA Time: 9:00 a.m. CALIFORNIA. Dept: 31 Judge: Honorable Michael P. Kenny Respondents. Trial Date: None Acfion Filed: January 7, 2012

Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

1 2 3 4 5 6 7 8 9 10 11
12 I.

INTRODUCTION Rather than meaningftilly address the authorities cited in the Secretary of State's demurrer, Pefifioner Edward C. Noonan uses his opposition brief to repeat discredited arguments and allegafions. Nothing offered by Noonan changes the basic rule that a writ of mandate lies only where the respondent has a clear, present and ministerial duty to perform the act sought to be compelled. Despite amending the pefifion once and now briefing the issue, Noonan cannot meet his burden to demonstrate that the Secretary of State has any duty to investigate whether presidential candidates meet the qualifications for office set forth in the United States Constitution. And Noonan's pefifion is moot in any event. Accordingly, the Secretary of State respectfully requests that the Court sustain her demurrer without leave to amend. ARGUMENT
PETITIONERS BARNETT, CHICKERING, M I L L E R , DOLZ, TURNER AND WILMOTT HAVE FAILED TO FILE OPPOSITION TO THE DEMURRER.

13 14 15 16 17
18

Only Pefifioner Noonan, now represented by counsel, has filed opposition to the Secretary of State's demurrer. Because Petifioners Bamett, Chickering, Miller, Dolz, Tumer and Wilmott have failed to file any opposition, they should not be heard at oral argument, and the Court should sustain the demurrer without leave to amend as to them.
II. THERE IS N O MINISTERIAL DUTY UPON WHICH TO PREMISE MANDAMUS RELIEF.

19 20 21 22 23 24 25 26 27 28

A writ of mandate may issue only where the respondent has a clear, present and ministerial duty and the petitioner has a clear, present and beneficial interest in the performance of that duty. (Lungren v. Deuhnejian (1988) 45 Cal.3d 727, 731-732.) The petitioner bears the burden of demonstrating that the respondent has a duty to perform the act sought to be compelled. (MacLeod v. Long (1930) 110 Cal.App. 334, 338.) Pefitioner Noonan asserts in his opposifion that the Secretary of State's general obligation under Govemment Code section 12172.5 to "see that elecfions are efficiently conducted and that state election laws are enforced" creates an affirmative duty to investigate whether presidential candidates meet the qualifications for office set forth in the United States Consfitution.

2 Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2^

(Opposition at p. 3.)' It plainly does not. Indeed, secfion 12175.5 refers only to the Secretary of State's duties under state election laws; the statute does not give rise to a duty to enforce qualifications for office that appear in the federal Constitufion. As explained in the Secretary of State's demurrer, the issue of whether a presidential candidate is consfitufionally qualified for that office is a matter committed to the United States Congress and the federal courts. (See Keyes v. Bowen (2011) 189 Cal.App.4th 647, 660-661; Robinson v. Bowen (N.D.Cal. 2008) 567 F.Supp.2d 1144,1147.) In arguing the Secretary of State has a duty to invesfigate a candidate's qualifications and remove the person from the ballot if his or her qualifications are lacking, Noonan also relies on Cleaver v. Jordan (1968) 393 U.S. 810, where, according to Noonan, Secretary of State Frank Jordan would not permit the Peace and Freedom Party to place Leroy Eldridge Cleaver's name on the ballot because he was only 34 years old, one year short of the 35 years of age needed to be a presidential candidate. Noonan similarly cites a more recent event involving another Peace and Freedom Party candidate, Peta Lindsay, whom, as Noonan puts it, the Secretary of State "rejected . . . and refused to place . . . on the ballot, because she is 27 years old." (Opposition at p. 5.) Nevertheless, as explained in Keyes, this citation to Cleaver v. Jordan "merely reflects that the United States Supreme Court denied a petition for writ of certiorari; it states nothing about the facts of the case." (Keyes, supra, 189 Cal.App.4th at pp. 659-660.) It is therefore not authority for any legal proposition. (Id. at 660.) Moreover, that former Secretary of State Jordan, or even current Secretary of State Bowen, excluded a candidate, "who indisputably did not meet the eligibility requirements," does not demonstrate that the Secretary of State has the requisite ministerial duty to investigate and determine if presidential candidates are constitiationally qualified for office.'^ (Ibid.) ' Without explanation, Noonan also cites to Govemment Code section 12172. But section 12172 concems the Secretary of State's review of an initiative measure after it is prepared prior to its circulafion. The provision is clearly inapposite in any analysis in this case. ^ Noonan's persistent argument regarding Elections Code section 6901 is also devoid of merit. As explained in detail in the Secretary of State's demurrer (Mem. of P. & A. in Supp. of Demurrer at pp. 5-6), Keyes rejected out of hand the assertion that section 6901 is "unconsfitufional and will lead to absurd results." (Keyes, supra, 189 Cal.App.4th at p. 660.) This ^ (confinued...)
Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

1 2
3

Accordingly, Noonan has failed to meet his burden to establish a basis for mandamus relief. The Court should sustain the demurrer without leave to amend.
III. THEPETITIONISMOOTASTOTHEJUNES,2012ELECTION

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18
19 20

"A case becomes moot when a court mling can have no practical effect or cannot provide the parties with effective relief." (Californians for Alternatives to Toxics v. California Dep't of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069.) Because the Secretary of State already has issued to all County Clerks and Registrars of Voters the official Certified List of Candidates, as required by law, the petition is moot as it relates to the June 5, 2012 election. (See Treber v. Superior Court (1968) 68 Cal.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"].) CONCLUSION The Secretary of State lacks a clear, present or ministerial duty to investigate the consfitufional qualificafions of presidential candidates. In any case, the petifion is moot because the Secretary of State already has discharged the statutory dufies which Petitioners seek to enjoin. For these reasons, and all of the reasons set forth in her demurrer, the Secretary of State respectfully requests that the Court sustain her demurrer without leave to amend. Dated: May 18,2012 Respectfully Submitted,
KAMALA D . HARRIS

Attomey General of Califomia

PETER A. KRAUSE

Supervisin^DeiJuty Attomey General 22 23 24

25 SA20I2I04548 10899362.doc.x

ANTHom^R. HAKL Deputy Attomey General Attorneys for Respondent California Secretary of State Debra Bowen

26 27 28
4 Reply Memorandum In Support Of Respondent Secretary Of State Debra Bowen's Demurrer To First Amended Petition For Writ Of Mandate (34-2012-80001048)

(...continued) is the same argument Noonan confinues to advance here. And following the court of appeal in Keyes, this court should reject that argument.

LARATION OF S E R V I C E BY U.S. Case Name: No.: Noonan v. Bowen 34-2012-80001048 34-2012-80001091 (related case)

IL

I declare: I am employed in the Office of the Attomey General, which is the office of a member ofthe Califomia State Bar, at which member's direcfion this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attomey General for collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondence placed in the intemal mail collecfion system at the Office of the Attomey General is deposited with the United States Postal Service with postage thereon folly prepaid that same day in the ordinary course ofbusiness. On Mav 18. 2012.1 served the attached R E P L Y MEMORANDUM IN SUPPORT O F S E C R E T A R Y O F S T A T E DEBRA BOWEN'S D E M U R R E R T O FIRST AMENDED P E T I T I O N F O R W R I T O F MANDATE by placing a tme copy thereof enclosed in a sealed envelope in the intemal mail collection system at the Office ofthe Attomey General at 1300 I Street, Suite 125, P.O. Box 944255, Sacramento, CA 94244-2550, addressed as follows: Edward C. Noonan 1713 11th Avenue Olivehurst, CA 95961 Sharon Chickering 1713 Uth Avenue Olivehurst, CA 95961 Tony Dolz 1713 11th Avenue Olivehurst, CA 95961 Neil Tumer 1713 11th Avenue Olivehurst, CA 95961 S E R V I C E BY GOLDEN STATE OVERNIGHT Gary G. Kreep United States Justice Foundafion 932 D Street, Suite 2 Ramona, CA 92065 Pamela Bamett 1713 11th Avenue Olivehurst, CA 95961 George Miller 1713 11th Avenue Olivehurst, CA 95961 Gary Wilmott 1713 11th Avenue Olivehurst, CA 95961 Fredric D. Woocher Stmmwasser & Woocher LLP 10940 Wilshire Blvd., Ste. 2000 Los Angeles, CA 90024

I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme and correct and that this declarafion was executed on May 18, 2012, at Sacramento, Califomia. Brenda Apodaca Declarant
SA2012104548 10836552.doc

Sigiiature