CACoA - Dummett v Bowen - Brief of Appellants
Transcript of CACoA - Dummett v Bowen - Brief of Appellants
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C Tnurt nf Appealo htatt nf Qtaltfnrnta
CERTIFICATE OF INTERESTED ENTITIES OR PERSONSCourt o Appeal Case No : _c_o_73_7_6_3
There are no interested entities or parties to list in this Certificate per California Rules o Court,Rule 8 208D Interested entities or parties are listed below:
Name of Interested Entity or PersonI2.3.4.5.6.7.8.9.
Signature o Attorney/Party Submitting FormNathaniel OlesonPrinted NameUNITED STATES JUSTICE FOUNDATJON932 ''D Street, Suite 3Ramona, California 92065Address
Nature of Interest
Party Represented: Dummett; Houston; LaKamp; Johnson; and OttState Bar No.: _ _76_6_95
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .............................................................. iii
I. INTRODUCTION ...................................................................... 1
A. Nature of Action ............................................................... 1
B. Order Appealed ................................................................ 2
C. Relief Requested .............................................................. 2
D. Statement of Apealability ................................................ 3
II. STATEMENT OF THE CASE ................................................ 3
A. Procedural History ........................................................... 3
B. Statement of Facts ............................................................ 5
III. STANDARD OF REVIEW ....................................................... 9
IV. ARGUMENT ........................................................................... 10
A. Appellants did state facts sufficient to constitute
a cause of action for issuance of a writ of mandate
under CCP 1085 .......................................................... 10
B. The Secretary of State's reliance on California
Elections Code 6901 is misplaced because 6901
unconstitutionally prevents the Secretary of State
from fulfilling her duties as the Chief Elections
Officer of California ...................................................... 13
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C. Keyes v. BowenDoes Not Apply To This Case
Since It Did Not Resolve Any Constitutional Challenge
to 6901 And Incorrectly Held That the Secretary of
State Has No Duty To Verify the Constitutional
Eligibility of Presidential Candidates ............................ 20
V. CONCLUSION ........................................................................ 25
CERTIFICATE OF COMPLIANCE ................................................. 26
DECLARATION OF SERVICE
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TABLE OF AUTHORITIES
FEDERAL CONSTITUTION
United States Constitution Article II ........................................ 8, 14, 21
United States Constitution Article II, 1 ............................... 19, 23, 24
United States Constitution Article II, 1, Clause 5 ............................ 6
United States Constitution Article VI, Clause 2 ................................. 21
FEDERAL CASES
Cleaver v. Jordan, 393 U.S. 810, 89 S.Ct. 43 (1968) ........................ 18
Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008) ................... 13
STATE CONSTITUTION
California Constitution, Article I, 3 ................................................ 23
California Constitution, Article III, 1 ....................................... 11, 21
STATE STATUTES
California Code of Civil Procedure 904.1(a)(1) ............................... 3
California Code of Civil Procedure 1085 ............................. 2, 10, 11
California Election Code 10 ........................................................... 14
California Election Code 6901 ................................................passim
California Election Code 13314(a)(1) ............................................ 12
California Government Code 12172 .............................................. 14
California Government Code 12172.5 ........................................... 14
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STATE CASES
Aubry v. Tri-City Hospital Dist.,
2 Cal.4th 962 (1992) ................................................................. 10
Banks v. Housing Authority of City and County of San Francisco,
120 Cal.App.2d 1, 260 P.2d 668 (App. 1 Dist. 1953),
cert. denied 74 S.Ct. 784, 347 U.S. 974 ................................... 12
City of Dinuba v. County of Tulare, 41 Cal.4th 859 (2007) ............... 10
Corbell v. Superior Court,
125 Cal.Rptr.2d 46 (App. 1 Dist. 2002),
review denied, 101 Cal.App.4th 649 ........................................ 12
Farm Raised Salmon Cases, 42 Cal.4th 1077 (2008) .......................... 9
Keyes v. Bowen, 189 Cal.App.4th 647 (2010). ................. 21, 22, 24, 25
Pollack v. Lytle, 120 Cal. App. 3d 931 (1981)
disapproved on other grounds inBeck v. Wecht,
28 Cal. 4th 289 (2002) ................................................................ 9
Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26 ......... 9
San Joaquin County Dept. Of Child Support Services v. Winn163 Cal. App.4th 296, 77 Cal.Rptr.3d 470
(App. 3 Dist. 2008) ................................................................... 3
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I.
INTRODUCTION
A. Nature of Action
This opening brief is filed on behalf of Appellant JOHN
ALBERT DUMMETT, JR. (DUMMETT), GIL HOUSTON
(HOUSTON), LARRY LAKAMP (LAKAMP), MILO L.
JOHNSON (JOHNSON) and JOE OTT (OTT) (collectively
APPELLANTS). This appeal is brought as a result of the lower
Courts judgment of dismissal of the 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 (WRIT), filed
by Writ Petitioners DUMMETT, HUSTON, LAKAMP, JOHNSON,
OTT, MARKHAM ROBINSON,1and THE CONSTITUTION
PARTY,2which resulted from the lower Courts erroneous sustaining
of the demurrer filed therein by Respondent CALIFORNIA
1Markham Robinson is not a party to this appeal.2The Constitution Party is not a party to this appeal.
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SECRETARY OF STATE DEBRA BOWEN (BOWEN) in her
official capacity.
The Courts sustaining of BOWENS demurrers was in error
because, contrary to the lower Courts ruling, APPELLANTS did
state facts sufficient to constitute a cause of action for issuance of a
writ of mandate under California Code of Civil Procedure (CCP)
1085, did state facts sufficient to show California Election Code
(EC) 6901 to be unconstitutional, as well as to support other
ancillary relief.
B. Order Appealed
APPELLANTS appeal the lower Courts Entry of Judgment of
Dismissal, entered on April 19, 2013 [Clerks Transcript (CT) 164],
after it sustained BOWENS demurrer on March 22, 2013 (CT 168).
C. Relief Requested
APPELLANTS respectfully request that this Court reverse the
lower Courts Judgment of Dismissal following its order sustaining
BOWENS demurrer and remand the case to the lower Court with
instructions for the lower Court to order BOWEN to answer WRIT or,
in the alternative, with instructions for the lower Court to allow
APPELLANTS leave to amend.
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D. Statement of Appealability
CCP section 904.1(a)(1), provides that an appeal may be taken
from a judgment other than an interlocutory judgment. Here,
APPELLANTS appeal the lower Courts March 22, 2013, Judgment
of Dismissal, after sustaining BOWENS demurrer (CT 168). Because
the dismissal leaves no further matters for the lower Court to decide
regarding WRIT, the judgment is an appealable final judgment.
A judgment is final for purposes of appeal when it terminates
the litigation between the parties on the merits of the case and leaves
nothing to be done but to enforce by execution what has been
determined.San Joaquin County Dept. of Child Support Services v.
Winn (App. 3 Dist. 2008) 163 Cal.App.4th 296, 77 Cal.Rptr.3d 470.
This matter was timely appealed on April 29, 2013 (CT 174).
II.
STATEMENT OF THE CASE
A. Procedural History
This appeal is brought as a result of the lower Courts judgment
of dismissal of APPELLANTS WRIT following the lower Courts
sustaining of BOWENS demurrer.
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On February 23, 2012, APPELLANTS filed a 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, naming
BOWEN as respondent.
On March 26, 2012, a Notice of Related Cases was filed by the
respondents in the Sacramento Superior Court case captionedNoonan,
et al., v. Bowen, et al., Case No. 34-2012-80001048. On April 9,
2012, a RULING ON NOTICE OF RELATED CASES AND
ORDER TRANSFERRING CASE was issued by the lower Court, and
the case was reassigned to Honorable Michael P. Kenny.
On May 4, 2012, respondent BOWEN filed a demurrer to
WRIT, and a hearing on the demurrers was scheduled for October 26,
2012. (CT 35).
On May 21, 2012, APPELLANTS filed PETITIONERS EX
PARTE MOTION TO VACATE ORDER. (CT 56). The grounds for
the motion were that APPELLANTS received no notice of the Notice
of Related Cases until Friday, April 6, 2012, when BOWEN served on
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APPELLANTS her support for the Notice of Related Cases, which
afforded APPELLANTS no opportunity to respond. (CT 57).
The hearing was held on the ex-parte motion on May 25, 2012.
On May 26, 2012, the lower Court vacated its prior Ruling on Notice
of Related Cases and Order Transferring Cases filed on April 9, 2012.
(CT 83). On June 15, 2012, the lower Court issued a new RULING
ON NOTICE OF RELATED CASES AND ORDER
TRANSFERRING CASE, and held that the cases were related and
ordered the underlying case again be reassigned to Honorable Michael
P. Kenny. (CT 89).
The hearing on BOWENS demurrer took place on October 26,
2012, and, after oral arguments, the lower Court affirmed its tentative
ruling, sustaining BOWENS demurrer without leave to amend. (CT
138). On March 29, 2013, the lower Court entered its Order
Sustaining Demurrers to WRIT without leave to amend, and it entered
a judgment dismissing WRIT in its entirety. (CT 149) This appeal
followed.
B. Statement of Facts
Appellant DUMMETT, a citizen of the State of California, was
a write-in candidate for President of the United States in the 2012
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California Republican primary election (Federal Election Commission
registration # P20002499). (CT 02). As a Presidential candidate,
DUMMETT has an interest in having a lawful and fair Presidential
election contest. (CT 02). This interest could be analogized to the
interest of a towns Babe Ruth baseball team, where one of the
children trying out for that team is ineligible because he lives in a
different town. There, all of the children who actually live in the town
are harmed if the rules are violated, since they are being forced to
compete against children who do not live in that town and not eligible
to be on that team. If BOWEN was not required to verify the
eligibility of all candidates who apply to be named on the California
Presidential primary ballot under U.S. Constitution Article II, Section
1, Clause 5, and candidates enter this race without having met said
constitutional eligibility requirements, then DUMMETT was
compelled to campaign against ineligible candidates on the California
Republican Presidential primary ballot, and on the California
Presidential general election ballot, and he suffered irreparable harm
due to having been denied a fair competition in the Presidential
primary, and in the Presidential general election. (CT 03).
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The other Appellants are natural persons who were (i) all
residents of California, (ii) all registered and eligible to vote for
President of the United States in the 2012 election cycle, and (iii) all
eligible California electors. (CT 03-04). As eligible California
electors, APPELLANTS have an interest in all Presidential candidates
being verified as having met the minimum requirements of eligibility
prior to the placement of the candidates names on the ballot for the
Primary Election. (CT 03-04).
BOWEN is the California Secretary of State, and, by virtue of
her position, is the Chief Elections Officer for the State of California.
She was responsible for enforcing California election law, including
verifying eligibility for office, and printing the ballots for the 2012
primary election. (CT 04).
APPELLANTS filed a WRIT seeking a determination by the
lower Court whether BOWEN had verified that all candidates for the
2012 California Presidential primary election had provided proof that
they possessed the minimum qualifications for the Office of President
of the United States, and, if not, APPELLANTS requested that the
lower Court enjoin BOWEN from placing the names of such
unverified candidates on the California Presidential primary election
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ballot, unless and until such time as BOWEN could show that each of
said candidates had so verified their eligibility for the office. (CT 02).
APPELLANTS sought this relief because an unprecedented and
looming constitutional crisis would occur if BOWEN did not require
that all Presidential candidates provide proof that they meet the U.S.
Constitutions Article 2 eligibility requirement for the office of
President prior to candidate names being placed on the ballot, since
the voters would reasonably rely on the assumption that all names on
the ballot had been verified as eligible for the office, and that the only
remaining task for the voters would be to select a candidate for whom
to vote. (CT 02).
Finally, in their WRIT, APPELLANTS requested that the lower
Court find California Elections Code 6901, which governs the duties
of the Secretary of State in relation to the ballot for the General
Election, to be unconstitutional and unenforceable. (CT 11-12).
BOWEN filed a demurrer to WRIT arguing that WRIT failed to
state facts sufficient to constitute a cause of action that could support
the relief requested in WRIT. The lower Court agreed with BOWEN,
subsequently sustained the demurrer without leave to amend, and
dismissed the case in its entirety.
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III.
STANDARD OF REVIEW
On appeal from a judgment of dismissal after a demurrer is
sustained without leave to amend, the reviewing Court applies an
independent review standard, giving the Petition a reasonable
interpretation, and treating the demurrer as admitting all material facts
properly pleaded.Farm Raised Salmon Cases, 42 Cal. 4th 1077, 1089
n. 10 (2008). A demurrer tests only the legal sufficiency of the
pleadings; it does not test the truth of the Petitions allegations or their
accuracy, but admits the truth of all material factual allegations, and
the Petitioners ability to prove them. Quelimane Co. v. Stewart Title
Guar. Co., 19 Cal. 4th 26, 47 (1998).
The issue on this appeal, then, is whether APPELLANTS
stated, or could state, a cause of action under any possible legal
theory. For such purposes, all material facts pleaded in the complaint,
and those that arise by reasonable implication, must be considered
true.Pollack v. Lytle, 120 Cal. App. 3d 931, 936, fn. 2 (1981)
(disapproved on other grounds inBeck v. Wecht,28 Cal. 4th 289, 298
(2002)).
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The judgment must be reversed if the Petitioners stated a cause
of action under any possible legal theory, regardless of the label
attached to the cause of action.Aubry v. Tri-City Hospital Dist., 2 Cal.
4th 962, 966-967 (1992). It is also reversible error to sustain a
Demurrer without leave to amend, if the Petitioners show, either in the
trial Court or on appeal, that there is a reasonable possibility that any
defect identified by the Respondent can be cured by an amendment.
City of Dinuba v. County of Tulare, 41 Cal. 4th 859, 865 (2007).
IV.
ARGUMENT
A. Appellants did state facts sufficient to constitute a cause of
action for issuance of a writ of mandate under CCP 1085
In its order sustaining BOWENS demurrers, the lower Court
stated that WRIT fails to state facts sufficient to constitute a cause of
action. The Courts ruling was in error. Under CCP 1085, [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, or to compel the admission of a party to the use and
enjoyment of a right or office to which the party is entitled, and from
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which the party is unlawfully precluded by such inferior tribunal,
corporation, board, or person.
The California Secretary of State is responsible for enforcing
California Election law, including Federal Election law incorporated
via the California Constitution. (California Constitution, Article III,
1.) BOWEN is also responsible for placing names of presidential
candidates on the ballot. California Secretaries of State have
traditionally removed from the ballot, or refused to place on the ballot,
names of presidential candidates who did not meet the requirements
for eligibility for the office of President of the United States. Adhering
to her offices traditional duty, BOWEN refused to place a non-
eligible third party candidate on the ballot for the 2012 California
primary election. BOWEN did not, however, check the eligibility of
presidential candidates nominated by national political parties
pursuant to California Election Code Section 6901, which prevents
BOWEN from exercising her duty to ensure compliance with
California and Federal election laws. As the result of BOWENs
action, names were placed on the California Ballot without
verification as to their eligibility for the office, BOWENs duty was
circumvented and WRIT Petitioners, among others, were injured.
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Although courts often deny relief for a writ of mandamus, a
writ of mandate should not be denied when the issues presented are of
great public importance and must be resolved promptly. Corbell v.
Superior Court,125 Cal.Rptr.2d 46, 101 (App. 1 Dist. 2002), review
denied, 101 Cal.App.4th 649. Furthermore, a court is not bound by
precedent in determining facts and circumstances compelling the
issuance of a writ of mandamus, and a writ will issue against a city or
other public body or officer wherever law and justice so require.
Banks v. Housing Authority of City and County of San Francisco,120
Cal.App.2d 1, 260 P.2d 668 (App. 1 Dist. 1953), cert. denied, 74 S.Ct.
784, 347 U.S. 974.
As argued before the lower Court, California State law provides
that any voter in California may seek a writ of mandate for errors in
the placing of a name on the ballot. The Elections Code states that
[a]n elector may seek a writ of mandate alleging that an error or
omission has occurred, or is about to occur, in the placing of a name
on, or in the printing of, a ballot, sample ballot, voter pamphlet, or
other official matter, or that any neglect of duty has occurred, or is
about to occur. (EC 13314(a)(1)).
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Additionally, a U.S. District Court has held, a candidate or his
political party has standing to challenge the inclusion of an allegedly
ineligible rival on the ballot, on the theory that doing so hurts the
candidates or partys own chances of prevailing in the election.
Hollander v. McCain, 566 F.Supp.2d 63 (D.N.H. 2008).
As such, DUMMETT, as a candidate for President in the 2012
election cycle, and as a California voter who was concerned that one
or more unverified candidates for President of the United States would
be included on the California primary ballot, had a legitimate interest
in ensuring that all candidates for the office of President are eligible to
run for and serve as President. Because of the foregoing, DUMMETT
had both standing and legitimate grounds to Petition the lower Court
for a Writ of Mandate. Therefore, BOWENS demurrer should have
been overruled.
B. The Secretary of State's reliance on California Elections
Code 6901 is misplaced because 6901 unconstitutionally
prevents the Secretary of State from fulfilling her duties as
the Chief Elections Officer of California
In its order sustaining BOWENS demurrer, the lower Court
relied upon California Elections Code 6901 to excuse the Secretary
of State from any legal duty to determine the eligibility of candidates
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for President of the United States before their names may be placed on
the ballot. (CT 138). Section 6901 states the following:
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 of President and Vice
President of the United States, the Secretary of State shall
notify each candidate for elector of his or her nomination by the
party. The Secretary of State shall cause the names of the
candidates for President and Vice President of the several
political parties to be placed upon the ballot for the ensuing
general election. [EC Code 6901.]
The lower Courts reliance on 6901 is misplaced because it is
wholly inconsistent with Article II of the United States Constitution,
as well as with the duties and requirements of the Secretary of State
provided by the California Government Code (GC), including the
duty to determine candidates eligibility for holding various offices.
Pursuant to California Election Code 10, BOWEN is the
Chief Elections Officer of the State of California, and in that position,
she has the powers and duties specified in section 12172.5 of the
California Government Code. The Secretary of States website
(http://www.sos.ca.gov/admin/about-the-agency.htm) itemizes the
statutory duties of the office of the Secretary of State, including duties
as the Chief Elections Officer for California, to ensure that
Californias election laws are followed (GC 12172), to investigate
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election fraud (id.), and to advise candidates and local elections
officials on the qualifications and requirements for running for office
(id.).
In order to fulfill the duty to advise candidates, the Secretary of
State provides to the public several documents containing information
concerning the qualifications and requirements for each elected
position. Documents that list the qualifications and requirements for
each elected position are provided for all state and Federal offices,
including the offices of Governor and Lieutenant Governor; Secretary
of State, Controller, and Treasurer; Attorney General; Insurance
Commissioner; Member of the State Board of Equalization; State
Senator and Member of the Assembly; United States Senator; United
States Representative in Congress; and President of the United States.
The lower Courts reliance on California Elections Code 6901
results in a troubling situation because 6901 requires the Secretary
of State to verify that every candidate for the above-listed positions is
eligible for the sought position, except for those candidates that have
been selected for the office of President and Vice President of the
United States by a national political party. Such national party-
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selected candidates are not required to present to the Secretary of
State any documentation proving their eligibility.
The Court's reliance on California Elections Code 6901
produces absurd results. For example, if the Republican Party were to
nominate former Governor Arnold Schwarzenegger for President,
California Elections Code 6901 would require the Secretary of State
to place him on the ballot for the election, despite the fact that Arnold
Schwarzenegger is well known as not being a natural born citizen of
the United States. Further, if the Libertarian Party were to nominate
Ayn Rand as candidate for President, the Secretary of State would
have no option other than to put her on the ballot, even though Ms.
Rand died in 1982. Again, if the Democratic Party were to nominate
David Cameron, the Prime Minister of the United Kingdom of Great
Britain and Northern Ireland, then the Secretary of State would be
forced to put Mr. Brown on the ballot, despite the fact that he is a
citizen of Great Britain.
The foregoing examples illustrate the inconsistencies between
California Elections Code 6901 and the eligibility requirements for
President established by the United States Constitution. Each
individual in the examples referenced above is ineligible to hold office
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as President of the United States and, therefore, must by law be
excluded from the ballot. Yet, under California Elections Code
6901, the Secretary of State has no discretion or authority to exclude
those obviously ineligible candidates from the ballot. In fact,
California Elections Code 6901 directs the Secretary of State to
disregard the U.S. Constitution as well as her duties as Chief Elections
Official in the State of California with regard to the most important
elected office in the United States. Without oversight and meaningful
remedial action from the Secretary of State, absurd results are a real
possibility. Political parties are not government agencies, and should
not be trusted with ensuring that federal and state constitutions and
laws are complied with, as their primary mission is to elect their
candidates to office which could diminish their enthusiasm to see a
particular law be followed.
Perhaps because 6901 leads to absurd and unconstitutional
results, it has been selectively disregarded in the past. Indeed, it would
be fair to say it has been discriminately and arbitrarily applied.
Throughout Californias past, Californias Secretaries of State have
exercised their due diligence by reviewing necessary background
documents, verifying that the various candidates that were submitted
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by the respective political parties as eligible for the ballot were,
indeed, eligible.
For example, in 1968, the Peace and Freedom Party certified
Eldridge Cleaver as a qualified candidate for President of the United
States. The California Secretary of State at the time, Frank Jordan,
found that, according to Mr. Cleavers birth certificate, Mr. Cleaver
would be only 34 years old at the time of the general election, which
was one year shy of the Constitutional requirement of a candidate
being at least 35 years of age in order to be on the ballot as a
candidate for President. Using his administrative powers, Mr. Jordan
removed Mr. Cleaver from the ballot despite the plain language of
6901. Mr. Cleaver challenged Mr. Jordans decision to the Supreme
Court of the State of California, and later to the Supreme Court of the
United States, which affirmed the actions of the Secretary of State by
denying review of the decision dismissing Mr. Cleavers challenge to
his removal from the ballot. Cleaver v. Jordan,393 U.S. 810, 89 S.Ct.
43 (1968).
Similarly, in 1984, the Peace and Freedom Party certified Larry
Holmes as an eligible candidate in the Presidential primary. When
Californias Secretary of State at the time, Daniel M. Burns, checked
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Mr. Holmes' eligibility for office, it was found that Mr. Holmes was
not eligible, and his name was removed from the ballot, despite the
plain language of 6901.
The removal of ineligible candidates is not a relic of history.
Respondent BOWEN has herself recently exercised her power to
remove ineligible candidates from the ballot. As recently as 2012, Ms.
Peta Lindsay was certified by the Peace and Freedom Party to be its
Presidential candidate on the ballot for the 2012 California Primary
Election. BOWEN, however, rejected the Peace and Freedom Partys
candidate and refused to place her name on the ballot because she was
only 27 years old, which did not satisfy the U.S. Constitutions Article
II, Section 1 requirement that candidates for President of the United
States be at least 35 years of age.
Despite the fact that Californias Secretaries of State, including
BOWEN herself, have historically asserted the discretionary right to
fulfill their duties under the U.S. Constitution, the Government Code,
and the Elections Code, by requiring that candidates meet the various
eligibility requirements before appearing on the ballot, and thereby
disregard 6901, the lower Courts ruling in this case implies that
Secretaries of State are free to disregard the statute when they choose,
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or enforce the statute when they choose to. Such unfettered discretion
is illegal and unconstitutional in that it gives the Secretary of State the
arbitrary power to decide whether to require proof of a particular
candidates eligibility before placing the candidate on the ballot.
Thus, as California Elections Code 6901 conflicts with the
requirements of the U.S. Constitution and is inconsistent with the
duties of the Secretary of State provided by the California Elections
Code and the California Government Code, California Elections Code
6901 is unconstitutional and unenforceable. Furthermore, the pattern
of inconsistent application is arbitrary and capricious, giving the
Secretary of State the power to discriminate based on personal
preferences as to against whom to require proof of eligibility. Clearly,
the lower Court erred in ignoring 6901s unconstitutionality and in
sustaining BOWENS demurrer.
C. Keyes v. BowenDoes Not Apply To This Case Since It Did
Not Resolve Any Constitutional Challenge to 6901 And
Incorrectly Held That the Secretary of State Has No Duty
To Verify the Constitutional Eligibility of Presidential
Candidates.
APPELLANTS argued in the WRIT that the language of
California Elections Code 6901, compelling the Secretary of State to
place any candidate nominated by a national political party on the
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ballot without verifying that the candidate is eligible for the office, is
in direct conflict with the requirements for Presidential eligibility in
Article II of the United States Constitution. (CT 10).
This is no trivial matter, as the California Constitution provides:
The State of California is an inseparable part of the United States of
America, and the United States Constitution is the supreme law of the
land. (California Constitution, Article III, 1).
Since the United States Constitution is the supreme law of the
land, under both the United States and the California Constitutions
(U.S. Constitution, Article VI, Clause 2; California Constitution,
Article III, 1), any statute which conflicts with the United States
Constitution is therefore void and unenforceable.
The Court in the case ofKeyes v. Bowen, 189 Cal.App.4th 647
(2010) cited California Elections Code 6901 as an example of a non-
discretionary duty of the California Secretary of State to place names
of candidates nominated by national political parties on the ballot for
the California General Election.Keyes v. Bowen, 189 Cal.App.4th
647, 659 (2010). The Court ultimately held that the California
Secretary of State owed no duty to verify eligibility of presidential
candidates.Keyes v. Bowen, 189 Cal.App.4th 647, 661 (2010).
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can, and does, remove ineligible presidential candidates from the
ballot, there is no question that she looks to the Article 2, 1
minimum requirements for eligibility as an absolute guideline as to
whom she should permit to be named on the ballot. Given this
enforcement of Article 2, 1 by the California Secretaries of State,
both now and in the past, it is inconsistent and unconstitutional under
California Constitution Article 1, 3 for there to be a two-tiered
application of the law as applied to Presidential candidates. No court
could sanction a system whereby BOWEN exercises her statutory
duty to permit some candidates to be exempt from proving their
eligibility for office to solely by showing they have been approved by
a national political party as here. A rule that can be applied or waived
at will is no rule of law. It is the very definition of arbitrary
government. It is the rule of man, not of law. BOWEN should be
required to make such verification of eligibility for all presidential
candidates, and not just verify the eligibility of candidates from
smaller political parties.
As discussed above, BOWEN is required by California statute
to oversee California elections, and to enforce California election law.
This requirement cannot be satisfied by attempting to transfer the duty
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to enforce election law to any other entity, such as to political parties,
or even to the California electorate.
Petitioners HOUSTON, LAKAMP, JOHNSON, and OTT, as
California electors, neither have the responsibility, nor are they in a
position to be able, to require Presidential candidates to provide
sufficient proof that said candidates are eligible for the office. The
only responsibility for a California elector is to vote for the candidate
that the elector believes to be best able to govern the country. The
elector acts in the belief that any Presidential candidate approved by
BOWEN for name placement on the primary ballot has been properly
verified by BOWEN, as possessing the minimum requirements of
eligibility for the office. If BOWEN is not required to verify the
eligibility of Presidential candidates, then that responsibility will
improperly be transferred to the electorate, which cannot, despite the
possibility of a majority vote for a particular candidate, overcome the
Article II, Section 1, requirements.
For the reasons stated above,Keyes v. Bowendid not resolve
the constitutional challenge brought here. To the extent it is relevant,
it was wrongly decided and should be reversed, and the Secretary of
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State should be required to verify the eligibility of all candidates forthe offices that they seek, without any exception.
vON LUSION
Based on the foregoing, APPELLANTS respectfully requestthat this Court reverse the lower Court s Judgment of Dismissal afterSustaining BOWEN S Demurrer and remand the case to the lowerCourt with instructions for the lower Court to order BOWEN toanswer WRIT or, in the alternative, with instructions for the lowerCourt to provide APPELLANTS leave to amend.
DATED: December 18, 2013 Respectfully submitted,
ATHANIEL J OLESONAttorney for Appellants
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CERTIFICATE OF COMPLIANCECRC 8.204 c) l)
I hereby certify that this Opening Brief consists o 4, 784 wordsper California Rules o Court Rule 8.204 c) l). The number o wordswas confirmed by reference to counting by the Microsoft Wordcomputer program used to typeset this brief.
I declare under penalty o perjury that the foregoing is true andcorrect to the best o my knowledge. Executed this 18th day oDecember 18, 2013.