Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer

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Cote §6103MICH A EL J. STRU MW A SSER (C A BA R No. 58413)FREDRIC D . W O O C H E R (C A BA R No. 96689)AIMEE DUDOVITZ (C A B A R N o . 203914)STRUMWASSER & WOOCHERLLP10940 Wilshire Boulevard, Suite 2000Los Angeles, California 90024

Telephone: (310)576-1233Facsimile: (310)319-0156

A ttorneys for Respondents President Barack Obama, Vice President Joe Biden, Jaime Alvarado,W illiam Ayer, Joe Baca, Jr., Jan Blue, Roberta Brooks, Nathan Brostrom, Mark Cibula, RobertConaway, Ray Cordova, Lawrence DuBois, James Farley, John Freidenrich, Mark Friedman,Bobby Closer, Audrey Gordon, flene Haber, Robert "Bob " Handy, Mary Hubert, AleitaHuguenin, Richard Hundrieser, Fred Jackson, Patrick Kahler, Mary Keadle, LeRoy King, VinzKoller, Mark Macarro, Alma Marquez, Ana Delgado Mascarenas, Betty McMillion, MichaelM cNerney, Gwen Moore, Jeremy Nishihara, Gregory Olzack, Nancy Parrish, Lou Paulson, JoePerez, Anthony Rendon, Frank Salazar, David Sanchez, Larry Sheingold, Lane Sherman,Stephen Smith, Juadina Stallings, Kenneth Sulzer, Aaruni Thakur, Norma Torres, SilissaUriarte-Smith, Sid Voorakkara, Greg W arner, Karen Waters, Sanford W einer, GregoryW illenborg, Kelley Willis, James Yedor, and Christine Young

ROBERT F . BA U ER (WDC B A R N o . 938902) (Pro H oc Vice pending)607 Fourteenth Street, N.W.Washington, D.C. 20005Telephone: (202) 628-6600Facsimile: (202) 434-1690

A ttorneyfor Respondents President Barack Obama and Vice President Joe Biden

IN THE SUPERIOR COURTOF THE STATE OFCALIFORNIA

F O R T H E COUNTYO F SACRAMENTOY

AMBASSADOR DR. ALAN KEYES, et al.,

Petitioners,

v.

C A L I F O R N I A SECRETARYO F STATE

D E B R A BOWEN, et al.,

Respondents.

Case No. 34-2008-80000096-CU-WM-GDS

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFDEMURRER OF PRESIDENTBARACK OBAMA, VICE PRESIDENTJOE BIDEN, AND CALIFORNIAELECTORS TO PETITIONERS' FIRSTAMENDED PETITION FOR WRIT OFMANDATE

Hearing Date: March 13,2009Time: 9:00 a,m.

Dept.: 31Judge: Hon. Michael P.KennyAction Filed: November 13,2008

Printed on Recycled Paper

M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E



Amend 47

A. The Amended Petition Does Not and Cannot State a Cause of Action

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CONTENTS

INTRODUCTION 1

STATEMENT OF THE CASE 1

ARGUMENT 4

I . Because the Amended Petition Does Not and Cannot State a Cause of ActionAgainst Any Respondent, It Should Be Dismissed in Its Entirety Without Leave to

Against President Obama or Vice President Biden 5

B . The Amended Petition Does Not and Cannot State a Cause of ActionAgainst the California Electors 5

1 . The California Electors Have No Judicially-Enforceable Duty to

Conduct an Investigation of a Presidential Candidate'sQualifications fo r Office 5

2. Petitioners' "Haber"-"Huber" Argument Is False and Frivolous 7

C. The Amended Petition Does Not and Cannot State a Cause of ActionAgainst the Secretary of State 9

II. State Courts Have No Jurisdiction over the Qualifications of the President or Vice

Unripe 12

CONCLUSION 15

M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F IR S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E



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TABLE OF AUTHORITIES

Federal Cases

Berg v. Obama, 574 F. Supp. 2d 509 (E.D. Penn. 2008) 3

C ohen v. Obama, 2008 W L 5191864 (D.D.C.) 3

Donofrio v. Wells, 129 S . Ct. 752 (2008) 3

Hollander v. McCain, 566 F. Supp. 2d 63 (D.N.H. 2008) 3

Kokkonenv. Guardian Life Ins. Co., 51 1 U.S. 375 (1994) 1 1

Morgan v. UnitedStates, 801 F.2d 445 (D.C. Cir. 1986) 1 1

R a y v . Blair, 343 U.S. 214 (1952) 7

Robinson v. Bowen, 567 F. Supp. 2d 1144 (N.D. Cal. 2008) 3

R oudebush v. Hartke, 405 U.S. 15 (1972) 11

R oy v. Fed. Election, 2008 W L 4921263 (W.D. Wash. 2008) 3

Stamper v. UnitedStates, 2008 WL 4838073 (N.D. Ohio 2008) 3

State Cases

A m. Fed. of State, County and Mun. Employees v. Metro. Water Dist.,

Brandt v. Bd. of Supervisors ofMadera County, 84 Cal. App. 3d 598 (1978) 14

California W ater & Tel. C o. v. Countyof Los Angeles, 25 3 Cal. App. 2d 16 (1967) 14

Campbell v. Super. Ct., 126 Cal. App. 65 2 (1932) 12, 13

Chase v. Brooks, 187 Cal. App. 3d 657 (1986) 1 2

City ofSanta Monica v. Stewart, 126 Cal. App. 4th 43 (2005) 14

Constitution Party v.Lingle, 2008 WL 5125984 (2008 Hawai'i) 3

Del E . Webb Corp. v. Structural Materials Co., 1 23 Cal. App. 3d 593 (1981) 4

Golden Gate Bridge Dist. v. Felt, 214 Cal. 308 (1931) 14

In re John McCain's Ineligibility to be on Presidential Primary Ballot in PA,944 A.2d 75 (Pa. 2008) 3

M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T IT I O N F O R W R I T O F M A N D A T E



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Lanahan v. City of Los Angeles, 14 Cal. 2d 128 (1939) 12

long v. Hultberg, 27 Cal. App. 3d 606 (1972) 12

L ungren v. Deukmejian, 45 Cal.3d 727 (1988) 1 4

Mapsteadv. Anchundo, 63 Cal. App. 4th 246 (1998) 12

McCabe v. Snyder, 75 Cal. App. 4th 337 (1999) 4

PG&E Corp. v. Pub. W ife. Com/w'n, 1 1 8 Cal. App. 4th 1174 (2004) 1 4

Pac. Legal Found v. Coastal Comm 'n, 33 Cal. 3d 158 (1982) 13

People exrel. Lynch v. Super. Ct., 1 Cal. 3d 910 (1970) 13

Routh v. Quinn, 20 Cal. 2d 488 (1942) 4

San Diego Cotton Club v. State Bd. of Equalization, 139 Cal. App. 655 (1934) 5

Sanctity of Huma n Life Network v. California Highway Patrol,

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'ids Cal. App'4th 858 (2003) ." 7.. . . ' '. 14,1512

Selby Realty Co. v. City of San Buenaventura, 10Cal. 3d 110 (1973) 1313

Sisemore v. Master Fin., Inc., 151 Cal. App. 4th 1386 (2007) 414

Valdes v. Cory, 1 39 Cal. App. 3d 773 (1983) 7

Visnich v. Sacramento County Bd. ofEduc., 37 Cal. App. 3d 684 (1974) 1 116

W ilson v. Los Angeles County Civil Serv. Comm 'n, 112 Cal. App. 2d 450 (1952) 1 2

W rotnowski v. Bysiewicz, 958 A.2d 709 (Conn. 2008) 3

Zelig v. Countyof Los Angeles, 27 Cal. 4th 1112 (2002) 11

Docketed Cases

Lightfoot v. Bowen, Supreme Court Case No., SI68690 (Cal. 2008) 3

Marquis v. Reed, Superior Court Case No. 08-2-34955 (Wash. 2008) 3

Martin v. Lingle, Supreme Court Case No. 08-1-2147 (Hawai'i Oct. 22, 2008) 3

Federal Statutes

U . S . Const.

art. I , § 2 11

art. II, § 3.5 7

1 1 1M E M O O F P O I N T S & A U T H O R I T I E S I S O D E M U R R E R T O F IR S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E



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U.S.C. tit. 3,

§ 1 - 2 1 6

§7 10

§ 8 5, 6

§§9-11 10

62 S tat. 674 (19 47) 6

122 S tat. 4846 (2008) 10

State Statutes

C al. C iv. Proc. C ode

§ 389 7

§ 430.10(d) 7

§ 803 ' 11

§ 1085 4

Cal. Elec. Code

§ 6041 9

§ 6901 8, 9

§ 6905 3

§ 6906 6

§ 7100 8

§ 15505 8

M iscellaneous

155 C ong. R ec. H76 (daily ed. Jan. 8,2009) 1 0

3 W itkin, C al. Proc. 5th, A ctions, § 32 (5th ed. 2008) 12

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INTRODUCTION

Nine days after the 2008 general election, a losing candidate for President of the United

States, his running mate, and one of their California Electors petitioned for a writ of mandate to

enjoin the California Secretary of State and California's members of the Electoral College from

implementing the voters' choice to give California's fifty-five electoral votes to President Barack

Obama and Vice President Joe Biden. Petitioners base their action on doubts they have as to whether

President Obama is a "natural born citizen" eligible to be President — not on any affirmative

assertion that he is not eligible, but rather on questions that they have and that they say must be

answered before the Secretary of State and California Electors may carry out their official duties.

In fact, President Obama is, of course, a "natural born citizen," born in the United States to

a mother who was an American citizen. However, that fact is immaterial to the proper disposition

of this case, which can and must be dismissed because, as a matter of law, there is no obligationon

the part of any Respondent to perform any of the duties Petitioners assert, because the Court lacks

jurisdiction over Petitioners' claims, and because the action is moot — and remains so after the

Petition was amended to fabricate an alleged non-moot cause of action.

STATEMENT OF THE CASE

Petitioners Ambassador Dr. Alan Keyes, Dr. Wiley S. Drake, Sr., and Markham Robinson

(collectively, "Petitioners") filed their Petition for Writ of Mandate ("Petition" or "Pet.") on

November 13,2008, nine days after the November 4, 2008 general election. They allege that they

were, respectively, the 2008 Presidential Candidate, the Vice Presidential Candidate, and a C ertified

California Elector of the American Independent Party. (Pet. 1ft 1 -3; First Amended Petition ("FAP")

T I T f 1-3.) I t names as Respondents Secretary of State Debra Bowen and all fifty-five of C alifornia 's

Democratic Party Electors (collectively, "California Electors"), as well as now-President Barack

Obama and Vice President Joe Biden. The FAP alleges that over twenty actions have been filed

questioning whether the President is a "natural born citizen" under Article II, Section I, Clause 4 of

the United States Constitution. (FAP | 69.) According toPetitioners, these lawsuits suggest

variously that although President Obama was born a United States citizen he somehow lost this

status by subsequently obtaining citizenship in Indonesia, or alternatively that he was actually born

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in Kenya and is therefore either a Kenyan or British citizen. (E.g., id. lfl| 81-85.) The FAP alleges

that "[i]n the course of those lawsuits, most of which have been dismissed, it has been determined

that there exists no designated official in the federal government directly charged with the

responsibility of determining whether any Presidential candidate meets the qualifications of Article

H of the Constitution of the United States." (Id. H 74.) The FAP then avers — without citation to

any legal authority — that "[b]ased on all of the above [allegations], it is the duty of [the Secretary

of State] to obtain proper documentation of OBAMA's citizenship ... to confirm his eligibility"to

serve as President. (Id. ^ 86.) It also claims that each California Elector has "an affirmative duty

to discover whether the candidate for President forwhich the elector is seeking election is a 'natural

born' citizen." (Id. 1J 72.)

The FAP does not claim that either the President or the Vice President has failed to perform

any mandatory duties under either state or federal law. Indeed, the FAP seeks no relief as to either.

Instead, Petitioners assert — again without authority — that "it is the duty of the SOS to obtain

proper documentation of OBAMA's citizenship, and every other candidate for President on the

California Ballot, to confirm the candidate's eligibility for the office of the President of the United

States." (Id. ^ 86.) It seeks an order "barring the [Secretary of State] from both certifying to the

Governor the names of the California Electors, and from transmitting to each Presidential ElectorV

a Certificate of Election, until such documentary proof is produced and verified" and "barring the

California Electors from signing the Certificate of Vote until such documentary proof isproduced

and verified." (Id. If 70.) Petitioners believe that if the requested relief is denied, "[a]n

unprecedented and looming constitutional crisis awaits." (Id. ^ 77.)

A ll Respondents either demurred to the Petition or moved for judgment on the pleadings.

They pointed out that the Petition failed to allege a cause of action against any Respondent because

it failed to identify any legal duty any Respondent actually had, and that all of the Respondents had

completed all of the challenged actions, rendering the lawsuit moot.

Rather than defending against the Demurrers, Petitioners have filed the FAP, which repeats

verbatim nearly all the factual allegations of the prior pleading, does not appear even to attempt to

address the absence of any legal duties upon which to premise a writ of mandate, but attempts to




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avoid obvious mootness by contriving an ongoing dispute and seeking a writ barring the Secretary

of State and "future California Electors" from doing what it claims they have done. (FAP, Prayer

I f 2.) The FAP still does not seek any relief as to the now-President or Vice President, but it does

repeat demands that the Court bar the other Respondents from performing various acts they

completed last year.1

The FAP adds a new allegation, asserting that Representative Howard Berman designated

"Ilene Huber" as the Elector for the 28th Congressional District while an "Ilene Haber" actually

voted as the Elector. Petitioners assert that there is no voter in California with the name "Ilene

Huber." (FAP f 79.) Petitioners then allege that the Electors allowed Ms. Haber to vote without

"electing]" her to fill the vacancy of the non-existent Ms. Huber and thereby violated, Petitioners

reason, California Elections Code section 6905. (FAP f 79.)

'As noted in the FAP,lawsuits have been filed in various courts claiming that PresidentObama or Senator John McCain is not a "natural born citizen." (Id. If 74.) Petitioners themselvesnote that most of those cases have already been dismissed. (Id.) TheUnited States Supreme Courthas rejected petitions for certiorari or stay requests in all four cases that it has been asked to review.

I - Donofrio v. Wells, 129 S. Ct. 752 (2008) (rejecting request for order requiring Secretary of State toonofrio v. Wells, 129 S. Ct. 752 (2008) (rejecting request for order requiring Secretary of Stainvestigate citizenship status of Obama andMcCain); Wrotnowski v. Bysiewicz, 958 A.2d 709,(Conn. 2008), stay app. denied, — S. Ct.—, 2008 WL 5204525 (U.S. Conn. Dec. 15, 2008)(No.08A469) (dismissing case regarding Obama for lack of statutory standing and subject matterjurisdiction); Lightfoot v. Bowen, Supreme Court Case No. SI68690 (Cal. 2008) (originalproceeding), stay app. denied, — S. Ct.—, 2009 WL 160628 (U.S.) (denying Petition for Writ ofMandate/Prohibition and Stay regarding Obama);Berg v. Obama, 574 F. Supp. 2d 509,530 (E.D.Penn. 2008), stay app. twice denied, U.S. Supreme Court CaseNo.08-570 (dismissing suit regardingObama on several grounds including standing, lack of jurisdiction, and failure to state a claim).

For a sampling of the other cases, see, e.g., Hollander v. McCain, 566 F. Supp. 2d 63, 71(D.N.H. 2008) (dismissing suit regarding McCain on standing grounds); Roy v.Fed.Election, 2008W L 4921263 (W.D. Wash. 2008) (dismissing suit regarding Obama and McCain for failure to statea claim); Stamper y. UnitedStates, 2008 WL 4838073 (N.D. Ohio 2008) (dismissing suit regardingObama and McCain for lack of jurisdiction); Robinsonv.Bowen, 567 F. Supp. 2d 1144,1147 (N.D.C a l . 2008) (dismissing suit regarding McCain for lack of standing and lack of a state court remedy);

Cohen v. Obama, 2008 WL 5191864 (D.D.C.) (dismissing suit regarding Obama on standinggrounds); Constitution Party v. Lingle, 2008 W L 5 _ 125984 (2008 Hawai'i) (unpublished) (dismissing

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z/IneligibUity to be on Presidential Primary Ballot in PA., 944 A.2d 75 (Pa. 2008) (denying

9R application for issuance of subpoena); Marquis v. Reed, Superior Court Case No. 08-2-34955 SEA(W ash . Oct. 27, 2008) (dismissing suit regarding Obama).




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ARGUMENT

Respondents vigorously dispute the substantive allegations in Petitioners' pleadings and

categorically deny Petitioners' intimations that President Obama is not a natural born citizen. But

for purposes of this Demurrer, Respondents are obligated by the well-established rules of pleading

to treat Petitioners' factual allegations, for these limited purposes, as true — "however improbable

they maybe." Sisemorev. Master Fin., Inc., 151Cal. App. 4th 1386,13 97 (2007) (quoting Del E.

Webb Corp. v.Structural Materials Co., 123Cal. App. 3d 593,604 (1981)). Indulging Petitioners

this presumption, it is clear that they nevertheless have not and cannot state a cause of action, and

that this Demurrer must therefore be sustained without leave to amend. Blank v. Kirwan, 39 Cal.

3d 311, 318 (1985) (demurrer should be sustained when complaint fails to state facts sufficient to

constitute a cause of action); Routh v. Quinn, 20 Cal. 2d. 488,493 (1942) (amendment would serve

no useful purpose where absence of legal duty is clear as a matter of law).

I. Because the Amended Petition Does Not and Cannot State a Cause of Action AgainstAny Respondent, It Should Be Dismissed in Its Entirety Without Leave to Amend.

14A writ of mandate lies only to compel the performance of a clear, present, and ministerial

15duty. See Cal. Civ. Proc. Code § 1085 (West 2008); Balasubramanian v. San Diego Cmty. Coll.

16Dist., 80 Cal. App. 4th 977,990 (2000) (upholding denial of writ where defendant school district had

17no mandatory duty to re-classify plaintiff as academic contract employee); McCabe v. Snyder, 75

18Cal. App. 4th 337,340 (1999) (upholding denial of writ where Department of Motor Vehicles had

19no mandatory duty to disclose names and addresses of smog impact fee payees).

20Petitioners cite no California law that imposes any duty on a political party's Presidential or

21Vice Presidential candidate to provide proof of qualifications to the Secretary of State. Nor does the

22F A P cite any law imposing a duty on California Electors to review their candidate's eligibility. In

23fact, the California Electors had no discretion whatsoever — they were required by the state

24Elections Code to vote for their party's candidates. Finally, the FAP does not allege any statutory

25basis for a legal duty of the Secretary of State to demand proof of natural born citizenship from the

26parties' presidential nominees. Because these pleading failures cannot be cured by amendment, this

27Demurrer should be sustained without leave to amend.

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M E M O O F P O I N T S & A U T H O R I T IE S I S O D E M U R R E R T O F I R S T A M E N D E D P E T IT I O N F O R W R I T O F M A N D A T E



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A. The A mended P etition Does Not and Cannot State a Cause ofAction Against President O b a m a or Vice President Biden.

A lthough P resident O bama and Vice P resident Biden are named as R espondents, the F A P

now here seeks any relief as to either. Rather, it prays only for a writ to enjoin Secretary Bowen,

Respondent California Electors, and "future C alifornia Electors" from performing a variety of

ministerial tasks. In light of the absence of any prayer for relief directed to the President or the Vice

P resident, it should com e as no surprise that the F A P also does not allege that they have failed to

discharge any mandatory duty. T h e F A P contains only tw o oblique assertions of presidential or

candidate duties, each unadorned by citation of legal authority. (F A P ffl[ 63 ( "OBAM A has failed

to demo nstrate that he is a 'natural born' citizen."), 68("It is incumbent on the candidates to present

the necessary documentation confirming his or her eligibility, but, to date, for this past election,

O B A M A has failed to do so.").) T his is plainly insufficient to satisfy even the m ost basic pleading

standards for obtaining a writ of mandate. S an Diego C otton C lub v. S tate Ed . of E qualization, 13 9

Cal. App. 655, 65 8 (1934) ("To furnish any basis for the relief sought the petition for a writ of

mandate must show on its face that the respondents are under some duty to d o w hat the petition asks

that they be required to do.").

Respondents pointed out this fundamental deficiency in the original P etition. No thing in the

F A P app ears even to attempt to cure the deficiency.

Because the FA P fails to show any duty on the part of President Obama or V ice President

B iden, it should be dismissed as to both.

B. The Amended Petition Does Not and Cannot Statea Cause of A ction Against theCalifornia Electors.

1. The C alifornia Electors H ave No Judicially-E nforceable D uty toCon du c t an Investigation of a Presidential Candidate's Qualificationsfo r Office.

T h e F A P cites as a statutory basis for the claimed duty on the part of the fifty-five California

E lectors, S ection 8 of T itle 3 of the U nited S tates C ode, w hich provides in full: "The electors shall

vote for President and V ice P resident, respectively, in the manner directed by the C onstitution." 3

U .S.C . § 8 (2008). P etitioners assert that "[t]his federal statute confers upon each elector an

affirmative duty to discover whether the candidate for President for which the elector is seeking




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election is a 'natural born' citizen." (FAP ^ f 72.) Petitioners' theory finds no support in either federal

or state law.

Petitioners apparently read Section 8 of Title 3 of the United States Code to impose on all

electors nationwide an "affirmative duty" to examine the citizenship status of presidential candidates

and to refuse to cast their vote for any candidate who fails to satisfy some undefined burden of proof.

The statute has never been read to impose such a requirement, and its text and history compel no

such conclusion. The statement that "[t]he electors shall vote ... in the manner directed by the

Constitution," 3 U.S.C. § 8, is by its terms a reference to the mechanics of casting thevotes, not the

manner in which electors may decide (or be compelled) to cast a vote for one or another candidate.

There are only two provisions of the Constitution that refer to the manner in which electors are to

vote. Article II, Section 3 specifies where electors are to meet and how their ballots are to be cast,

transmitted to the President of the Senate, and counted. And the Twelfth Amendment, proposed by

the Eighth Congress in 1803 following the Jefferson-Burr Electoral College tie in 1800, superseded

Article II, Section 3 by providing for separate designation of votes for President and Vice President.

Sections 1 through 21 of Title 3 of the U.S. Code were enacted in 1947, 62 Stat 674, with this

history in mind. Indeed, Section 8, on which Petitioners rely, refers explicitly to the electors voting

for President and Vice President "respectively," an apparent reference to this history. No provision

of the Constitution suggests any procedure by which the electors are required to conduct an

investigation into the subject of their votes or to "discover whether the candidate for President... is

a 'natural born' citizen." (FAP \ 72.)

On the contrary, California Electors have no discretion whatsoever. California, like many

other states,2

requires its electors to vote for their party's nominee. Cal. Elec. Code § 6906 (West

2008) ("The electors ... shall vote by ballot for that person for President and that person for Vice

President of the United States, who are, respectively, the candidates of the political party which they

2At least twenty-four other states, as well as the District of Columbia, bind electors via either

state law or political party pledges, or both, to vote for a particular candidate. National Archives andRecords Administration, Federal Register, U.S. Electoral College, W h a t is the Electoral College?State Laws and Requirements, http://www.archives.gov/federal-register/electoral-college/laws.html(last visited Dec. 31,2008).




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represent..."); cf. Ray v. Blair, 343 U.S. 214, 231 (1952) (affirming constitutionality of political

party rule requiring electors to support party candidate). Thestate statute isbindingon theCalifornia

Electors, even were they to believe they have adifferent duty under federal law. Cal. Const, art. HI,

§ 3.5 (providing that administrative officials have "no power... to refuse to enforce a statute on the

basis that federal law. . . prohibits] enforcement of such statute unless an appellate court has made

[such] a determination"); Valdesv. Cory, 139Cal. App. 3d 773,780 (1983) (granting extraordinary

review of state statute because state officials were "under a constitutional duty to comply with"

disputed state statute). Accordingly, there was no legal basis onwhich to bar (or even to excuse) the

California Electors from performing their legal duty on December 15, 2008, by "signing the

Certificate of the Vote" (Pet. J 69).

Respondents' Demurrer pointed out this absence of a duty in the Electors. Nothing in the

FAP appears even to try to buttress Petitioners' arguments. However, to evade mootness, Petitioners

have added allegations seeking a writ ordering/ttfw/-e Electors to withhold then- votes until future

candidates produce "documentary proof of natural-bom citizenship. This writ, of course, would

not lie against these Respondents, and future Electorsare not before the Court, their identities being

unknown. As the future officials against whom relief is presently sought, they are indispensable

parties, Cal. Civ. Proc. Code § 389, whose absence is an additional ground to sustain this Demurrer

without leave to amend, Cal. Civ. Proc. Code § 430.10(d).

2. Petitioners' "Haber"-"Huber" Argument Is False and Frivolous.

Petitioners add to their FAP the allegation that Representative Berrnan designated as the

Elector for the 28th Congressional District a deceased resident of Humbolt County named "Ilene

Huber," and that for "Ilene Haber," an undispu tedly qualified Elector, to vote it was necessary, under

Elections Code section 6905, for the other Electors to "elect" her a "replacement" for the deceased

Ms. Huber. (FAP | 79.) They also allege that the designation was not made by

Representative Berrnan but by an official of the California Democratic Party ("CDP"). (Id.)

Petitioners are wrong in every respect.

In reality, of course, Ilene Haber was designated not by CDP official Chris M eyer (id.) but

by Representative Berrnan, on a form appearing in the judicially-noticeable ExhibitE to Request of




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President Barack Obama et al. for Judicial Notice in Support of Demurrer to Petitioners' First

Amended Petition for Writ of Mandate ("RJN").3

As it shows, the designation, signed by the

Congressman, contains Ms. Haber's name, correctly spelled, together with other information

regarding her identity and eligibility, such as her address. Mr. Meyer may have mistyped her name

in a transmission to the Secretary of State, but the designation was plainly made, and made correctly,

byRepresentative Herman. (Id) There was no vacancy, no substitution. The argument is frivolous.

The notion that the designations may not be transmitted through the CDP is as frivolous as

theattempt to make a mountain out of a typo. Contrary to Petitioners' assertion, California Elections

Code section 7100 does not say that each person who nominates an Elector "is to file their

designation of their nominee with" the Secretary of State. (FAP ^ 79.) Rather, the statute says that

each nominator "shall file [the nominee's] name, residence and business address with the Secretary

of State." Cal. Elec. Code § 7100 (West 2008). In other words, the statute requires that the

nominating information be provided to the Secretary of State, not the nominating document itself,

asPetitioners would have it. Nor, asPetitioners would have it, is the CDP properly a stranger to this

process. On the contrary, the Elections Code specifically contemplates that the "political party, in

accordance with Section 7100,... submits to the Secretary of State its certified list of nominees."

Cal. Elect. Code § 6901 (West 2008). Thus, as shown in the case of Ms. Haber, the nominators

discharged their duty by sending the CDP their designation and relying on it to file that information

3Pursuant to California Evidence Code section 452, Respondents President Obama, Vice

President Biden and Californiaa's Electors seek judicial notice of the following five documents: (1)a copy of California Secretary of State Debra Bowen's December 1,2008 Certification to GovernorArnold Schwarzenegger, pursuant to California Elections Code section 15505, stating that "theDemocratic candidates for Electors of President and Vice President received the highest number ofvotes" and that "said Democratic candidates were fifty-five (55) in number," and attaching the listof said Electors (RJN Exhibit A); (2) a copy of a portion of the "Statement of Vote" from SecretaryBowen for the November 4, 2008 general election, which states on page 15 that Secretary Bowencertified the election results on December 13, 2008, and includes on pages 16-22 the Californiaelection results for President of the United States (RJN Exhibit B); (3) a copy of the "Certificate of

Ascertainment," a Proclamation by the Governor of the State of California, in accordance withSection 6 of Title 3 of the United States Code, which is dated December 15,2008 (RJN Exhibit C);(4) a copy of the "Certificate of Vote" from the State of California, in accordance with Section 9 ofTitle 3 of the United States Code, and which is dated December 15, 2008, as required by Section 7of Title 3 of the United States Code (RJN Exhibit D); and (5) a copy of the "2008 ElectorAppointment Form" from Representative Howard L. Berman, by which Representative Bermandesignated Ilene Haber as a 2008 Presidential Elector for California in accordance with sections 6901and 7100 of the California Elections Code (RJN Exhibit E).

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5Action Against the Secretary of State.

6The Secretary of State's responsibilities are stated in California Elections Code Section

76901, which provides in full:

8Whenever a political parry, in accordance with Section 7100, 7300, 7578, or 7843,

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with the Secretary of State. It comes as no surprise that the Legislature contemplated not that fifty-

five nominators would each personally deliver to Secretary Bowen his or her designation but rather

that postmen, electronic wires, office assistants, and, yes, political parties would inevitably and

properly be involved.

C. The Amended Petition Does Not and Cannot State a Cause of

submits to the Secretary of State its certified list of nominees for electors of Presidentand Vice President of the United States, the Secretary of State shall notify eachcandidate for elector of his or her nomination by the party. The Secretary of Stateshall 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.

Her duty thus is simply to place on the ballot the names of the candidates submitted to her by a

recognized political party—in the case of the Democratic Party, the names submitted in accordance

with section 7100 of the California Elections Code. She has no discretion to overrule the party's

selection of apresidential candidate. Nor should she. Thepresidential nominating process cannot

be made subject to each of the fifty states' election officials independently determining whether a

nominee is qualified.

It may be the case that the Secretary of State has some discretion in placing a name on the

primary election ballot. That placement is governed by California Elections Code section 6041,

which authorizes the Secretary of State to determine whether or not to include a potential candidate.

SeeCal. Elec. Code §6041 (West 2008) ("The Secretary of State shall place thename of a candidate

upon the presidential primary ballot when he or she has determined that the candidate is generally

advocated for or recognized throughout the United States or California as actively seeking the

nomination of the Democratic Party for President of the United States."). But no such discretion

exists for the general election. To the contrary, California Elections Code section 6901, which is

quoted above, mandates that the Secretary of State place the names selected by the political parties

on the general election ballot. The differences between sections 6041 and 6901 make it clear that

the Secretary of State has no discretion to refrain from placing a party's nominee on the general




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election ballot. H er mandatory duty was toplace the name of Barack O bama on the ballot.

Again, these infirmities in the original Petition were cited in Respondents' Demurrer.

Petitioners have done nothing in the FAP to cure them.

II. State Courts Have No Jurisdiction over the Qualifications of the President orVice President

State courts have no jurisdiction over any aspect of the process into which Petitioners seek

to inject this Court. Federal law establishes the procedure for election of the President and Vice

President and provides the exclusive means for challenges to their qualifications. It specifies that

the electors shall meet on the first Mondayafter the second Wednesday in December, 3 U.S.C. § 7,

for their votes to be certified and transmitted to the President of the Senate, 3 U.S.C. §§9-11, who

receives and causes the votes to be counted before ajoint session of Congress on January 8,3 U.S.C.

§ 15, as modified by Pub. L. No. 110-430, § 2,122 Stat. 4846 (2008).

[Tlhe votes having been ascertained and counted. .. , the result of the same shall bedelivered to the President of the Senate, who shall thereupon announce the state ofthe vote, which announcement shall be deemed a sufficient declaration of thepersons, if a n y , elected President and Vice President of the UnitedStates,... Uponsuch reading of any such certificate or paper, the President of the Senate shall call forobjections, if any. Every objection shall be made in writing, and shall state clearlyand concisely, and without argument, the ground thereof, and shall be signed by atleast one Senator and one Member of the House of Representatives before the sameshall be received. When all objections so made to any vote or paper from a State shallhave been received and read, the Senate shall thereupon withdraw, and suchobjections shall be submitted to the Senate for its decision; and the Speaker of the

House of Representatives shall, in like manner, submit such objections to the Houseof Representatives for its decision;...

19Id. (emphasis added). Of course, on January 8, 2009, the then-Vice President made the requisite

20declaration of the election of Barack Obama and Joe Biden as President and Vice President. 155

21Cong. Rec. H76 (daily ed. Jan. 8, 2009). That was "deemed a sufficient declaration" of their

22election, in the absence of objections filed bymembersof the Senate and House of Representatives,

23which would have been be resolved by those bodies. There being no such objections, the President

24and Vice President were duly inaugurated. (FAP 163.)

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B y its terms, this is the exclusive means to resolve objections to the electors' selection of a

President or Vice President, including the species of objections raised by these Petitioners. Even

federal courts have no role in this process. Plainly state courts have none.

To the extent a contrary theory can be discerned from Petitioners' papers, it appears to be

their belief that their arguments are so important that the Court must have jurisdiction to hear them.

(FAP I f f l 68, 77 (forecasting a "constitutional crisis" if this Court does not act).) However, a

petitioner's urgent pleas and dire warnings do not confer jurisdiction where it does not exist. Courts

have limited jurisdiction defined by law. See, e.g., Kokkonen v. Guardian Life Ins. Co., 511 U.S.

375, 377 (1994) (federal courts have limited jurisdiction defined by Congress); Zelig v. County of

Los Angeles, 27 Cal. 4th 1112 (2002) (noting broad classes of discretionary activities by executive

agencies that are not subject to judicial liability).

There is nothing unusual about questions of an official's qualifications to hold office being

reserved to the non-judicial branches of government. For example, each house of Congress is the

exclusive judge of the qualifications of its members, and courts have no power to review its

determinations of their qualifications. U.S. Const, art. I, § 2; see, e.g., Roudebush v. Hartke, 405\

U.S. 15, 19 (1972) (which candidate is entitled to be seated in the Senate "is, to be sure, a

nonjusticiable political question");Morgan v. UnitedStates, 801 F.2d 445,447-51 (D.C.Cir. 1986).

Indeed, in California a private citizen may not bring suit to divest an unqualified officeholder from

an y public office; rather, such action may be brought only in a quo warranto proceeding by the

Attorney General or a relator approved by the Attorney General. Cal. Civ. Proc. Code § 803 (West

2008); Visnich v. Sacramento County Bd. ofEduc., 37 Cal. App. 3d 684, 690 (1974) ("title to an

elective office cannot be litigated by any other means than in quo warranto by the state"). These

rules reflect the sensitivity of judicial intervention in the composition of independent branches of

government and the courts' salutary reluctance to overrule the judgment of voters.

Such principles are, of course, all the more compelling when the office in question is the

presidency of the United States and the tribunal being asked to issue an injunction is not federal but

rather a state court. Were the courts of fifty states at liberty to issue injunctions restricting the

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1 certification and actions of duly-elected presidential electors, the result could easily beconflicting

2 rulings and the delayed transition of power in derogation of statutory and constitutional deadlines.

3 Again, Respondents' Demurrer put Petitioners on notice of the absence of state-court

jurisdiction. Their FAP contains nothing to cure the deficiency.

The qualifications of an elected presidential candidate remain exclusively for the United

States Congress to assess. Neither this nor any other court has jurisdiction over the matter.

III. The Case Is Not Justiciable—It Is Moot in All Respects Except Those That AreUnripe.

8Even were Petitioners capable of alleging the cause of action they have brought, any such

9claim would now be moot. Each Respondent has now carried out his or her duties.

10The black-letter rule is that even where "a case may originally present an existing

controversy, if before decision it has, through act of the parties or other cause, occurring after the12

commencement of the action, lost that essential character, it becomes amoot case orquestion which

will not be considered by the court." 3 Witkin, Cal. Proc. 5th, Actions, § 32, p. 98 (5th ed. 2008)14

(internal quotation marks omitted) (quoting W ilson v. Los Angeles CountyCivilServ. Comm'«, 11 2

C a l . App. 2d 450,453 (1952) (challenge to civil service list rendered moot by expiration of list and16

issuance of new list)). The rule is widely applied to election cases when an election hasbeen held17

that precludes the writ relief sought. See generally Mapstead v. Anchundo, 63 Cal. App. 4th 246

18(1998) (challenge to sufficiency of referendum petition mooted by conduct of election); Chase v.

19Brooks, 187 Cal. App. 3d 657 (1986) (whether referendum petition complied with statutory

20requirements mooted by election); Long v. Hultberg, 27 Cal. App. 3d 606 (1972) (mandamus

21petition by official named in recall petition challenging sufficiency of petition dismissed as moot

22after election held, petitioner recalled, and successor elected); see also generally Lanahan v. City of

23L os Angeles, 1 4 Cal. 2d 128 (1939) (same); Bradley v. Voorsanger, 143 Cal. 214 (1904) (suit to

24enjoin election mooted by holding of election). Likewise, when post-election proceedings have

25superseded a challenge to the election or to those proceedings, a writ petition is properly dismissed

26as moot. E.g., Campbell v. Super. Ct., 126 Cal. App. 652 (1932) (mandamus petition seeking to

27block losing candidate's election contest rendered moot by completion of contest).

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M E M O O F P O IN T S & A U T H O R I T I E S I S O D E M U R R E R T O F I R S T A M E N D E D P E T I T I O N F O R W R I T O F M A N D A T E



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This case is clearly moot. The Secretary of State already placed the candidates' names on

the ballot and, of course, the election has already taken place. Respondent California Electors were

certified elected by the Secretary of State on December 1,2008, they met and cast their votes for

President Obama and Vice President Biden on December 15,2008, and the Governor certified those

results and transmitted them to the President of the Senate on December 15,2008. And, of course,

President Obama and Vice President Biden have now been inaugurated and are engaged in the duties

of their offices. Since Petitioners acted too late for the Secretary of State, were she otherwise

inclined, to demand evidence of those candidates' qualifications, prayers for her to be compelled to

take such action have long been moot. Likewise, it is now far too late for a writ of mandate barring

the Secretary of State "from both certifying to the Governor the names of the California Electors, and

from transmitting to each presidential Elector a Certificate of Election," and it is likewise too late

for a "writ barring Respondent California Electors from signingthe Certificate of Vote" (FAP ^ 70).

Those are now completed acts. Such a writ would be futile.

In a desperate effort to breathe life into their post-mortem case, Petitioners have added to

their FAP cryptic allegations of an ongoing dispute. Thus, to their belated demand that the Secretary

of State be enjoined from her duties with regard to the 2008 election they add the plea that the Court

enjoin her "from certifying the California Electoral votes until documentary proof is produced for

any future Presidential candidate of that candidate's eligibility to serve as President" (FAP f 87) and

directing her to "vet OBAMA's, and any other future candidate's eligibility for President and resolve

this issue prior to the certification of the election results by the electors in any future Presidential

election" to determine whether he should be criminally prosecuted (id. 1) 89).

To the extent these claims are not now moot, they are not ripe and not justiciable. For an

action to be ripe, there must be an "actual controversy... which admits of definitive and conclusive

relief by judgment within the field of judicial administration, as distinguished from an advisory

opinionupon a particular or hypothetical state of facts. Thejudgment must decree, not suggest, what

the parties may or may not do." Selby Realty Co. v. City of San Buenaventura, 10 Cal. 3d 110,117

(1973). The Court may not issue an advisory opinion about facts not yet known. E.g., Pac. Legal

Found, v. Coastal Comm'n, 33 Cal. 3d 158 (1982) ("The ripeness requirement, a branch of the

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doctrine of justiciability, prevents courts from issuing purely advisory opinions.") (citingPeople ex

rel. Lynchv. Super. Ct., 1 Cal. 3d910(1970)). "[A]n action not founded uponan actual controversy

between the parties to it, and brought for the purpose of securing a determination of a point of law

... will not be entertained." Golden Gate Bridge Dist. v.Felt, 214 Cal. 308, 316(1931); City of

Santa Monica v. Stewart, 126 Cal. App. 4th 43, 59 (2005); California Water & Tel. C o. v. County

ofL os Angeles, 253 Cal. App. 2d 16,22 (1967).

A n d , of course, a writ of mandate will not lie unless there is a clear and present ministerial

duty. Lungrenv. Deukmejian, 45 Cal. 3d 727,731-732 (1988) ("Mandate will not lie unless... the

respondent has a present duty to perform the acts applicant seeks to compel."); A m. Fed'n ofState,

County andMun. Employees v. Metro. W ater Dist., 1 26 Cal. App. 4th 247,297 (2005). "[T]hewrit

w ill not be granted merely in anticipation that the party will refuse to perform the duty when the time

comes." Brandt v.BoardofSupervisors ofMadera County,84Cal. App.3d598,601 (1978). There

is no present duty in any Respondent and therefore no basis for a writ.

This Court cannot now know w ho future candidates will be, what kinds of controversies may

or may not arise with respect to their eligibility for office or how the Secretary of State will handle

any controversies — in short, what "actual set of facts" will arise for "the issues [to] be framed with

sufficient definiteness to enable the court to make a decree finally disposing of the controversy."

Pac. Legal Found., 33 Cal. 3d at 170; see also PG&E Corp. v. Pub. Utils. Comm'«, 118 Cal. App.

4th 1174, 1216 (2004). Furthermore, in the absence of a ripe controversy, these Petitioners, w ho

have pinned their claimed standing on their status as nominees and electors in the 2008 election

(FAP173) lack standing to bring the case they no w plead, since they cannot show that any of them

will be nominees or electors in any future election. "A party lacks standing if it does no t have an

actual and substantial interest in, or wouldnot be benefitted or harmed by, the ultimate outcome of

an action." Stewart, 1 26 Cal. App. 4th at 59, 60 (internal quotation marks omitted). Precisely

because "we are not in a position to know the parameters of future relations between" the parties,

the Court does not have before it "an actual controversy with known parameters." Sanctity of

Huma n Life Networkv. California HighwayPatrol, 1 05 Cal. App. 4th 858, 872, 873 (2003).

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Of course, any discussion of future cases requires a studied suspension of one's knowledge

of the underlying law. A ny future case will, like this one, suffer from the absence of any cognizable

cause of action and from the absence of state-court jurisdiction and the exclusivity of Congress'

purview over the qualifications of an elected presidential candidate. But if these Petitioners wish

again to throw themselves against those walls, and if they have the standing to support the try, then

they canfile another petition, well inadvanceof the election. Until then, this case mustbe dismissed

as non-justiciable.

CONCLUSION

Over eight million C alifornians cast their votes for Barack Obama and Joe Biden — more

than 61% of the State's record turnout. (RJN, Ex. B-8.) Petitioners, who came in fifth in the

presidential election in California with 40,673 votes (0.3%) (id.), may not overturn the will of the

People through a belated petition demanding judicial orders that have no basis in law and that seek

to enjoin ministerial actions that have already been completed. This Demurrer should be sustained,

and this case should be dismissed.

D A T E D : February 23,2009 STRUMWASSER& WOOCHERLLPFredric D. WoocherMichael J. StrumwasserAimee Dudovitz

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ichael J. Strumwasser

A ttorneysfor Respondents President Barack Obama, VicePresident Joe Biden, and California Electors

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Documents

Keyes v Bowen Memorandum Points Authorities Support Obama Demurrer