2010-03-08 keyes v bowen appellee obama brief (corrected)

8/9/2019 2010-03-08 Keyes v Bowen Appellee Obama Brief (Corrected)

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3d Civ. No. C062321/

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

" \E?1- Cl i.- A'Mbl WI) :ROE Pre . ALAN KEYES, ; t h l i J 5 S dE t VE; ) ( 221 2211 agEd il II f,0 1C \. ,,-,f\;, i 5, . 3 ' " p S' and Appellants,

v.SECRETARY OF STATE DEBRA BOWEN, e'-\- q J

~ M { ] n l i l 1 f i ' P t P $ oK & ,?" JfIss P I I ill I I 'w. Dns ); -ME 1hZ 35 @1lL&sJiNWrrRw FliiiAI 5r FAWR s wdQAS 5'\ +-\ J"( , C' (' .\ ' P 1 ! 1 and Respondents.Appeal from the Sacramento County Superior CourtCase No. 34-2008-800000096-CU-WM-GDS MAR - 8 2010Honorable Michael P. Kenny, Judge

O U F n OF .!\PPEAL .. TH Eil) D!STRICDEENA C.FAWCETTBRIEF OF RESPONDENTS BY____

PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN,AND THE 55 CALIFORNIA PRESIDENTIAL ELECTORS OF 2008

MICHAELJ. STRUMWASSER (SBN 58413)FREDRIC D. WOOCHER (SBN 96689)AIMEE E. DUDOVITZ (SBN 203914)STRUMWASSER & WOOCRER LLP10940 Wilshire Boulevard, Suite 2000Los Angeles, Califomia 90024Telephone: (310) 576-1233

Counsel for President Barack Obama, Vice President Joe Biden,and the 55 California Presidential Electors of2008

.____ _ Depu


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State of CaliforniaCourt of Appeal

Third Appellate DistrictCERTIFICATE OF INTERESTED ENTITIES OR PERSONS

California Rules of Court, rules 8.208, 8.490(i), 8.494(c), 8.496(c), or 8.498(d)

(

Court of Appeal Case Caption:Ambassador Dr . Ala n Keyes e t a l . Fl-I ' 1.:;1 D"'w J.-=:;Jv.Secre t a ry of S t a t e Debra Bowen e t a l . MAR 3 2010

Court of Appeal Case Number: CO 62321 COURT OF APPEAL -THIRD D!STRICTDEENA C. FAWCETTPlease check here if applicable: By______________

IKJ There are no interested entities or persons to list in this Certificate as defined in theCalifornia Rules of Court.

Name of Interested Entity or Person Nature of Interest(Aiphabetical order, please.)I.

2.3.

4.Please (lllac/t additional sheets with El1tity or Persall Illjormation, {fl1ecessGI)"

Date: March 2, 2010Signature of Attorney or Unrep

Printed Name:State Bar No:Aimee E. DudovitzSBN 203914

Firnl Name & Address: S trumwas s e r & Woocher LLP10940 Wil s hi re Blvd . , S t e . 2000Los Angeles, CA 90024

Deputy

Party Represented: Respondents President Barack Ohama, Vi ce-P res id ent Jo e Biden,and the 55 Cal i f orn ia Presiden t i a l Electors of 2008

ATTA CH PROOF OF SERVICE ON ALL PARTIES JITH YOUR CERTIFICATEApprovcd for Optional Use Within the Third Appellatc District. 01/01/2007

'MAR - 5 2010'


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3d Civ. No. C062321 /IN THE COURT OF APPEAL OF THE STATE OF CALlH)RNlA

THIRD APPELLATE DISTRICT

AMBASSADOR DR. ALAN KEYES, WILEY S. DRAKE, MARKHAM ROBINSON,Petitioners and Appellants,

v.

SECRETARY OF STATE DEBRA BOWEN,PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN,AND THE 55 CALIFORNIA PRESIDENTIAL ELECTORS OF 2008,

Respondents and Respondents.

Appeal from the Sacramento County Superior CourtCase No. 34-2008-800000096-CU-WM-GDSHonorable Michael P. Kenny, Judge

BRIEF OF RESPONDENTSPRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BID EN,

AND THE 55 CALIFORNIA PRESIDENTIAL ELECTORS OF 2008

MICHAEL 1. STRUMWASSER (SBN 58413)FREDRIC D. WOOCHER (SBN 96689)AIMEE E. DUDOVITZ (SBN 203914)STRUMWASSER & WOOCHER LLP10940 Wilshire Boulevard, Suite 2000Los Angeles, California 90024Telephone: (310) 576-1233

Counsel/or President Earack Obama, Vice President Joe Eiden,and the 55 California Presidential Electors 0/2008


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B. The Case Is Not Justiciable - It Is Moot in All RespectsExcept Those That Are Unripe, as to Which There Is ;\ Iso

/

a Failure to Join Indispensab le Parties .................... ................ 221. The Case Originally Filed is Moot .............................. 222. Allegations Regarding Future Elections Are Unripe

and Could Not, in Any Event, Be Adjudicated inthe Absence of Future Electors Who Have NotBeen Joined .................................................................. 24

CONCLUSION ... .. ........................................................................................ 29

CERTIFICATE OF COMPLIANCE WITH RULE S.204(c)(l) ................. .30

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ITABLE OF AUTHORITIES

Federal Cases

Marbury v. Madison , 1 Cranch 13 7 (1803) .... ......... ......... ......... ........ ........ 17Morgan v. United States, 801 F.2d 445 (D.C. Cir. 1986) .......................... 20Ray v. Blair, 343 U.S. 214 (1952) ............ .... .. ...... ....... ......... ............ .... ... ... 11Roudebush v. Hartke , 405 U.S. 15 (1972) .... ......... ............. ............. ...... .... 20

California CasesAmerican Fed'n ofState, County and Mun. Employees v.Metropolitan Water Dis!., 126 Cal. App. 4th 247 (2005) ............. . 26Balasubramanian v. San Diego Cmty. Call. Dis!.,80 Cal. App. 4th 977 (2000) .... ................. ........ .... ............ ..... .... ....... 8

. Barnes v. Wong, 33 Cal. App. 4th 390 (1995) ............ ..... .... ........... .. ...... ... 17Bradley v. Voorsanger, 143 Cal. 214 (1904) ........ ..... ................................ 23Brandt v. Board ofSupervisors ofMadera County,

84 Cal. App. 3d 598 (1978) ............................................... .............. 26Brown v. Pro!'l Cmty. Mgmt. , Inc.,

127 Cal. App. 4th 532 (2005) .................................................. ....... 13California Water & Tel. Co. v. County ofLos Angeles,

253 Cal. App. 2d 16 (1967) ............................................................. 26Campbell v. Super. Ct., 126 Cal. App. 652 (1932) ........ ............................ 23Chase v. Brooks, 187 Cal. App. 3d 657 (1986) .... ... ........... ... .... ..... ... ..... .. . 23City ofSanta Monica v. Stewart, 126 Cal. App. 4th 43 (2005) ...... .... . 25, 27Curcini v. County ofAlameda, 164 Cal. App. 4th 629 (2008) ................ 7, 8Evans v. City ofBerkeley, 38 Cal. 4th 1 (2006) ................. .. ........................ 7

111


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.fVisnich v. Sacram.ento County Ed. o fEduc.,

37 Cal. App. 3d 684 (1974) , . .................................................... 20, 2 1Wilson v. Los Angeles County Civil Servo COl1'Z1n In,112 Cal. App. 2d 450 (1952) ............................ .. ............................. 22

Non-California State CasesIrbyv. Barrett, 163 S.W.2d 512 (Ark. Sup. Ct. 1942) ............................... 16State ex ref. Robinson v. Craighead County Bd. ofElection Com Irs,

779 S.W.2d 169 (Ark. Sup. Ct. 1989) ............................................. 16

State ex ref. Sathre v. Moodie, 258 N.W. 558 (N.D. Sup. Ct. 1935) ......... 21Federal Constitution & Statutes

U.S. Const.,art. I, 2 .................................................................. ........................ 20art. II , I, cl. 4 ................................................................................... 2

3 U.S.C. 7 (2010) ................................................................................... 183 U.S.C. 8 (2010) .......................... ................................................... 12, 133 U.S.C. 9-11 (2010) ............................................................................. 183 U.S.C. 15 (2010) ............................................................................ 18, 19Pub. L. No. 110-430, 2, 122 Stat. 4846 (2008) ....................................... 19155 Congo Rec. H76 (daily ed. Jan. 8,2009) ............................................. 19

California Constitutions & StatutesCal. Const., art. III, 3.5 ............................................................................. 12Cal. Civ. Proc. Code,

389 (West 2010) .... ..... .................................................................. 27v


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I 430.1 O(d) (West 2010) ................ .............. .................. .. ...... ......... 28 803 (West 2.010) ...... ....................... ... ..... ... ........... .. .... .... .. .. .. ........ 20 1085 (West 2010) .................. .......... .. ................ ....... ... ..... ........ ..... . 8 1086 (West 20 10) ..................................................... .................. ... 18 1859 (West2010) .... ..................... ... ... .... .......... .. ....... ... ............... .. 14

Cal. Elee. Code, 6041 (West 2010) ....... ... ..... .................. ........ ......... ....................... 15 6901 (West 2010) ......................... ..................................... 13, 14, 15 6906 (West 2010) ... ..... ........ ................... .. ... .. ........ ... ... .. ... ...... 11, 12

Non- California State StatutesAla. Code 17 :. 14-31 (2010) .................................................................... 11Alaska Stat. 15 .30.090 (2010) ................................................................. 11Colo. Rev. Stat. Ann. 1-4-304(5) (West 2010) ............................. ..... ... ... 11Conn. Gen. Stat. Ann. 9-176 (West 2010) .... .. ... ........................ ............. 11Del. Code Ann. tit. 15, 4303(b) (2010) ... .. ................................. ..... ..... ... 11D.C . Code 1-1001.08(g)(2) (2010) ......................................................... 11Fla . Stat. Ann. 103.021(1) (West 2010) .................................................. 11Haw. Rev. Stat. 14-28 (2010) ...... ............ ............................. .. ... ... ........... 11Me. Rev . Stat. Ann. tit. 21-A, 805(2) (2010) .................................... ...... 11Md. Code Ann., Elee. Law 8-505(c) (West 2010) .. ................................ 11Mich. Compo Laws Ann. 168.47 (West 2010) ........ ... ...... ............... ........ 11

VI


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INTRODUCTIONNine days after the 2008 General Election, a lo s ing candidate for

President of the United States, his running mate, and one of their CaliforniaElectors petitioned for a writ of mandate to enjoin the California Secretaryof State and California's members of the Electoral College fromimplementing the voters' decision to give California's fifty-five electoralvotes to now-President Bai-ack Obama and now-Vice President Joe Biden.

Appellants based their suit on doubts they professed as to whether PresidentObama is a "natural born citizen" eligible to be President. Appellantsinsisted that their doubts must be answered by the California Secretary ofState ~ l I 1 d the California Electors, who carried out their official duties inconnection with the 2008 election more than one year ago.

President Obama is, of course, a "natural born citizen," born in theUnited States to a mother who was an American citizen. However, theSuperior Court disposed of the case not on that basis but rather on the basisthat, as a matter of law, Appellants failed in all regards to state a valid causeof action. The Superior Court held that there is no obligation on the part ofany of the officials sued to perform any of the duties demanded, that theaction "is moot in all respects except those that are unripe," and that theCourt lacked "jurisdiction over the subject of this action." (Clerk'sTranscript ("CT") 1139-40.)


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In a pastiche of unsupported assertions and self-contradictoryarguments, Appellants now appeal the judgment, insisting that this Courtmay exercise jurisdiction over a past federal election to rule on the eligibilityof a sitting President to hold an office he has occupied for over a year. Toreach this bizarre conclusion, Appellants must overcome not onlyinsurmountable jurisdictional impediments but also the ineluctable hlCt thatthe only relevant mandatory duty any oftlcial has is exactly contrary to therelief Appellants seck. The decision of the Superior COl,lrt must be affirmed.

ST ATEMENT OF THE CASE

Appellants Ambassador Dr. Alan Keyes, Dr. Wiley S. Drake, Sr., andMarkham Robinson ("Appellants") filed their Petition for Writ of Mandate("Petition") on November 13, 2008, nine days after the November 4, 2008General Election. They alleged that they were, respectively, the 200KPresidential Candidate, Vice Presidential Candidate, and a CertifiedCalifornia Elector of the American Independent Party. (CT 2; 671.) Theynamed as Respondents Secretary of State Debra Bowen and all fifty-five ofCalifornia's Democratic Party Electors (collectively, "California Electors"),as well as now-President Barack Obama and now-Vice President Joe Biden.Appellants alleged that over twenty actions have been filed questioningwhether the President is a "natural born citizen" under Article II , Section r.Clause 4 of the United States Constitution. (CT 678 .) According to

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Appellants, these la\vsuits suggest variously that although President Obamawas born a United States citizen he somehow lost this status by subsequentlyobtaining citizenship in Indonesia, or alternatively that he was actually bornin Kenya and is therefore either a Kenyan or British citizen. (E.g ., CT 683-84.) Appellants alleged that "[i]n the course of those lawsuits , most ofwhich have been dismissed, it has been determined that there exists nodesignated official in the federal government directly charged with theresponsibility of determining whether any Presidential candidate meets thequalifications of Article II of the Constitution of the United States." (CT679.) Appellants then averred - -- without citation to any legal authority -that "[biased on all of the above [allegations], it is the duty of [the Secretaryof State] to obtain proper documentation of OBAMA's citizenship ... toconfirm his eligibility" to serve as President. (CT 685.) Appellants alsoalleged that each California Elector has "an affirmative duty to discoverwhether the candidate for President for which the elector is seeking electionis a 'natural born' citizen." (CT 679.)

Appellants have never alleged that either the President or the VicePresident failed to perform any mandatory duties under either state orfederal law. Indeed, they still do not seek any relief as to either federa lofficial. Instead, Appellants simply asserted - again without authority - that " it is the duty of the [Secretary of State1 o obtain proper documentation

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of O BAMA' s c iti ze nship, lind eve ry oth er ca ndidate fa r I' res id e lll on theCa lifurn ia Ba llo!. to co nfirm th e candid atc's c lig ibilit y 101' th e o ni cc o f thcPres id ent o f the United States." (CT 685 .) Appe lla lll s pra\'ed 10 1' an order" barring the ISecre tary of Statel from both ce rtifying to th e Gove rnor thenames of the Ca li forni a Elec tors, and fro m transmi!!ing to each Pres identi alElec tor a Certi fica te o f Elcc tion. lIntil s llch docum enta ry proof is prod ucedand ve rified" and "barrin g thc California Elec tors from signing thcCertifi ca te o f Vote until such doc um entary proo f is produced and verifi ed ."(CT 678 .) Accordin g to Appe llants. absent thc reques ted re li e f, " la Jnunprecedented and loo ming constituti onal cri sis awaits ." (CT 680.)

Appe llants brought no motion to obtain any judicia l order before theSec retary o f State ce rtified thc 2008 California Elec tors, before the Elec to rscast the ir VOlCS, or before Pre sident Obama and Vice President Biden we resworn into o ffi ce.

In du e course, al l Res pondents either demurred to thc Petiti on ormoved fo r ju dg ment on the pl cadings. In th cse various co urt filings,Respondents po inted o ut that the Pctition failed to idelll ify any legal dut y o n

the par t o f any Respond ent , and that the Pe titi on had long since becomemoo!. (eT 25 1-69 ; 32 1-89 .) Appc llant s responded by fi ling a f irstA mendcd Petition. whi ch rcpca ted nea rl y all th e fac tua l a ll ega tio ns o f th eprior pl cading and made no a!! empt to address the absencc of an I' Icga l

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duties upon which to premise a writ of mandate. The primary addition to theFirst Amended Petition was an attempt to avoid obvious mootness bycontriving an ongoing dispute and seeking a 'writ barring the Secretary ofState and "future California Electors" from doing whatever it is thatAppellants claim these state ot1icials might otherwise do. (CT 686.)1 AndAppellants continued in their First Amended Petition to repeat demands thatthe Court bar the state Respondents from performing various acts associatedwith the 2008 General Election, all of which were completed before the FirstAmended Petition was filed. Like the original Petition, the First AmendedPetition sought no relief whatsoever against the now-President or VicePresident.

Respondent Secretary of State demurred to the First AmendedPetition citing the same pleading defects. (CT 700-22.) RespondentsPresident Obama, Vice President Biden, and the California Electors alsodemurred. (CT 728-98.) The Superior Court heard both demurrers on

IThe First Amended Petition also included the new allegation thatone of the 2008 California Electors, IIcne H!!ber, was improperly substitutedfor the designated Elector, Ilene H!!ber. (CT 681-82.) This argument wasnothing more than an efTort to make a mountain out of a typographical error.Not surprisingly, the Superior Court quickly rejected Appellants' impropersubstitution claim, noting that judicially noticeable documents demonstratedboth the error and its correction. (Cl" 1137-38.) Appellants have abandonedthis argument on appeal.5


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March 13, 2009, and issued its ruling that same day.2 The Superior Courtsllstained the demurrers on the grounds that the Secretary of State had noministerial duty "to demand detailed proof of citizenship fro111 Prcsidentialcandidates," that the case was moot insohlr as it pertained to the 2008election and unripe as to future elections, and that exclusive jurisdiction toreview the qualifications of a presidential candidate lies with the United

States Congress. (CT 1136-38.) In addition, the Superior Court sustainedthe demurrer of the President, Vice President, and Electors on the groundsthat Appellants' pleading sought no relief against the President or VicePresident, that there was no basis in law for Appellants' claim that theCalifornia Electors have a duty to review their candidate's eligibility, andthat there was a m i s j o i J 1 ( ~ e r of parties because Appellants did not name thefuture electors against whom the First Amcnded Petition sought an order.(CT 1138-40.)

Judgment was entered on the orders of dismissal, and this appeal wastimely taken.

2At the same hearing, the Superior Court also considered a motion byRespondents President Obama, Vice President Biden, anel the CaliforniaElectors to quash a subpoena improperly issued to third-party OccidentalCollege demanding access to President Obama's "hollsing and academicrecords." The Superior Court quashed the subpoena on the ground that itwas improperly served, and on the grounds that the categories of documentssought were vague, overbroad, and irrelevant to this lawsuit. (CT 1140-41.)Appellants do not appeal that ruling.

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STANnARD OF REV IEWTilt.: Slancl:trd of rev iew on app ea l from a trial (o url decision

slIstain ing a deJ1lurrer is. or course. I l o \ ' o . ClIl'cil1i \ '. CUl/llIy ojAlameda,164 Cal. AP I' . 4th 629, 637 (200H). A lthough the r< viewing courtmu st "treG! th e delllurrer as admitting a ll materi al facts properl y pl eaded)" itdocs 1101 ass ullle the truth of ' cont entions, deductions or co nc lu sions ("If b etor law ." Evalls v. OTY of Berkeley, 38 CalAth I . 6 (2006). A ppe ll ants bearthe burden of "show l in g] either the demurrer wa s s listai ned erroneo llsly orthat to susta in the dem urrer w ithout leave 10 amend consti tut es an ab use ordisc reti on ." S /a11S01l v , BrowlI , 49 Ca l. Apr . 3d 81 2, 814 ( 1975). Th e trialcourt 's dec ision s listainin g the demu rrer m llst be uphe ld " i f it is correct on

3Appellants also claim th at de novo rev iew is because thi scase in volves "[c]onstituti onal issues." (Appellant s' Opening Brief("AOB") 9; see also AOO J -2 (s tating th at case concern s "crit icalConstitutional issue of wheth er O IJAMA has met th e e ligibil ityreq uirement s to serve as Pres id en t of th e Unit ed States").) \ \f llil e Appe llantsarc correct about the standa rd of review. they arc mi staken as to th e reason.Thi s lawsuit is 1101 about th e "natu ra l born c itizen" clause or any otherportion of th e Unit ed Slaws Constitu tion. and th e First Amend ed Pet iti onco nta ins no consti tut io nal cl aim. In stead, this writ action is premised on thenotion th at the Cali forn ia Secretary (If State and Californi a's DemocraticParty electors ha ve a mandatory s ta tutory duty to lau nch an investigat ioninto the qua li fications for O ff i Cl' of th e Democratic Part y's presidentia lnomi nee. The Superior Court properly hl' ld th at no such duty exists. and{Ul t th e suit, in any event, suffers from numerous jur isdi cti onal defects.Appe ll an ts have id entified 11 0 rcason on appeal to di stu rb th is ruling.

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any theory, even one not mentioned by the court." Curcini, 164 Cal. App.4th at 637 (internal quotation omitted).,1

ARGUMENTI. The Superior Court Correctly Held That There Is No Basis For

Mandamus Relief.A writ of mandate lies only to compel the performance of a clear.

present, and ministerial duty. Sec Cal. Civ. Proc. Code 1085 (West 2(10):

Balasubramanian v, San Diego Onty. Coli. Dis!., XO Cal. App . 4th 977 , 990(2000) (upholding denial of writ where school district had no duty toreclassify petitioner as academic contract employee); McCabe v. Snyder , 75Cal. App. 4th 337, 340 (I999) (upholding denial of writ where Departmentof Motor Vehicles had no duty to disclose names and addresses of smogimpact fee payees), The Superior Court rejected Appellants' suit in largepart because Appellants \vere' unable to identify a single unperformedmandatory duty on the part of any Respondent. (CT 1136-40.) Appellantsacknowledge this ruling on appeal CAOB 6-7), and their arguments in thisCourt are largely unchanged, Appellants still have not identified anyprovision of law that imposes any duty on a political party's presidential orvice-presidential candidate to provide proof of qualifications to the Secrdary

,IAlthollgh Appellants' own legal citations to the above cases reflectthe proper standard of review Oil demurrer, Appellants inexplicably repeatthe well-known summary judgment refrain regarding "triable issue[s] of

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of State. Nor do they cite any law imposing a duty on Cali Cornia Electors toreview their candidate's eligibility. In fact , the California EIc'ctors had nodiscretion whatsocvcr --- they were required by the state [':\ections Code tovote for their party's candidates, a point Appellants now acknowledge onappeal. (E.g , AOB 16.) And Appellants do not allege any statutory basisfor a legal duty of the Secretary of State to demand proof of natural born

citizenship from the parties' presidential nominees. The absence of anyministerial duty of any Respondent properly compelled dismissal.

A. Appellants Still Cannot Identify Any MandatoryDuty 011 the Part of President Obama or VicePresident Biden.

Although President Obama and Vice President Biden were named asRespondents in both the original a'nd First Amended Petition, Appellants'pleadings never sought any relief as to either. Rather, Appellants prayedonly for a writ to enjoin Secretary of State Bowen, Respondent CaliforniaElectors, and "future California Electors" from performing a variety oftasks. In light of the absence of any prayer for relief directed to thePresident or the Vice President, it should come as no surprise that thepleadings also did not allege that either official had failed to discharge anymandatory duty. The First !\mcndc,d Petition contains only two obliqueasst:rtions of presidential or candidate duties, each unadorned by citation of

material fact." (See, e.g., AOB 24, 35.) That standard, of course, has 1109


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legal authority . (C r 676 (",OnAMA has fa iled to demonstrate that he is a'natural horn ' citiL.c n ." ), 67S (" It is incumbcnt on the c


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Il . T he Ca liro rnia Electors 1-1:11 No Dul y to 111 \'('s li ga h.'tli (' Qualifi l'a lio ll s or h(' I'rcs id ellli :d Candidaf(' ro,\ \'hom They \ \'('re Legally BOllnd 10 Vo t('.

Th e C"lirnrn ia Electors had 11 0 distTct ion in cast ing th eir 200Xelec toral votes. Like man y other state s,5 California requires its pres idclltitllelec tors to votc for their party's nominee . Cal. Elee. Code 6906 (Wcst20 I 0) ("The ekclors . . . 5h,,11 vote by ba ll ot for that person for Presidentitnd that person for Vi ce Pres ident of the U nitcd Sta tes. who arc.respec ti vcly. the ca ndidates of the politica l party which they represent. . . ."): cf Ray 1'. Blair, 343 U.S. 2 14 . 23 1 ( 1952) (affirmingconstitu tionali ty of po litical party rul e requiring eleclors to support parlYcand ida tc). Indced, Ca liforn ia Elections Code sect ion 6906 wa s binding a ll

51\ ( lea st twen ty-sevcn otht.:r stat es, as wcll as thc District ofCo lumbia, bind electors via cither state law or po liticit l pitrt )' pledges, orbOlh, 10 vole for a par licular candidale. (Ab. Code 17- 14-3 1 (20 10):Alaska SIal. 15.30 .090 (20 10) ; Co lo. Rev. Stal. Ann. 1-4-304(5) (Wesl2010); Co nn. Gen. SIal. Ann . 9-176 (West 20 I0): Del. Code Ann . IiI. 15, 4303(b) (20 10 ); D.C. Code 1- 100 1.08(g)(2) (20 10) ; Fla . SIal. Ann .103 .02 1( 1) (Wesl 20 10 ); I-law . Rev. SIal. 14-28 (20 10); Me . Rev . SIal.Ann. IiI. 2 1-A, 805(2) (20 10): Md. Code Ann .. Elce. La w 8-505(e)(Wesl 20 10): Mieh. Comp o Laws Ann. 168.47 ( Wesl 20 10); M iss. CodeAnn. 23- 15-785 (20 10) ; Monl. Code Ann. 13-25- 104(c) (20 10) : Mass.Gen. Lm\'s ch. 53, 8 (2 010) : Nch. Re\, . SIal. 32-7 14. 298 .050 (20 10):N.M. SIal. 1-15-9 (2010): N.C. Gen . SIal. 163-2 12 (2010): Oh io Rev.Code Ann . 3505 .40 (Wcst 20 10); Ok la. S,"1. IiI 26. 26- 10-102 (20 10):Or . Re \,. SIal. 248 .355(2); S.c . Code. An n. 7- 19-80 (20 10): Tenn . CodeAnn. 2- 15- 104( c) (20 I0): Li lah Code Ann. 20A- 13-304 (20 I 0) : VI. Sta l.Ann. IiI 17. 2732 (20 10); Va. Code An n. 24.2-203 (2010) : Wash. Rev .Code Ann. 29A .56.320 (2010): Wi s. SIal. Ann . 7.75(2) (West 20 10):Wvo. SI al. Ann . 22- 19- 1OX (20 I0).

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the California Electors , even were they to believe they had (\ different dutyunder federal 1m\,. Cal. Const. , art. Ill, 3.5 (providing that administrativeofficials have "no power . . . to refuse to enforce a statute on the basis thatfederal law . . . prohibit[s] enforcement of such statute unless an appellatecourt has made [such] a determination"); Valdes v. Cory, 139 Cal. ;\pp. 3d773 , 780 (1983) (granting extraordinary review of state statute because stateofficials were "under a constitutional duty to comply with" disputed statestatute). Accordingly, there was no legal basis on \vhich to bar, or even toexcuse, the California Electors from performing their legal duty onDecember 15,2008, by "signing the Certificate of the Vote." (CT 678.)

Appellants now appear to concede that state law afforded the Electorsno discretion . Citing Elections Code section 6906, Appellants acknowledgefor the first time on appeal that the role of the California Electors is "purclyministerial ," that they "do not cast an electoral ballot by choice," anel that"Ee 6906 requires Electors to vote in a particular manner." (Aon 16 , 22-23.) To the extent Appellants still contend on appeal that the CaliforniaElectors failed to carry out some mandatory duty with respect to the 2008election, these admissions doom their claim. 6

(,Appellants cited below as a statutory basis for the claimed duty onthe part of the fifty-five California Electors , Section R of Title 3 of theUnited States Code, which provides in fuLl: "The electors shall votc forPresident and Vice President, respectively, in the manner directed by theConstitution." 3 U.S.C. 8 (2010). While Appellants previously asserted12


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C. The Secretary of State Had No Mandatory Duty -and No Authority - to Investigate theQualifications of Presidential CandidatesNominated by Recognized Parties, Whom She WasStatutorily Required to Place on the Ballot an d\\'hose Electors She Was Ohliged to Certify.

The central argllment that Appellants press on appeal is their theorythat Respondent Secretary of State was somehO\v obligated to demand proofof citizenship before placing the names of the Democratic Party'spresidential and vice-presidential nominees on the 2008 General Electionballot. (See, e.R., AOB 2 (describing issue on appeal as whether "BOWENha s the duty . . . to verify the eligibility of candidates for r;ederal officerunning in the State of California").) Not"vithstanding Appellants'insistence that such a duty obtains, they have cited neither state nor federallaw to support their assertion.

The Secretary of State's responsibilities are set forth in CaliforniaElections Code section 6901 (West 2010), which provides in full:

that "[t]his federal statute confers upon each elector an affirmative duty todiscover whether the candidate for President for which the elector is seekingelection is a 'nntural born' citizen" (CT (79), they make no such claim hereand accordingly havc abandoned the argumcnt. See Jibilian v. FranchiseTa.x Ed., 136 Cal. App. 4th R62, 867 n.3 (2006) ("Because it is not our roleto construct theories or arguments that would undermine thc judgment, weconsider only those issues advanced in the appellant's bricf,>."): Brown v.Propl Onty. Mgmt. , Inc. , 127 Cal. Apr>. 4th 532, 537 (2005) (,'When anissue is unsupported by pertinent or cognizable Icgal argumcnt it Inay bedeemcd abandoned and discussion by the reviewing court is unnecessary.")(intcrnal quotation omitted).

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Whenever a political party, in accordance with Section 7100[Democratic Party], 7300 [Republican Party], 7578 [AmericanIndependent Party] , or 7843 [Peace and Freedom Partyj ,submits to the Secretary of State its certified list or nomineesfor electors of President and Vice President of the UnitedStates, the Secretary of State shall notify each candidate forelector of his or her nomination by the party. The Secretary ofState shall cause the names of the candidates for President andVice President of the several political parties to be placed uponthe ballot for the ensuing general election.

In accordance with this section, the California Secretary of Stale has aministerial duty to place on the ballot the names of the candidates forPresident and Vice President that are submitted to her by a recognizedpolitical party. She has no discretion to overrule a party's selection of apresidential candidate. Nor should she. The presidential nominatingprocess canl10t be made subject to each of the fifty states' election officials

independently determining whether a nominee is qualified.Appellants argue that the Secretary of State has authority to

investigate the qualifications of presidential candidates on the basis of hergeneral supervisory powers over elections. (AOB 25-26 .) But a specificstatutory directive - here section 690 I s prescription that the Secretary ofState place recognized parties' candidates on the general election ballot -- -

.supercedes any general provisions regarding the conduct of elections. SecCal. Civ. Proc. Code 1859 (West 2(10) ("In the construction or a s(ntute. . . when a general and particular provision are inconsistent, the latter isparamount to the former. So a particular intent will control a general olle

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that is inconsistent with it.") ; Lazar v, Her tz Corp. , 69 Cal. App. 4th 1494,1504 (1999) ("lW]e give effect to a specific statllte relating to a particularsubject in preference to a general statute."). And a claim of implied powercannot be invoked to disregard an express statutory directive. See Lazar, 69Cal. App. 4th at 1503 ("We may not speculate that the Legislature meantsomething other than what it said, nor may we re\vrite a statute to makeexpress an intention that did not find itself expressed in the language of thatprovision.").

It may be the case that the Secretary of State has some discretion inplacing a name on the primary election ballot. That placement is governedby California Elections Code section 6041, which authorizes the Secretaryof State to determine whether or not to include a potential candidate. SeeCal. Elec. Code 6041 (West 2010) ("The Secretary of State shall place thename of a candidate upon the presidential primary ballot when he or she hasdetermined that the candidate is generally advocated for or recognizedthroughout the United States or California as actively seeking thenomination of the Democratic Party for President of the United States.").But no such discretion exists for the general election . Indeed, the t ~ l c t thatthe Legislature chose to amn'd the Secretary of State discretion in thecontext of the primary election only serves to underscore the Legislature'sclear intent to a J I ~ ) r d her no discretion whatsoever with respect to the general

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election. Cf Lazar, 69 Cal. App. 4th at 1504 (stating that. statutoryprovisions should be read together and that use of different language indifferent sections indicates that Legislature intended a different meaning).Quite simply, Respondent Bowen had a mandatory duty to place the name ofthen-candidate Barack Obama on the 2008 General Election ballot inCalifornia, and Appellants have never cited any authority that suggestsh . 7ot elvVlse.

Appellants ' irrelevant citations to Arkansas law are, ironically, inaccord. (AOB 31-34.) For example, State ex reI. Robinson v. C'raigheadCounty Ed. qf'Election Com'rs, 779 S. W. 2d 169, 171 (Ark. Sup. Ct. 1989),holds that under Arkansas ' statutory scheme, the Board of ElectionCommissioners has no discretion to investigate and make findings regardinga judicial candidate ' s eligibility before placing the candidate's name on thegeneral election ballot. Similarly, lrby v. Barrett, 163 S. W. 2e1 512, 515(Ark. Sup. Ct. 1942), held that Arkansas Democratic State Committee

7The different statutory duties imposed on the Secretary of State inprimary as opposed to general elections, and in the case of recognizedpolitical parties, also disposes of Appellants' argument that past Secretariesof State excluded two prior presidential candidates for the Peace andFreedom Party from the California ballot. (A08 26-27.) Appellants ' talewith respect to olle instance is supported by a single citation to amemonlI1dull1 denial of certiorari that provides no factual detail, and in theother instance Appellants provide no citation at all. On this record, thestatutory scheme in place at the time of these alleged incidents cannot bedderrnined, and there is no evidence that either case involved the nomineeof a recognized party for the general election ballot.

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officials had no power at that time under either party rules or state law torefuse to perform the ministerial duty of certifying a state senate candidatefor inclusion on the ballot.

Appellants ' Arkansas digression also highlights, yet again, the centraldefect in Appellants' suit - that no judicial relief may be obtained bymandamus absent a clear, ministerial duty on the part of the namedrespondent. Notwithstanding Appellants' citation to Marhury v. Madison, 1Cranch 137 (1803) (AOB 22), it is only the province of the Court to saywhat the law is when construing a statutory or constitutional enactment. It isdecidedly not the province of the Court, in a writ action or otherwise, tocommand a state constitutional officer to engage in an action that is notauthorized by statute, and is at odds with her statutory duties. See Barnes v.Wong, 33 Cal. App. 4th 390, 395 (J995) ("A court has no power to order 1:1public offlcial to commit an act in violation of a valid state statute.").Because there is no basis in law for the relief sought against RespondentSecretary of State, the trial court's dismissal order must be affirmed.

II. The Superior Court Properly Recognized That California CourtsHave No Jurisdiction Over the Case.In addition to holding that the First Amended Petition failed to state H

cause of action, the Superior Court also held that Appellants' suit is barredby a host of jurisdictional defects. Specii1cally, the Court held that state

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courts have no jurisdiction over the qualifications of the President or VicePresident, that the case is moot as to the 2008 election, that it is unripe as tofuture elections, and that it suflers from a misjoinder of parties as to fut'meelections. Appellants have identified no basis for overturning any of these1 8ru 1I1gs.

A. Exclusive Jurisdiction over the Qualitications ofPresidential and Vice-Presidential Candidates Lieswith the United States Congress.

State courts have no jurisdiction over any aspect of the process intowhich Appellants seek to inject this Court. Federal law establishes theprocedure for election of the President and Vice President and provides theexclusive means for challenges to their quali fications. It specifics that theelectors shall meet on the first Monday after the second Wednesday inDecember, 3 U.S.C. 7 (2010), for their votes to be certifled andtransmitted to the President of the Senate, 3 U.S.C. 9-11 (2010), whoreceives and causes the votes to be counted before a joint session ofCongress on January 8, 3 U.S.C. 15 (2010), as modified by Pub. L. No.

8Although no Respondent ever demurred on the basis of standing,Appellants devote several pages of their Opening Brief to the doctrine,citing federal case law regarding "concrete injury" and "redressab[ilityj"(;\013 10-14), rather than California case law addressing whether Appellantshave a "bendicial interest" in the issuance of a writ of mandate. /)'ee Cal.Civ . Proc. Code IOR6 (West 2(10) (stating that writ may only be isslled"upon the veri tied petition of the party beneficially interested"). In anyevent, Appellants' clain1 to standing - which would apply at l11os1 10 the2008 election - is irrelevant.

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I I 0-430, 2, 122 Stat. 4846 (2008). The "[c jOllnting of electoral votes inCongress" and the process for ob.iecting to them is detailed in 3 U.S.c. 15 ,which states in relevant part:

IT]he votes having been ascertained and counted . . . , theresult of the same shall be delivered to the Presi(knt of theSenate, who shall thereupon announce the slate of the vote,l,vhich announcement shall he deemed a s14ficient declarationo f the p ersons, (l any, elected President and Vice President ( ~ l the United States, . .. Upon such reading of any suchcertificate or paper, the President of the Senate shall call forobjections, if any. Every objection shall be made in writing,and shall state clearly and concisely, and without argument,the ground t h e r e o f and shall be signed by at Icast one Senatorand one Member of the House of Representatives before thesame shall be received. When all objections so made to anyvote or paper from a State shall have been received and read,the Senate shall thereupon withdrav-,; , and such objections shallbe submitted to the Senate for its decision; and the Speaker ofthe House of Representatives shall , in like manner, submitsuch objections to the House of Representatives for itsdecision; . . .

3 U.S.C. 9 15 (emphasis added). Of course, on January 8, 2009, the then-Vice President made the requisite declaration of the election of BarackObama and Joe Biden as President and Vice President. 155 Congo Ree. H76(daily cd. Jan. 8, 2009). That was "deemed a sufficient declaration" of their

election, in the absence of objections flied by members of the Senate andHouse of Representatives, \vhich would have been resolved by those bodies.There being no slIch objections, the President and Vice President were dulyinaugurated.

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.. ------------------By its terms, this is the exc lusive means to resolve objections to the.

electors' selection of a President or Vice Pres ident, including the specics ofobjections raised by these Appellants. Even federal courts have no role inthi s process . Plainly state courts have none.

There is nothin g unusual about questions of an ofticial 'squalifications to hold office being reserved to the non-judicial branches ofgovernment. For example, each house of Congress is the exclusive judge ofthe qualifications of its members, and courts have no power to review itsdeterminations of th e ir qualifications. U.S. Canst. art. 1, 2; see, e.g.,Roudebush v. Hartke, 405 U.S. 15 , 19 (1972) (which candidate is entitled tobe seated in the Senate " is , to be sure, a nonjusticiable political question");Morgol1 v. United States, 801 F.2d 445, 447-51 (D.C. Cir. 1986). Indeed, inCalifornia a private citizen may nol bring suit to divest an unqualifiedofficeholder from any public oflice; rather, such action may be brought onlyin a quo warranto proceeding by the Attorney General or a relator approvedby the Attorney General. Cal. Civ. Proc. Code S03 (West 2(10); Visl'lichv. Sacramento County Bd. of Educ., 37 Cal. App. 3d 684,690 (1974)( s t ~ l t i n g that "t itle to an elective office cannot be liti gated by any othermea ns thun il l q lO \vnrranto by the state").9 These rules re 11 eet the

() According to the Arkansas Attorney General Opinion cited byAppellants, Arkansas similarly permits removal of an unqualifiedomceholckr post election through a qllO warranto action instituted by "the

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sensitivity of judicial intervention in the composition of indepemknthranches of government and the courts' salutary reluctance to overrule thejudgment of voters.

Such principles are, of course, all the more compelling when theonicc in question is the presidency of the United States and the tribunalbeing 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 theceliification and actions of duly-elected presidential electors, the resultcould easily be conflicting rulings and the delayed transition of power inderogation of statutory and constitutional dead!ines.

The Superior Court properly recognized that the qualifications of anelected presidential candidate remain exclusively for the United StatesCongress to assess. (CT 113R-40.) Neither this nor any other court hasjurisdiction over the matter. 10

prosecuting attorney." Ark. Op. Atty. Gen. No. 2006-153, 2006 WL2474743 (Ark . A.G.) at *3. And the inapposite North Dakota case thatAppellants cite is an oreler from that state's supreme court exercising itsconstitutionally conferred original jurisdiction in a quo warranto proceedinginstituted by the state attorney general. State ex I'd Sathre v.Moodie, 25RN.W. 558, 559 (ND. Slip. Ct. 1935).)OAppcllants devote several pages of their Opening Brief to thepolitical question doctrine, including a discussion or cases that haveapparently been cited by other respondents in suits "dealing with similarissues as this case." (AOB 16-22.) To the extent Respondents' argumentthat an elected presidential candidate's qualifications is a matter committed

to the United States Congress is grounded in the political question doctrine,21


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referendum petition mooted by conduct of election) ; Chase v. Brook\', IR7Cal. App. 3d 6')7 (1986) (whether referendulll petition complied \vithstatutory requircments mooted by election); Long v. l/II/rbcrg. 27 Ct!. ;\pp.3d ()()(-i (1972) (mandamus petition by official named in recall petitionchallenging suft\ciency of petition dismissed as moot after election held,petitioner recalled, and successor elected): sec also g e n e r a l ~ y Lanahan v.City (dLos Angeles , 14 Cal. 2d 128 (1939) (challenge to sufficiency of recallpetition rendered moot by subsequcnt eleCtion); Bradley v. V O ~ J l ' s a n g e r , 143Cal. 214 (1904) (suit to enjoin election mooted by holding of election).Likewise, when post-election proceedings have superseded a challenge tothe election or to thosc proceedings, a writ petition is properly dismissed asmoot. E.g. , Carnpbell v. Super. Ct., 126 Cal. App. 652 (1932) (mandamuspetition seeking to block losing candidate's election contcst rendered mootby completion of' contest).

This case is clearly moot as to the 2008 election. The Secretary ofState already phiced the candidates' names on the ballot and, or course, theelection has already taken place. Respondent California Electors \",erecertitied by the Secretary of' State on December 1, 200R, they met and casttheir votes I()r President ObnlllH and Vice President Bielen on December I') ,200X , and the Governor certil.ied those results and transmitted them to the---- - -- - - --.---.- - -- - -impermissibly intruding upon the authority of another branch of

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B. The Case Is Not Justiciable -It ls Moot in AllRespects E X < . ~ e p t Those That Are Unripe, as toWhich There Is Also a Failure to JoinIndispensable Parties.1. The Case O , . i g i n a / ~ ) Filed Is Afoot.

l:'.vcn if Appellants were capablc of alkging the caLIse of action theyhave brought, any such claim would now be 11100t. Each rZcspondcnt hasnow carried out his or her duties .

The black-letter rule is that even \:vherc "a case may originally prescntan existing controversy, if before decision it has, through act of the parties orother cause, occurring after the commencement of the action, lost thatessential character, it becomes a moot case or question which will not beconsidered by the court." 3 Witkin, Cal. Proc. 5th, Actioi1s, 32 , p. 98 (5th

ed. 2(08) (internal quotation marks omitted) (quoting Wilson v. Los AngelesCounty Civil,)'


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President of the Senate on December 15 , 2008. And, of course, PresidentObama and Vice President Bielen were inaugurated and have been engagedin the duties of their offices for ovcr a year. Since Appellants acted too latcfor the Secretary of State, were she otherwise inclined, to demand evidenceof those candidates' qualifications, prayers for her to be compelled to takesuch action arc not justiciable. Similarly, it is I1mv far too late h_' the otherorders Appellants demand ._- a writ of mandate barring the Secretary oCState " from both certifying to the Governor the names of the CaliforniaElectors, and from transmitting to each Presidential Elector a Certificate ofElection," and a "writ barring Respondent California Electors from signingthe CertiJicate of' Vote." (CT 678.) Those are now completed acts. Such awrit would be futile and cannot issue.

2. Allegations Regarding Future Elections AreUnripe and Could Not, il1 Any EJ!ent, BeAdjudicated ill the Ahsence of Future ElectorsWho Have Not Been Joined.

In an effort to breathe life into their post-mortem case, _Appellantsamended their pleadings to add cryptic allegations of an ongoing dispute.Thus, to their belated demand that the Secretary of State he enjoined n'omher duties with regard to the 200R election they added the plea that she heenjoined "1I'olll certifying the California Electoral votes until documentaryproof is produced for any fbture Presidential candidate of tl1


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eligibility to serve as President." (CT 685.) They also pray for a writdirecting Respondent Secretary to "vet OBAMA's , and any other futurecandidate's eligibility /'or President and resolve this issue prior to thecertification of the election results by the electors in any future Presidentialelection." (Id. at 685-86.)

To the extent these claims are not now moot, they are not ripe and notjusticiable. For an action to be ripe, there must be an "actual controversy . . .which admits of definitive and conclusive relief by judgment within the fieldof judicial administration, as distinguished from an advisory opinion upon aparticular or hypothetical state of facts." Selby Realty Co. v. City o f SanBuenaventura, lOCal. 3d 11 0, 117 (1973). That the Court may not issue anadvisory opinion about facts not yet known is fundamental. E.g., Pac. LegalFound. v. Coastal Comm 'n , 33 Cal. 3d 158 (1982) ("The ripenessrequircment, a branch of the doctrine of justiciability, prevents courts fromissuing purely advisory opinions.") (citing People ex reI. Lynch v. Super.Ct., 1 Cal. 3d 910 (1970. As the California Supreme Court onceexplained: "[A]n action not founded upon an actual controvcrsy betweenthe parties to it, and brought Cor the purpose of securing a determination of apoint of law . . . will not be entertained." Golden Gate Bridge Dist. v. Fe/t,214 Cal. 308, 316 (1931); City o f Santa Monica v. Stewart, 126 Cal. Apr.

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4th 43. 59 (2005); Cal{(ol'llia irateI' & Tel. CO . II. COlOlf), oj Los Allgeles,253 Cal. App. 2d 16.22 (196 7).

And, of co urse, a writ of mandate wi ll 110t lie unl es!-> there is a dearand prese11l l11 ini sterial d uty. LUlIgrel1 v. Deukmejian. 45 Cal. 3d 727. 73132 (1988) ("Ma nd ale w ill nOI lie linless the respond ent has a presentdut y to perform the acts applicant seeks to compe l. '): Americ(l1I Fed'lI o fSlate. County and MUl l . Employees v. Metropolitan Wat er Dist., 126 Ca l.API' . 41h 247, 297 (2005). II is we ll eSlabli shed Ihal iI "wril will not begra nted mere ly in an ti ci pation that the party will refuse to perform the dutywhen the lime comes." Brandt v. Bd. a/Supervisors of A-fadera Coul/ly, 8-1Ca l. App . 3d 598, 60 1 ( 1978).

There is no present duty in any Responden t with respect to futureelections and th ere for e no ba sis for a writ. This Co urt ca nn ot no w knowwho futurl: candidates " 'ill be, what kinds of controversies mayor may notari se wit h respect to their eli gibility for omce, or how th e Secretary of Statewill h,mdl e any controvers ies - in shon , what t u a l set of nlCt s" will arisefor "' the iss ues Ito] be framed wi th suffici ent definiteness to enable the courtto ma ke a d ...cree fina lly di spos ing of the controversy: ' /.10 (,. Legal Foulld..33 Cal. 3d at 170: see also IYG&E Corp. v. Puh. Urils. COII/II/'II. II X Cal.App . 4th 11 74. 12 16 (200-1) . Furthermore, in the absence of a rip\.'controversy. these Ap pellants, who have pinned th eir cl aimed t l l l i ! l g on

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th eir status as nominees and electors in the 0 0 ~ election (CT 679), lac kstanding to hring the case they now plead sinc e they cannot show that any ofthem will be nominees or electors in any future election. Stewart, 126 Ca l.App. 4th at 59-60 ("A party lack s standing if it does not have an actual andsubstantial interest in , or would not be benefitted or harmed by , th e ultimateoutcome or an action.") (internal quotation marks omitted). Preciselybecause "we arc not in a po sition to know the parameters of future relationsbetween" the parties, the Court does not have before it "an actualcontroversy." Sanctity of Human Life Network v. Cal(fornia /- ighwayPatrol, 105 Cal. App. 4th 858, 872-73 (2003).

Ju st as po ss ible future issues are not known, neither are futureelectors, whom Appellants would have this Court today enjoin. As thefuture of'ficial s against whom relief is presently sought, they areindispensable parties, Ca l. Civ. Proc. Code 389 (West 2010) , whoseabs ence compelled dismissal, Cal. Civ. Proc. Code 430.10(d) (West 2010).Appellants' argument to the contrary (AOB 22-23) is a refutation of th eirargument on th e merits. Appellants assert that the California Electors neednot be joined because they will be lega lly required to vote for the nomineeof th eir party regardl ess of his or her citize nship. (lti . at 23 C'lt]hey providea purdy ministerial role") .) In other 'vords, Appellants argue that becausefuture electors are under no minister ial duty to do what Appellants seck - -

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and in nlct have a ministerial duty to the contrary -- their joinder isunnecessary.

The fact that future electors will be bound to vote for futurepresidential candidates do es not mean that these yet-unknown electors lackan interest in a suit to enjoin the exercise of their duties. Moreover,Appellants' "necessary party" theory proves too much. It implies that anygovernment oft-kial who is obliged by statute to carry out a ministerial dutyneed not be joined in a lawsuit seeking to bar the execution of that verysamc dut y. Predictably, Appellants cite no authority for this peculiarproposition.

Of course, any discussion of futurc cases requires a studiedsuspension of one's knowledge of the underlying law. Any future case will,like this one, suffer iiom the ahsence of any cognizable calise of action andnom the absence of state-court jurisdiction and the exclusivity of Congress'purview over the qualifications of an elected presidential candidate. I theseAppellants wish again to throw themselves against those walls, and if theyhave the standing to support the try, then they can file another petition, wellin advance of a future election. But the present case has been properlydismissed as nOll -justiciable.

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CONCLUSION

Americans have the right to their day 1\1 court against even thehighest ofncials. But with that right come responsibilities - - for the partiesand for their counsel. Paramount among those responsibilities is the dutynot to burden the courts with n-ivolous claims, not to assert propositionslacking in both logic and law, not to appeal propositions against whieh theycan summon no coherent legal argument. Appellants had their clay in courtand were round to have no claim. They have conspicuously t ~ 1 i l e d to citeany basis for a contrary conclusion here. The judgment dismissing thisabuse of the judicial process must be affirmed.

Dated: March 5,2010 Respectfully submitted,STRUMWASSER & WOOCHER LLPMichael J. Strul11'vvasserFredric D. WoocherAimee E. Dudovitz

l l y A l I ( ) ~ .. -_.__-Mieha J. StrumwasserCounsel/or President Barack ObamCl.Vice President Joe Biden, alld the 55California Presidential Electors (?/200R

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CERTIFICATE OF COMPLIANCEWITH RULE 8.204(c)(1)

1 certify that, pursuant to Ca l. App. Rule 8.204(c), the attached Briefof Respondents President Barack Obama, Vice President Joe Biden, and the55 California Presidential Electors of 2008 is proportionately spaced, has atypeface of 13 points or more and contains 7,220 words, as determined by acomputer word processor word count function.

Dated: March), 20 10 Respectfully submitted,STRUMWASSER &WOOCHER LLPMichael J. StrumwasserFredric D. WoocherAimee E. Dudovitz

By

Counsellor President Barack Obama,Vice President Joe Biden, and the 55Cal(/ornia Presidentiaf Electors oj'2008

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PROOF OF SERVICESTATE OF CALIFORNIACOUNTY OF LOS ANGELES

. Re: Keyes, et al. v. Bowen, et al., Case No. C062321(Sacramento Super ior Court Case No. 34-2008-80000096-CU-WM-GDS)

I am employed in the County of Los Angeles, State of California. J am over the age of 18and not a party to the within action. My business address is 10940 Wilshire Boulevard, Suite2000, Los Angeles, California 90024.On March 5,2010, I served the document(s) described as BriefofRespondents PresidentBarack Obama, Vice President Joe Biden, And the 55 California Presidential Electors of

2008 on all appropriate parties in this action, as listed below, by the method stated.Gary G. KreepLaw Offices of Gary G. Kreep932 "D" Street, Suite 2Ramona, California 92065Telephone: (760) 788-6624Facsimile: (760) 788-6414Attorney for Petitioners Ambassador Dr.Alan Keyes, Dr. Wiley S. Drake, Sr., andMarkham Robinsonvia OverniteExpressClerk for the Hon. Michael KennySacramento County Superior CourtGordon D. Schaber Courthouse720 91h StreetSacramento, California 95814via U.S. Mail

Peter A. KrauseDeputy Attorney General1300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244Telephone: (916) 324-5328Facsimile: (916) 324-8835Attorney for Respondent Secretary o/StateDebra Bowenvia Overni teExpressOffice of the ClerkSupreme Court of California350 McAllister StreetSan Francisco, California 94102[4 copies]via U.S. Mail

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

I f U.S. Mail service is indicated, by placing this date for collection for mailing truecopies in sealed envelopes, first-class postage prepaid, addressed to each person as indicated,pursuant to Code of Civil Procedure section 1013a(3). I am readily familiar with the firm'spractice of collection and processing cOITespondence for mailing. Under that practice, it wouldbe deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid atLos Angeles, California, in the ordinary course of business. I am aware that on motion of the party


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served, service is presumed invalid if postal cancellation date or postage meter date is more thanone day after date of deposit for mailing contained in the affidavit.

I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Executed on March 5,2010, at Los Angeles, California.

2010-03-08 keyes v bowen appellee obama brief (corrected)

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