noonan v bowen - petition for rehearing of appellant barnett

8/11/2019 Noonan v Bowen - Petition for Rehearing of Appellant Barnett

1/16

~ l u r t n

pp eal

tile

m

of ata lifnrnia

TBIRDFP LL T DISTRICT

CQ7 76 f

EDWARD NOONAN et al.

Plaintiffs and Appellants

v.

DEBRA BOWEN as Secretary

of

State etc.et al.

Defendants and Respondents

APPEAL

ROMTH

SUPERIOR COURT OF SACRAMENTO COUNTY

HON. MICHAEL P. KENNY NO. 34 2012 80001048CUWMGDS

PETITION

OR

REHEARING OF APPELLANT PAMELA BARNETT

P MEL B RNETT

Agent

Private Citizen

Self Represented Appellant

2351 Sunset Blvd. Ste. 170 921

Rocklin CA 95765

[email protected]


2/16

T BLE OF

CONTENTS

INTRODUCTION , 1

II. ARGUMENTS 1

A. THE COURT MISTAKES LAW GOVERNING PETITION, COURT

ERRED BY MAKING ASSUMPTION THAT PETITIONERS DID NOT

BRING PETITION UNDER THE ENTIRETY OF CEC 13314.

THEREFORE, COURT FAILEDTO ADDRESS STANDING AND

JURISDICTION UNDER THE STANDARD TO BRING PETITION

WHICH DOES NOT HAVE A DUTY REQUIREMENT UNDER CEC

13314. THIS ERROR DENIES PETITIONERS DUE PROCESS

RIGHTS 1

B. COURT MAKES ASSUMPTION NOT BASED ON FACT OR LAW

THAT SECRETARY OF STATE DUTIES TO INVESTIGATE

ELECTION FRAUD AS CHIEF ELECTION OFFICER UNDER CEC

12172.5 WOULD NOT BE APPLICABLE TO THE DUTIES UNDER

2

N ST N R

OF 13314 (A)(l), COURT FAILED TO ADDRESS

DEFENDANT BOWEN S DUTIES AS CHIEF ELECTION OFFICER IN

RELATION TO CEC 13314 4

C. COURT ERRED WHEN IT RULED THAT THE SECRETARY OF

STATE HAS NO DISCRETION UNDER OF CEC 6901 EVENT TO

INVESTIGATE AN ALLEGED FRAUDULENT CANDIDATE

7

D. COURT FAILED TO ADDRESS INELIGIBILITY AND FRAUD

CLAIMS AGAINST DEFENDANT OBAMA, OBAMA FOR AMERICA..

E. REQUEST APPELLANTS SHOULD NOT HAVE TO PAY DEFENSE

FEES 8

V. CONCLUSION 9-10

CERTIFICATE OF COMPLIANCE 11


3/16

T BLE OF UTHORITIES

U S Constitution

Article II, Section 1 Clause V 7

1

st

Amendment , 10

California Statues

California Government Code 12172.5 .4,6

California Elections Code 6041 .4

California Elections Code 13314 1-10

California Elections Code 18500 11



California Cases

Keyes Bowen

2010) 189 Cal.App.4

th

1,5,15

Heidi Fuller Debra Bowen, As Secretary State, Etc., et al, No. C065237

Cal.App. Dist.3 03/01/2012 : 16

Other uthorities

11


4/16

I. INTRODUCTION

Appellant Pamela Barnett submits this Petition For Rehearing under Rules

Court

8.268 regarding the 3

rd

Districts Court

Appeals Unpublished Opinion dated August

27,2014 for the court s warranted consideration.The 3

rd

District Court

Appeal

made errors in their unpublished opinion filed August 27, 2014, which require a

rehearing as the court has made unfounded assumptions and fails to address matters

law.

II. ARGUMENT

A.THE COURT MISTAKES LAW GOVERNING PETITION, COURT

ERRED BY MAKING ASSUMPTION THAT PETITIONERS DID NOT

BRING PETITION UNDER THE ENTIRETY OF CEC 13314.

THEREFORE, COURT FAILEDTO ADDRESS STANDING AND

JURISDICTION UNDER THE STANDARD TO BRING PETITION

WHICH DOES NOT HAVE A DUTY REQUIREMENT UNDER CEC

13314. THIS ERROR DENIES PETITIONERS DUE PROCESS

RIGHTS

Noonan et al v. Bowen, Obama, Obama for America, is a case

first

impression

as petitioners used

California Election Code 13314 in its entirety

to challenge

the placing the name Defendant Barack Hussein Obama because

his

ineligibility to be President

the United States under the Natural Born Citizen

requirement (U.S. Constitution, Aritic1e II, Section I, Clause V).


5/16

The appeals court erred in not giving consideration to Appellant Barnett s argument

that as she correctly stated under Elections Code Section 13314 gave the court the

power to grant relief even without the State having a ministerial duty unfilled. The

opinion from the 3

rd

District stated the following;

As we have explained, Noonan and Barnett sought a writ ofmandate

here on the theory that the Secretary

of

State has a duty to investigate

and determine whether a presidential candidate meets the eligibility

requirements of the United States Constitution before allowing the

candidate s name to be placed on the ballot. In essence, then, their

claim was based on the assertion that a neglect

of

duty was about to

occur insofar as Bowen was going to allow President Obama s name to

be placed on the ballot in the 2012 election cycle without investigating

or determining his eligibility for the office. Of course, to prevail on that

claim they had to show that such a duty existed, which is consonant

with the general requirement that a writ ofmandamus will not issue

unless the respondent has a clear, present and usually ministerial duty to

act. (See Keyes, supra, 189 Cal.App.4th at p. 657.)

Thus,

Barnett s

assertion

that

the trial court added a requirement to the Elections

Code is without

merit.

(Emphasis by Appellant.)

Appellants filed this petition under the

entirety

ofCEC 13314. Petitioners

standards an elector can tile a petition under CEC 13314.(Emphasis and Standard

Clarification by Appellant.)

a

1

An

elector

may seek

a writ of

mandate

alleging

that

an error or

omission

has

occurred, or is

about

to occur, in the

placing

a name on, or

in the printing of, a ballot, sample ballot, voter pamphlet,

or

other official

matter, FIRST STANDARD

or


6/16

that any neglect duty has occurred, or is about to occur. SECOND

STANDARD

or both standards to bring statute is the jrdSTANDARD.j

At a minimum both the trial court and now the Appeals court have failed to

address Petitioners right to due process under the first standard filing under CEC

13314 as bolded above.

The first requirement CEC 13314 o s not say whom had to commit the error

or that a ministerial duty or any duty had not to be neglected by the State in order

to use the statute as argued on appeal (AOB 12,13).

could be that a candidate

committed an error by not being qualified for the position they are competing for.

(Also, note, the 2

nd

Standard does not state what duty could be neglected.)

Consequently, like Appellant Barnett argued, the trial court added a requirement to

the first standard filing the petition under CEC 13314.

The petitioners had/have a right under the first standard CEC 13314to

challenge what they in good faith believe to be an error on the ballot because

Candidate Barack Hussein Obama is not constitutionally eligible because existing

American case law does not legally support the son

a foreign citizen being a

Natural Born Citizen as required by the U.S. Constitution, Article 2, Section 1,Clause

V, the Secretary

State s website, and therefore should not be on the ballot because

to do so creates a fraud on the California electorate and subsequently the presidential

electors, and breaks California election laws CEC 18500 and CEC 18203 as noted in

Petitioner s First Amended Petition (Augmentation 1:11).


7/16

At no time did Petitioners surrender any right under CEC 13314. In fact, it is

very clearthat Petitioners were using both standards Standard 3) to file under CEC

13314 A)1. Petitioners filed election complaints regarding Obama s ineligibility

under American case law and American history to the Secretary State to try to

prevent/eliminate the error adding O bama to the primary ballot as it would be a

fraud on the citizens California and the presidential electors. Filing the Petition

using CEC 13314 was the next step in the process for Petitioners to try to seek relief

from the State after the Secretary State refused to investigate potential election

fraud crimes

The facts that constitute an error on the ballot outlined in the Petitioners petition

exist regardless a required action by Defendant Bowen or other State official.

Consequently, the lower court and now the Appeals court failed to rule on facts and

law before it.

B. COURT MAKES ASSUMPTION NOT BASED ON FACT OR LAW THAT

SECRETARY OF STATE DUTIES TO INVESTIGATE ELECTION FRAUD

AS CHIEF ELECTION OFFICER UNDER CEC 12172.5 WOULD NOT BE

APPLICABLE TO THE DUTIES UNDER 2

ST N R

OF 13314

A l ,

COURT FAILED TO ADDRESS DEFENDANT BOWEN S DUTIES AS

CHIEF ELECTION OFFICER IN RELATION TO CEC 13314

The court only addresses that there is not a specific statute that requires the

Secretary State to vet eligibility all candidates and remove them from the ballot,

but then said that the Secretary

State can do it when she wants to in their opinion

which constitutes unequal treatment under the law as Defendant Bowen also had facts


8/16

and law before her regarding Candidate Obama s ineligibility and failed to act and

actually acted to help him by arguing against Petitioners that she could act

capriciously. Under CEC

13314 A)

1)

the second standard to bring the petition

states very broadly

that any neglect

duty has occurred or is about to occur .

Petitioners brought evidence that Candidate Obama would be a fraudulent candidate

according to the U.S. Constitution and the qualifications to run for President

of

the

United States on the sos.ca.gov website) to Defendant Bowen before she added

Defendant Obama to her primary list of candidates under CEC 6041. Petitioners

stated in election complaints that a fraud was going to be committed against the

California electorate and subsequently the California Presidential Electors

if

candidate

Obama were to be added to the 2012 primary ballot. These formal written complaints

created a duty under for Defendant Bowen. Defendant Bowen did not respond to

Petitioner Barnett s January 2012 election complaint that Defendant Obama did not

meet the Natural Born Citizen requirement under Article II, Section I, Clause V,

of

the U.S. Constitution according to American common law and federal case law.

Further, Bowen was notified via Petitioner s First Amended Petition

of

the Maricopa

County Arizona) Sheriff s report that the alleged Obama Hawaii birth certificate

posted at whitehouse.gov was an electronic forgery and so was/is his Selective

Service Registration. As the hiefElections Officer tasked with enforcing election

laws Defendant Bowen should have sided with Petitioners and citizens

of

California

to get to the truth

if

Obama was defrauding the California electorate and subsequent

presidential electors by using fraud to promote a perceived eligibility to be President


9/16

of

the United States. Because this part

of

the standard to bring the petition under CEC

13314 is broad, and it should be interpreted to include all

of

her duties, including

her duty as the

hief

Elections officer under Government Code 12172.5 where she

has the power to investigate election frauds and has an entire election fraud

department at her disposal and can even refer to district attorneys and the CA State

Attorney General for assistance under this statute.

Appellant Barnett attempted to submit documentary evidence via a judicial notice

motion that Candidate Obama has lied to every American by adjusting the timing

of

his live broadcast

of

his alleged killing

of

Osama Bin Laden to cover for the eligibility

hearing the next morning at the 9

th

Circuit Court ofAppeals as well as other

documents like his author biography that stated he was born in Kenyan for 16 years to

show that Obama has unclean hands and cannot be trusted and that the court needs to

allow discovery and a full hearing on Obama s eligibility.

hief

Justice Vance W.

Raye against the interest ofAppellant Barnett had denied admitting these documents

August 19, 2014, as well as documents that show Obama had/has the Indonesian alias

l al orn i Government ode

12172.5. a) The Secretary

of

State is the chiefelections officerofthe

state, and shall administer the provisions

of

the ElectionsCode. The Secretary

of

State shall see that elections

are efficientlyconducted and that state election laws are enforced. The Secretaryof State may require elections

officers to make reports concerningelections in their jurisdictions. b)

f

at any time,

the Secretary

of

State

concludes

that state

election laws are not being enforced, the

Secretary

of State shall call

the

violation to

the

attention

of

the

district

attorney

of the c ou nt y

or

to the

ttorney

General. In these instances, the

Secretaryof State may assist the county elections officer in discharging hisor her duties. c) In order to

determine whether an elections law violation hasoccurred, the Secretary of State may examine voted, unvoted,

spoiledand canceled ballots, vote-counting computer programs, vote by mailballot envelopes and applications,

and supplies referred to inSection 14432 of the Elections Code. The Secretary

of

State may alsoexamine any

other records of elections officials as he or she findsnecessary in making his or her determination, subject to

therestrictions set forth in Section 6253.5. d) The Secretary of State may adopt regulations to assure

theuniform application and administration

of

state election laws, uniform application and administration

of

state

election laws. Emphasis Added.)


10/16

of Soebarkah (State Department Freedom of Information passport document) and that

it appears his legal mother Stanley Ann Dunham Soetoro removed him from her

passport because he was not a U.S. citizen as well as other documents that show

possible fraud by the Democratic Party under Rep. Nancy Pelosi regarding candidate

Obama s eligibility and 20 other documents.

C. COURT ERRED WHEN IT RULED TH T THE

SECRET RY

OF ST TE

HAS NO DISCRETION UNDER

OF CEC

6901

EVENT TO INVESTIG TE

AN

LLEGED

FR UDULENT C NDID TE

Arguendo, even

if

the petitioners brought this petition at the general election

instead before the primary, the Secretary of State had discretion to act on this petition

regardless of CEC 6901, because a Statute cannot be used to hide or leave a possible

crime unprosecuted. In instances, where statutes use absolutes such as shall other

States and the federal government have interpreted shall to mean may .

Other Case law and common sense support that if a statute would be allowing the

breaking of another law that the imperative shall in a statute will be then be

interpreted as may . Defendant Bowen or any other Secretary of State should not be

able to use a statute as an excuse to knowingly or unknowingly commit a fraud on the

California electorate by using State power to give legitimacy to a fraudulent candidate

and therefore commission a crime.

D. COURT F ILED TO ADDRESS INELIGI ILITY AND FRAUD CL IMS

AGAINST DEFEND NT OBAMA, O M FOR

MERIC

?


11/16

The plaintiffs brought an action not only against Debra Bowen, but also against

Candidate Barack Hussein Obama. Hence, the court had to examine not only our

claims against Bowen, but also those we made against Obama. Petitioners allege that

Obama is not a natural born citizen and therefore not eligible to be President.

Petitioners requested that the Court issue a permanent injunction against Obama

barring him from being placed on the ballot for his not being a natural born citizen.

This has nothing to do with Bowen s duties as Secretary

of

State, but all to do with

whether Obama is an Article II natural born citizen and whether he should be allowed

to be place on the ballot.

f

Obama is not a Natural Born Citizen and/or used fraud to

achieve a perception that he is eligible with allegedly forged birth certificate posted at

whitehouse.gov, he committed a multi-million dollar fraud on tens

of

millions

of

California citizens.

The lower court found that it did not have jurisdiction to decide

if

Obama is a

natural born citizen, but Petitioners argued on appeal AOB 14-24) that the court did

have the facts and the law before it to render a decision

ofObama s

constitutional

eligibility. The appeals court does not address this issue at all in their opinion.

Rather, the court s entire focus is on whether Bowen has a ministerial duty to

investigate Obama s eligibility which it says she does not. Petitioners argued that

Candidate Obama is/was not a natural born citizen, based on admitted facts and the

case law and asked for an injunction against him because he is not a natural born

citizen.


12/16

E. REQUEST PPELL NTS SHOULD N OT H VE

TO

P Y DEFENSE

FEES

In the interestofjustice appellants should not have to pay defense fees Calif. Rules

of

Court 8.278 A 5 as the petitioners brought this petition under the entirety of

CEC Section 11314 as a matter of first impression to challenge the eligibility of a

presidential candidate in good faith because they knew an error was about to be made

on the primary ballot in 2012 as all existing American federal case law shows

Obama

to be ineligible to be president as he was born with foreign citizenship to a foreigner

father and a competent legal authority, the Maricopa County Arizona Sheriff

Department performed an investigation of

Obama

s alleged Hawaii birth certificate at

whit hous gov and declared it a forgery. This petition is also a matter

of

first

impression

of

an elector challenging a presidential candidate before the primary

election. Paying of defense fees would chill free speech and deter citizens for

bringing fourth election fraud complaints in the future and bring doubt to the integrity

of California elections as well as disenfranchise legal citizen voters and citizens at

large who have given up on fair elections in California as the Secretary

of

State

refuses to protect the integrity of elections.

Paying fees of Defense is not warranted against Petitioners and they have a right to

due process of their grievances as they brought their case under the entirety of CEC

Section 13314 regardless

of other arguments made but not accepted by court as

convincing.


13/16


14/16

ERTIFI TE OMPLI N E

In pro per Appellant hereby certifies that pursuant to Rule 8.204 c) 1) or

8.504 d) 1)

of

the California Rules of the Court, the enclosed ri f of the Appellant is

produced using 13-point or greater Roman type, including footnotes and contains less

than 3,000 words, which is less than the total words permitted by the rules

of

the

court. Appellant in pro per relies on the w ord count of the computer program used to

prepare this brief.

Dated: September 11, 2014

Respectfully Submitted,

P

A \ ELA

BARNETT, ent)

AP pELLANT, S e l f ~ e p r ~ ~ r t 1 e d

f>l i vate

Citizen ..-,


15/16

APP

PROOF OF SEIWICE Court of Appeal)

FOR COURTUSE ONLY

_

o Personal Service

Notice: This fann

may

be

used

to provide proof

that a

document has been

served in a

proceeding

in the Court ofAppeal Please read

Infonnation

Sheet fo r

Proof

of

Senfice Court

of ppeal form APP-G09-INFO) before

completing this form.

Case

Name:

NOONAN

v.

BOWEN

Court

of

Appeal Case Number:

C071764

~ p e r i o r C o u r t C a s e N u m b e r : 34-2012-80001048 CUWMGDS

1. At the time

of

service I was at

least

18 years

of

age and

no t

a

party

to this legal action

2. My 0 residence 0 business address is specify :

590 McBean Park Dr., Lincoln, CA,

9 ~

/

3. I mailed or personally delivered a copy of

the

follOwing document as indicated below

fill in

t

name of the document you maile

delivered and complete eithera

or

b :

Petition for Rehearing ofAppellant Pamela Barnett

a.

0

Mail

I

mailed a

copy

of

the

document

identified above as follows:

(1) I enclosed a

copy

of the document identif ied above in an envelope or envelopes and

(8)

0

deposited

the sealed envelope(s)

with

the u.s. Postal Service, with the postage fully prepaid.

(b) 0

placed

the envelope(s)

fo r

collection and mailing on

the

date and at the place shown in i tems below,

following our ordinary business practices. I am r e ~ y familiar with this business s practice

of

collecti

and processing

COIJ 8SPOndence

for mailing. On

the

same

day

that correspondence

is

placed for

collection and mailing,

it

is deposited in the ordinary course of business

with

the U.S. Postal Service,

sealed envelope(s)

with

postage fully prepaid.

(2) Date mailed: 9/11/2014

(3) The

envelope was or envelopes were addressed as follows:

(a) Person served:

(i) Name: Anthony Hakyl,

Ill,

Esq., Deputy Attorney General

(ii) Address:

P.O. Box 944255

Sacramento, CA, 94244-2550

(b) Person served:

(i) Name:

Fredric D. Woocher, Esq.

(ii) Address:

10940 Wilshire Blvd., Ste. 2000

Los Angeles, CA, 90024

(c) Person served:

(i) Name: Nathaniel Oleson, Esq.

(ii) Address:

932 D s Ste. 3, Ramona, CA, 92065

d) Sacramento Superior Court, 720 9th St., Sacramento, CA, 95814

d Additional persons served are l isted on the attached page (write

-APP-009, Item

3a

at the top of the pa

(4) I am a resident of or employed in the county where the mailing occurred. The document was mailed from

city

and state : Lincoln, CA

Page

FoonApproyed

for

0pll0naI Use

JUdicial Councilof C8Iib nia

APP..009[New

Jaroaly

1,

2009]

PROOF OF SERVICE

Court

of Appeal


16/16

CASE

N ME

NOONAN v.

BOWEN

3. b.

0 Personal delivery

I

personally

delivered a copy

of

the document identified above as follows:

1)

Person

served:

a)

Name:

b

Address where delivered:

c) Date del ivered:

d) Time del ivered:

APP-00

C071764

2) Person served:

a) Name:

/

b) Address where delivered:

c) Date delivered:

d) Time del ivered:

3) Person served:

a) Name:

b)

Address where delivered:

c)

Date delivered:

d) Time del ivered:

o Names and addresses of additional persons served and delivery dates and times are listed on the attached page wri

APP-D09, Item b

at

the top

of

the page).

I declare under penalty

of

perjury underthe laws of the State of California thatthe foregoing is true and correct.

Date: 9/11/2014

P YLL S WING

TYPE OR PRINT NAME OF PERSOt: COMPlETING THIS FORM)

APp-oog[New

January

1, 2009]

PROOFOF

SERVICE

Court of

Appeal

Page o

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