FILED

GARY G. KREEP (SBN 066482) NATHANIEL J. OLESON (SBN 276695) UNITED STATES JUSTICE FOUNDATION 932 "D" Stt-eet, Suite 3 Ramona, California 92065 Tel: (760) 788-6624 Fax: (760) 788-6414 Attomey for Petitioner Edward C. Noonan

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SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO EDWARD C. NOONAN; PAMELA BARNETT; SHARON CHICKERING; GEORGE MILLER; TONY DOLTZ; NEIL TURNER; and GARY WILMOTT, Petitioners,' Civil Action No.: 34-2012-80001048 PETITIONER NOONAN'S OPPOSITION TO DEMURRER Date: Time: Dept.: Judge: May 25, 2012 9:00 a.m. 31 Hon. Michael P. Kenny

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(By Ta:xi

DEBRA BOWEN, individually, and in her official capacity as CALIFORNIA SECRETARY OF STATE; BARACK HUSSEIN OBAMA 11, OBAMA FOR AMERICA CALIFORNIA, Respondents.

Action Filed: January 6, 2012

Petitioner Edward Noonan (hereinafler referred to as "NOONAN"), offers the following Opposition to the Demurrer of Respondents Califomia Secretary ofState Debra Bowen (hereinafter referred to as "BOWEN"), Barack Obama (hereinafter referred to as "OBAMA"), and Obama For America California (hereinafter referred to as "OFAC") on his behalf, and on his behalf alone.

PETITIONER NOONAN'S OPPOSITION TO DEMURRER

I. INTRODUCTION On January 6, 2012, NOONAN, Pamela Barnett (hereinafter referred to as "BARNETT"), Sharon Chickering, George Miller, Tony Dolz, Neil Tumer, and Gary Wilmott (hereinafier collectively referred to as "PETITIONERS") filed the instant action against BOWEN, OBAMA, and Obama for America 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 California (hereinafter collectively referred to as "RESPONDENTS"). NOONAN is a declared candidate for the office of President of tiie United States. PETITIONERS seek to stay the printing ofthe primary ballot's until further order; mandate that BOWEN require all candidates for the office of President provide sufficient proof of eligibility; enjoin BOWEN from placing names on the ballot of any candidate for the office of President who fail to provide sufficient proof of eligibility for the office; bar OBAMA from the Caiifomia ballot until he provides both proof ofhis eligibility for the office of President and, during the periodof August I , 1961,through August 7, 1961, travel microfilm; and find that Califomia Elections Code Section 6901 to be unconstitutional and unenforceable. In February, 2012, RESPONDENTS filed demurrers to PETITIONERS' first writ of mandate, which was initially scheduled for hearing on April 20, 2012. On March 16, 2012, BARNETT appeared ex-parte to request that the April 20, 2012, hearing be advanced to be heard before March 29, 2012, when BOWEN was to issue a Certified List of Candidates for the June 5, 2012, Presidential Primary. RESPONDENTS agreed to accommodate die request, and the Court rescheduled the demurrer hearing for March 23, 2012. (Minute Orderof March 16,2012.) On March 22, 2012, prior to the issuance ofthe tentative ruling on the Demurrer, PETITIONERS filed their First Amended Petition for Writ ofMandate and Restraint of Fund Raising. Based on the filing, the Court ordered the March 23, 2012, hearing on the demurrer to be vacated pursuant to Code ofCivil ProcedureSection 472. (Minute Order of March 23, 2012.) On April 23, 2012, BOWEN and OBAMA filed demurrers to the First Amended Writ,

PETITIONER NOONAN'S OPPOSITION TO DEMURRER

II. BOWEN HAS A DUTY TO ENSURE TJtlAT CALIFORNLV ELECTION LAW IS FULLY COMPLIED WITH BY ALL CANDIDATES, INCLUDING BY NATIONAL PRIilSIDENTIAL
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CANDIDATES

RESPONDENTS allege that NOONAN did not and cannot state a cause of action against BOWEN. This allegation is without merit. First, the California Secretary of State website (http://vv\vw.sos.ca.HOv/admin/about-the-agencv.htm) lists the duties of that office, including the duty of the chief elections officer for California, to ensure that Califomia election laws are followed (Califomia Govemment Code 12172), the duty to investigate election fraud (Califomia GovernmentCode 12172), and the duty to advise candidates and local elections officials on the qualifications and requirements for mnning for ofiice (Califomia Govemment Code 12172.5). (First Amended Writ, paragraph 8). In order to fulfill the duty to advise candidates, the Secretary of State provides several documents with information concerning the qualifications and requirements for each elected position. Documents listing the qualifications and requirements are provided for all state and Federal ofTices, including the offices of Govemor and Lieutenant Govemor; Secretary ofState, Controller, and Treasurer; Attorney General; Insurance Commissioner; Memberof the State Board of Equalization; State Senator and Member ofthe Assembly; United States Senator; United States Representative in Congress; and President of the United States. (First Amended Writ, paragraph 9). The Secretary of State is required to verify that every candidate for these positions is eligible for the sought position, with one exception: those candidates that have been selected for the office of President of the United States by a national political party are not required to present totiieCalifornia Secretary ofState any documentation proving their eligibility for the office of President. In effect. Elections Code 6901 forces the Secretary ofState to disregard the duties ofher office

PETITIONER NOONAN'S OPPOSITION TO DEMURRER

as chief elections official in the State of Califomia with regard to the most important elected office in tiie United States. Political parties are not, and should not be, responsible for ensuring that Elections Laws are complied vvith, as the primary goal ofthe various parties is to promote and elect their candidates. 4 5 6 7 8 9 10 11 12 13 1 4 15 16 17 1 8 19 20 21 22 23 24 25 For this reason, there are no Federal or State requirements compelling political parties to provide proof that their respective candidates are eligible for the offices sought. Contrary to the interests ofthe political parlies, the duty of the California Secretary ofState is to verify that all candidates are eligible for the offices sought. This duty should properly extend to all candidates listed on the ballot, and not exempt a candidate simply because a national political party selects a particular candidate for President, and, for the Court to find otherwise would be to substitute the choice of unelected political party ofTicials forthe duty that the Secretary of State owes to the citizens of the State of Califomia, to ensure that the state's election lavys are fully complied with. Finally, the language of California Elections Code 6901, compelling the Secretary ofState to place any candidate nominated by a political party on the ballot, vvithout verifyingtiiatthe candidate is eligible forthe office, is in direct conflict with the requiremenls for Presidential eligibility in Article II of the United States Constitution. This is no trivial matter, as the Califomia Constitution provides; "The State of California is an inseparable part oftiieUnited States of America, and the United States Constitution is the supreme lavv of the land." (California Constitution, Article 111, I). (First Amended Writ, paragraph 12). SincetiieUnited States Constitution is the supreme law of the land, under both the United States and the California Constitutions (U.S. Constitution, Article VI, Clause 2; California Constitution, Article III, 1), any statute which conflicts with the United States Constitution is an unconstitutional variance, and is, therefore, void and unenforceable. Califomia Secretaries ofState have historically exercised their due diligence by reviewing necessary background documents, verifying that the candidates that vvere submitted by the respective

PETITIONER NOONAN'S OPPOSITION TO DEMURRER

political parties as eligible for the ballot were, indeed, eligible. In 1968, the Peace and Freedom Party submitted the name of Eldridge Cleaver as a qualified candidate for President of the United States. The 3 4 5 6 7 8 9 10 11 12 13 14 1 5 16 17 1 8 19 20 21 22 23 24 25 then Secretary of State, Mr. Frank Jordan, found that, according to Mr. Cleaver's birth certificate, he would be only 34 years old at the time of the general election, one year shy of the 35 years of age needed to be on the ballot as a candidate for President. Using his administrative povvers, Mr. Jordan removed Mr, Cleaver from the ballot Mr. Cleaver, unsuccessfully, challenged this decision to the Supreme Court of the State of California, and, later, to the Supreme Court of the United States, which affirmedtiieactions of the California Secretary ofState by denying review of Cleaver's removal from the ballot. Cleaver v. Jordan{\96Z) 393 U.S. 810, 89 S.CL 43. Similarly, in 1984, the Peace and Freedom Party listed Mr. Larry Holmes as an eligible candidate in the Presidential primary. When the then Califomia Secretary of State, Daniel M. Bums, checked Mr. Holmes' eligibility, it was found that Mr. Holmes vvas, similarly, not eligible, and Mr. Holmes vvas removed from the balloL The removal of ineligible candidates is not a relic of historical actions by California Secretaries of State, as BOWEN too exercises this powerto remove ineligible candidates from the ballot. Just this year, one Peta Lindsay was selected by the Peace and Freedom Party to be their Presidential candidate on the 2012 California primary ballot. BOWEN, however, rejected Ms. Lindsay, and refused to place her name on the ballot, because she is 27 years old, when the U.S. Constitution, Article2, 1, requires that candidates for President to be at least 35 years of age. There now exists a similar situation to that in which California Secretaries ofState have removed Presidential candidates from the ballot in tiie past, namely that the Democratic Parly has submitted Barack Hussein Obama, Jr., as a Democratic Paity candidate for President, when he is arguably ineligible for the office. Further, a similar situation may exist concerning the Republican Party candidacy of MiU Romney. Since BOWEN has demonstrated by her actions that she can and does remove ineligible presidential candidates from the ballot, she should be required to make such verification of eligibility for all presidential candidates, and not just verify the eligibility of candidates from third parties.

PETITIONER NOONAN'S OPPOSITION TO DEMURRER

As discussed above, BOWEN is required by California statute to oversee Califomia elections, and to enforce California election law. This requirement cannot be satisfied by attempting to transfer the duty to enforce election law to any other entity, such as to the Electoral College, political parties, or even to the California electorate. For tiiis reason, NOONAN has shown sufficient facts to establish that BOWEN owes a duty and has failed to comply with said duly. III. RESPONDENTS CONCEED THAT CALIFORNIA ELECTIONS CODE SECTION 6901 IS UNCONSTITUTIONAL RESPONDENTS cite the 2008 case Keyes v. Bowen as support for their argumenl that NOONAN did not state a cause of action against BOWEN in tiiis instant case. Contrary to the assertions of RESPONDENTS, Noonan v Bowen concerns distinct issues oflaw and fact from Keyes v, Bowen. In the 2008 case of Keyes v. Bowen, the defendants raised California Elections Code Section 6901 as a defense to the action, and the court in that case agreed with said defense in the order dismissing the case. Whereas Noonan v. Bowen has been brought, in part, to challenge the Constitutionality of California Elections Code Section 6901. RESPONDENTS, however, did not address the arguments regarding California Elections Code Section 6901, at all, and, therefore, waive any objeclion toNOONAN's argument ("If the party against whom a complaint or cross-complaint has been filed fails to object lo the pleading, either by demurrer or answer, that party is deemed to have vvaived the objection unless it is an objection that the court has no jurisdiction of the subject oftiie cause ofaction alleged in the pleading or an objection that the pleading does not state facls sufTicient to constitute a cause of action." Califomia Code of Civil Procedure Section 430.80(a).) RESPONDENTS' waiver of objection, in effect, concedes lhat Section 6901 is unconstitutional, and improperly prevents BOWEN from fulfilling her duties as Chief Election Officer of Califomia.

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PETITIONER NOONAN'S OPPOSlTiON TO DEMURRER

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IV. NOONAN'S CLAIMS FOR RELIEF ARE NOT MOOT RESPONDENTS allege that because BOWEN officially certified OBAMA's name for the ballot as a presidential candidate on Mai'ch 29, 2012, that this matter is moot. This allegation is without merit NOONAN and PETITIONERS filed this writ on January 6, 2012, vvell in advance of BOWEN's certification on March 29, 2012. In addilion, BOWEN had a window of time from January 7, 2012, through March 29, 2012, to announce the certified list of candidates for the office of President of the United States for the June 5, 2012, primary election. Potential candidates are not required to submit any nomination papers or signatures until after this period of time begins. RESPONDENT seems to contend tiiat no lawsuit could ever be brought lo challenge names on a primary eleclion because no case could come before the Court on noticed motion prior to the deadline for certification of names. Such a rule would prohibit candidates, such as NOONAN, from ever effectively challenging primary ballots because the names to be challenged would not be known until the start of BOWEN's certification period, and could not be brought after tlie period ended. Contrary to RESPONDENTS' contentions, NOONAN brought the underlying writ in a timely manner and there exists an ongoing controversy regarding the names scheduled to appear on the June 5, 2012, primary ballot and for these reasons, tills matter is not moot. V. CONCLUSION For the foregoing reasons, RESPONDENTS' demuirer should be overruled. Daled: May 14, 2012. Respectfully Submitted,

PETITIONER NOONAN'S OPPOSITION TO DEMURRER