Keyes v. Bowen, 189 Cal.App.4th 647 (2010) 117 Cal.Rptr.3d 207, 10 Cal. Daily Op. Serv. 13,651, 2010 Daily Journal D.A.R. 16,346 A. Krause, Deputy Attorney General, for Defendant and Respondent Debra Bowen, as Secretary, etc. 189 Cal.App.4th 647 Court of Appeal, Third District, California. Strumwasser & Woocher, Michael J. Strumwasser, Fredrick D. Woocher, Aimee E. Dudovitz and Marc E. Elias for Alan KEYES et al., Plaintiffs and Appellants, **209 Defendants and Respondents President Barack v. Obama, Vice President Joe Biden and the 55 California Debra BOWEN, as Secretary, etc., Presidential Electors of 2008. et al., Defendants and Respondents. Opinion No. C062321. | Oct. 25, 2010. | Review Denied Feb. 2, 2011. | Certiorari SCOTLAND, Acting P.J. * Denied Oct. 3, 2011. | See 132 S.Ct. 99. *651 This appeal concerns the sufficiency of a petition for Synopsis writ of mandate filed by those who have come to be known Background: Plaintiffs filed petition against California as “Birthers”—people who claim President Barack Obama is Secretary of State, California's presidential electors of 2008, not a natural born citizen of the United States of America and, and others, seeking, inter alia, a writ of mandate barring hence, is ineligible to be the President. Secretary of State from certifying names of electors without verified documentary proof that any future presidential Plaintiffs Alan Keyes, Wiley S. Drake, Sr., and Markham candidate was qualified to serve as President. Defendants Robinson appeal from the judgment of dismissal entered after demurred to the petition. The Superior Court, Sacramento the trial court sustained, without leave to amend, demurrers County, No. 34200880000096CUWMGDS, Michael P. of defendants President Obama, Vice President Joseph Biden, Kenny, J., sustained demurrers without leave to amend. the 55 California Presidential Electors of 2008 (the Electors), Plaintiffs appealed. and Secretary of State Debra Bowen. Plaintiffs contend that the trial court erred because, they argue, there is a “triable issue of material fact” concerning whether the Secretary of State has the affirmative duty to verify that candidates seeking Holdings: The Court of Appeal, Scotland, Acting P.J., elective office are eligible for office. They also argue the Retired, sitting by assignment, held that: court erred in determining that it lacked jurisdiction to resolve certain issues raised in the petition. In plaintiffs' view, there [1] presidential electors did not have a ministerial duty to is “a triable issue of material fact as to which branch of determine whether a presidential candidate was eligible for government, and what office within that branch, has the duty office; and to ensure that all candidates on a California ballot meet the eligibility requirements to hold office.” [2] Secretary of State did not have a ministerial duty to investigate and determine if a political party's nominee for Plaintiffs' contentions lack merit. Among other things, we President was qualified to hold the office before following conclude that the Secretary of State does not have a duty statutory mandate to place that candidate's name on general to investigate and determine *652 whether a presidential election ballot. candidate meets eligibility requirements of the United State Constitution. As we will explain, the presidential nominating Affirmed. process is not subject to each of the 50 states' election officials independently deciding whether a presidential nominee is qualified, as this could lead to chaotic results. Were the Attorneys and Law Firms courts of 50 states at liberty to issue injunctions restricting certification of duly-elected presidential electors, the result **208 United States Justice Foundation and Gary G. Kreep, could be conflicting rulings and delayed transition of power Escondido, for Plaintiffs and Appellants. in derogation of statutory and constitutional deadlines. Any Edmund G. Brown, Jr., Attorney General, Zackery P. investigation of eligibility is best left to each party, which Morazzini, Supervising Deputy Attorney General, and Peter presumably will conduct the appropriate background check, © 2014 Thomson Reuters. No claim to original U.S. Government Works. 1 Keyes v. Bowen, 189 Cal.App.4th 647 (2010) 117 Cal.Rptr.3d 207, 10 Cal. Daily Op. Serv. 13,651, 2010 Daily Journal D.A.R. 16,346 or risk that its nominee's election will be derailed by an of “Ilene Haber” was permitted to vote in place of Ms. Huber, objection in Congress, which is authorized to entertain, and without being elected to take her place as required by the resolve the validity of, objections following the submission Election Code. of the electoral votes. Plaintiffs asked the trial court issue a writ of mandate barring the Secretary of State from certifying the names of the Electors and from transmitting to each elector a certificate of FACTS election until documentary proof was produced and verified Plaintiffs filed a petition for writ of mandate against Secretary showing that any future presidential candidate is qualified to of State Bowen, President Obama, Vice President Biden, and serve as President of the United States. Plaintiffs also asked the court to bar “future California Electors from signing the the Electors on November 13, 2008, 1 and filed an amended Certificate of Vote until such documentary proof is produced petition on February 23, 2009. and verified showing that any future Presidential candidate is qualified to serve as President of the United States.” In In their first amended petition, which is not a model of clarity, addition, plaintiffs sought to bar the Electors from signing the plaintiffs observe that the Secretary of State is responsible Certificate of Vote unless they complied with the Election for certifying candidates for inclusion on the ballot and that, Code requirements concerning replacing absent electors. “[h]istorically, California Secretaries of State have exercised their due diligence by reviewing necessary background Secretary of State Bowen demurred on the grounds that (1) documents verifying that the candidates that were submitted the petition failed to state facts sufficient to constitute a cause by the respective political parties as eligible for the ballot of action against her because she did not have a ministerial were indeed eligible.” According to **210 plaintiffs, the duty to demand detailed proof of citizenship from presidential voters have an expectation that compliance with the minimum candidates, (2) the petition was moot given that the election qualifications for office will be confirmed by the officials had been held; (3) the controversy was not ripe as to future overseeing the election process. The gravamen of their action elections; (4) whether a presidential candidate is qualified for is there is a reasonable doubt President Obama is a natural office was a matter committed to Congress and the federal born citizen, as is required to become President of the United courts; and (5) the alleged substitution of Ilene Haber for States (U.S. Const., art. II, § 1), and the Secretary of State the deceased Ilene Huber merely represented a typographical had a ministerial duty to verify that President Obama met the error. constitutional qualifications for office before certifying him for inclusion on the ballot. President Obama, Vice President Biden, and the Electors demurred on the grounds that (1) the petition did not allege Plaintiffs asserted that “[f]ailure to grant the relief sought, facts sufficient to state a cause of action, as they had no demanding that [the Secretary of State] be ordered to verify ministerial duty to provide to the Secretary of State, or verify the constitutionally required qualifications of OBAMA, and proof of, qualifications to hold office, (2) the petition did any and all future candidates for President, not only allows, not seek any relief against the President or Vice President, but promotes, an overwhelming degree of disrespect for (3) the state court lacked *654 jurisdiction over the matter, *653 our Constitution and for our electoral process, and which was governed by federal law and required objections creates such a lack of confidence of voters in the primary to presidential qualifications to be lodged with Congress, (4) and electoral process itself, that it would confirm a common the petition was moot, and (5) to the extent that the petition belief that no politician has to obey the laws of this Country, sought relief as to future **211 elections, it suffered from a respect our election process, or follow the United States misjoinder of parties because the court could not know who Constitution.” (Italics added.) the candidates or electors would be in the future. Plaintiffs also alleged that the Electors had an affirmative duty The trial court sustained both demurrers, ruling the Secretary to discover whether the presidential candidate was a natural of State was required to see that state election laws are born citizen, since they were required to vote for the President enforced, but plaintiffs had not identified a state election law “in the manner directed by the Constitution” (3 U.S.C. § 8), imposing a ministerial duty to demand documentary proof of and that one of the persons nominated as an elector, “Ilene birthplace from presidential candidates. Huber,” died on October 22, 2001, and a woman by the name © 2014 Thomson Reuters. No claim to original U.S. Government Works. 2 Keyes v. Bowen, 189 Cal.App.4th 647 (2010) 117 Cal.Rptr.3d 207, 10 Cal. Daily Op. Serv. 13,651, 2010 Daily Journal D.A.R. 16,346 The court dispensed with the claim concerning California STANDARD OF REVIEW Elector “Ilene Huber” by taking judicial notice of a document showing that the name had been a typographical error and [1] [2] [3] A demurrer may be sustained without leave to that “Ilene Haber” was the actual elector, not an improper amend where the facts are not in dispute and the nature of the replacement.