Filed 8/27/14 Noonan v. Bowen CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)
                                                            ----




EDWARD NOONAN et al.,                                                                       C071764

                   Plaintiffs and Appellants,                                      (Super. Ct. No.
                                                                             34201280001048CUWMGDS)
         v.

DEBRA BOWEN, as Secretary of State, etc., et al.,

                   Defendants and Respondents.




         In Keyes v. Bowen (2010) 189 Cal.App.4th 647 (Keyes), this court held that the
California Secretary of State “does not have a duty to investigate and determine whether
a presidential candidate meets [the] eligibility requirements of the United States
Constitution.” (Id. at p. 651-652.) Hardly a year after the Keyes decision, plaintiffs
Edward C. Noonan and Pamela Barnett (among others) commenced this mandamus
proceeding, seeking a writ of mandate to require defendant Debra Bowen, as Secretary of
State, to “bar ballot access of ineligible declared candidates for office of President of the
United States . . . at the 2012 election cycle with restraint of fund raising . . . .” Like the

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plaintiffs in Keyes, Noonan and Barnett based their petition on the assertion that Bowen
“has a ministerial duty to verify the eligibility of those who are running for the office of
President of the United States.” Noonan and Barnett also asserted in their petition that
Election Code section 6901 is unconstitutional to the extent it requires the Secretary of
State to place presidential candidates’ names on the ballot without vetting their
qualifications.1
       The trial court sustained the demurrers of Bowen and of defendants President
Barak Obama and Obama for America without leave to amend. Because neither Noonan
nor Barnett has shown any error in that ruling, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       In January 2012, Noonan and Barnett (and others who have not sought relief on
appeal) filed a petition for writ of mandate seeking to compel Bowen to “bar ballot access
of ineligible declared candidates for office of President of the United States . . . at the
2012 election cycle with restraint of fund raising . . . .” Bowen and Obama demurred. In
response, Noonan and Barnett filed an amended petition.
       In their amended petition, Noonan and Barnett asserted that Bowen had a
“duty . . . to determine whether President Obama or any other presidential candidate
meets the eligibility requirements of the U.S. Constitution.”2 They further asserted that



1      “Whenever a political party, in accordance with Section 7100, 7300, 7578, or
7843, submits to the Secretary of State its certified list of nominees for electors of
President and Vice President of the United States, the Secretary of State shall notify each
candidate for elector of his or her nomination by the party. The Secretary of State shall
cause the names of the candidates for President and Vice President of the several
political parties to be placed upon the ballot for the ensuing general election.” (Elec.
Code, § 6901, italics added.)
2      The United States Constitution provides that “[n]o person except a natural born
citizen, or a citizen of the United States, at the time of the adoption of this Constitution,
shall be eligible to the office of President.” (U.S. Const., art. II, § 1, cl. 5.)

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insofar as Election Code section 6901 “directs that the [Secretary of State] must place on
the ballot the names of the several political parties’ candidates,” that statute is
unconstitutional.
       Bowen and Obama demurred again. The trial court sustained the demurrers
without leave to amend. The court concluded that the petition “fail[ed] to state facts
sufficient to constitute a cause of action because [the petition] requires the Court either to
make a factual determination as to whether President Obama is eligible to hold or run for
the office of President of the United States, or to find that the Secretary of State has a
mandatory duty to make that determination. Such a determination is a matter that is
beyond the jurisdiction of this Court, and is a matter that is not within the duties of the
Secretary of State.” In reaching this conclusion, the court relied largely on this court’s
decision in Keyes. The trial court also concluded that Election Code section 6901 is not
unconstitutional because that “contention is based on the theory that the Secretary of
State has a legal duty, in this instance one that is alleged to be of constitutional origin, to
determine the eligibility of candidates for President of the United States before their
names may be placed on the ballot. As discussed above, no such legal duty exists.”
       From the resulting judgment of dismissal, Noonan and Barnett each timely
appealed.
                                        DISCUSSION
       On appellate review of the sustaining of a demurrer without leave to amend, “[i]t
is plaintiffs’ burden to show either that the demurrer was sustained erroneously or that the
trial court’s denial of leave to amend was an abuse of discretion.” (Keyes, supra, 189
Cal.App.4th at p. 655.) Because neither Noonan nor Barnett asserts any error in the
denial of leave to amend, the sole question before us is whether they have carried their



       Noonan and Barnett’s position is that President Obama is not a “ ‘natural born
citizen’ ” because his father was not a United States citizen.

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burden of showing that the demurrers were sustained erroneously. To carry that burden,
they must persuade us that the Secretary of State does, in fact, have a duty to investigate
and determine whether a presidential candidate meets the eligibility requirements of the
United States Constitution.3 (See Keyes, at p. 657 [issuance of writ of mandamus
requires “ ‘a clear, present and usually ministerial duty on the part of the respondent’ ”].)
They have not done so.
       As we noted at the outset of this opinion, this court resolved the question of
whether the Secretary of State has such a duty in Keyes, concluding that no such duty
exists. (Keyes, supra, 189 Cal.App.4th at p. 651.) Neither Noonan nor Barnett persuades
us that Keyes was wrongly decided.
       For his part, Noonan does not mention, let alone discuss, Keyes in his opening
brief. This is an unconscionable omission, given that: (1) the trial court expressly rested
its decision on Keyes; and (2) Noonan is represented on appeal by an attorney from the
same organization (United States Justice Foundation) that represented the unsuccessful
plaintiffs in Keyes. (See Keyes, supra, 189 Cal.App.4th at p. 651.)
       In his reply brief, Noonan, for the first time, “contests the correctness of” Keyes.
We could treat this contention as “forfeited because it was raised for the first time in [the]
reply brief without a showing of good cause.” (Keyes, supra, 189 Cal.App.4th at p. 660.)
We choose not to do so, however. Instead, we consider Noonan’s belated challenge to
Keyes and reject it on its merits.




3       Given the nature of the constitutional challenge to Elections Code section 6901, it
is not separate from the question of whether the Secretary of State has the duty Noonan
and Barnett claim because, as the trial court recognized, the statute would be
unconstitutional only if it interfered with a constitutionally-based duty on the part of the
Secretary of State to determine the eligibility of presidential candidates. Because Noonan
and Barnett have failed to demonstrate the existence of any such duty, they have
necessarily failed to show that Elections Code section 6901 is unconstitutional.

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       In support of his assertion that “[t]he Secretary of State has the duty and authority
to examine the qualifications of candidates for every office subject to election in the State
of California,” Noonan cites Government Code section 12172.5.4 As we noted in Keyes,
however, that statute provides only that “[t]he Secretary of State is charged with ensuring
‘that elections are efficiently conducted and that state election laws are enforced . . . .’ ”
(Keyes, supra, 189 Cal.App.4th at p. 658, quoting Gov. Code, § 12172.5, subd. (a).)
Nothing in that statute imposes, explicitly or implicitly, a clear and present duty on the
Secretary of State to investigate and determine whether a presidential candidate meets the
eligibility requirements of the United States Constitution. (See Keyes, supra, 189
Cal.App.4th at p. 659.)
       Specifically addressing our decision in Keyes, Noonan argues that “this Court did
not determine who had the duty to verify eligibility, finessing the issue by stating
‘presumably [the political parties] will conduct the appropriate background check . . . .’ ”
(Keyes, supra, 189 Cal.App.4th at p. 652.) He then argues that “the matter of eligibility
in office of the President of the United States is too serious a matter to be left to a vague
‘presumption’ ” and that “[t]he California state [L]egislature is duty bound by Article II,
Section 1, Clause 5 of the U.S. Constitution to ensure that presidential electors are
chosen, and that those electors are committed to voting only for a person who meets the
qualifications for the office of the President as spelled out in Article II, Section 1, Clause
[5].” Finally, he asserts that “[t]his responsibility has been vested in the California
Secretary of State,” and he once again cites Government Code section 12172.5
       Noonan’s assertions that “[t]he California state [L]egislature is duty bound by
Article II, Section 1, Clause [5] of the U.S. Constitution to ensure that presidential
electors . . . are committed to voting only for a person who meets the qualifications for




4      Noonan repeatedly misidentifies the statute as Elections Code section 12172.5.

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the office of the President as spelled out in [that] [c]lause” and that “[t]his responsibility
has been vested in the California Secretary of State” are mere ipse dixit, unsupported by
any principled argument or authority. As we stated in Keyes, “[t]he presidential
nominating 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 courts of 50 states at liberty to issue injunctions restricting certification of duly-
elected presidential electors, the result could be conflicting rulings and delayed transition
of power in derogation of statutory and constitutional deadlines. Any investigation of
eligibility is best left to each party, which presumably will conduct the appropriate
background check or risk that its nominee’s election will be derailed by an objection in
Congress, which is authorized to entertain and resolve the validity of objections
following the submission of the electoral votes.” (Keyes, supra, 189 Cal.App.4th at
p. 660.) Noonan has offered no argument or authority that dissuades us from that
conclusion.
       As for Noonan’s suggestion in his opening brief 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 because some Secretaries of State have, in
fact, done so, we find no merit in that argument. As we stated in Keyes, just because a
Secretary of State has “excluded a candidate who indisputably did not meet the eligibility
requirements does not demonstrate that the Secretary of State has a clear and present
ministerial duty to investigate and determine if candidates are qualified before following
the statutory mandate to place their names on the general election ballot.” (Keyes, supra,
189 Cal.App.4th at p. 660.) Noonan asserts that “[s]uch unfettered discretion is
unconstitutional,” but he offers no authority or argument in support of that assertion. It
has been said that “[c]ounsel cannot, with nonchalant air, declare without argument that
error was committed and by so doing transfer the labor of research from his own
shoulders to the appellate tribunal.” (People v. Titus (1927) 85 Cal.App. 413, 418.) That

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observation applies here to Noonan’s assertion that giving the Secretary of State
discretion to investigate and determine if presidential candidates are qualified would be
unconstitutional. Because Noonan does not support his assertion with argument or
authority, we decline to consider it further.
       For her part, Barnett offers arguments that are no more persuasive than Noonan’s
(to the extent we can even figure out what her arguments are). First, she contends the
trial court added a requirement to the Elections Code in holding that she and Noonan
could prevail only “if the State failed to perform a ministerial duty.” She contends that
Elections Code section 13314 gave the court the power to grant them relief “even without
the State having a ministerial duty unfilled.” We disagree.
       Elections Code section 13314 provides in relevant part as follows:
       “(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 of a name on, or in the printing of, a
ballot, sample ballot, voter pamphlet, or other official matter, or that any neglect of
duty has occurred, or is about to occur.
       “(2) A peremptory writ of mandate shall issue only upon proof of both of the
following:
       “(A) That the error, omission, or neglect is in violation of this code or the
Constitution.
       “(B) That issuance of the writ will not substantially interfere with the conduct of
the election.”
       As we have explained, Noonan and Barnett sought a writ of mandate 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

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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 of mandamus 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.
       Barnett next asserts that the trial court “failed to treat OBAMA’s admission that
his legal father is a British Subject as an admission against interest.” The issue in this
case, however, is not whether President Obama is, in fact, a “natural born citizen” within
the meaning of clause 5 of article II of the United States Constitution. The issue is
whether the Secretary of State had a duty to investigate and determine whether President
Obama is a natural born citizen before allowing his name to be placed on the ballot in the
2012 election cycle. Having failed to show that any such duty exists, Noonan and
Barnett were not entitled to relief in this proceeding, and Barnett’s argument about
President Obama’s qualifications -- which take up much of her brief -- are entirely beside
the point.
       Barnett next appears to make some sort of equal protection argument based on the
fact that Bowen excluded a presidential candidate from the Peace and Freedom Party
from the ballot in 2012 because she was eight years shy of the minimum age (35) to serve
as President, and that action was upheld by a federal district court (in an unpublished
decision). This argument is not sufficiently developed for us to address, as Barnett fails
to cite to even a single authority on the principles of equal protection and fails to
coherently articulate why the different treatment of President Obama and this other
candidate violated those principles.
       We will note, however, that “[t]o prevail on an equal protection of law challenge,
a person must show the state has adopted a classification that affects in an unequal
manner two or more groups that are similarly situated for purposes of the law that is

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challenged.” (Ziehlke v. Valverde (2011) 191 Cal.App.4th 1525, 1534.) Thus, to prevail
here, Barnett would have to show that President Obama, who has admitted that his father
was not a United States citizen, is similarly situated -- for purposes of determining
eligibility for the office of President -- with a person who has admitted she is 27 years
old. Barnett has not made, or even attempted to make, this showing. Moreover, Barnett
has not shown how establishing an equal protection violation would entitle her to the
relief she sought in this proceeding, which was primarily a writ of mandate to require the
Secretary of State to investigate and determine the eligibility of candidates for the office
of President before allowing their names to be placed on the ballot. Thus, Barnett’s equal
protection argument is without merit.
       In a decision that came out after the completion of briefing in this matter --
Lindsay v. Bowen (9th Cir. 2014) 750 F.3d 1061 -- the Ninth Circuit Court of Appeals
affirmed the dismissal of the federal case brought by the 27-year-old Peace and Freedom
Party candidate because it was undisputed the candidate was not constitutionally eligible
to be President because she too was young. Lindsay stands for the proposition that it
does not violate the federal Constitution -- specifically, the First Amendment, the equal
protection clause, and the Twentieth Amendment -- for the California Secretary of State
to refuse to place on the ballot the name of a presidential candidate who admittedly is not
qualified to serve as President.
       The Lindsay decision does not support the arguments of Noonan and Barnett here
because the question in this case is not whether the California Secretary of State has the
power to exclude from the ballot the name of a presidential candidate who admittedly is
not qualified to serve, but rather whether the Secretary of State has a ministerial duty to
investigate the qualifications of presidential candidates and to exclude those whom the
Secretary determines do not qualify. As we have explained, the answer to the latter
question is “no.” The Secretary of State may have the power to exclude unqualified
candidates from the ballot -- at least where the lack of qualification is patent and

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undisputed -- but that does not translate into a duty to investigate and determine
qualifications, particularly when the matter of the qualification is in dispute.
       To the extent Barnett’s brief contains additional arguments, they are not
sufficiently distinct from the foregoing arguments to require separate discussion, or they
are simply not sufficiently comprehensible to allow for cogent discussion in this opinion.
The bottom line is that neither Noonan nor Barnett has carried the burden of showing that
the trial court’s decision was in error.
                                       DISPOSITION
       The judgment is affirmed. Defendants shall recover their costs on appeal. (Cal.
Rules of Court, rule 8.278(a).)



                                                         ROBIE                     , J.



We concur:



      RAYE                   , P. J.



      MAURO                  , J.




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