Filed 7/21/14 Dummett 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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)
                                                            ----




JOHN ALBERT DUMMETT, JR., et al.,                                                           C073763

                   Plaintiffs and Appellants,                                      (Super. Ct. No.
                                                                            342012800001091CUWMGDS)
         v.

DEBRA BOWEN, as Secretary of State, etc.,

                   Defendant and Respondent.




         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.) Within two years of the Keyes decision, plaintiff John
Albert Dummett, Jr., a write-in presidential candidate in the 2012 California Republican
primary, and others (hereafter Dummett) commenced this mandamus proceeding, seeking
a writ of mandate to require defendant Debra Bowen, as Secretary of State, to “require all
candidates for the office of President of the United States provide sufficient proof of

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eligibility prior to approving their names for the ballot” and to enjoin Bowen “from
placing the names of candidates who have failed to so prove their eligibility on the 2012
California Presidential primary election ballot.” Like the plaintiffs in Keyes, Dummett
based his petition on the assertion that Bowen has a duty to “verify the eligibility of
Presidential candidates.” Dummett also asserted in his petition that Elections 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 Bowen’s demurrer without leave to amend. Because
Dummett has shown no error in that ruling, we affirm.
                    FACTUAL AND PROCEDURAL BACKGROUND
       In March 2012, Dummett filed a petition for writ of mandate “challeng[ing] the
failure of . . . Bowen . . . to verify that all candidates for the office of President of the
United States seeking to be placed on the California Presidential primary ballot are
eligible for that office under the U.S. Constitution, Article II, Section 1, Clause 5.”2 He
further asserted that “the language of California Elections Code [section] 6901,
compelling the Secretary of State to place any candidate nominated by a political party on




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.)

       Dummett 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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the ballot, without verifying that the candidate is eligible for the office, is in direct
conflict with the requirements for Presidential eligibility in Article II of the United States
Constitution.”
       Bowen demurred. The trial court sustained the demurrer 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 to find that the Secretary of State has a
mandatory duty to make a determination of the eligibility of candidates in the presidential
primary election. Such a determination is a matter that is not within the mandatory 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 Elections 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, Dummett 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 Dummett does not assert any error in the denial of leave
to amend, the sole question before us is whether he has carried his burden of showing that
the demurrer was sustained erroneously. To carry that burden, he 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




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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’ ”].) He has 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 pp. 651-652.) Dummett does not persuade us
that Keyes was wrongly decided.
       In support of his assertion that the Secretary of State has the “power[] and dut[y]”
to examine the qualifications of candidates for every office subject to election in the State
of California, Dummett cites Government Code section 12172.5. 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, at pp. 659-660.)
       As for Dummett’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


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 Dummett
claims 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 Dummett has failed to
demonstrate the existence of any such duty, he has necessarily failed to show that
Elections Code section 6901 is unconstitutional.

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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.)
       Finally apart from Keyes, we briefly address a recent case from the Ninth Circuit
Court of Appeals, Lindsay v. Bowen (9th Cir. 2014) 750 F.3d 1061 that affirmed the
dismissal of a case brought by a 27-year-old candidate for President of the United States
whom the Secretary of the State of California (Bowen) omitted from the certified list of
candidates generally recognized to be seeking their parties’ nominations, 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 was not qualified to serve as
President.
       The question in our case, however, is whether the California Secretary of State has
a ministerial duty to investigate the qualifications of presidential candidates and to
exclude those who do not qualify. The answer to that 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 undisputed -- but that does not translate into
a duty to investigate and determine qualifications, particularly when the matter of the
qualification is in dispute.




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                                      DISPOSITION
       The judgment is affirmed. Bowen shall recover her costs on appeal. (Cal. Rules
of Court, rule 8.278(a).)



                                                     ROBIE               , J.



We concur:



      BLEASE                , Acting P. J.



      DUARTE                , J.




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