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Keyes v. Bowen: Tentative Ruling Issued; Update: Keyes will Appeal

Update: Per commenter “P. Barnett,” an individual closely associated with these filings:

I was at the proceedings today for Keyes v. Bowen.

Hon. Michael P. Kenny presided and upheld his Tentative Ruling.

Gary Kreep, Esq. represented Plaintiffs.

Peter Kraus Esq. represented defendant Secretary of State Bowen.

Michael J. Strumwasser, Esq. represented defendant Barack Obama.

Pro Hac Vice Robert F. Bauer, Esq. was a no show.

Proceedings began about 9am at the Superior Court of California, Dept. 31 as scheduled.

Kreep, Kraus and Strumwasser all spoke. Kreep made the argument that it’s the SOS’s job to qualify Presidential candidates and Strumwasser and Kraus argued that it wasn’t the SOS’s job to qualify federal candidates that it was the U.S. Congress’s job to qualify the POTUS.

Judge Kenny obviously agreed with this agrument from looking at his ruling. Kenny made a comment in court along the lines of ‘a state SOS does not have the power to overturn a ruling of POTUS qualification by the U.S. Congress.’ (not a direct quote) This brings us back to the argument that the SOS’s should have checked qualifications before placing POTUS candidates on the ballot. If the SOS does not do the investigation of a candidate and the U.S. Congress does not do the investigation of candidate then any person qualified or NOT can be appointed POTUS by the U.S. Congress, to include illegal aliens under 35 y.o. that had just migrated to America. (Is Hugo Chavez going to be our next POTUS?)

“As California’s chief elections officer, the Secretary of State is responsible for overseeing all state and federal elections,” this is Debra Bowen’s statement on the SOS CA website http://www.sos.ca.gov/elections/best-practices.htm

Bowen’s statement on the website contradicts her attorney’s and Obama’s attorney arguments that it is NOT her job as SOS to qualify candidates for POTUS.

With this statement and ruling, Kenny is saying it is fine to Usurp the POTUS Constitutional Requirements in State elections and it is up to the U.S. Congress to find the mistake.

Kreep is already working on the appeal.

Update: Ballot-Access.org reports the following:

On March 13, California Superior Court Judge Michael Kenney tentatively ruled against Alan Keyes, in the lawsuit concerning whether President Barack Obama meets the constitutional qualifications to be president, and whether the California Secretary of State should have put him on the ballot. The case is Keyes v Bowen, 34-2008-8000096-CU-WM-GDS. The 6-page opinion seems to strengthen the rights of political parties to place anyone they wish on the November ballot, regardless of that candidate’s qualifications.

The decision says, “Defendants contend that Election Code sec. 6901 requires the Secretary of State to place on the ballot the names of the candidates submitted to her by a recognized political party and that she has no discretion to override the party’s selection. The Court finds that the First Amended Petition fails to state a cause of action against the Secretary of State…Federal law establishes the exclusive means for challenges to the qualifications of the President and Vice President. That procedure is for objections to be presented before the U.S. Congress pursuant to 3 U.S.C. section 15.”

In 1968, the California Secretary of State refused to list Eldridge Cleaver on the November ballot as the presidential nominee of the Peace & Freedom Party. Cleaver and PFP sued the Secretary of State, but the State Supreme Court refused to hear the case, by a 6-1 vote. Cleaver and the party then asked the U.S. Supreme Court to intervene, but that Court refused, 393 U.S. 810 (October 7, 1968). In this current Keyes lawsuit, attorneys for the Defendants claimed there was no such lawsuit. The attorney for Keyes did not have the California Supreme Court citation (58 Minutes 411), nor the U.S. Supreme Court cite, so he wasn’t able to establish the existence of this 40-year old precedent that does seem to give the Secretary of State the authority to refuse a party’s choice for president, if the Secretary of State thinks the party chose someone who doesn’t meet the constitutional qualifications. Keyes will appeal and his appeal will include the Cleaver precedent citation.

Eldridge Cleaver had been removed from the California ballot because the Secretary of State had learned that he was only 33 years old. [emphasis mine]

The emboldened part is a rather scary aspect concerning the concept of tyranny by political party. Further, it is becoming equally scary that the attorney(s) for the Defendant are not being thorough in their research with respect to these cases. With all due respect to Dr. Taitz et al., please take a moment to catch your breath and proceed forward much more deliberately. You appear to be making the mistakes of a rookie attorney.

You are fortunate; the judge has not said in any way that you cannot appeal the decision. Ergo, proceed with bold caution.

California Superior Court Judge Michael Kenny issued a Tentative Ruling on the pending case, Keyes v. Bowen. As commenter “Practical Kat” points out:

A Tentative Ruling is not final and counsel for parties will be afforded an opportunity for oral argument tomorrow, if they so request. But in practice, it is extremely rare for California Judges to deviate from tentative rulings, and the very detailed statement of law include in this ruling will probably be incorporated in the final order.

Orders include the following excerpts from the Ruling…

1.  APPLICATION OF ROBERT F. BAUER FOR APPROVAL TO APPEAR AS COUNSEL PRO HAC VICE 

Robert F. Bauer applies for an order permitting him to appear as counsel pro hac vice in this action on behalf of respondents President-elect Barack Obama and Vice President-elect Joe Biden.  No opposition has been received.  The Court finds that the application complies with the requirements of rule 9.40 of the California Rules of Court.  Accordingly, the application is GRANTED. …

2.  SECRETARY OF STATE DEBRA BOWEN’S DEMURRER TO FIRST AMENDED PETITION FOR WRIT OF MANDATE

Secretary of State Debra Bowen contends that there is no basis for mandamus relief because the Secretary of State has no “ministerial duty” to demand detailed proof of citizenship from Presidential candidates.  The Court finds this argument persuasive and sustains the demurrer on this ground.  A traditional writ of mandate can only issue if the respondent has a clear, present, and usually ministerial duty and the petitioner has a clear, present, and beneficial interest in the performance of that duty.  (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 731-732; Taylor v. Board of Trustees (1984) 36 Cal.3d 500, 507; McCabe v. Snyder (1999) 75 Cal.App.4th 337, 340.)  Code of Civil Procedure section 1085 provides that a writ of mandate will lie “to compel the performance of an act which the law specially enjoins, as a duty resulting from office, trust or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled.”  (Code Civ. Proc., § 1085, subd. (a).)

Petitioners have not identified any authority requiring the Secretary of State to make an inquiry into or demand detailed proof of citizenship from Presidential candidates.  Elections Code section 6901 requires the Secretary of State to provide local elections officials with a certified list of the names and party affiliations of candidates nominated by their respective parties to appear on the November 4, 2008 Presidential General Election ballot.  Elections Code section 15505 requires the Secretary of State to certify to the Governor the names of the electors receiving the highest number of votes.  Petitioners have not met their burden of demonstrating that the Secretary of State has a clear or present ministerial duty to demand documentary proof that any future Presidential candidate is qualified to serve as President of the United States.  Such a duty is not imposed by of Elections Code section 12172.5 which provides that the secretary of state “shall see that state election laws are enforced.”  Accordingly, there is no basis for mandamus relief.  (See Barnes v. Wong (1995) 33 Cal.App.4th 390, 395.)  

The Secretary of State also demurs on the ground that the petition is moot and there is no judiciable controversy insofar as it relates to the 2008 General Election.  The Court agrees and sustains the demurrer on this ground.  Elections Code section 15505 requires that on December 1, or as soon thereafter as the election results have been received from all counties, the Secretary of State shall certify the names of the ascertained Electors and then transmit to each presidential elector a certificate of election.  Petitioners refer to this code provision in the First Amended Petition filed February 23, 2009.  (See FAP, par. 65.)  Nowhere do petitioners allege that the Secretary of State failed to perform that duty.  They do, however, allege that the Electoral College has voted (FAP, par. 79) and that Mr. Obama has been inaugurated as the President of the United States.  (FAP, par. 63.)  The action is moot insofar as it relates to the 2008 General Election.  (See Treber v. Superior Court (1968) 68 Cal.2d 128, 134.)  

The Secretary of State also demurs on the ground that the controversy is not ripe as it relates to future elections.  The Court sustains the demurrer on this ground as well.  A controversy is “ripe” when it has reached, but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.  (Pacific Legal Foundation v. California Coastal Comm’n (1982) 33 Cal.3d 158, 171.)  The issues must be framed with sufficient concreteness and immediacy to allow the Court to render a conclusive and definitive judgment, rather than an advisory opinion based on hypothetical facts or speculative future events.  (Id. at pp. 170-173.)  The Court concludes the petition does not meet these criteria. …

The Secretary of State also contends the action is barred by the doctrine of laches.  This may be more properly considered a defense to be pleaded and proved rather than as a ground for demurrer in this action.  Neither the opposition nor the reply address the issue of laches.  

Finally, the Secretary of State persuasively argues that the appropriate remedy for an issue concerning the qualifications of a President is an action before the United States Congress pursuant to the Twelfth Amendment to the United States Constitution and 3 U.S.C. section 15.  (See Robinson v. Bowen (N.D. Cal. 2008) 567 F.Supp.2d 114.)  

The Court is not persuaded that petitioners will be able to amend their First Amended Petition to state a cause of action against the Secretary of State.  Therefore, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. …

3.  DEMURRER OF PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN, AND CALIFORNIA ELECTORS TO PETITIONERS’ FIRST AMENDED PETITION FOR WRIT OF MANDATE 

President Barack Obama, Vice President Joe Biden, and the California Electors named as respondents demur to petitioners’ first amended petition for writ of mandate on the grounds that it does not state facts sufficient to constitute a cause of action against any of the named Respondents (Code Civ. Proc. § 430.10(e)), that the Court has no jurisdiction over the subject of this action (Code Civ. Proc. § 430.10(a)), and that to the extent the First Amended Petition seeks relief as to future elections, it suffers from a defect or misjoinder of parties (Code Civ. Proc. § 430.10(d)). 

The Court sustains the demurrer on the ground that the First Amended Petition does not state facts sufficient to constitute a cause of action against any of the named Respondents (Code Civ. Proc. § 430.10(e)).  The current pleading does not seek any relief as to either President Obama or Vice President Biden.  

Although petitioners allege that documents, statements or other lawsuits raise questions about whether President Obama is a natural born citizen, it does not allege that either the President or the Vice President has failed to perform any mandatory duty under either state or federal law.  The allegation that “it is incumbent on the candidates to present the necessary documentation confirming his or her eligibility” (FAP, par. 68) is insufficient to satisfy the pleading requirements for a petition for writ of mandate.  (See San Diego Cotton Club v. State Bd. of Equalization (1934) 139 Cal.App. 655, 658.) …

These respondents demur that the Court has no jurisdiction over the subject of this action (Code Civ. Proc. § 430.10(a)).  The demurrer is sustained on this ground as well.  Federal law establishes the procedure for election of the President and Vice President and establishes the exclusive means for challenges to the qualifications of the President and Vice President.  That procedure is for objections to be presented before the United States Congress pursuant to 3 U.S.C. section 15.  Petitioners’ belief in the importance of their arguments is not sufficient to confer jurisdiction upon this Court.  

These respondents also contend that the case is not justiciable—that it is moot in all respects except those that are unripe.  The Court finds this argument well taken.  The case is clearly moot.  The Secretary of State already placed the candidates’ names on the ballot, the election has already taken place, the Electors were certified elected by the Secretary of State, met and cast their votes, the governor certified those results and transmitted them to the President of the Senate, and President Obama and Vice President Biden have now been inaugurated and are engaged in the duties of their offices.  It is too late for relief against the Secretary of State and the California Electors as to the 2008 General Election.  And as to any future election, the claims are not ripe.  There is no actual controversy which admits of definitive and conclusive relief, as distinguished from an advisory opinion upon a hypothetical state of facts.  (Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117; Pacific Legal Foundation v. California Coastal Comm’n (1982) 33 Cal.3d 158.)  

The Request of President Barack Obama et al. for Judicial Notice in Support of Demurrer is GRANTED. 

The Court is not persuaded that petitioners will be able to amend their First Amended Petition to state a cause of action against President Barack Obama, Vice President Joe Biden, or the named California Electors.  Therefore, the demurrer is SUSTAINED WITHOUT LEAVE TO AMEND. …

4.  MOTION TO QUASH OF PRESIDENT BARACK OBAMA, VICE PRESIDENT JOE BIDEN, AND 55 CALIFORNIA ELECTORS OR, IN THE ALTERNATIVE, FOR AN ORDER THAT THE DEPOSITION OF THE CUSTODIAN OF RECORDS OF OCCIDENTAL COLLEGE NOT BE TAKEN.

Respondents President Barack Obama, Vice President Joe Biden, and the 55 California Electors named as respondents move for an order quashing the subpoena by petitioners directed to third party Occidental College demanding access to President Barack Obama’s “academic and housing records.”  In the alternative, they seek an order that the deposition of the custodian of records of Occidental College not be taken.  

The moving parties seek relief pursuant to Code of Civil Procedure sections 1987.1, 2025.410, and 2025.420.  They contend that the subpoena and the associated notice to the consumer were improperly served.   They contend that the subpoena is vague and overbroad and seeks information that is neither relevant to this lawsuit nor reasonably calculated to lead to the discovery of admissible evidence.  

The motion is granted on all grounds stated.  Code of Civil Procedure section 1985.3 requires that a copy of subpoena seeking access to confidential consumer records be served on the consumer whose records are sought at least five days before service on the custodian of records.  (Code Civ. Proc. § 1985.3(b)(3).)  If served by mail within this State, this time limit is extended to ten days pursuant to Code of Civil Procedure section 1013(a).  In this case, the notice and subpoena to Occidental College were mailed either the day before or the very same day Occidental College was served.  (Woocher Decl., pars. 2-3 and Exs. 1-2.)  This is insufficient.  

Petitioners contend that respondents waived any objection by failing to object for twenty-seven days.  The Court finds this argument without merit.  The motion to quash was filed within the period provided for by Code of Civil Procedure section 2025.410(b). 

The Court further finds that the two categories of documents petitioners seek are vague, overbroad, and are of no relevance to this litigation.  Petitioners demand access to all of President Obama’s “academic and housing records.”  However, the relevance of such records is not established.  The issues raised in the First Amended Petition concern the duties, if any, of the respondents to demand proof of natural born citizenship of a candidate for President.  Petitioners have not shown that any of the documents sought could assist in answering this question.  Petitioners’ argument that they could have sought even more documents is not persuasive, nor is their argument that more specific objection was needed pursuant to Code of Civil Procedure section 2031.240(b). 

Moreover, this lawsuit is moot as to issues concerning President Obama.  The Court on this date is prepared to sustain demurrers to the petition without leave to amend.  But even if the court were to overrule the demurrers, the First Amended Petition contains no claims as to which the records sought are relevant.   

 

The motion to quash the subpoena is GRANTED.

A current listing of eligibility lawsuits can be found here.

-Phil

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