BARNETT v DUNN, et al. - Memorandum of Points and Authorities in Support of Demurrer to Plaintiff's...

8/9/2019 BARNETT v DUNN, et al. - Memorandum of Points and Authorities in Support of Demurrer to Plaintiff's Complaint -

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EDMUND G. BROWN JR.Attomey General ofCaiifomiaSTEPHEN P. ACQUISTOSupervising Deputy Attome y GeneralANTHONY P . O 'BRIENDeputy Attomey GeneralState Bar No . 23265013001 Stieet, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Telephone: (916) 323-6879Fax: (916) 324-8835E-mail: [email protected] Defendants Edmund G. Brown Jr.Attorney General, and Debra Bowen, Secretary ofState

JUN

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF SACRAMENTO

P A M E L A B A R N E T T ,Plaintiff,

D A M O N J E R R E L L D U N N , ET AL..Defendants.

CaseNo. 34-2010-00077415MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OFD E M U R R E R T O P L A I N T I F F ' SC O M P L A I N T(Code Civ. Proc . 430.10, subd. (e))Date: October 25, 2010Tim e: 9:00 a.m.Dept: 54Judge: The Honorable ShelleyarmeChangTn alD ate: Not Yet SetAction Filed: May 10, 2010

Memorandum of Points and A uthonties in Support ofDemurrer to Plaintiffs Complaint (34-2010-00077415)
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1 TABLE OF CONTENTS^ Page3 Intioduction 1

Background 2Standard of Review 3Argument 4

6 I. Defendants are entitled to demurrer because Bam ett's requested reliefwould substantially interfere with the conduct ofthe election 4n II. Bamett failed to state a claim for relief because Duim satisfied theg eligibility requirements to run as a republican candidate for Secretary of^ State 69 III. The Court should sustain Defendants' demurrer as to Bamett'sfi-audclaimbecause Defendantsfiilfilledall duties in ensunng that Duim's candidacy10 complied with election laws 8

A. Bowen did not breach any duty to Bamett or defi-aud her inverifying Dunn 's ehgibility for candidacy 812 B. Brovm did not breach any duty owed to Bamett, because, asAttomey General, he had no statutory duty to enforce election laws 913

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1234 C A S E S

2122

25

T A B L E O F A U T H O R I T I E SPage(s)

Assembly v. Deukmejian(1982) 30 Cal. 3d 638 11

5 Ag uilar v. Atlantic Richfield Co.(2001) 25 Cal.4th 826 57g Blake v. Kirwan9 (1985) 39 Cal.3d 311 6

10 Cantu V. Resolution Trust Corp .(1992) 4 Cal.App.4th 857 5, 6

111213

Cooke V. Superior Court14 (1989) 213 Cal.App.3d 401 415 Fr ied lan d V. City of Lon g Beach(1998) 62 Cal.App.4th 835 516171819

Cham bers v. Ashley(1939)33Cal .App.2d390 6

Gentry v. e^aj^, Inc.(2002) 99 Cal.App.4th 816 6GulfIns. Co. V. 77G /n5. Co.(2001) 86 Cal.App.4th 422 5

20 Minsky v. City of Los Angeles(1974) 11 Cal.3d 113 6Moore v. Conliffe(1994) 7 Cal.4th 634 5

^^ Stracke v. Farquar24 (1942) 20 Cal. 2d 82 6

/ / /2 6 / / /2 7 / / /28 u

Memorandum of Pomts and Aulhonbes in Support ofDemurrer to Plaintiffs Com plamt (34-2010-00077415)
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1 STATUTES2 Califomia Elections Code 8001(a) and 18501 3

Code Civ. Proc , 430.10, subd. (e) 5Code C iv. Pro c, 430.30, subd. (a) 5Elec Code 8001, subd. (a) 3, 8Elec Code 8120 7,10Elec Code 13314, subd. (a)(1) 7Elec Code 13314, subd. (a)(2)(B) 6, 8Election Laws 9, 11Elections Code 5100 9Elections Code 8001 4, 7, 9,1 0

13 Elections Code 8001(b) 4, 914 Elections Code 8001, subdivision (a) 815 Elections Code 8070, 8082 1016 Evid. Code 452 4

Evid. Code 452, subd. (c) 4Fia. Stat. 98.065, subd. (4)(c) 4Gov. Code 12172.5 10,11OTHER AUTHORITIESCal. Const, art. H, 2.5 6, 8Califomia Constitution 6

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I N T R O D U C T I O NIn this complaint, Plaintiff Pamela Bamett seeks an eleventh-hour order to remove Damon

Dunnfi-om he ballot for Secretary of State, due to her unsupported and erroneous contention thatDun n has not been affiliated with the Republican Party for a sufficient amou nt of time beforedeclaring his candidacy, and because Duim did not complete the prior registiation section whenregistering to vote in Califomia in March 2009. Bam ett also seeks to rem ove S ecretary of StateDebra Bowen and Attomey General Edmund G. Brown Jr. fi-om he General Election ballot,claiming that they, along with Dutm, violated Califomia Elections Code 8001(a) and 18501 byallowing Dunn to declare his candidacy without investigating his eligibility for candidacy.

The Court should sustain defendants Brown and Bow en's demurrer without leave to amend.The issuance of Bam ett's requested relieforders to remove D uim and Bowenfirom heSecretary of State'ballots, and Brown fi-om he Govemor's ballot^would substantially interferewith the proceed ing oft he election. The primary elections ended on Jime 8, 2010, and the partieshave nominated candidates for the Secretary of State and Govem or races. Ba m ett's requestedrelief, therefore, would result in the denial of votes cast for all three of these candidates.

Even if Bamett's complaint had been timely, the Court should still sustain the demurrerbecause judicially noticed facts show that Dunn qualified as an eligible candidate for theRepublican nomination for Secretary of State. Before declaring his candidacy, Dunn needed tohave been affiliated with the Califomia Repu blican party for at least three month s, and notaffiliated with any other party for at least twelve m onths. (Elec. Code 800 1, subd. (a).) Duimcleared both of these requirem ents. He registered as a Repub lican nearly twelve months beforedeclaring his candidacy for Secretary of State in March 20 10. And his Florida voterregistiation^which sho wed his affiliation with the Democratic Party expired five years beforedeclaring his candidacy.

Defendants are also entitled to dismissal because Bamett's complaint fails to state any factsshowing that defendants breached their duties in the processing of Dunn's declaration forcandidacy . The S ecretary of State fulfilled her duties by not only presen ting Dunn as one of the

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1 certified candidates for Secretary of State, but also confirming Dimn's eligibility after Bamett had2 requested an investigation. As Atto me y General, Brown has no statutory duty to investigate3 D un n's eligibility, especially whe n the Secretary of State has not found any reason to refer the4 ma tter to the Attom ey Gene ral. And Ba m ett's complaint fails to raise any facts showing that any5 of the defendants intentionally concealed or misrepresented information regarding D un n's6 eligibility for Secretary of State. For these reason s, the Court should sustain Defen dants'7 dem urrer without leave to amen d.89

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BACKGROUNDDamon Dunn is a Republican candidate for Califomia Secretary of State. (Req. for Judicial

Notice, Ex. A.)'In 19 99, Dunn registered to vote in Florida and stated his affiliation with the D emo cratic

Party. (Compl. Exh. D.)Under Florida law, a resident is placed on the inactive voter list when he or she does not

respond to a mailed ad dress confirmation sent by the county supervisor of elections. (Fia. Stat. 98.065, subd. (4)(c).) The voter is then remov edfirom he statewide voter registiation system ifhe or she does not vote for two consecutive federal e lections, and fails to update his or her voterregistiation information. (Ibid.)

In March 20 02, the Duval County, Florida Supervisor of Elections converted D unn 's votingstatus to inactive because Duim did not have any voting history, and'did not respond to mail sentto his Jacksonville residence. (Req. for Judicial Notice , Exh. B.) Dunn had no ftirther activity onhis Florida voting record, and on June 6, 2005, the Duval County Elections Supervisor convertedDun n to an ineligible voter in Florida, thus requiring Dunn to reregister ifh e wanted to vote inFlorida. (Req. for Judicial Notice, Ex. B.)

On M arch 13, 2009 , Dunn registered to vote in Califomia and stated his affiliation with theRepu blican Party. (Com pl., Exh. A.) On March 10, 2010, Dimn declared his candidacy for the

26 ' The official acts of the legislative, executive, and judicia l departm ents of an y state ofthe United States may be judicially noticed. (Evid. Code 452 , subd. (c).) (See Cooke v.27 Superior Court (1989) 213 Cal.App.3d 401, 416 [records of a county are properly noticed underEvid. Code 452 (official acts ofthe state), since counties are legal subdivisions ofthe state].)28 2 Memorandum of Points and Authorities in Support ofDemurrer to Plam tiffs Com plamt (34-2010-00077415)


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1 Repu blican nom ination for Califomia Secretary of State. (Req. for Judicial Notice, Exh. A.)^ As2 part of his Declaration of Cand idacy, the Orange County, Cah fomia Reg istrar of Voters certified3 that Dun n: (1) had been affiliated w ith the Califomia Repub lican Party for at least three mon ths4 before filing his declaration for candidacy. (Req. for Judicial No tice, Exh. A.) before declaring5 his candidacy; and (2) was not affiliated with any other political party for twelve On March 30,6 2010 , Jerry Holland, Supervisor of Elections for Duva l County, Florida, issued a letter to the7 Califomia S ecretary of Sta te's office stating that Dunn had becom e ineligible to vote in Florida in8 June 2005, due to his inactivity and failure to respond to ma ilings from the Office of th e9 Supervisor of Elections. (Req. for Judicial Notice , Exh. B.)

10 On M ay 12, 2010 , the Secretary of State 's Office responded to a comp laint filed by Bam ett11 regarding D un n's eligibility. (Req. for Judicial Notice , Exh. C.) In the letter the Secretary of12 Sta te's Office noted that D un n's registiation as a Dem ocrat in Florida expired in June 200 5, and13 that he was not affiliated w ith any party when he registered to vote in Califomia in March 2009 .14 (Req. for Judicial No tice, Exh. C.) The Secretary of State 's Office also noted that there were no15 criminal sanctions for D un n's failure to com plete the section on prior registration in his voter16 registiation card. (Req. for Judicial Notice , Exh. C.)17 STANDARD OF REV IEW18 A dem urrer tests the sufficiency oft he com plaint; that is, whether it states facts sufficient to19 constitute a cause ofac tion. (Code Civ. P ro c, 430.10, subd. (e); Frie dlan d v. City of Long20 Beach (1998) 62 Cal.App.4th 835, 841-842.) To make this determination, the tiial court may21 consider all ma terial facts pleaded in the com plaint and ma tters ofw hich it may take judicial2223 ^ In her complaint, Bamett incorrectly states that Dunn declared his candidacy on24 Novem ber 5, 2009, when he submitted a Candidacy Intention Statement. (Compl. TJ13, Exh. B.)As opposed to the Declaration of Candidacy, which includes an affidavit showing the candidate's25 affiliation w ith his or her political party, as required under Elections Code 8001(b), theCandidate Intention Statement is not mandated by Elections Code 8001.26 - The Court may take judicial notice of any document published, recorded, or filed by anyexecutive department. (See Ag uilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826, 842 n.3 ["we27 may take judic ial notice oft he report o fa state executive officer as reflecting an 'official ac t'"](citation omitted).)28

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1 notice; it may not consider contentions, deductions or conclusions offact or law. (Code Civ.2 P ro c , 430.3 0, subd. (a); M oore v. Conliffe (1994) 7 Cal.4th 634, 638.)3 "[A]n y allegations that are contiary to the law or to a fact of which judicia l notice ma y be4 taken will be treated as a nullity." {GulfIns. Co. v. TIG Ins. Co. (2001) 86 Cal.App.4th 422,429.)5 A party may not avoid dem urrer by suppressing facts, including those that are judicially6 noticeable, which prove the pleaded facts false. {Cantu v. Resolution Trust Corp . (1992) 47 Cal.App.4th 857, 877.)8 W here the com plaint's allegations or judicially noticeable facts reveal the existence of an9 affirmative defense, the plaintiffm ust allege specific facts that avoid the apparent defense.

10 {Gentry v. eBay, Inc . (2002) 99 Cal.App.4th 816, 824.) Absent such allegations, the comp laint is11 subject to dem urrer for failure to state a cause of action. {Ibid.)12 The Court should sustain a demurrer with leave to amend if th e r e is a reasonable13 possibility that a defect in the complaint can be cured by amendm ent or that the pleading liberally14 constm ed can state a cause ofac tion ." {Minsky v. City of Los Angeles (1974) 11 Cal.3d 113,15 118.) The Court, however, may sustain a dem urrer without leave to amend if there is no16 "reason able possib ility" that the com plaint's defect can be cured by amendm ent. {Blake v.17 Kirwan (1985) 39 Cal.3d 311, 318.) "[A] trial court does not abuse its discretion when it sustains18 a dem urrer without leave to amend if either (a) the facts and the nature ofth e claims are clear and19 no liability exists, or (b) it is probable from the nature of the defects and previous unsuccessful20 attempts to plead that the plaintiff cannot state a claim ." {Cantu v. Resolution Trust Corp . (1992)21 4 Cal.App.4th 857, 890.)22 ARGUMENT2 3 I . D E F E N D A N T S A R E E N T I T L E D T O D E M U RRE R BE CA U S E BA R N E T T ' S RE Q U E S T E DRE L I E F W O U L D S U BS T A N TI A L LY I N T E RF E RE W I T H T H E CO N D U CT O F T H E2 4 E L E C T I O N .25 State election laws prohibit the remov al of candidates from the election ballot when such26 actions are untimely, mo ot, and would interfere with the conduct of the election. The Califomia27 Constitution provides that "[a] voter who casts a vote in an electipn in accordance with the laws28 oft his State shall have that vote coun ted." (Cal. Const, art. II, 2.5.) The Elections Code

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1 preven ts the issuance or writs that will "substantially interfere with the conduct ofthe election."2 (Elec. Code 13314, subd. (a)(2)(B).) And courts have denied untimely actions to omit nam es3 from the ballot when the election had already begun, or had since ended. (See Stracke v. Fa rq ua r4 (1942) 20 Cal. 2d 82 [refusing to grant a petition for a perem ptory writ of mandate to com pel the5 om ission of the nam es of seven persons from the ballot becau se "the ballot already had been6 printed and distiibuted to certain vote rs"]; see also Cham bers v. Ashley (1939) 33 Cal.App.2d7 390, 391 [denying as mo ot writ to keep the nam e of a jud ge off of the primary election ballot8 since the primary election had already passed].)9 Here, Ba m ett's requested reliefremoval of Dunn from the primary ballot, and removal of

10 Bow en and Brovm from the general election ballotsis similarly moo t, and wou ld greatly11 interfere with the conduct ofthis election.'* The June 8 primary election has passed , and the12 parties have selected their nom inees for Secretary of State and Gov em or. (Req. for Judicial13 No tice, Exh . D.) Therefore, any attempt to strike Dun n, Bow en, and Brown from the ballot at this14 stage of th e election will substantially interfere with the primary election, and result in the15 nullification of votes cast for all three of these candida tes. For this reason, the Court should deny16 Ba me tt's request for relief17 Mo reover, Bam ett unreasonably delayed in filing this com plaint until May 10, 2010, only18 29 days before the primary election. (Com pl. 1; Req. for Judicial No tice, Ex. D.) Bam ett relies19 solely on the D un n's Flo nd a and Califomia voter registiation forms, and Cand idate Intention20 Statements as evidence that Dunn failed to meet the eligibility requirem ents under Elections Code21 800 1. (C om pl. Ex hs. A, B, D.) Dunn filed the last of these formsthe Candidate Intention22 Statement in Nov em ber 2009^well before April 1, 2010, when Bow en submitted D un n's name23 as am ong the certified candidates for Secretary of State. (Compl. Exh. B; Req. for Judicial24 Notice, Exh. D; Ele c Code 8120 .)25 '* Bamett brought this action as a complaint, even though a writ of mandate would have26 been the mo re appropriate means for reh ef (See Elec. Code 13314, subd. (a)(1) [prescribing awrit of mandate as the sole vehicle for challenging a violation of state election law by an27 elector].) Since the relief Bam ett requests mo re closely resem bles the relief provided through awrit of mandate, defendants refer to election laws regarding wnt relief28

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1 Bam ett could have brough t this legal challenge before the Secretary subm itted the certified2 list of candida tes. She could have also brought this challenge before persons in the military and3 overseas began voting (April 9, 2010), and before counties began ma iling sam ple ballots (April4 29, 2010). (Req. for Judicial Notice , Ex. D.) Bam ett, however, did not file this com plaint until5 after these critical election events already took place . Mo reover, Bame tt offers no explanation for6 her inexcusab le delay in filing this lawsuit.7 The lateness of Ba m ett's petition is particularly egregious becau se the primary election8 ended on June 8, 201 0. Any decision at this time that affects the eligibility of Dun n, Bow en, and9 Brow n to be on the prima ry or general election ballots would nullify the votes cast for these

10 candidates a result that violates the Califomia Cons titution's specific provision requiring the11 counting of every lawfully cast vote, and wou ld result in the substantial interference with the12 conduct ofth e election. (Cal. Const, art. H, 2.5; Elec. Code 13314, subd. (a)(2)(B).) For this13 reason, the Court should deny Ba me tt's request relief, and sustain this demurrer without leave to14 amend.15 I I . BA R N E T T F A I L E D T O S T A T E A CL A I M F O R RE L I E F BE CA U S E D U N N S A T I S F IE D T H E

E L I G I BI L I T Y RE Q U I RE M E N T S T O RU N A S A RE P U BL I CA N CA N D I D A T E F O R16 S E CRE T A RY O F S T A T E .17 Unde r Califomia Elections Code , a candidate for a partisan office cannot file a declaration18 for candidacy unless: (1) he has shown by affidavit to be affiliated w ith the political party for at19 least three mo nths before presenting his declaration of candidacy for that pa rty's nom ination; and20 (2) he has not been registered as affiliated with another "qualified political par ty" within twelve21 mon ths imm ediately prior to the declaration. (Elec. Code 800 1, subd. (a).)22 Here, the Court should sustain the dem urrer because Dunn satisfied the Election Co de 's23 requirem ents before filing his declaration for candidacy as Secretary of State. First, Dunn24 satisfied the three-mo nth requirement becau se he registered with the Repub lican Party on March25 13, 2009 , nearly twelve mo nths before he declared his candidacy. (Com pl. Exh. A; Req . for26 Judicial Notice, Exh. A.)27 Second, Bam ett presents no facts (or even allegations) that Dunn was a memb er of any28 other political party for twelve mo nths before he declared his candidacy for Secretary of State.

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1 To the contiary , all available records show that Du im 's only other political affiliation^with the2 Florida Dem ocratic Party expired in 2005 after Dun n failed to vote in two consecutive federal3 elections. (Req. for Judicial Notice , Exh. B.) So Durm satisfied the candidacy eligibility4 requirem ents outlined in Elections Code 800 1, subdivision (a). Secretary of State Bow en,5 therefore, did not violate the Election Code by allowing Du nn's candidacy to proceed. ^ For this6 reason, the Court should sustain Defe ndan ts' demu rrer without leave to amen d.7 Bam ett also argues that the Secretary of Sta te's office failed to respond to inquiries8 regarding D un n's eligibility for candidacy and alleged failure to provide prior voter registiation9 information when registering to vote in Cahfom ia in March 2009. (Compl. Tj 30,41,47-50.)

10 Ba m ett's contentions are false. The Secretary of State investigated and responded to Ba m ett's11 claims regarding Du nn's eligibility on M ay 12, 2010. (Req. for Judicial Notice, Exh. B, C.) In its12 respon se, the Secretary of Sta te's office noted that: (1) Dunn met the eligibility requirem ents of13 Elections Code 80 01 ; and (2) there was no evidence showing that Dunn intentionally omitted14 information of prior registiation when he registered to vote in Califomia. (Req. for Judicial15 Notice, Exh. C.) Moreover, none of Ba me tt's allegations show that Bowen concealed any facts16 regarding Dun n's eligibility to run for Secretary of State. The Court, therefore, should sustain17 this demu rrer without leave to amend .

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^ Moreover, Dunn's past affihation with the Florida Democratic Party does not qualify as19 affiliation w ith a "qualified political par ty" as defined under the Califomia Elections Code .Elections Code 5100 defines a "qualified political party" as a party that fulfills any ofthe20 following conditions related to Cah fomia elections:21 (1) the party polled at least 2 percent of the vote in the last gubem atorial election;(2) the total num ber of voters registered with the party on or before the 135th day beforethe election equals at least 1 percent ofthe entire vote in the last gubematorial23 election; or(3) the party filed a petition with the Secretary of State, on or before the 135th day before24 the primary, with signatures of voters equal to 10 percent of the of the sta te's entirevote for the previous gubematorial election. (Elec. Code 5100.)25 Ba m ett's complaint does not present any facts showing that the Florida Democratic Party ever26 satisfied any of these requirem ents prior to the June 8, 2010 pn m ary election. Therefore, theFlorida Democratic Party is not a "qualified political party" as defined under Elections Code 27 8001(b ), and D un n's past affiliation w ith that party would not disqualify his candidacy forSecretary of State under any circumstances.28

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1 provide any legal support for her claim that Du im 's incomp lete voter registration form2 disqualifies his candidacy for Secretary of State. Moreover, judicially noticed records show that3 the Secretary of Sta te's office investigated the impact of D un n's failure to hst his prior4 registiation in Florida, and found no intentional miscon duct. (Req. for Judicial No tice, Ex. C.)5 B am ett's fraud claim lacks any legal or factual merit. For this reason, the Court should sustain6 Defendan ts' demurrer.7 B. Brown Did Not Breach Any Duty Owed to Barn et t , Because, as AttorneyGe neral , He Had No Statutory Duty to Enforce Elect ion L aws.89 Bam ett alleges that Attom ey General Brown breached his fiduciary duties by not

10 disqualifying Duim as a candidate due to his incomp lete voter registiation form. (Com pl. ^ 1 57 -11 58.) The Atto m ey General, however, has no duty to intervene in an election law claim, unless the12 Secretary of State finds evidence of an election law violation, and refers the matter to the13 Attom ey General. (Gov. Code 12172.5; see Assembly v. Deukm ejian (1982) 30 Cal. 3d 638 ,14 650 [stating that the Secretary of State, not the Attomey General, is "the official charged with15 ensuring proper application oft he state's elections laws"].) Here , there was no evidence of an y16 election law violation, so the Secretary of State had no need to refer the ma tter to the Attom ey17 General. The Attome y General, therefore, had no duty to investigate Ba m ett's claims against18 Duim, and is therefore entitled to dismissal ofth is matter.19 ///20 ///21 ///22

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CONCLUSIONBa m ett's Complaint against Dunn, Bowen, and Brown is untimely, and lacks any facts

sufficient for stating a claim for relief Ba m ett's un timely request for relief^which includesremoval of Dunn and Bowen from the Secretary of State ballot, and Brovm from G ovem or'sballotw ould interfere with the ongoing elections process. Mo reover, the com plaint andjudicially noticed documents fail to show that Dunn violated any election laws in declaring hiscandidacy for Secretary of State, or that Secretary of State Bowen breached any ofher duties incertifying his candidacy . Moreo ver, Ba m ett's com plaint fails to allege that Attom ey Gene ralBrown had any duty to intervene in Du nn 's declaration for candidacy. For these reasons,defendants request that the Court sustain their demurrer without leave to amend, and dismiss thisaction.Dated: June 11, 2010 Respectfully Subm itted,

EDMUND G. B R O W N J R .Attomey General ofCaiifomiaSTEPHEN P. ACQUISTOSupervising Deputy Attome y G eneral

SA201010135010573480 doc

( P ^ c JS^Ksi^^^ANTHONY P. O 'BRIENDeputy Attomey GeneralAttorneysfor Defendants Edmund G.Brown Jr, Attorney General, and DebraBowen, Secretary of State

10Memorandum of Pomts and Authonties m Support of

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