CASE AGAINST EDWARD C. NOONAN / DEBRA BOWEN (Secretary of State) /Alan Keyes is DISMISSED!!
ALAN KEYES IS THE PRESIDENTIAL CANDIDATE FOR THE STATE OF CALIFORNIA!
The dismissal of the case is as follows:
Causal Document & Date Filed:
Appearances:
Robert G. Bernhoft is present for Petitioner, James King.
Kathleen A. Lynch is present for Respondent, Debra Bowen and Real Party in Interest, Geoff Brandt.
Gary G. Kreep appears telephonically for Real Party in Interest, Edward Noonan.
NATURE OF PROCEEDINGS: PETITION FOR WRIT OF MANDATE
The above-entitled matter comes on this date for hearing on the Petition for Writ of Mandate with the above-indicated counsel present.
Each counsel presents argument and submits the matter to the court.
COURT RULING
Petitioner James King seeks a writ of mandate directing the Secretary of State to
(1) recognize King as the new Chairman of the American Independent Party (”AIP”) along with various other officers,
(2) recognize the party statement submitted by King for the American Independent Party,
(3) recognize Chuck Baldwin as the AIP’s presidential candidate rather than Allan Keyes, (4) recognize an affiliation between the AIP and the National Constitution Party. The petition is brought pursuant to Election Code §§ 9092 and 13314. The portion of the petition requesting relief under § 9092 was mooted, however, by the Secretary of State’s decision not to include any party statements in the ballot pamphlet. The current dispute therefore centers on whether relief is proper under § 13314.
Section 13314(a) provides:
(1) Any elector may seek a writ of mandate alleging that an error or omission has occurred, or is about to occur, in the placing of any 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, and (B) that issuance of the writ will not substantially interfere with the conduct of the election.
MINUTE ORDER Date: 08/26/2008 Page: 1
Dept: 31 Calendar No.: 1
Case Title: James King Chairman of the Amerian
Independent Party vs. Debra Bowen California
Case No: 34-2008-80000016-CU-WM-GDS
Mr. King argues that the AIP held a convention and State Central Committee meeting in Los Angeles at which it properly elected new officers, selected Mr. Baldwin as their presidential candidate, and voted to affiliate with the National Constitution Party. Real Party in Interest Edward Noonan, currently recognized by the Secretary of State as the AIP Chairman, responds that the Los Angeles meetings and the actions taken therein were not valid, that a convention and State Central Committee meeting held by his faction in Rancho Cordova resulted in valid officer elections, selection of a presidential candidate, and affiliation with America’s Independent Party of Fenton, Missouri, and that indispensable parties have not been joined to the present action. The Court will deal with the latter contention first.
[1] Mr. Noonan contends that the current action cannot go forward in the absence of several indispensable parties: (1) Alan Keyes and Wiley Drake, currently recognized by the Secretary of State as the AIP’s selection for presidential candidate and vice-presidential candidate, respectively, (2) the officers of the AIP who would be removed prior to the ends of their terms on September 3, 2008 should the writ issue, and (3) the AIP presidential electors currently pledged to the candidacies of Mr. Keyes and Mr. Drake.
To determine whether the parties mentioned above are indispensable, the Court must first determine whether they are “necessary” under Code of Civil Procedure § 389(a). That section provides:
A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if
(1) in his absence complete relief cannot be accorded among those already parties or
(2) he claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in his absence may
(i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
If the Court concludes that the parties are necessary and cannot be joined, it must then “determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person[s] being this regarded as indispensable.” In making that determination, the Court considers the following four factors, none of which is alone determinative or of greater importance than the others:
(1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties;
(2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
(3) whether a judgment rendered in the person’s absence will be adequate;
(4) whether the [petitioner] will have an adequate remedy of the action is dismissed for nonjoinder.
(Cal. Code Civ. Proc. § 389(b); TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355,1365-66.)
Mr. Keyes and Mr. Drake.
Mr. Noonan argues that Mr. Keyes and Mr. Drake have substantial interests in remaining on the ballot as candidates. Mr. King responds that Mr. Keyes and Mr. Drake are not necessary parties because Mr. Noonan will vigorously defend their interests, citing TG Oceanside, L.P. v. City of Oceanside (2007) 156 Cal.App.4th 1355, 1369. In that case, however, as well as in the case relied on therein (Hayes v. Dep’t of Dev. Servs. (2006) 138 Cal.App.4th 1523), the asserted indispensable party was a designee pursuant to statute of an entity who was already a party. Mr. King points to no law under which Mr. Keyes and Mr. Drake are the designees of Mr. Noonan. While Mr. Noonan has defended the selection of those candidates, the Court is not persuaded that one party’s defense of an action, however vigorous, should mean that other parties with substantial interests in the action are not necessary absent some special relationship between the two parties. If the writ issues here, the Secretary of State will be directed to place Mr. King’s candidates on the ballot and remove Mr. Keyes and Mr. Drake. Because the ballot must be finalized on August 28, 2008, Mr. Keyes and Mr. Drake will have no opportunity between the writ’s issuance and the printing of the ballot to protect their interests in remaining on the ballot. Accordingly, the Court concludes that Mr. King and Mr. Drake are necessary parties.
The time constraints particular to election writs also leads the Court to conclude that Mr. Keyes and Mr. Drake may not now be feasibly joined and that a judgment in their absences would be highly prejudicial
Date: 08/26/2008
Case Title: James King Chairman of the American Independent Party vs. Debra Bowen California
Case No: 34-2008-80000016-CU-WM-GDS to those individuals, because issuance of the requested writ would result in their removal from the ballot without any opportunity to contest. There appears to be no way of shaping the writ so that such prejudice could be avoided or minimized.
The Court recognizes that dismissal of the petition for nonjoinder will mean that Mr. King’s proposed candidates will not appear on the ballot. However, Mr. King knew from at least prior to June 28, 2008 (the date of the Los Angeles convention) that divisions within the party might lead to disagreement over the presidential and vice-presidential candidates. Instead of taking legal action at that time to resolve the matter, Mr. King chose to wait over a month and attempt to resolve the matter through an election writ subject to substantial time constraints. Moreover, Mr. King knew from the hearing held on August 8, 2008 that the question of indispensable parties would be an issue in the case but made no attempt to have Mr. Keyes, Mr. Drake, or any of the other asserted indispensable parties joined to the action.
Under these circumstances, the Court concludes that Mr. Keyes and Mr. Drake are indispensable parties. Because it will not be possible to join them and thereafter determine the merits of the case before the ballot’s finalization, the Court dismisses the petition without prejudice. (See Younger v. Jordan (1954) 42 Cal.2d 757 [denying petition seeking to remove candidate from ballot under § 13314's predecessor statute because such candidate was indispensable party and not enough time existed for her service and a determination of the merits prior to the printing of the ballots].)
As the resolution of the indispensable parties issue with regard to Mr. Keyes and Mr. Drake requires dismissal of the action, the Court need not address the remaining issues raised by the parties.
Real Parties, as prevailing parties, shall prepare a formal order for the Court’s signature pursuant to C.R.C. 3.1312.
Date: 08/26/2008
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Submitted for review to the California Mormon Battalion by:
Edward C. Noonan
2006-2008 State Party Chairman - American Independent Party
Former 2006 Candidate/Governor - State of California
PS My term as State Party Chairman is up on September 3, 2008…this will be one of my final acts in office. I must thank my Vice Chairman, Mark Seidenberg who protected me against this onslaught of the rouge faction of the AIP. He paid for this defense. And Gary G. Kreep Esq. was an awesome attorney!