Palo Alto, CA
COUNTY OF SACRAMENTO
Alexander E. Rawls,
Bill Jones as the Secretary of State,
No. 98 CS 00514
Move to strke defendant's Demurrer of plaintiff's Complaint for Declaratory Relief and petition for Writ of Mandate. Memorandum of Points and Authorities in answer.
Secretary of State Bill Jones demurs and opposes plaintiff's petition for writ of mandate on the grounds that he is not the election official responsible for determining the eligibility and qualifications of candidates for the office of Sheriff. Further, he asserts that, under Code of Civil Procedure section 389, the Registrar of Voters of Santa Clara must be named a party in plaintiff's suit.
`Plaintiff answers that the defendant has the authority to do all that the plaintiff is asking the court to instruct him to do in the Complaint for Writ of Mandate, and that under Civil Code section 389 the Registrar of Voters need not be named as a defendant in the suit.
According to California Government Code @ 12172.5:
The Secretary of State is the chief elections officer of the state, and shall administer the provisions of the Elections Code. The Secretary of State shall see that elections are efficiently conducted and that state election laws are enforced.
The same Government Code Section further states:
If, at any time, the Secretary of State concludes that state election laws are not being enforced, the Secretary of State shall call the violation to the attention of the district attorney of the county or to the Attorney General. In these instances, the Secretary of State may assist the county elections officer in discharging his or her duties.
In the event that plaintiff's Complaint for Declaratory Relief is granted, the Secretary of State logically must conclude that the state election laws are not being enforced, because Government Code §24004.3 will have been invalidated, yet the Santa Clara Registrar of Voters Dwight Beattie will have know way of knowing this and will still reject plaintiff's bid for nomination on grounds that plaintiff does not meet the requirements of Code §24004.3, in violation of his duty to admit all candidates who meet all the requirements. Thus according to the California Government Code @ 12172.5, the Secretary of State is to call this violation to the attention of the district attorney of Santa Clara (one George Kennedy at present), and he is empowered to assist the county elections officer in discharging his or her duties. That is, the Secretary of State will indeed have the power to take on any and all powers of Registrar Beattie, should plaintiff's Complaint for Declaratory Relief be granted. In particular, he will have the power to execute the Writ of Mandate requested by plaintiff.
Because the Secretary of State is so empowered, Civil Code section 389 does not require that Registrar Beattie be named as a defendant in plaintiff's complaint. The relevant part of Civil Code section 389 reads:
(a) A person who is subject to service of process and whose joinder will not deprive 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...
As noted above, the Secretary of State is empowered to grant complete relief in the form of execution of the requested Writ of Mandate. Thus it is not necessary that Registrar Beattie be joined as a party to the suit and so the defendant's demurrer should be stricken.
The Defendant notes (in paragraph 2 of his ARGUMENT) that:
Petitioner, by his own admissions in the petition, knows that he must submit a Declaration of Candidacy for the office of Sheriff to the County of Santa Clara elections official in order to be a candidate. He has not submitted his Declaration of Candidacy. The Respondent Secretary of State had no duty or opportunity to even consider Petitioner's status as a candidate for the office of Sheriff of the County of Santa Clara.
The implication, plaintiff presumes is that the Secretary cannot be sued because plaintiff never gave him a chance to deny plaintiff access to the ballot by submitting a Declaration of Candidacy, hence plaintiff cannot claim injury.
The injury is that plaintiff cannot submit a Declaration of Candidacy without committing perjury, because according to the Candidate's Guide put out by the County of Santa Clara:
Additionally, the candidate declares that (s)he meets the statutory and/or constitutional qualifications for the office sought...
The Secretary of State, as the Chief Elections Officer of the state, is the overseer of this requirement that citizens without law enforcement background cannot even truthfully declare candidacy for the office of county sheriff in the state of California. This does all the harm to the equal protection of plaintiff's First Amendment rights that are claimed in his complaint.
As to the defendant's points and authorities in opposition to plaintiff's Complaint for Declaratory Relief and Petition for Writ of Mandate, plaintiff presumes that contention between his original points and authorities and defendant's points and authorities in opposition will be the subject of court hearing, once the demurrer is stricken.
I am the plaintiff in the above-entitled action; I have read the forgoing answer and know the contents thereof; the same is true of my own knowledge.
Dated:__________, 19___ ____________________
Alexander Rawls, Plaintiff
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