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UNITED STATES JUSTICE FOUNDATION GARY G. KREEP (CA SBN 066482) NATHANIEL J. OLESON (SBN #276695) 932 "D" Street, Suite! Ramona, California 92065 Tel: (760) 787-9907 Fax:(760)788-6414 Attorneys for Petitioners, John Albert Dummett, Jr., Gil Houston, Larry Lakamp, Milo L. Johnson, Joe Ott, Markham Robinson, and the Constitution Party SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO JOHN ALBERT DUMMETT, JR.; MARKHAM ROBfNSON, Chairman ofthe Executive Committee of the Slale Central Committee of the American Independent Party of California; THE CONSTITUTION PARTY; GIL HOUSTON; LARRY LAKAMP; MILO L. JOHNSON; and JOE OTT; Petitioners, v. CALIFORNIA SECRETARY OF STATE DEBRA BOWEN, in her official capacity; Respondents. Civil Action No.: Z'\ -

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By:.
M. PURCELL
DEPUTY CLERK

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(By Taj{^
Z.OIZ, 90001

PETITIONERS' EX PARTE MOTION TO VACATE ORDER DATE: May 25, 2012 TIME: 9:00 am DEPT: 31

TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECOItD: PLEASE TAKE NOTICE that on May 25, 2012 , at 9:00 a.m. or as soon thereafter as the matter may be heard in Department 31 of the above-entitled court, located al 720 9lh Street, Sacramento, CA 95814, Petitioners, John Albert Dummett, Jr., Gil Houston, Larry Lakamp, Milo L. Johnson, Joe Oil, Markham Robinson, and the Constitution Party (hereinafter referred to as "PETITIONERS"), will and hereby do, move this court ex parte for an order to vacate the Court's order entered on April 9, 2012, on the following grounds and in the following particulars: The Motion will be made under the provisions of the

PETITIONERS' EX PARTE MOTION TO VACATE ORDER

Code ofCivil Procedure Section 473, on the ground that tlie order was a surprise to PETITIONERS, since no notice was given PETITIONERS concerning the notice of related cases until Friday, April 6, 2012, 3 4 5 6 7 8 9 10 when Respondent Debra Bowen (hereinafter referred lo as "BOWEN") served by mail her support for the notice of related cases, which afforded PETITIONERS no opportunity to respond since the order was issued on Monday, April 9, 2012; that Defendants in the 2008 case of Keyes v. Bowen raised Election Code Section 6901 as a defense to the complaint, whereas, in Dummett v. Bowen, the issue is the constitutionality of Elecdon Code Section 6901; that Noonan v. Bowen has the primary purpose of seeking remedies againsl Barack Hussein Obama, Jr. (hereinafter referred to as 'OBAMA"), while Dummett v. Bowen is concerned with the duties of the California Secretary of State as related to Election Code Section 6901; and, that this reassignment will have the effect of confusing the arguments of this case with those from Noonan v. Bowen, and will undermine the legal arguments and the intentions of 13 14 15 16 17 18 19 20 21 22 23 24 25 Attomeys for PETITIONERS, John Albert Dummett, Jr., Gil Houston, Larry Lakamp, Milo L. Johnson, Joe Ott, Markham Robinson and the Constitution Party. GARY G. KREEf NATHANIEL J. 0LESC5)N / UNITED STATES JUSTOE FOUNDATION PETITIONERS in this matter. This Motion will be based upon this Notice, upon the Memorandum of Points and Authorities submitted herewith, and upon the Declaration of GARY G. KREEP, filed herewith, and all exhibits appended thereto; upon the records and files ofthe Court in tiiis action; and upon such further evidence and argument as may be presented prior to or at the time of Ihe hearing on the within motion. Dated: May 11,2012. Respectfully Submitted,

PETITIONERS' EX PARTE MOTION TO VACATE ORDER

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT QF EX PARTE MOTION TO VACATE ORDER [Code ofCivil Procedure (hereinafter referred to as "CCP") 663; CCP. 473; CCP 187] 4 5 6 7 8 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I. INTRODUCTION This Complaint is brought by Petitioners: John Albert Dummett, Jr. (hereinafter referred to as "DUMMETT"), a write-in Presidential candidaie in the 2012 California Republican Presidential primary; Markham Robinson (hereinafter referred to as "ROBINSON"), Chairman of the Executive Committee of the American Independent Parly of California (hereinafter referred to as "AIP") the Conslitulion Party (hereinafter refen-ed lo as "CONSTITUTION PARTY"), a national political party; Gil Houston (hereinafter referred to as "HOUSTON"), a registered California voter; Larry Lakamp (hereinafter referred to as "LAKAMP"), a registered California voter; Milo L. Johnson (hereinafter referred to as "JOHNSON"), a registered California voter, and Joe Ott (hereinafter referred lo as "O'lT'), a registered California voter. PETITIONERS seek a determination by this Court as to whether BOWEN has verified that all candidates for the 2012 California Presidential primary election have provided proof that they possess the minimum qualifications forthe Office of President ofthe United States, and, if nol, PETITIONERS hereby ask the Court to enjoin BOWEN from placing the names of such unverified candidates on the California Presidential primary election ballot, unless and until such time as BOWEN can show lhat each of said candidates have so verified their eligibility for the office. This aclion challenges the failure of Respondeni Debra Bowen, California Secretary of Slate (hereinafter referred to as "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. In addition, PETITIONERS .seek a determination that California Elections Code 6901 is unconstitutional and thai the Secretary of State should be required to verify the eligibility of all candidates for the offices that they seek, withoul any exception, because, in effect. Elections Code

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6901 forces the Secrelary of Slate to disregard the duties of her office as chief elections official in the Slale ofCalifomia with regard to the most important elected office in the United Stales. On March 26, 2012, a Notice of Related Cases was filed in the matter of Noonan v. Bowen, et al. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case number 34-2012-80001048, by OBAMA. This notice was followed by a Response to Notice of Related Cases filed in the same case on April 4, 2012, by BOWEN, On April 9, 2012, the Court issued an Amended Notice of Case Assignment in the matter of Dummett, et al, v. Bowen, case number 34-201280001091. On April 12,2012, the Court filed a Notice to Filing Party in the Diiwiiieli case to inform OBAMA that the court had rejected their Notice of Related Cases on the grounds thai parties named are not parties in this case. This motion followed. II. AMENDMENT OF AN ORDER IS PROPER WHERE THE ORDER WAS TAKEN AGAINST A PARTY AS A RESULT OF MISTAKE, INADVERTENCE. SURPRISE. EXCUSABLE N E G L E C T . OR C L E R I C A L ERROR The Court Should Grant Relief In The Form Of An Amended JudgmenL "The court may, upon any terms as may be just, relieve a party or his or her legal representative from ajudgment, dismissal, order, or other proceeding taken againsl him or her through his or her mistake, inadvertence, surprise or excusable neglect." CCP 473(b). In considering mistake, surpri.se, or excusable neglect, the court has broad discretion under CCP 473, and such discretion is liberally construed so lhat lawsuits may be determined upon their merits. Riskin v. Towers, 24 Cal. 2d 274, 279, 148 P.2d 611, 153 A.L.R. 442 (1944). The "excusable neglect" referred to in Seclion 473 is that neglect which might have been the act ofa reasonably prudent person under the same circumstances. Hover v. MacKenzie, 122 Cal. App. 2d 852, 857, 266 P.2d 60 (2d DisL 1954). "Application for this relief [under Section 473] . . . shall be made within a reasonable time, in no

PETITIONERS' EX PARTE MOTION TO VACATE ORDER

case exceeding six months, after thejudgment, dismissal, order, or proceeding was laken." CCP 473(b). As shown in the Declaration of GARY G. KREEP, filed and served herewith, PETITIONERS 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 were surprised by the reassignment, because they had received no notice of the Notice of Related Cases filled in the Noonan case unlil Friday, April 6, 2012, when BOWEN served by mail her support for Ihe notice of related cases, which afforded PETITIONERS no opportunity lo respond, since the Court issued an Amended Notice of Case Assignment on Monday, April 9, 2012. California Rule of Court 3.300(d) requires that "The Notice of Related Case must be filed in all pending cases listed in the notice and must be served on all parties in those cases." Despite the Proof of Service on the Noonan docket showing lhat the notice was mailed to PETITIONER'S attorney, at no time did PETITIONERS, or dieir attorney, receive any notice by mail, by fax, or by other means of service, unlil after the Amended Notice of Case Assignment was issued. Due lo this surprise, PETITIONERS request that the Court vacate the Amended Nolice of Case Assignment for lack of notice. In addition, the only other notice to PETITIONERS of the Notice of Related Cases was after the reassignment was issued when a Notice to Filing Party filed on April 12, 2012, three days after the Amended Nolice of Case Assignment was issued, infomiing OBAMA's attorney that a document vvas rejected. Such subsequeni notice was insufficient to allow PETITIONERS to respond or oppose the Notice of Related Cases. Due to this surprise, PETITIONERS request that the Court vacate Amended Notice of Case Assignment for lack of notice. Contrary lo the assertions in Notice of Related Cases, all the mentioned cases concern distinct issues of law and fact. In the 2008 case of Keyes v. Bowen, the defendants raised California Elections Code Section 6901 as a defense lo the action, whereas Dummett v. Bowen has been brought to challenge the Constitutionality of California Elections Code Section 6901. In addition, while both the Noonan v. Bowen case and the Dummett case have BOWEN listed as a respondent, the primary focus of Noonan is to seek remedies against OBAMA, whereas this case contains no claim against OBAMA, he is

PETITIONERS' EX PARTE MOTION TO VACATE ORDER

not a party to it, and, instead, concerns whether BOWEN can fulfill her role as chief elections officer under California Elections Code Section 6901, which PETITIONERS believe to be unconstitutional. Due lo significant differences between the cases presented as related in the Nolice of Relaled Cases, PETITIONERS request that the Court vacate the Amended Nolice of Case Assignment. Further, and again contrary to the allegations presented in the Nolice of Related Cases, while
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ROBfNSON was a party in the Keyes v. Bowen case, he brought that case in a different capacity than in this underlying case, ROBINSON was previously acting in his official capacity as Chairman ofthe American Independent Paity of California, a posiiion which he no longer holds, and, now, he holds the position of Chairman of the E.xeculive Committee, Even though ROBINSON is lisled as a parly in both cases, his interest in each case is distinct from the other, since, as discussed above, the issues in each case are different. Further, in the 2008 case, ROBINSON was the head of AIP, and was suing in lhat capacity, which position he no longer enjoys. Due lo the different capacity of ROBINSON in each ofthe cases mentioned in the Notice of Related Cases, PETITIONERS request lhat the Court vacate the Amended

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Nolice of Case Assignment. In addition, PETITIONERS oppose reassignment of this case because PETITIONERS believe lhat there is a strong likelihood that their case will be prejudiced and confused by the issues raised in the
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other cases named in the Nolice of Relaled Cases. One of the reasons that PETITIONERS believe lhat ihey will be prejudiced by this surprise reassignment is because OBAMA's attomey, on March 21, 2012, threatened Gary Kreep with monetary and other sanctions for Mr. Kreep's potential involvement in Noonan. Because OBAMA is not a party in the Dummett case, the efforts by his allorney to cause this case to be reassigned would seem lo have no purpose olher lhan to infiuence a lawsuit that OBAMA is nol a paity to, and/or to attempt to harass Mr. Kreep, bolh of which are improper purposes. PETITIONERS also believe that OBAMA's intent in having both cases before die same judge, is lo confuse the judge between the cases, so thai the judge may likely mle against PETITIONERS on the

PETITIONERS' EX PARTE MOTION TO VACATE ORDER

grounds of the olher case being poorly drafted/argued/etc. Finally, PETITIONERS believe that, based on these prior actions, the nexl motion vvill be to consolidate the cases, to further confuse the Court conceming the issues raised by PETITIONERS. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 "When jurisdiction is, by the Constitution or this code, or by any other statute, conferred on a court or judicial officer, all the means necessary to carry it into effect are also given; and in the e.xercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this code or the slatute, any suitable process or mode of proceeding may be adopted which n-iay appear most conformable lo the spirit oflhis code," CCP 187. CCP 187 has often served as the basis for amending ajudgment, for example, lo add additional judgment debtors pursuant to the alter ego doctrine. The general mle is lhat "a court may amend its judgment at any time so that thejudgment will properly designate the real defendants." Dow ./ones Co. v. Avenel, 151 Cal. App. 3d 144, 148-149, 198 Cal. Rptr.457(lst DisL m 4 ) . (See also, CCP 989.) As shown in the Declaration of GARY G. KREEP, filed and served herewith, PETITIONERS were afforded no opportunit)' to oppose or otherwise respond lo the Notice of Related Cases filed in Noonan v. Bowen. Instead, PETITIONERS were only informed of the Notice of Relaled Cases after the Court, sua sponte, reassigned the underlying case lo Honorable Michael P. Kenny. Because no nolice vvas given to PETITIONERS until it was too late for them to respond to the reassignment of their case, and because there appears to be improper motives for reassignment by the party who filed the Notice of Related Cases, PETITIONERS request that, in the interests of fairness lo the parties, and to prevent For the above stated reasons; PETITIONERS request lhat the Court vacate the April 9, 2012, Amended Nolice of Case Assignment.

m.
THE COURT HAS INHERENT POWER TO AMEND ITS ORDERS

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confusion of PETITIONERS' arguments with those made by parties in the other cases mentioned in the Notice of Related Cases, and for all of the other reasons discussed above, the Court should exercise its
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inherent power to vacate the April 9,2012, Amended Notice of Case Assignment.

IV, CONCLUSION In view of the foregoing, PETITIONERS respectfully request that the Court vacate the Amended Notice of Case Assignment, issued on April 9, 2012, for the reasons slated herein and upon the facts set forth in the Declaration of GARY G. KREEP and exhibits attached thereto.

Dated: May 14, 2012.

Respectfully Submilted,

GARY G. KREEP NATt-L^NIEL J, 0 SON UNITED STATES USTICE FOUNDATION \ Attomeys for PETITIONERS, John Albert Dummett, Jr., Gil Houston, Larry Lakamp, Milo L. Johnson, Joe Ott, Markham Robinson and die ConstihJtion Parly.

PETITIONERS' EX PARTE MOTION TO VACATE ORDER

Dummett, et ai. v. Bowen 2 3 4 STATE OF CALIFORNIA PROOF OF SERVICE

) ) ss. 5 COUNTY OF SACRAMENTO ) 6 7 I, the undersigned, declai'e, tliat:

1 am employed in the County of San Diego, State of California. I am over the age of eighteen 8 years and not a party to the witiiin entitled action. My business address is 932 D Street, Suite 3, Ramona, CA 92065. 9 On IVIay 16,2012,1 served the following document described as: 10 11 SEE ATTACHED LIST OF DOCUMENTS

12 on tlie below interested parties in this action by placing copies thereof enclosed in a sealed envelope and addressed as follows: 13 SEE ATTACHED LIST OF PARTIES SERVED 14 I declai-e that I am "readily familiar" with the firm's practice of collection and processing 15 correspondence for mailing. It is deposited with the U.S. Postal Service on that same day in the ordinary course of business. 1 am aware that on motion of party served, seivice is 16 presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing affidavit. 17 X (By Certified Mail) I caused to be deposited such envelope in the mail at Ramona, 18 California. The envelope was mailed with postage thereon fully prepaid on May 16, 2012. 19 (By Facsimile) I sent the documents via facsimile as listed on the attached service list, 20 on May 16,2012 (without Exliibits) 21 22 23 24 25 26 27 28 Dated: May 16,2012 (By Overnight Mail) Such envelope was deposited with the U.S. Postal Service for overnight delivery to the offices stated on the attached service list, on May 16, 2012. I declare under penalty of perjury under the laws ofthe State of California that the above is true and correct. UNITED STATES JUSTICE FOUNDATION

SSAL^ ^ Declarant'

y/^ -fid
K A T T K F

Dummett, et al. v. Bowen

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LIST OF PARTIES SERVED Kamala D. Harris Attomey General ofCalifomia Peter A. Krause Supei-vising Deputy Attorney General Anthony R. Hakl Deputy Attorney General 13001 Street, Suite 125 P.O. Box 944255 Sacramento, CA 94244-2550 Fax:916-324-8835

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Dummett, et al. v. Bowen

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LIST OF DOCUMENTS (1) PETITIONER'S MOTION TO VACATE ORDER (2) DECLARATION OF GARY G. KREEP (3) EXI-UBITS A and B