Taitz v. Obama
Filed 10/31/13 Taitz v. Obama CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE
DISTRICT
DIVISION THREE
ORLY TAITZ,
Plaintiff and
Appellant,
v.
BARACK
OBAMA et al.,
Defendants and Respondents.
G047746
(Super. Ct.
No. 30-2012-00582135)
O P I N I O
N
Appeal from orders of
the Superior Court
of
County, Charles Margines, Judge. Affirmed.
Orly Taitz, in pro per.,
for Plaintiff and Appellant.
No appearance for
Defendants and Respondents.
*
* *
Orly Taitz filed a
statement of contest seeking to prevent the Secretary of State from certifying
the election results of the 2012 primary election, contending President Obama
is not a natural born citizen, and thus is ineligible for the office of the President,
and that California voter rolls
are rife with fraud. She named as
defendants President Barack Obama, Senator Diane Feinstein, and Elizabeth
Emken, who prevailed over Taitz in the Republican primary to later challenge
Senator Feinstein in the general election.
Failing in her attempt to block the primary results, Taitz later filed
an ex parte motion seeking to stay certification of the results of the 2012
general election.
The trial court denied
her motion for a stay of certification and dismissed the proceeding on multiple
grounds, including that Taitz never properly served defendants, failed to
exhaust her preelection remedies, that her challenge was barred by laches, and
that only the Sacramento Superior Court has jurisdiction to hear such election
challenges. The trial court also awarded
third party discovery sanctions against Taitz.
We affirm.
FACTS
On July 9, 2012, Orly Taitz filed an “Affidavit of
Elections Challenge†to the 2012 California
primary election, in which she was a candidate for the Republican nomination to
challenge Senator Diane Feinstein’s seat in the United States Senate. Taitz alleged President Obama fraudulently
represented his place of birth, is not a natural born citizen, and thus is
ineligible for the office of President of the United
States under article II, section 1 of the
United States Constitution. She attached
affidavits from several purported experts testifying to various pieces of
evidence Taitz claims proves President Obama misrepresented his birthplace. She also claimed, based principally on four
illegible pages of the voter rolls, that the voter rolls are full of
individuals as old as 200 years old. For
relief, Taitz sought declaratory and injunctive relief precluding the
certification of all votes in the 2012 primary election, and in particular all
votes for President Obama.
Taitz filed an ex parte
motion for a 45 day stay of the certification of the primary election
results. The hearing was held on July 13, 2012, and there was
apparently argument, though Taitz did not provide a reporter’s transcript on
appeal. Taitz did provide a minute order
denying her motion, but the minute order
does not set forth the grounds for the denial.
In October, Taitz filed
an ex parte motion to obtain third
party discovery from Occidental College,
which she claims has evidence concerning President Obama’s citizenship. She also moved ex parte for a stay of
certification of the 2012 general
election results. Taitz did not provide
us a copy of either motion, nor did she provide a reporter’s transcript of the
hearing. Counsel for Occidental
College appeared. On November
1, 2012, the court denied the motions and awarded sanctions against
Taitz payable to Occidental College’s
counsel in the amount of $4,000.
Around the same time,
Taitz moved for an entry of default against defendants President Obama, Senator
Feinstein, and Elizabeth Emken, none of whom had appeared. Again, we were not provided with the moving
papers, nor the reporter’s transcript.
On November 7, 2012,
the court denied the motion on four grounds.
First, it held there was no proper service. Second, Taitz failed to exhaust her
preelection remedy of obtaining a writ of mandate pursuant to Elections Code
section 13314. Third, the petition was
untimely — both prematurely filed and, because Taitz waited so long to properly
serve defendants, barred by laches.
Fourth, only Sacramento County Superior Court had jurisdiction to hear
the case pursuant to Elections Code section 16421. On December
3, 2012, Taitz appealed from the orders entered on November 1 and
7, 2012.
DISCUSSION
We begin with the
observation that ultimately undermines everything Taitz attempted to do below: this was a challenge to a primary election.
With that in mind, the
most fundamental defect in Taitz’s election contest was that the Orange County
Superior Court, where the contest was filed, does not have jurisdiction. Elections Code section 16421, which governs
the filing of challenges to a primary election, states, “In the case of an
office for which candidates are certified for the ballot by the Secretary of
State, or in the case of a statewide ballot measure, the superior court having jurisdiction shall be the Superior Court for
the County
States President and the United States Senate, for both of which the California
Secretary of State certifies candidates for the ballot.
Taitz counters that,
rather than dismissing the action, the court was compelled to transfer the
action pursuant to Code of Civil Procedure section 396, which states, “(a) No
appeal or petition filed in the superior court shall be dismissed solely because
the appeal or petition was not filed in the proper state court. [¶]
(b) If the superior court lacks jurisdiction of an appeal or petition,
and a court of appeal or the Supreme Court would have jurisdiction, the appeal
or petition shall be transferred to the court having jurisdiction upon terms as
to costs or otherwise as may be just, and proceeded with as if regularly filed
in the court having jurisdiction.†Code
of Civil Procedure section 396, however, applies by its own terms only to an
“appeal or petition,†and concerns transfers of “appeals or petitions†from a
superior court to an appellate court having
jurisdiction. Under Elections Code
section 16421, an appellate court does not have original jurisdiction. Original jurisdiction lies in the Sacramento
Superior Court. Thus, Code of Civil
Procedure section 396 does not apply here.
Accordingly, dismissal was proper.
Additionally, the orders
Taitz appeals from were issued long after the superior court could have done
anything about the primary election.
Elections Code section 16520, which sets forth the procedures for
contesting primary elections, states, “The clerk of the superior court, within
five days after the end of the time for filing affidavits, shall present all
the affidavits to the presiding judge of the superior court. The presiding judge shall forthwith designate
the time and place of hearing, which
shall be not less than 10 nor more than 20 days from the date of the order.†(Italics added.) The end of the time allowed for filing statements
of contest to a primary election is “five days after either the completion of
the official canvass or the completion of any postcanvass risk-limiting audit
conducted pursuant to Section 15560 by the county last making the declaration.â€
declared the results of the election on July 13, 2012, which meant the end of
the period for filing statements of contest was July 18, 2012, and the clerk
had until July 23, 2012, to notify the superior court of all contests
filed. The superior court was then
required to hold a hearing between 10 and 20 days of that notification. The latest a hearing could be held was August
13, 2012 (Aug. 12 was a Sunday).
There was a hearing on
July 13, 2012, at which the court denied Taitz’s ex parte motion for a 45 day
stay of the certification of the election results — a request that was wholly
outside the statutory procedure for challenging a primary election — and five
days before the end of the time allowed for filing statements of contest. We have no indication that Taitz requested
the court to set a hearing before August 13 on her statement of contest, nor
did she seek an emergency writ of mandate to challenge the court’s failure to
set such a hearing. While the clerks of
the Sacramento Superior Court are presumably familiar with their duty to notify
the presiding judge of a statement of contest, so as to trigger the presiding
judge’s duty to set a hearing, it is unreasonable to expect a clerk of a court
that never hears these election
challenges, and is statutorily ineligible to do so, to be aware of the
attention that it was purportedly required to hold a hearing on or before
August 13 forfeited her challenge to the primary election. And by the time of the court’s dismissal of
Taitz’s petition on November 7, 2012 — which is one of the orders she appeals
from — the general election had
already occurred. It was far too late
for any further challenge to the primary election, so dismissal was
proper.
Moreover, even if the
November 7, 2012 dismissal had still been within the proper time frame for
challenging the primary election results, Taitz’s notice of appeal was
untimely. Elections Code section 16920,
which governs appeals concerning challenges to primary elections, states,
“Either party to a contest may appeal to the district court of appeal of the
district where the contest is brought, if
the appeal is perfected by the appellant within 10 days after judgment of the
superior court is pronounced. The appeal shall have precedence over all
other appeals and shall be acted upon by the district court of appeal within 10
days after the appeal is filed.†Here,
the court’s order of dismissal is dated November 7, 2012. Taitz filed her notice of appeal on December
3, 2012. It was untimely.
We recognize that Taitz
also appeals from an order denying her ex parte motion to challenge the results
of the general election. The problem is there is no provision in the
Elections Code for challenging the results of a general election by ex parte
motion. Rather, the Elections Code sets
forth specific procedures for challenging the results of a general election
contest to the general election, much
less served it on the defendants. Thus
there was no proper challenge to the general election before the court.
Even if Taitz’s ex parte
motion could somehow qualify as a verified statement of contest, moreover,
Taitz did not provide us a copy of the motion.
Nor did she provide us with a reporter’s transcript or any other record
of the court’s basis for denying the motion.
We do not presume error on appeal.
It is the appellant’s burden to provide an adequate record of
review. Taitz did not do so, and thus we
would be compelled to affirm even if the challenge had been procedurally
sound. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
Finally, Taitz’s
challenge to the award of $4,000 in discovery sanctions in favor of third party
Occidental College likewise fails. Taitz
contends the trial court erroneously determined that the records she sought from
Occidental College were private. To
begin with, she has not provided us a copy of the motion, the subpoena, or the
reporter’s transcript. Accordingly, we
have no way of meaningfully reviewing the order and would affirm on that basis
alone. Further, according to the notice
of ruling prepared by Occidental College’s counsel, the court’s order was based
on numerous grounds, not simply privacy, none of which Taitz addresses in her
brief. For example, the court found, (1)
the ex parte motion to compel was prepared, filed, and served
underlying subpoena itself; (2) “[t]he ‘ex parte’ motion refers to a request
for documents pursuant to . . . Code of
Civil Procedure Section 2031.310 which applies . . . only to parties and
Occidental College is not a party in this action;†(3) the subpoena gave
Occidental College less than 24 hours to
respond; (4) the subpoena was served by e-mail; and (5) “the relief sought
cannot be obtained via ex parte application
. . . .†Taitz addressed none of these
rationales and thus waived the issue on appeal.
DISPOSITION
The
orders of the trial court are affirmed.
IKOLA,
J.
WE CONCUR:
FYBEL, ACTING
P. J.
THOMPSON, J.
the public process of processing and tallying all ballots received in an
election, including, but not limited to, provisional ballots and vote by mail
ballots not included in the semifinal official canvass. The official canvass
also includes the process of reconciling ballots, attempting to prohibit duplicate
voting by vote by mail and provisional voters, and performance of the manual
tally of 1 percent of all precincts.â€
(Elec. Code, § 335.5.)
