CURL GE som Charles H Bell, Jr, (SBN 060553) Surety Brian T, Hildreth (SBN 213141) cotttheP Geen BELL, McANDREWS, & HILTACHK, LLP JUN 28 200 455 Capitol Mall, Suite 801 Sacramento, California 95814 [AANCARLSON. Cake! Cout Telephone: (916) 442-7757 : Facsimile: (916) 442-7759. ‘By CMERRERAWREON 5 | Attomeys for Defendant, DAMON DUNN 6 7 ; SUPERIOR COURT OF CALIFORNIA : COUNTY OF ORANGE 0 Cental Ivsice Cee u 2 yy | DR ORLY TAITZ, ESQ, Case No, 30-2010-00381664 Contestant, DERENDANT DAMON DUNN'S 4 ANSWER TO CONTESTANT’S i‘ v. UNVERIFIED ELECTION CONTEST DAMON DUNN and DOES 1 through 18, 16 Defendants. Contest Filed: June 17, 2010 7 Damon Dunn, Defendant, bereinafter referred to as “Defendant Dunn,” answers 70 F Contestant Dr, Orly Tata's Unverified Statemnent of Blection Contest as follows: a INTRODUCTION 7 Contestant’s Statement of lection Contest purports to contest Defendant Dunn's 23 1 nomination as the Republican nominee for Secretary of State atthe June &, 2010 Direct Primary 24 | tection on the ground that Defendant Dunn was ineligible tobe a candidate for the Republican 25 | omination, on various grounds: some spurious grounds and others merely incoherent and ill 26 | pleaded and, in any event, ot within the scope of Elections Code section 16440, a Contestant’s Statement of Election Contest is not submitted under oath, despite the 28 explicit requirement of Elections Code section 16421 that it be in the form of an “affidavit.” An EE 1 Defendant's Answer to Election Contest10 u 2 13 4 1s 16 7 18 19 20 21 2B 24 2s 26 2 28 “affidavit” as defined in Code of Civil Procedure section 2003 is “a written declaration made under oath, without notice to the adverse party.”' Contestant’s statement fails the requirement for any oath as set forth in Code of Civil Procedure section 2015.5 that any “oath” be “certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1) if executed within this state, states the date and place of its execution, or (2) if executed at any place ‘within or without this state, states the date of execution and thet itis so certified or declared under the laws of the State of California.” For this reason, the Statement of Contest is procedurally defective. Nonetheless, the Defendant Dunn has verified this Answer, ‘Many of the contentions made in Contestant Taitz’s Election Contest are contained in a similar lawsuit brought in pro per by an associate of Contestant’s in the Superior Court of California, County of Sacramento, entitled Bennett v. Bowen, et al., Case No. 34-2010-00077415, € ptiogh Hlstions Code seston 1640 request Statements of Elston Const of gnsal clon be “verified parsuant to Code of Civil Procedure sction 446, Elections Code section 16421 and 16442, which apply to contests of primary clestons, only use th term “aidevit:" However, the term affidavit is defined In Code of Civil ‘Procedure section 2003 to mean “a written declaration made under cath.” Cade of Civil Procedure section 2015.5 provides as follows: ‘Whenever, under any law of this stale or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, ot proved by the sworn statement, declaration, verification, certificate, oath, or affidavit, in writing of the person making the same (other than a deposition, or an nth of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, covidenced, established or proved by the unswom statement, declaration, verification, or certificate, in ‘writing of such person which recites that itis certified or declared by him of her tobe true under penalty of perjury, is subscribed by him or ber, and (1), if executed this siate, stales the date and place of execution, or (2), if executed teny place, within or without this stat, states the date of execution and that it isso cenified or declared under the laws ofthe Stele of California, The cetifieation or declarton may be substantially the following form: (a) M executed within this state “Teertfy (or declare) under penalty of perjury thatthe foregoing is true and corret"; ‘Date wna Place) —Cignatare) (b) executed at any place, within or without this state: "4 centify (or declare) under penalty of petjury under the laws of the State of California that the foregoing i true and conc (ate) (Signature) 2 Defendant's Answer to Blection Contest1 2 3 4 wens 10 2 13 4 5 16 17 18 19 20 21 22. 2B 24 25 26 27 28 of which this Court is asked to take judicial notice, (Defendant's Request for Judicial Notice RIN"), 1, Exh. A.) The Attomey General and Secretary of State, who are sued as ¢o- last visited June 28, 2010; see RIN, 43, Exh, C) As of the date of filing of this verified Answer, the results ofthat election have not been certified, and no certificate of eleotion hes been issued. ‘The deadline for the Secretary of State to prepare, cettify and ile a statement of the vote from compiled returns is July 16, 2010, (Cal. Blec. Code, § 15503,) The deadline for the Secretary of State to issue a Cettificate of Nomination to Defendant Dunn is July 17, 2010. (Cal, Blec, Code, § 8147; see also Seotetary of State's June 8, 2010 Primary Election Calendar, p. 5-21, , last visited June 28, 2010; RIN, 114, Exh. D.) w “we 3 Defendant's Answer Election Contest10 rt 2 B 14 15 16 7 18 19 20 21 22 23 24 25 26 27 28 JURISDICTION For contests of statewide elections, jurisdiction is proper in the Superior Court of the County of Orange under Blections Code section 16441. ALLEGATIONS Contestant appeats to contest Defendant Dunn's nomination on the grounds that he was ineligible to hold the office of Secretary of State, the Republican nomination for which he was certified as elected, under Elections Code section 16440, subdivision (a); and that he committed offenses against the elective franchise as defined in Division 18 of the Elections Code (commencing with section 18000) under Blections Code section 16440, subdivision (b). Except as expressly admitted herein, Defendant denies each and every allegation contained in Contestant’s unverfified Statement of Election Contest. A, Elections Code Section 16440, subdivision (a) “Qualification” Allegation Contestant asserts that Defendant Dunn violated Elections Code section 8001, which requites that a candidate for the nomination of a political party at a primary election have been registered with the party for atleast three months, and not with another party within the 12 months preceding the filing of nomination papers as a candidate for the partisan office. Defendant Dunn properly qualified as a Republican candidate for the office of Secretary of State because he registered to vote as a Republican on March 9, 2009 (see Contestants Exhibit 1), which is more than three months prior to the March 12, 2010 deadline for filing nomination papers for the Republican nomination for Secretary of State, under Blections Code section 8001, subdivision (a), Defendant Dunn was not registered with any other political party in California during the 12 months preceding the March 12, 2010 deadline for filing nomination papers for the office of Secretary of State. Even assuming Dunn’s previous registration in Florida as a Democrat was deemed to be an “active registration, Dunn's March 9, 2010 Califomia Republican registration was at least 12 months prior to the March 12, 2010 deadline for filing nomination papers for the Republican nomination for Secretary of State at the June 8, 2010 Direct Primary Blection, under Elections Code section 8001, subdivision (2). 4 Defendant's Answer fo Blesion Contest