Olagues v. Russoniello

• Decision Date: 03 September 1985
• Docket Number: Nos. 82-4427,83-2581,s. 82-4427
• Citation: 770 F.2d 791
• Parties: Jose J. OLAGUES, on Behalf of himself and all others similarly situated, Plaintiffs-Appellants, v. Joseph P. RUSSONIELLO, individually and in his capacity as United States Attorney for the Northern District of California, et al., Defendants-Appellees. Jose J. OLAGUES, on Behalf of himself and all others similarly situated; Hispanic Coalition for Human Rights, Chinese for Affirmative Action, and San Francisco Lation Voter Registration Education Project, Plaintiffs-Appellants, v. Joseph P. RUSSONIELLO, individually and in his capacity as United States Attorney for the Northern Ca; O'Malley, William A., individually and in his capacity as District Attorney for Contra Costa County; Underwood, Lon, individually and in his capacity as registrar of voters for Contra Costa County; Smith, Arlo, individually and in his capacity as District Attorney for San Francisco County, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 791

770 F.2d 791

Jose J. OLAGUES, on Behalf of himself and all others

similarly situated, Plaintiffs-Appellants, v. Joseph P. RUSSONIELLO, individually and in his capacity as

United States Attorney for the Northern District

of California, et al., Defendants-Appellees.

Jose J. OLAGUES, on Behalf of himself and all others

similarly situated; Hispanic Coalition for Human Rights,

Chinese for Affirmative Action, and San Francisco Lation

Voter Registration Education Project, Plaintiffs-Appellants, v. Joseph P. RUSSONIELLO, individually and in his capacity as

United States Attorney for the Northern Ca; O'Malley,

William A., individually and in his capacity as District

Attorney for Contra Costa County; Underwood, Lon,

individually and in his capacity as registrar of voters for

Contra Costa County; Smith, Arlo, individually and in his

capacity as District Attorney for San Francisco County, et

al., Defendants-Appellees.

Nos. 82-4427, 83-2581.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Sept. 12, 1984.

Decided Sept. 3, 1985.

Joaquin G. Avila, Ronald T. Vera, Alan L. Schlosser, American Civil Liberties Union, San Francisco, Cal., and Kathleen A. Pool, California Rural Legal Assistance, Marysville, Cal., for plaintiffs-appellants.

William T. McGivern, and John D. O'Connor, Tarkington, Carey, O'Connor & O'Neill, San Francisco, Cal., for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, ALARCON, and NELSON, Circuit Judges.

WALLACE, Circuit Judge:

Olagues, a citizen, and certain organizations promoting the voting rights of Americans with Hispanic or Chinese ethnic backgrounds in the San Francisco Bay area (the organizations) sued for damages and declaratory and injunctive relief arising from a preliminary investigation by the United States Attorney and various state officials into possible violations of the Voting Rights Act of 1965, 42 U.S.C. Sec. 1973i(c), (d) (the Act), which prohibits the illegal registration of voters or conspiracies to illegally register voters. Olagues and the organizations claim violations of their rights under the Act and the first, fifth, fourteenth, and fifteenth amendments to the Constitution. The district court dismissed the injunctive claims on the ground that it lacked jurisdiction to enjoin an investigation by the United States Attorney. The district court also granted summary judgment in favor of the United States Attorney and the state officials on the remaining claims. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

I

In March and April of 1982, United States Attorney Russoniello received information from the Santa Clara county district attorney indicating that a substantial number of foreign-born individuals who had recently registered to vote were not United States citizens. The information was contained in a study of recent voter registrants whose primary language was not English. Many of the noncitizen registrants apparently believed or were told that they were entitled to vote on the basis of marriages to United States citizens or a long period of residence in the United States. Russoniello also was informed that the Spanish translation of the voter registration form erroneously stated that registrants "should be" a United States citizen, rather than stating one "must be" a citizen.

Russoniello then sent a letter on April 19, 1982, to law enforcement officers and voter registrars in nine local counties within his jurisdiction requesting their cooperation in obtaining a sampling of names from voter registration lists in order to determine whether the improper registration problem noticed in Santa Clara county was more widespread. The letter requested the forwarding of 25 names, randomly selected, of recently registered, foreign-born voters who requested bilingual ballots. The letter indicated that upon receipt of the sampling, the names would be forwarded to the Immigration and Naturalization Service (INS) to determine each individual's citizenship status. He recommended that those individuals who the INS indicated were not citizens be interviewed thereafter. Russoniello stated that he did not intend to prosecute any improperly registered voters, but that he would consider prosecuting individuals who deliberately conspired to register unqualified voters if evidence of such impropriety surfaced.

The local officials responded by forwarding the names of 168 persons, one of whom was Olagues, from the public voting lists which were subsequently checked by the INS. At Russoniello's request, local officials then conducted voluntary interviews with some of the 113 individuals whom the INS could not positively identify as citizens to determine their citizenship and, if the individuals proved not to be United States citizens, the circumstances surrounding their registration. No further investigation occurred.

II

Because the investigation has terminated, we first must determine whether there remains a live controversy for purposes of granting equitable relief. There is no question that a controversy remains with respect to damages.

We begin this analysis with the recognition that "[p]ast exposure to illegal conduct does not in itself show a present case or controversy" for equitable relief. O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974) (O'Shea). Claims for equitable relief therefore become moot when the challenged activity ceases if subsequent events show that the activities "could not reasonably be expected to recur," Chinese for Affirmative Action v. Leguennec, 580 F.2d 1006, 1009 (9th Cir.1978), cert. denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90 (1979), unless there is a possibility of "continuing, present adverse effects." O'Shea, 414 U.S. at 496, 94 S.Ct. 676.

There is a heavy burden, however, on the defendant to show that there is no reasonable expectation of repetition. United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (W.T. Grant ). Voluntary cessation of the challenged activity by the official is insufficient to render a case moot if "the legality of the challenged practices" is still in dispute because "[t]he defendant is free to return to his old ways." Id. at 632, 73 S.Ct. at 897. See Allee v. Medrano, 416 U.S. 802, 810-11, 94 S.Ct. 2191, 2197-98, 40 L.Ed.2d 566 (1974); Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 43, 65 S.Ct. 11, 14, 89 L.Ed. 29 (1944); Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1291 (9th Cir.1982) (claim is moot if subsequent "events have completely and irrevocably eradicated the effects of the alleged violation"). Moreover, a case or controversy for purposes of article III may also remain live following cessation of the challenged activity if the actions are capable (1) of repetition and (2) of evading review. See, e.g., Super Tire Engineering Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 1698, 40 L.Ed.2d 1 (1974). Finally, the existence of "a public interest in having the legality of the practices settled ... militates against a mootness conclusion." W.T. Grant, 345 U.S. at 632, 73 S.Ct. at 897 (emphasis added).

Applying this framework to the case before us, we find several factors pointing toward the continuing existence of a case or controversy for purposes of evaluating plaintiffs' equitable claims. First, the United States Attorney did not voluntarily cease the challenged activity because he felt that the investigation was improper. Rather, Russoniello terminated the investigation solely because it failed to produce evidence supporting any further investigative activities. Russoniello has at all times continued to argue vigorously that his actions were lawful.

Second, there has been no showing that an investigation conducted in the same manner against the same groups would not recur. Although Russoniello and the state officials point out that the Director of the Census now has determined that these counties no longer must provide bilingual ballot materials, see 49 Fed.Reg. 25,887-88 (June 25, 1984), Olagues and the organizations correctly observe that election officials in San Francisco, Santa Clara, Alameda and Monterey counties will continue to provide the same bilingual ballot materials as previously required by section 203(b) of the Voting Rights Act, 42 U.S.C. Sec. 1973aa-1a(b). Thus, Russoniello will continue to have the means available to conduct an investigation similar to the one challenged here. It is immaterial that the tools useful for discriminatory purposes are furnished by the state rather than by the federal government; what matters is whether federal officials may utilize them.

Russoniello is certainly empowered to investigate election fraud; it would not be unreasonable to believe that a similar investigation might arise at some point in the future. Thus, the same issues are capable of repetition. At the same time, these investigations, such as the one in the present case, may be of very short duration, making them effectively capable of evading review by an appellate court. E.g., Nebraska Press Association v. Stuart, 427 U.S. 539, 546-47, 96 S.Ct. 2791, 2796-97, 49 L.Ed.2d 683 (1976).

Other factors also suggest a live controversy. The organizations argue that their organizational efforts have been handicapped as a result of the fear engendered by this investigation. They contend that unless the legality of the investigation is determined, they may continue to suffer these chilling effects despite the termination of the initial investigation. Furthermore, there is a significant public interest in addressing both the appropriateness of permitting a challenge to a federal investigation, which raises separation-of-powers concerns, and the appropriateness of the investigatory methods employed, which raises voting rights and first amendment concerns.

This case is distinguishable from O'Shea and City...