Olagues v. Russoniello, Nos. 82-4427

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING, Chief Judge, and WALLACE, SNEED, HUG, TANG, SKOPIL, SCHROEDER, PREGERSON, ALARCON, FERGUSON, and BEEZER; PREGERSON; WALLACE, Circuit Judge, with whom SNEED, ALARCON, and BEEZER; HUG; SNEED
Citation797 F.2d 1511
PartiesJose 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 Latino Voter Registration Education Project, Plaintiffs-Appellants, v. Joseph P. RUSSONIELLO, individually and in his capacity as United States Attorney for the Northern District of California; O'Malley, William A., individually and in his capacity as District Attorney for Santa Clara 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.
Decision Date26 August 1986
Docket NumberNos. 82-4427,83-2581

Page 1511

797 F.2d 1511
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 Latino
Voter Registration Education Project, Plaintiffs-Appellants,
v.
Joseph P. RUSSONIELLO, individually and in his capacity as
United States Attorney for the Northern District of
California; O'Malley, William A., individually and in his
capacity as District Attorney for Santa Clara 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 April 29, 1986.
Decided Aug. 26, 1986.

Page 1513

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 BROWNING, Chief Judge, and WALLACE, SNEED, HUG, TANG, SKOPIL, SCHROEDER, PREGERSON, ALARCON, FERGUSON, and BEEZER, Circuit Judges.

PREGERSON, Circuit Judge.

Jose Olagues and various organizations promoting the voting rights of Chinese Americans and Hispanic Americans in the San Francisco Bay area filed a class action suit against the United States Attorney for the Northern District of California and various other government officials for damages, and declaratory and injunctive relief. Olagues and the organizations allege that a voter registration fraud investigation conducted by the United States Attorney violated the Voting Rights Act and the first, fifth, fourteenth, and fifteenth amendments to the United States Constitution.

The district court dismissed the injunctive claims on the ground that it lacked jurisdiction to enjoin an investigation by a United States Attorney. Subsequently, the court granted summary judgment in favor of the United States Attorney and the other government officials on the remaining declaratory judgment and damage claims.

The appellants contend, inter alia, that the district court erred in dismissing their injunctive relief claim and in granting summary judgment for the government officials on the appellants' claims for damages and declaratory relief.

We affirm in part and reverse in part.

BACKGROUND

On April 19, 1982, three weeks before the voter registration deadline for the 1982 California primary election, the United States Attorney for the Northern District of California, Joseph P. Russoniello, commenced an investigation of foreign-born voters who requested bilingual ballots in nine San Francisco Bay Area counties. 1 In

Page 1514

all nine counties affected by the investigation, voting materials were available pursuant to federal law in both Spanish and English. See 42 U.S.C. Sec. 1973aa-1a. In San Francisco County, they were also available in Chinese.

Russoniello sent a letter requesting the district attorneys of each of the nine counties to send him the names of twenty-five randomly selected recently registered, foreign-born voters who requested bilingual ballots so that the Immigration and Naturalization Service (INS) could verify the citizenship status of those individuals. The letter stated that further investigation would be undertaken of those not positively identified as United States citizens. In addition, the letter stated that although Russoniello did not intend to prosecute ineligible registered voters under federal law, county officials could prosecute them under the California Elections Code. Russoniello's letter also stated that he would seriously consider prosecuting any group or individual who fraudulently registered the ineligible voters.

The impetus for the secret investigation came from Russoniello's review of two reports prepared by Santa Clara County's District Attorney that summarized an investigation of foreign-born voters in Santa Clara County. The investigation focused on all foreign-born voters in the Fifth District of the City of San Jose and uncovered some cases where non-citizens had been registered to vote.

In stating his reasons for targeting only Spanish-speaking and Chinese-speaking foreign-born voters, Russoniello referred to voter registration drives recently undertaken to register those voters and the fact that the Spanish language voter registration materials did not accurately translate the requirement that a voter must be a citizen. 2 Russoniello believed that individuals who requested bilingual ballots were more susceptible to being confused or misled about voter eligibility. He was concerned that if there was widespread illegal registration, the upcoming elections would be subject to challenge.

All of the district attorneys and registrars of voters of the nine counties cooperated and sent the names Russoniello had requested. Olagues and others in the plaintiff class were among the persons investigated. 3

When information concerning the investigation became public, a variety of individuals expressed concern that the timing of the investigation and its focus on particular racial groups would have an intimidating effect on their right to vote. 4 Despite these concerns Russoniello persisted in the investigation.

On May 12, 1982, appellants Jose Olagues, the Hispanic Coalition for Human Rights, Chinese for Affirmative Action, and San Francisco Latino Voter Registration Education Project (the "Organizations") filed this class action on behalf of naturalized citizens who use Spanish or Chinese language voting materials. Their complaint alleges that United States Attorney Russoniello, the nine County District Attorneys, the nine County Registrars of

Page 1515

Voters, and INS District Director David Ilchirt (collectively the "Government") violated their civil and constitutional rights under the Voting Rights Act, and the first, fifth, fourteenth, and fifteenth amendments to the United States Constitution.

The appellants first sought to enjoin the investigation. Their declarations filed with the district court not only indicated how the investigation would adversely affect Chinese-speaking and Spanish-speaking voters, but also disclosed that the registration rate had already declined markedly in what would ordinarily have been the most successful weeks of the voter registration drive. The district court dismissed the claim for injunctive relief, holding that it lacked subject matter jurisdiction. The appellants timely appealed.

On May 26, 1982, Russoniello again wrote to the district attorneys of the nine counties concerning the investigation. He asked them to interview 113 persons that the INS could not identify as citizens. The district attorneys complied with his request. The interviews were conducted in person and by mail. Individuals who did not have proof of citizenship were asked to disclose the name of the person or the organization who had registered them.

On September 24, 1982, the Government moved for summary judgment or, in the alternative, for dismissal of the appellants' complaint and on November 30, 1982, the appellants moved for partial summary judgment. The district court granted the Government's motion for summary judgment on the declaratory relief claims, and Olagues and the Organizations timely appealed.

This is a consolidated appeal from two district court decisions. The first appeal, No. 82-4427, is from the district court's decision on May 24, 1982, dismissing that part of plaintiffs' complaint seeking injunctive relief against federal defendants. The second appeal, No. 83-2581, is from the district court's judgment and final order on September 15, 1983, granting the Government's motion for summary judgment and denying the appellants' motion for partial summary judgment.

A divided panel of this court affirmed the district court. Olagues v. Russoniello, 770 F.2d 791, 806 (9th Cir.1985), withdrawn for rehearing en banc, Nos. 82-4427 & 83-2581, unpublished order (9th Cir. Jan. 21, 1986). We took this case en banc because it raises important voting rights and constitutional issues relating to foreign-born, recently registered voters who request bilingual ballots.

DISCUSSION

I. ARTICLE III JUSTICIABILITY

"Article III of the Constitution limits the power of federal courts to deciding 'cases' and 'controversies.' " Diamond v. Charles, --- U.S. ----, ----, 106 S.Ct. 1697, 1702, 90 L.Ed.2d 48 (1986). Before we can reach the merits of this appeal, there are two jurisdictional issues we must address. First, we must decide whether the case is moot because Russoniello has terminated the investigation. Then we must decide whether any of the appellants have standing to assert the claims at issue in this case.

A. Mootness

There is no question that a case or controversy remains with respect to the damage claim. However, because Russoniello terminated the investigation, we must determine whether there remains a live case or controversy with respect to the equitable relief claim.

By itself, past exposure to illegal conduct is insufficient to establish a present case or controversy necessary to support a claim for equitable relief. O'Shea v. Littleton, 414 U.S. 488, 495, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974). Claims for declaratory and injunctive relief therefore become moot when the challenged activity ceases if subsequent events show that the activity "could not reasonably be expected to recur," Chinese...

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30 practice notes
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...a substantial likelihood exists that the relief requested will prevent the feared injury to the plaintiff. See Olagues v. Russoniello, 797 F.2d 1511, 1517 n. 7 (9th Cir.1986), vacated as moot on other grounds, ___ U.S. ___, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987). Here, however, even if the cour......
  • Walker v. Pierce, No. C-87-2628 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 6, 1987
    ...the defendant; and (3) a substantial likelihood that the relief requested will redress or prevent the injury. See Olagues v. Russoniello, 797 F.2d 1511, 1517 n. 7 (9th Cir.1986) (en banc); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). These requir......
  • Texas v. United States, Civil Action No. 11–1303 (TBG–RMC–BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 22, 2011
    ...717 F.2d 36, 41 (2d Cir.1983) (“Language, by itself, does not identify members of a suspect class.”); but see Olagues v. Russoniello, 797 F.2d 1511, 1521 (9th Cir.1986) (distinguishing Soberal–Perez v. Heckler and stating that a non-English speaking classification is facially neutral but is......
  • Pedersen v. Office of Pers. Mgmt., CIVIL ACTION NO. 3:10-cv-1750 (VLB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 31, 2012
    ...of some legitimate objective." Pylyer, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20;Page 49Olaques v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) ("Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... Bu......
  • Request a trial to view additional results
29 cases
  • American Baptist Churches in the USA v. Meese, No. C-85-3255 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • March 24, 1989
    ...a substantial likelihood exists that the relief requested will prevent the feared injury to the plaintiff. See Olagues v. Russoniello, 797 F.2d 1511, 1517 n. 7 (9th Cir.1986), vacated as moot on other grounds, ___ U.S. ___, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987). Here, however, even if the cour......
  • Walker v. Pierce, No. C-87-2628 RFP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • July 6, 1987
    ...the defendant; and (3) a substantial likelihood that the relief requested will redress or prevent the injury. See Olagues v. Russoniello, 797 F.2d 1511, 1517 n. 7 (9th Cir.1986) (en banc); see also Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). These requir......
  • Texas v. United States, Civil Action No. 11–1303 (TBG–RMC–BAH).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • December 22, 2011
    ...717 F.2d 36, 41 (2d Cir.1983) (“Language, by itself, does not identify members of a suspect class.”); but see Olagues v. Russoniello, 797 F.2d 1511, 1521 (9th Cir.1986) (distinguishing Soberal–Perez v. Heckler and stating that a non-English speaking classification is facially neutral but is......
  • Pedersen v. Office of Pers. Mgmt., CIVIL ACTION NO. 3:10-cv-1750 (VLB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • July 31, 2012
    ...of some legitimate objective." Pylyer, 457 U.S. at 216 n.14; see also, Kerrigan, 289 Conn. at 170 n.20;Page 49Olaques v. Russoniello, 797 F.2d 1511, 1520 (9th Cir. 1986) ("Whether the classification is based on an immutable characteristic is sometimes an indication of a suspect class.... Bu......
  • Request a trial to view additional results
1 books & journal articles
  • Inspections and information gathering
    • United States
    • Introduction to environmental law: cases and materials on water pollution control - 2d Edition
    • July 23, 2017
    ...to the subpoenas, the case is “capable of repetition, yet evading review” and is therefore not moot. See Olagues v. Russoniello , 797 F.2d 1511, 1516 (9th Cir. 1986). * * * An EPA subpoena is not self-enforcing. A recipient of an EPA subpoena may refrain from complying with it, without pena......

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