Zaldivar v. City of Los Angeles

• Decision Date: 10 July 1984
• Docket Number: No. CV 84-1238-DWW (Gx).,CV 84-1238-DWW (Gx).
• Citation: 590 F. Supp. 852
• Parties: Richard L. ZALDIVAR, Cornelia S. Crossman, Esperanza Rodriguez, Ruth Swiggett, Yokio Kaneda, and Antonia Flores, Plaintiffs, v. CITY OF LOS ANGELES; Elias Martinez, as City Clerk of the City of Los Angeles, Defendants, Margaret Salazar, Armando R. Acosta, Angela Baray; Charlotte Rae Burrell; and Richard Hodgin, Intervenors.
• Court: U.S. District Court — Central District of California

590 F. Supp. 852

Richard L. ZALDIVAR, Cornelia S. Crossman, Esperanza Rodriguez, Ruth Swiggett, Yokio Kaneda, and Antonia Flores, Plaintiffs, v. CITY OF LOS ANGELES; Elias Martinez, as City Clerk of the City of Los Angeles, Defendants, Margaret Salazar, Armando R. Acosta, Angela Baray; Charlotte Rae Burrell; and Richard Hodgin, Intervenors.

No. CV 84-1238-DWW (Gx).

United States District Court, C.D. California.

July 10, 1984.

Iverson, Yoakum, Papiano & Hatch, Los Angeles, Cal., for plaintiffs.

Fredric D. Woocher, Ethan P. Schulman Center for Law in the Public Interest, John E. Huerta, Mexican American Legal Defense and Educational Funds, Inc., Kenneth Cirlin, Deputy City Atty., Los Angeles, Cal., for defendants.

ORDER GRANTING INTERVENORS' MOTIONS FOR DISMISSAL and SANCTIONS

DAVID W. WILLIAMS, Senior District Judge.

Arthur K. Snyder was elected Councilman of the 14th Council District of the City of Los Angeles on April 12, 1983. Shortly after his election, supporters of the candidate he defeated, Steve Rodriguez, initiated a campaign to have Snyder recalled. On December 2, 1983, the recall proponents served on Snyder, and had published in the Los Angeles Daily Journal, a notice of intention to recall Snyder and the reasons for the proposed recall. In accordance with the requirements of the City Election Code in effect at the time, the notice and accompanying statement were published and printed in English only. On December 16, 1983, Snyder published his answer to the recall statement in the Los Angeles Herald Examiner in both English and Spanish.

On December 23, 1983, the recall proponents began circulating petitions and gathering signatures. On that date, however, the Los Angeles City Council unanimously passed Ordinance No. 158584, effective December 27, 1983, which provided that all recall materials must be published in both English and Spanish. The recall proponents then reprinted their petitions in English and Spanish and continued their efforts to get signatures for the recall. The petitions were tendered to the City Clerk on February 8, 1984, but were refused because the new ordinance required both the petition and the initial notice to be printed in English and Spanish. The recall proponents then initiated an action in the Superior Court of Los Angeles County to compel the City Clerk to accept the petitions for filing and determine whether there were sufficient signatures for a recall election to be held. The Superior Court found in favor of the recall proponents but the City of Los Angeles filed a notice of appeal thus staying the Superior Court's ruling. As a result, the City Clerk stopped processing the recall petition. The recall proponents proceeded to file an emergency application for an Order from the Court of Appeal dissolving the automatic stay of the Superior Court's ruling pending appeal. The Court of Appeal dissolved the stay and directed the City to comply with the Superior Court's ruling. After many delays, the signatures were counted and the clerk determined there were sufficient signatures for a recall election to be held. The election is presently scheduled for August 21, 1984.

Proceedings in this Court.

Plaintiffs, supporters of Snyder, filed a complaint alleging the proponents of the recall election violated the Voting Rights Act, 42 U.S.C. § 1973aa-1a(b), (c), by publishing the notice of intention to recall in English only and sought to prevent the clerk from processing the petitions. Plaintiffs sought a temporary restraining order (TRO) and the defendants did not oppose the motion. The Court denied the motion and the recall proponents intervened in the action. A hearing on the issuance of a preliminary injunction enjoining the Clerk from counting the signatures on the petition was set for March 19th and the Court issued an Order the next day denying the motion. On April 2, 1984, Intervenors filed a motion to dismiss the first amended complaint. The motion was noticed for a hearing on May 7th but the parties stipulated to continue the hearing till May 21st. The stipulation provided that plaintiffs were to file opposition by April 23rd. Instead of filing opposition papers, plaintiffs filed a notice of dismissal pursuant to Rule 41(a)(1) of the Federal Rules of Civil Procedure. Intervenors challenged the propriety of the dismissal and the Court vacated the notice of dismissal because it was untimely. Thus, the case was again live and plaintiffs were given the choice of either responding to the Intervenors' motion to dismiss, or seeking a Court dismissal pursuant to Rule 41(a)(2). Plaintiffs chose the former. There is a motion to dismiss before the Court, and the Intervenors also move for an award of attorney's fees and costs as sanctions for plaintiffs' bringing this lawsuit.

II.

A. Motion to Dismiss.

In order to decide this motion to dismiss, the Court will have to look to material outside the pleadings. When the Court does this, the motion to dismiss must be treated as one for summary judgment. Portland Retail Druggists Ass'n v. Kaiser Found. Health Plan, 662 F.2d 641, 645 (9th Cir.1981). Accordingly, this motion will be treated as one for summary judgment.

When a Rule 12(b)(6) motion is converted to a summary judgment motion, the general rule is that the nonmoving party must be given notice and a reasonable opportunity to contest the motion. Id. No notice is necessary in this case because the plaintiffs are aware the motion to dismiss would be treated as one for summary judgment; it was on this basis the notice of dismissal pursuant to Rule 41(a)(1) was deemed untimely and thus vacated. Intervenors, then, are entitled to summary judgment if the record before the Court reveals the absence of any material issue of fact and the Intervenors are entitled to judgment as a matter of law. See id. There are no material issues of fact that require trial and the Intervenors are entitled to judgment as a matter of law.

(1) Violation of the Voting Rights Act.

Plaintiffs contend the proponents of the recall election (Intervenors) violated the Voting Rights Act by publishing the notice of intention to recall in English only. Specifically, plaintiffs contend 42 U.S.C. § 1973aa-1(b) which provides that

no State or political subdivision shall provide registration or voting notices, forms, instructions, assistance, or other materials or information relating to the electoral process, including ballots, only in the English language if the Director of the Census determines (i) that more than 5 percent of the citizens of voting age of such State or political subdivision are members of a single language minority and (ii) that the illiteracy rate of such persons as a group is higher than the national illiteracy rate....,

and (c), which provides further, that any registration or voting notices, forms, instructions, assistance, or other materials or information pertaining to the electoral process shall be in the language of that minority group as well as in English. The language of the relevant minority group in the 14th District is Spanish and the Court must determine whether the sections of the Voting Rights Act referred to above were violated by the publication of a Notice of Intention to Recall in English only. There appears to have been no violation.

The statute provides that "no State or political subdivision" shall distribute election related materials in English only when more than five percent of the citizens of voting age are members of a single language minority. There is no dispute that Snyder's District constitutes a "political subdivision." In this case, however, the District as an entity was not involved in the recall attempt. Rather, private citizens were solely responsible for the successful attempt at getting Snyder's name placed on a ballot for recall. The Voting Rights Act cannot be properly construed as applying to such situations. The Act clearly requires State action before its requirements can be imposed and plaintiffs have not established a link between the proponents of the recall campaign and the District.

Furthermore, the language of the statute indicates that it applies to information relating to the electoral process. Plaintiffs contend that the recall petition process should be considered part of the electoral process. Such a position requires a rather distorted view of the electoral process because nothing one would associate with an election occurs at that stage; principally, no voting occurs. Plaintiffs' principal challenge is directed at the publication of the notice of intention to recall in English only. The Court cannot reasonably conclude that such conduct violates the Act when it is merely the first step in a process which might ultimately lead to the holding of an election to recall an elected official. Now that an election has been scheduled, the terms of the statute are applicable because its legislative history indicates Congress was concerned about impediments to a citizen's ability to exercise his right to vote. Spanish speaking citizens cannot be considered to have been deprived of their right to vote by the publication of a notice of intent to recall in English only. See Gerena-Valentin v. Koch, 523 F.Supp. 176 (S.D. N.Y.1981).

Plaintiffs also argue that a notice of intention to recall should be considered a prerequisite to voting. That is stretching things a bit far. Plaintiffs refer to 42 U.S.C. § 1973l (c)(1) which defines "vote" or "voting" as "all action necessary to make a vote effective in any primary, special, or general election including ... any action required by law prerequisite to voting, casting a ballot, and having such ballot counted properly and included in the appropriate total of votes cast ...." This argument suffers from the same defect as the one raised above. That is, there is no voting until there are sufficient signatures on the petition for recall so that an election can be held. Additionally, nowhere is it...