Reply Brief — Russoniello v. Olagues

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| _ No. 86-1217

2 ) JOSEPH F. SPANIOL, JR

RK

3n the Supreme Court of the United States

OCTOBER TERM, 1986

JOSEPH P. RUSSONIELLO, ET AL., PETITIONERS

Vv.

JOSE J. OLAGUES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY MEMORANDUM FOR THE PETITIONERS

BARLES FRIED

Solactter General

Department of Justice

Washineton. D &

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Zez | GS.

. al

TABLE OF AUTHORITIES

Cases: Page

Allen v. Wright, 468 U.S. 737 (1984) ...................... 2,4,7

City of Los Angeles v. Lyons, 461 U.S. 95 (1983)... 6,7

Deakins v. Monoghan, cert. granted, No. 86-890

ER Ey ERE RE ES See NN 6

Dewey V. Des Moines, 173 U.S. 193 (1899) -........... 3

FTC v. Standard Oil Co., 449 U.S. 232 (1980)........ 4

Heckler v. Chaney, 470 U.S. 821 (1985) ................ 3

Jett v. Castaneda, 578 F.2d 842 (9th Cir. 1978)... 7

? Kugler v. Helfant, 421-U.S. 117 (1975) 0.2... 5

Laird vy. Tatum, 408 U.S. 1 (1972) .......................... 4

Land v. Dollar, 330 U.S. 731 (1947) .................2...... 2

LaRouche v. Webster, 566 F. Supp. 415 (S.D.N.Y.

a scssccbcimunitnleva 7

Larson Vv. Domestic & Foreign Commerce Corp.,

Ie atin 2

Mitchell v. Forsyth, 472 U.S. 511 (1985) -........2...... 2

Ohio Civil Rights Comm’n v. Dayton Christian

Schools, Inc., No. 85-488 (June 27, 1986) ............ 6

Reporters Comm. for Freedom of the Press v.

American Telephone & Telegraph Co., 593 F.2d

1030 (D.C. Cir. 1978), cert. denied, 440 U.S.

a ie haeeanahanbneeusaneiiie 7

Rizzo v. Goode, 423 U.S. 362 (1976) ..........0...0000000... 6, 7

United States v. Munsingwear, Inc., 340 U.S. 36

da east de SERA aC OO a 5

United States v. Brignoni-Ponce, 422 U.S. 837

SIUNEE naaiccescecaes LOR AICS RL Le RS RCO RR OO OED 4

Wayte v. United States, 470 U.S. 598 (1985) ........ 4

Wygant v. Jackson Board of Education, No. 84-

I a asepeineetlan 4

Younger Vv. Harris, 401 U.S. 37 (1971) .................... 5, 6

Constitution and statute:

U.S. Const. :

nC csecenbatiion 4

EE ar eee tek a eam ORS 4

| 1 Ieee ee Ce 2

II

Miscellaneous: Page

R. Stern, E. Gressman & S. Shapiro, Supreme

Court Practice (6th ed. 1986) .............................. 3

Iu the Supreme Cont of the United States

OCTOBER TERM, 1986

No. 86-1217

JOSEPH P. RUSSONIELLO, ET AL., PETITIONERS

Vv.

JOSE J. OLAGUES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REPLY MEMORANDUM FOR THE PETITIONERS

In our petition, we asked the Court to decide: (1)

whether, in general, a federal district court has the

authority to entertain a pre-indictment challenge to

the manner and scope of a criminal investigation by

the Executive Branch, apart from any subpoenas,

searches, seizures, or other coercive acts that are

issued or undertaken during the investigation; and,

(2) assuming a federal court has such authority,

whether it is nonetheless barred from enjoining or

declaring an investigation unconstitutional where it

(1)

2

is undisputed that government officials have a legiti-

mate investigative purpose and have not violated any

clearly established constitutional rights. Respondents’

arguments in opposition to certiorari review of these

questions are unfounded.

1. Respondents first contend (Br. in Opp. 6-12)

that the government’s petition is “premature” and

“inappropriate for plenary review.” Such an asser-

tion is ironic in the context of this case, given our

contention that the lawsuit itself is premature and

therefore nonjusticiable..

There is, of course, no question that the Court has

jurisdiction to entertain this petition. See 28 U.S.C.

1254(1). And where the very pursuit of the litiga-

tion is the wrong to which the government is object-

ing, it is wholly appropriate for the Court to grant the

petition. See, e.g., Allen v. Wright, 468 U.S. 737

(1984). The Court has so indicated in cases where it

has found that a substantial question exists concern-

ing the propriety of allowing litigation to continue

against the United States or its agents. See Mitchell

v. Forsyth, 472 U.S. 511, 524-5380 (1985); Larson

v. Domestic & Foreign Commerce Corp., 337 U.S.

682, 685 n.8 (1949); Land v. Dollar, 330 U.S. 731,

734 n.2 (1947).

Here, the government submits that it is inappro-

priate, and highly disruptive, to allow respondents to

seek judicial supervision of criminal investigations

by the Executive Branch.’ We do not dispute that

1 Respondents imply (Br. in Opp. 5-6, 8, 13) that the peti-

tion improperly raises a new argument concerning the dis-

trict court’s jurisdiction to adjudicate their claims. As re

spondents elsewhere concede (Br. in Opp. 6), however, peti-

tioners argued in both courts below that “a federal court has

no subject matter jurisdiction to enjoin a prosecutorial inves-

3

prosecutors or law enforcement officers, like any other

officers of government, may be challenged in court

when they take actions having a direct and coercive

impact on an individual or group of individuals—as,

for example, when they issue a subpoena for testi-

mony or records, or when they execute a search war-

rant. But when the Executive Branch “does not

exercise its coercive power over an individual’s lib-

erty or property rights,” it “does not infringe upon

areas that courts often are called upon to protect.”

Heckler v. Chaney, 470 U.S. 821, 882 (1985) (em-

phasis in original). Respondents in this case object

not to any such coercive requirement or limitation on

their actions, but simply to the idea that the govern-

ment’s investigative machinery has focused on activi-

ties in which they may be involved. For the courts to

entertain such complaints would not only fly in the

face of precedent, but would create a major new

avenue for harassing litigation and the diversion of

prosecutorial efforts.

Respondents cannot properly justify this unwar-

ranted interference with the noncoercive actions of

the Executive Branch merely by claiming (Br. in

Opp. 10, 13-18) that these investigative activities

have chilled the exercise of their constitutional and

statutory rights. Even assuming arguendo that re-

spondents feel “‘intimidat[ed]” by these investigative

activities, that members of the organizational re-

tigation * * *.” The articulation and elaboration of that

argument in the petition is well within the limits of propriety.

Under the rules of this Court, parties “‘are not confined * * *

to the same arguments which were advanced in the courts

below upon a Federal question there discussed” (Dewey v.

Des Moines, 173 U.S. 193, 198 (1899)}. See generally R.

Stern, E. Gressman & S. Shapiro, Supreme Court Practice

164-165 (6th ed. 1986).

4

spondents have been “discouraged” from “participat-

ing in the voter registration drive for fear of being

swept up in this criminal investigation,” and that

Hispanic and Chinese-American citizens have been

“discouraged” from registering to vote, it neverthe-

less remains true that such investigative activities

are nonjusticiable. The price of providing an individ-

ual with a judicial forum to remedy the burdens that

result, from the mere focusing of investigative atten-

tion, according to this Court, is too high to pay. See

FTC v. Standard Oil Co., 449 U.S. 282, 244 (1980) ;

Laird v. Tatum, 408 U.S. 1, 10-15 (1972).

Nor can such premature judicial intervention be

justified by the allegation that the investigation has

focused, among other things, on the national origin

of voter registrants. This Court has long recognized

that law enforcement officials may and, indeed, often

must consider the national origin or race of suspects

and witnesses in conducting criminal investigations.

See United States v. Brignoni-Ponce, 422 U.S. 873,

886-887 (1975); Wygant v. Jackson Board of Educa-

tion, No. 84-1340 (May 19, 1986) (Stevens, J., dis-

senting). Thus, just as it has held that Article III

requires First Amendment claimants to allege that

the government has exercised its coercive powers in

a manner that adversely affects their free speech or

association rights (see Laird v. Tatum, 408 U.S. at

10-15), so has the Court held that equal protection

claimants must allege that government has exercised

its coercive powers in a discriminatory manner before

the jurisdiction of a federal court may be invoked.

See Allen v. Wright, 468 U.S. 787, 753-756 (1984) ;

cf. Wayte v. United States, 470 U.S. 598, 607-608

(1985) (selective prosecution claim may be raised

after indictment has been filed). Respondents have

made no such allegations here.

5

Respondents’ claim that the petition is premature

is not strengthened by their argument that interven-

ing state law developments arguably may have

changed the information concerning voter registrants

available to law enforcement offici Such changes

in state law cannot alter the nonjusticiability of the

underlying controversy nor, assuming that jurisdic-

tion exists, can they alter the government’s entitle-

ment to summary judgment (as granted by the dis-

trict court), where the undisputed evidence shows

that petitioners’ investigation had a legitimate pur-

pose and did not violate any clearly established rights.

2. Respondents also err (Br. in Opp. 18-22) in

answering our second point—that, even if a chal-

lenge to non-coercive investigative actions is justici-

able, equitable principles bar the granting of injunc-

tive or declaratory relief against the government,’

except in extraordinary circumstances not present

here. See Younger v. Harris, 401 U.S. 37, 43-44

(1971) ; Kugler v. Helfant, 421 U.S. 117, 123 (1975).

While that principle has been most frequently articu-

2 The citation to these intervening legal developments could

be relevant only to a claim that respondents’ prayers for

equitable relief are moot. Respondents, however, noticeably

have stopped short of suggesting that their prayers are moot,

realizing that in such circumstances this Court would have to

vacate the judgment of the court below and remand with

instructions to dismiss. See United States v. Munsingwear,

Inc., 340 U.S. 36, 39 (1950).

5’ Respondents likewise err in suggesting (Br. in Opp. 18)

that the question whether basic principles of equity juris- ae

prudence bar the issuance of injunctive or declaratory relief

in the circumstances of this case was not raised in the court

below. That question was the principal focus of Judge

Wallace’s dissent. See Pet. App. 29a-31a; see also id. at 54a-

58a, 62a-64a.

seeateenetineeeeniieiee

6

lated in cases dealing with the authority of federa:

courts to intervene in pending state criminal cases,*

it has also been applied to cases dealing with the

authority of the federal courts to enjoin or declare

unconstitutional state law enforcement practices

(where no proceedings are pending). See City of Los

Angeles vy. Lyons, 461 U.S. 95, 112 (1983); Rizzo

v. Goode, 423 U.S. 362, 379 (1976).° As the holdings

4 We note that in Deakins v. Monoghan, cert. granted, No.

86-890 (Jan. 27, 1987), the Court will decide whether a federal

court must abstain from addressing federal constitutional

claims where a state grand jury investigation is pending.

This petition need not be held pending the Court’s resolution

of Deakins. This case does not involve abstention principles

or state grand jury proceedings. Rather, it concerns whether a

federal court may enjoin or declare unconstitutional a federal

prosecutor’s criminal investigation in the absence of extraor-

dinary circumstances. Thus, while somewhat analogous law

enforcement concerns are at stake in the two cases, the Court’s

decision in Deakins will not affect the resolution of the ques-

tions raised here.

5In suggesting (Br. in Opp. 19-21) that the basic equity

principles underlying this Court’s decision in Younger V.

Harris, 401 U.S. 37 (1971), do not apply where a state crimi-

nal proceeding is not pending, respondents confuse the cir-

cumstances in which federal courts must “abstain” from

deciding federal questions with the circumstances in which

equity principles bar federal courts from issuing equitable

relief. Absent “extraordinary circumstances,” a federal court

must “abstain” from adjudicating any federal question where

state proceedings that will culminate in judicial review of

those claims are pending. See Ohio Civil Rights Comm’n y.

Dayton Christian Schools, Inc., No. 85-488 (June 27, 1986).

In the absence of such pending proceedings, the federal court

may adjudicate claims for monetary relief regardless of the

circumstances (unless an immunity exists). Even where no

state proceedings are pending, however, the federal court may

not issue injunctive or declaratory relief in the absence of

7

of the lower federal courts illustrate (see, e.g., Re-

porters Comm. for Freedom of the Press v. American

Telephone & Telegraph Co., 593 F.2d 1030, 1065

(D.C. Cir. 1978), cert. denied, 440 U.S. 949 (1979) ;

Jett v. Castaneda, 578 F.2d 842, 845 (9th Cir.

1978) ; LaRouche v. Webster, 566 F. Supp. 415, 417

(S.D.N.Y. 1983)), no lesser restriction on judicial

power can apply where federal criminal investigative

activities are concerned. See Allen v. Wright, 468

U.S. at 760.

As we noted in our petition (at 24-27), no

“extraordinary circumstances” can be found on the

undisputed facts in this case. As the court of appeals

itself found, petitioners clearly had a legitimate in-

vestigative purpose in this case, to wit, “preventing

voter registration fraud” (Pet. App. 19a); there is

no “evidence that * * * the Government intended to

deny or abridge [respondents’] right to vote” (id. at

21a); and “the government officials did not violate

[any] ‘clearly established’ rights” by their conduct of

the investigation (id. at 24a). Accordingly, there is

no basis for subjecting petitioners to additional pro-

ceedings in the district court.

For the foregoing reasons and the additional rea-

sons stated in the petition for a writ of certiorari, it

is respectfully submitted that the petition for a writ

of certiorari should be granted.

CHARLES FRIED

Solicitor General

APRIL 1987

“extraordinary circumstances.” See City of Los Angeles v.

Lyons, 461 U.S. at 112; Rizzo v. Goode, 423 U.S. at 379. That

is the situation here.

vw o.s. GOVERNMENT PRINTING OFFicE, 1987 181483 40284